Shopping Actions Merchant Program Addendum

Welcome to Shopping Actions(“SA”). This Shopping Actions Addendum (“SA Addendum”) is entered into by Google LLC (“Google”) and the entity executing this SA Addendum electronically (“Merchant”). The SA Addendum is an addendum to the Google Advertising Program Terms that are currently in effect between Google and Merchant (“Ad Terms”) and governs Merchant’s participation in any SA program. If there are no Ad Terms in effect between Google and Merchant as of the date Merchant agrees to this SA Addendum, then the terms found at www.google.com/ads/terms will govern Merchant’s participation in any SA program and are incorporated by reference. If there is a conflict between this SA Addendum and the Ad Terms, this SA Addendum will govern. SA is considered a “Program” under the Ad Terms, and Merchant is considered a “Customer” under the Ad Terms. This SA Addendum supersedes all other agreements between the parties relating to its subject matter (excluding any Google Express Merchant Direct Agreement, Google Shopping Express (GSX) Merchant Agreement, or Google Local Shopping Service Merchant Agreement in effect as of the date this SA Agreement is entered into).

Google Merchant Center and AdWords. Participation in SA requires (i) Merchant to create and maintain a Google AdWords account and (ii) the use of Google Merchant Center. The use of Google Merchant Center is governed by the Google Merchant Center Terms of Service, available at https://support.google.com/merchants/answer/160173?hl=en, which are hereby incorporated by reference. The information collected by Google through SA is governed by Google’s Privacy Policy, available at http://www.google.com/policies/privacy/.

Policies. Google maintains rigorous standards for items eligible for listing through SA. Except as expressly set forth in this SA Addendum, the Google Shopping Policies, available at https://support.google.com/merchants/topic/2701546, the Google Payments Policies, available at https://support.google.com/payments/merchant/answer/75724, the Merchant Promotions Program Policies, available at https://support.google.com/merchants/answer/2877565, and the Google Express Policies available at https://support.google.com/merchants/topic/7645622 (collectively, the “SA Policies”) will apply to all items sold through SA.

Purchases on Google. Participation in the Purchases on Google program will remain subject to the Purchases on Google Addendum found at https://www.google.com/shopping/transactions/static/tos/us/4_00_tos.html until March 31, 2018. If there is a conflict between this SA Addendum and the Purchases on Google Addendum for the cost per click charging component of the Purchases on Google program, then Purchases on Google Addendum will govern until March 31, 2018.

Updates. Google may add to, delete from or modify this SA Addendum at any time. Changes to this SA Addendum will not apply retroactively and will become effective 7 days after posting. However, changes specific to new functionality or changes made for legal reasons will be effective immediately upon notice.

1. Definitions:
   

1. “API” means Google’s proprietary application programming interface through which Merchant may communicate with Google in connection with the SA.
2. “Carrier” means a Program User’s card issuer or carrier.
3. “Carrier Billing Account” means Program User’s billing account with a Carrier.
4. “Confidential Information” means information that one party (or an affiliate) discloses to the other party under this SA Addendum, and which is marked as confidential or would normally under the circumstances be considered confidential information. Confidential Information does not include information that the recipient already knew, that becomes public through no fault of the recipient, that was independently developed by the recipient, or that was lawfully given to the recipient by a third party.
5. “Feed” is the Item Content and availability feeds that Merchant will provide to Google via Google’s Merchant Center.
6. “Shopping Actions” or “SA” means all or part of the Google shopping service (including on the Google Express digital mall) that includes item search functionality, order placement and order management, and payment processing.
7. “Google Payments Account” means a Merchant account for Google’s payment processing service.
8. “GPC” means Google Payment Corporation, the wholly owned subsidiary of Google that operates and administers Google’s payment processing service.
9. “include” or “including” means “including but not limited to.”
10. “Item Content” means the images and description data for items sold by Merchant through SA.
11. “Loyalty Number” means a Program User’s identification number for, if applicable, Merchant’s loyalty program.
12. “Merchant” means the entity executing this SA Addendum or that accepts this SA Addendum electronically.
13. “Order Cap” means a maximum number of daily orders.
14. “Other Taxes” means, with respect to fees payable by Merchant means any duties, customs fees, or taxes (other than Google’s income tax) associated with the provision of SA to Merchant, including any related penalties or interest.
15. “Program User” means an end user of SA.
16. “Program User Information” means certain Program User personal information including the Program User’s name, shipping address, and other information provided by the Program User.
17. “RMA” stands for Return Merchandise Authorization
18. “SA Order” means an order by a Program User from a Merchant.

