Preloved Partner Program Seller Agreement

This Seller Agreement (“Agreement”) is made by and between eBay, Inc., a Delaware corporation with its principal place of business at 2065 Hamilton Ave, San Jose, California 95125 ("eBay"), and the Seller (“You”), and is effective as of the Effective Date. eBay and Seller may each be referred to individually as a “Party,” and collectively as the “Parties”.

WHEREAS, Seller is a registered business seller on www.ebay.com (the “eBay Site”). 

WHEREAS, eBay is planning to launch a program called ‘Preloved Partner Program’ to highlight pre-loved fashion items from certain business sellers on the eBay Site (the “Program”). eBay may elect to rename the Program for marketing purposes at any time. The Program requires sellers to adhere to the required product and seller standards measured for the eBay seller level (where applicable).

WHEREAS, sellers may apply to participate in the Program, and following eBay approval, will be able to list and sell items that meet certain criteria within the Program.

WHEREAS, items included in the Program are marked with a “Preloved Partner Program” label and a blue tick on relevant pages (for example the view item and search results pages) on the eBay Site. 

WHEREAS, Seller wishes to be enrolled into the Program by eBay under the terms set forth in this Agreement.

NOW, THEREFORE, for good and valuable consideration, the sufficiency which is acknowledged by each Party, Seller and eBay agree as follows:

1. Definitions

1.1 “Buyer” means an eBay buyer who commits to buy an item listed by Seller included in Program.

1.2 “eBay Group Company” means an entity that now or in the future, directly or indirectly, controls, is controlled by, or is under common control with eBay, Inc. For purposes of the foregoing, “control” shall mean the ownership of more than 50% of the (i) voting power to elect the directors of the company or (ii) ownership interest in said entity.

1.3 “eBay Policies” means the terms of eBay’s User Agreement located at (https://www.ebay.com/help/policies/member-behaviour-policies/user-agreement?id=4259), Privacy Policy located at (https://www.ebay.com/help/policies/member-behaviour-policies/user-privacy-notice-privacy-policy?id=4260) and all other policies applicable to eBay sellers and listings on the eBay Site, which are incorporated by reference into this Agreement, as each may be updated from time to time. In case of conflict between the eBay policies and this Agreement, this Agreement shall control.

1.4 “eBay Site” means www.ebay.com.

1.5 “Top Rated” means Top Rated status according to the policy located at https://www.ebay.com/help/policies/selling-policies/seller-standards-policy?id=4347

1.6 “Eligible Item” means an item listed by Seller that meets the Program Criteria and that will be marked with a “Preloved Partner Program” label with a blue tick as appropriate.

1.7 Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, include the singular. The words “include,” “including,” “in particular,” and “for example” or “e.g.,” shall be read in each case as being without limitation.

2. Authorization to be in the Program

2.1 eBay hereby authorizes Seller to be enrolled into the Program, subject to the terms contained in this Agreement and in the eBay Policies.

2.2 Seller’s listings of Eligible Items may receive, when made available, the “Preloved Partner Program” label with a blue tick as appropriate on relevant pages on the eBay Site for the duration of this Agreement.

2.3 eBay may modify, add to, remove terms or update the requirements in this Agreement from time to time, and such updated requirements will take effect upon 30 days written notice to Seller (email or through the eBay Message Center will be sufficient). Additionally, Seller’s continued access to the Program constitutes their acceptance of the amended terms.

3. Program Criteria and Seller Obligations

3.1 The Seller will comply with the following Program criteria and processes (the “Program Criteria”): 

3.1.1 the Seller and their Eligible Items must meet the program requirements set forth in Exhibit A (“General Program Requirements”); and

3.1.2 the Seller shall not list any counterfeit items, nor any items otherwise infringing third party rights, including but not limited to trademark, copyright and design rights. In particular, the Seller acknowledges and agrees that it is its sole responsibility to ensure that it is entitled to offer sale of any of Eligible Items to Buyers without infringing any third-party intellectual property rights.

3.2 Seller shall notify eBay immediately of any material change to Seller’s: 

3.2.1 processes to meet the Grading Requirements (set forth in Exhibit A). Seller shall provide eBay with sufficient information demonstrating that they are able still meet such requirements and is not negatively impacted by the change.

3.3 eBay may, by giving written notice to Seller (email will be sufficient), remove any or all items from the Program which eBay reasonably deems do not meet or no longer meet the Program Criteria. Seller shall cooperate with eBay and use best efforts to meet the Program Criteria for such items to be reincluded in the Program. 

4. Term and Termination

4.1 The term of this Agreement begins on the Effective Date and continues for one year unless terminated earlier in accordance with this clause. This Agreement will automatically renew for an additional year on each anniversary of the Effective Date (each a “renewal date”), unless a party notifies the other party that it does not wish to renew the Agreement by at least thirty (30) days’ advance written notice prior to the renewal date (unless previously terminated in accordance with this Agreement) (“Term”).

4.2 eBay may terminate this Agreement at any time upon at least thirty (30) days prior written notice to Seller.

4.3 Seller may terminate this Agreement immediately by notice in writing if eBay is in material breach of the Agreement and, in the case of a breach capable of remedy, eBay fails to remedy the breach within fifteen (15) business days of receipt of written notice giving full details of the breach and of the steps required by eBay to remedy such breach.

4.4 eBay may terminate this Agreement upon written notice to Seller with immediate effect in the event of any of the following: (i) any violation of this Agreement; (ii) Seller losing its Top Rated status and does not regain Top Rated status within thirty days thereafter; (iii) Seller listing an item on the eBay Site that does not meet the Program Criteria; (iv) a material change to Seller’s processes to meet the Grading Requirements; or (iv) any violation of eBay’s Policies.

4.5 Clauses 1 (Definitions), 4 (Term and Termination), 8 (Indemnity), 9 (Limitation of Liability), 10 (Confidentiality) and 11 (General) will survive the expiration or termination of this Agreement.

5. Compliance Review 

5.1 Upon request, but no more than once per quarter per calendar year, eBay may perform a compliance audit of Seller’s status in the Program, and Seller may be required provide eBay with verification of its compliance with the Program Criteria ("Review"). 

5.1.1 Compliance review will include maintaining the following: eBay Top Rated Seller Status, Item Not Received at </= 1%, Item Significantly Not as Described at </= 5%, Positive Feedback at >/