2. Item Content; Google Services

1. Provision and Use of Item Content. SA contains programs within which Merchant authorizes Google to use automated tools to format item images and description data for Item Content. Merchant may provide Item Content (a) through its Feed or the API or (b) by providing a list of items to Google for which Google may assist Merchant in the selection and generation of Item Content by retrieving the Item Content from third party sources or Merchant's online properties. All Item Content provided by Merchant under this Section is “content” and all URL(s) for Merchant’s online properties are “URL(s)” under the Merchant Center Terms of Service.  Merchant grants to Google and its affiliates a royalty-free, perpetual, irrevocable, non-exclusive, worldwide license to use the Item Content for the limited purpose of operating, promoting, and improving SA, and to develop new products and services.    For Item Content, Google may annotate associated ads, web search, item listings, and other associated Merchant results or listings on any Google service as available through SA.  Merchant grants to Google and its affiliates a royalty-free, non-exclusive worldwide license to use its name, logos, product reviews, and Item Content in advertisements and other marketing activities. For example, Google may surface and advertise Item Content on Google properties such as YouTube and Google search results pages and on other properties. Merchant may provide Google with Merchant logos of size and quality suitable for use in advertising and Merchant represents and warrants that it has all necessary rights for Google to use Merchant logos.

1. Merchant Responsible for Items and Their Sale. Merchant will be seller of record for all of Merchant’s items sold through SA. As the seller of record, Merchant is solely responsible for the items provided to Program Users and will comply with all applicable laws, rules and regulations in connection with its sale of items through SA. Merchant will have and maintain the appropriate licenses and permits required for its participation in SA. Merchant will provide Google with notice of legal or regulatory sale requirements that affect Google’s provision of SA (examples include safety warnings and quantity restrictions on controlled substances).

1. Disclosure of Quantity Data. For clarity, Google may publicly disclose numerical quantity of merchant’s items from the Feed in connection with SA programs.

1. Google Precautionary Measures. To ensure service quality and the proper use of SA, Google may audit the Feed to confirm Merchant’s compliance with this SA Addendum and applicable laws (collectively “Precautionary Measures”), including the use of confirmation tools within its internal systems.  As between Google and Merchant, such Precautionary Measures do not constitute an assumption of responsibility or liability by Google, nor do they override or lessen Merchant’s responsibilities or liability under this this SA Addendum or applicable law.

5. Order Cap. Google may implement and enforce an Order Cap. The Order Cap will only include Orders that have been passed to Merchant by Google for fulfillment.

1. Parity with SA. Merchant must list items on SA at prices equal to or less than the prices, including promotions to the extent they are supported by Google, that those items are offered for sale via Merchant’s other digital channels, including Merchant’s website, other Merchant-operated sales channels, and third-party channels, e.g., Merchant’s marketplace presences.

1. Excluded Items. On behalf of a Program User, due to technical limitations, to protect SA, or for other reasons, Google may, at its sole option, exclude certain items or certain information about items (“Excluded Items”), including online promotions not supported by Google. Merchant will not make Excluded Items available on SA. Excluded Items on SA may include pharmaceuticals, vitamins, or supplements, offers for custom products, bundled service plans, used or refurbished products, digital goods, digital subscriptions, items requiring in-store activation, and items sold by marketplace sellers.

1. Restricted Items. Certain items that are currently Excluded Items might later be permitted under this SA Addendum subject to special conditions or requirements, in Google’s sole discretion, and may require additional special treatment and handling which will be responsibility of the Merchant. If such items are permitted in the future, this SA Addendum will be updated accordingly.
   
2. Customer-Facing Fees. Google may not support the collection of customer-facing fees, such as eWaste or CRV. If Google does not collect such fees, Merchant is responsible for covering these fees or excluding items subject to fees.

1. Latency. If a Merchant submits updated Item Content, Merchant understands that there may be a delay of up to 1 day in updating the offers displayed to Program Users.

3. Payments; Refunds
   

1. Google Payments Account. Merchant will provide current, complete, and accurate registration information necessary to establish a Google Payments Account, and will maintain and promptly update that information with Google if it changes. Merchant consents to GPC establishing a Google Payments Account on Merchant’s behalf for processing payments and other financial transactions in connection with SA.

1. Processing for Program User Payments. When a Program User makes a purchase from  Merchant via SA, then GPC, as the SA payment processor for Merchant, will submit charges to Carrier for payment and processing through the Carrier Billing Account. A reversal, refund, or adjustment of that payment transaction may also be submitted by GPC, as processor for Merchant, to the Carrier for processing through the Carrier Billing Account. Once the funds from a SA payment transaction are received from a Carrier Billing Account by GPC, those funds will settle to the Merchant’s Google Payments Account. Merchant acknowledges that the authorization is not a confirmation of the Program User’s identity; nor is an authorization a guarantee by GPC that the transaction will not be subject to a chargeback or other reversal. Approximately 3 business days after the Program User’s Carrier Billing Account has been charged for the SA purchase, GPC will cause an ACH transfer of funds from the Merchant’s Google Payments Account to the bank account specified by the Merchant, unless the Merchant has already been compensated for the SA purchase.

1. Refunds and Adjustments. If a Program User is due a refund, Google will initiate a refund to the Program User. The amount refunded to a Program User by Google (the “Actual Customer Refund”) may exceed the refund amount authorized by Merchant (“Merchant Authorized Refund”), if Google determines in its sole discretion that a higher amount is owed to the Program User. Merchant consents to Google determining when a user is due a refund or replacement order and Merchant will be responsible for all associated costs.  Merchant consents to Google issuing the Actual Customer Refund. Merchant agrees not to accept cash or any other consideration from a Program User in exchange for issuing a refund to a Program User. Merchant agrees not to give a cash refund to a Program User in connection with a SA Order unless required by law. If Merchant provides a refund through a means other than through Google’s payment processing service, Merchant remains responsible if the underlying payment transaction results in a chargeback.

1. Reconciliations, Chargebacks, Fraudulent Transactions and Reserves. Merchant consents to GPC transferring funds to and from the Merchant’s Google Payments Account to reconcile SA purchases and refund transactions. Merchant acknowledges that even if the Merchant’s return/cancellation policy prohibits returns or cancellations, Merchant may still receive chargebacks relating to the transactions and that Program Users may retain a chargeback right pursuant to card association and network rules and/or their agreement with the holder of their payment account. If a Program User files a chargeback, GPC will make a commercially reasonable effort to fully investigate the Program User’s claim (a “Chargeback Investigation”), and, whenever possible, dispute the chargeback on Merchant’s behalf. If a Chargeback Investigation determines a chargeback is the result of theft or the unauthorized use of a third-party's credit card information (a “Fraud Chargeback”), GPC will bear the cost of that Fraud Chargeback. For any other chargeback (an “Other Chargeback”), Merchant will not be charged if the Other Chargeback is successfully disputed by Google and GPC. GPC may charge the Merchant’s Google Payments Account, withhold payments, reverse previous payments or invoice Merchant for reimbursement of amounts previously paid to Merchant (i) for Other Chargebacks; (ii) if GPC believes that a SA payment transaction involves misconduct, fraud or violation of law by Merchant, or otherwise violates this SA Addendum;  (iii) to reconcile the difference between any Actual Customer Refund and Merchant Authorized Refund or any other payment discrepancies, or (iv) if Google determines that Merchant’s performance or actions poses a risk to Google or third parties as determined by Google in its sole discretion. Merchant agrees to cooperate with GPC and to provide any information that may be reasonably requested by GPC in its investigation of any of the foregoing circumstances, including Chargeback Investigations. Google may establish a reserve on Merchant’s Google Payments Account based on Google’s assessment of risks to Google or third parties posed by Merchant’s actions or performance, and Google may modify the amount of the reserve from time to time at Google’s sole discretion.

1. Title and Sales Tax Collection. Title for items purchased through SA will pass directly from Merchant to the Program User at the point of delivery. Merchant is responsible for calculating and informing Google how much sales tax to collect on each SA Order, either with a sales tax engine made available by Google or through other means. Google will collect the instructed amount from the Program User and will remit the monies to the Merchant. Merchant will then be responsible for remitting all applicable sales tax to the appropriate taxing authority. If the sales tax amount displayed to a Program User during a SA transaction is too high, the Merchant may downwardly adjust that sales tax amount before shipping the SA Order. If a Program User is undercharged tax during a SA transaction, neither Google nor the Merchant will subsequently charge the Program User for the additional tax amount. Regardless of the tax amount calculated by the Merchant or collected through SA, Merchant is solely responsible for ensuring the appropriate tax amount is remitted to the applicable tax agency.

1. Taxes with Respect to Fees Payable by Merchant. Merchant is responsible for any Other Taxes, and Merchant will pay Google for SA without any reduction for such amounts. If Google is obligated to collect or pay Other Taxes, the Other Taxes will be invoiced to Merchant, unless Merchant provides Google with a valid tax exemption certificate authorized by the appropriate taxing authority.  If Merchant is required by law to withhold any Other Taxes from its payments to Google, Merchant must provide Google with an official tax receipt or other appropriate documentation to support such withholding.

1. Compliance with Laws. GPC is responsible for ensuring that the payment process described herein complies with applicable payment processing laws, rules and regulations, and Merchant is responsible for ensuring that its participation in SA complies with applicable laws, rules and regulations.
   
2. Google Sets Program User Service Fees. Google solely determines Program User-facing service fees, where necessary. Google may change Program User-facing fees, membership plans, and shipping plans at any time without notice.

1. Temporary Promotions. From time to time, Google may fund, either in full or in partnership with Merchant or a third party, temporary promotions on Merchant items.  These promotions may be applied on SA at the order level, across SA or on associated fees (including but not limited to shipping rates).  

1. Fee Schedule and Invoicing. Fees payable by Merchant for applicable programs are set forth in Section 7 (Pricing), below. Google will invoice Merchant for any necessary program fees and service credits, or reconciliatory amounts owed by Merchant for a calendar month within 45 days after the end of that calendar month. Merchant will pay all undisputed invoices within 30 days of date of invoice. Any portion of an invoice not disputed in good faith must be paid on time and in full. Late payments bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Any invoice disputes by Merchant must be submitted to Google in writing within 15 days of the date of the applicable invoice. Google reserves the right to correct at any time errors in its invoicing of Merchant, whether those errors have benefited Google or Merchant.
   

4. Program User Information

1. Protection of Program User Information. Google may share certain Program User Information with Merchant, which may include a Loyalty Number. Merchant may use any Loyalty Number shared with Merchant by Google in accordance with Merchant’s privacy policy only if the Program User to whom that Loyalty Number is assigned has been given legally acceptable notice of, and consented to, Merchant's privacy policy, and any other terms applicable to Merchant’s loyalty program. Each party will take appropriate steps to protect the security, privacy, and confidentiality of Program User Information that it receives via SA. Neither party will provide the other with any data in a manner that violates applicable law or its own privacy policies.
   
2. Usage Restrictions. Merchant will only use Program User Information it receives from Google for analytics or order fulfillment in connection with SA programs solely as set forth in this SA Addendum. A Merchant will only use Program User Information for marketing-related communications as set forth below under “Program User Marketing Choice”. Merchant will ensure its privacy policy is legally compliant and provide Google with an updated URL linking to its privacy policy. For clarity, none of the usage restrictions in this SA Addendum are intended to limit Merchant’s ability to use any information lawfully collected by a Merchant independent of SA.
   
3. Program User Marketing Choice. Google may offer Program Users the ability to opt-in via SA to share their User Information with Merchant for use in accordance with Merchant’s privacy policy (the “Merchant Opt-In”).  Merchant may use the User Information for all Program Users who choose the Merchant Opt-In in accordance with Merchant’s privacy policy.  Merchant will (i) ensure its privacy policy is legally compliant; (ii) provide Google with an updated URL linking to its privacy policy as necessary to include in the Merchant Opt-In; and (iii) provide any Program Users to whom it sends marketing emails using an email address provided by Google with the opportunity to opt out of receiving such emails as required by applicable law.  For clarity, other than Loyalty Numbers and User Information for Program Users who choose the Merchant Opt-In, Merchant will use all Program Users Information provided by Google in connection with SA solely as set forth in the Google Shopping Policies. The Merchant Opt-In will appear to Program Users in the same way that Merchant offers a choice to receive marketing-related communications on Merchant’s website, except where the Merchant Opt-In is forced with no ability for the Program Users to opt-out. Examples of permitted use cases include: (i)  if Merchant offers an un-checked opt-in choice for marketing-related communications on its own website, the Merchant Marketing Choice on SA will appear as an un-checked opt-in choice; or (ii) if Merchant offers a pre-checked opt-out choice for marketing-related communications on its own website, the Merchant Marketing Choice on SA will appear as a pre-checked opt-out choice. 

5. Order Management

1. Manual and API Order Management Systems. Merchants accessing SA Orders will do so through Google’s Order Management System (either manually or via an API). Merchant agrees to honor the price, shipping speed and shipping method displayed on a merchant-submitted SA offer if a Program User has purchased the item via SA. Merchant also agrees to honor the shipping cost, fees and any other promotional information set by a Merchant for all SA-eligible items. Within one day of shipment, Merchant must update “Shipped” status in Merchant Center or via API. Within two business days of receiving a qualified item return, Merchant must update item state to “Returned” status in Merchant Center and initiate  the Merchant Authorized Refund. 

1. Shipping Deadlines. Program User orders will be canceled after 3 days from the end of the handling time window if the order is not marked as shipped. If the order contains items with differing handling times, Google will reference the longest handling time for such cancellations.  

1. Tracking Numbers. Merchant must upload tracking numbers to Merchant Center within 24 hours of the order being marked as shipped.

6. Customer Service Guidelines.

1. SA Receipts. Google will provide each Program User with an electronic receipt for any SA Orders. Merchant will not provide Program User with electronic receipts. 

1. Customer Service Guidelines. Merchant acknowledges that it may receive a request for forms of Program User support from Google. Merchant agrees to provide specific contact channel(s) for Google to escalate issues as needed and to meet a response time of 8 business hours or less.

1. Initiating Returns: Returns must be initiated by the Program User via Google Express within 30 days from the date of delivery, or longer if allowed under Merchant’s standard return policies. At such time, Google will provide the Program User with a printable return label, packing slip, and Google Express "RMA" that includes a Google Order ID, a Google Return ID, Merchant's order ID (if provided by merchant), item titles, and return reasons to identify the return to the Merchant. Returns will not be permitted for Program Users who attempt to make a return after 30 days from the date of delivery (or later depending on the Merchant’s standard return policy).

1. Return Costs:  Return shipping will be paid by Merchant using Google rates, and Google will invoice Merchant for return shipping costs. If Merchant does not offer free returns to Program Users, Merchant will charge for returns as a pass-through cost to be automatically deducted from Program User refunds. Merchants will not charge restocking fees. Merchant will specify where return items will be shipped to (either a merchant owned return address or the Google centralized returns address, subject to additional cost). 

7. Pricing

For SA, the commission rates detailed below will apply to the final net price charged, including any shipping fees assessed, to the Program User. The commission will be calculated based on the item category as determined by Google at the time of sale. For clarity, the commission assessed on shipping fees for a specific order will be the blended average commission for that order. Associated taxes collected from the Program User at the time of sale, as calculated by Google’s tax engine or by other Google-approved means, are excluded from the commission calculation. Google may offer a discounted commission rate than those described below and the details and terms of such rates may be provided to Merchant in a separate document.

1. Commission Rate Schedule:

8. Confidentiality; Retention of Rights 
   

1. Confidentiality. The recipient of Confidential Information will not disclose such Confidential Information, except to affiliates, employees, agents or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that those people and entities use the received Confidential Information only to exercise rights and fulfill obligations under this SA Addendum, while using reasonable care to keep it confidential. The recipient may also disclose Confidential Information when required by law after giving reasonable notice to the discloser if legally permissible.
   
2. Retention of Rights. Other than as set forth in this SA Addendum, Google retains all right, title and interest in SA, including all intellectual property rights relating to SA. Merchant will not sell, lease, sublease, alter or use any assets provided to Merchant under this SA Addendum for any purpose other than to fulfill orders through SA.  

9. Indemnification
   

1. Obligations. Merchant will defend and indemnify Google, directors, officers, and employees against all liabilities, damages, losses, costs, fees (including legal fees), and expenses relating to any allegation or third-party legal proceeding to the extent arising from: (i) Merchant’s fraud, misrepresentation, willful misconduct, breach of this SA Addendum, or violation of law or (ii) Merchant’s items sold, marketed or promoted through SA (including claims related to product liability).

2. Exclusions and Conditions. This Section 9 (Indemnification) will not apply to the extent the underlying allegation arises from Google’s breach of this SA Addendum or from modifications to Merchant’s trademarks or logos that were not authorized by Merchant. Any settlement requiring Google to admit liability, pay money, or take (or refrain from taking) any action, will require the Google’s prior written consent, not to be unreasonably withheld, conditioned, or delayed.

10. Termination
    

1. Termination. Google may end or suspend SA, Merchant’s participation in SA and/or any SA program at any time for any reason, including for violation of any applicable Google policies. Merchant may end or suspend its participation in SA overall or in a specific SA program by providing notice to Google at shopping-transactions-support@google.com. Merchant understands that it may take up to 3 business days after such notice is provided for Google to remove the Merchant’s product offers from the SA program(s). This SA Addendum will survive any termination or expiration with respect to any SA Orders placed prior to any final suspension or termination of Merchant’s participation in SA, and any other sections that under their terms or by implication ought to survive any termination or expiration of this SA Addendum. Notwithstanding the above, Google may withhold funds to cover Google’s expectation of any refund, reconciliation, chargeback or dispute exposure for up to 180 days.  Merchant will remain liable for financial obligations incurred by Merchant after the expiration or termination of this SA Addendum.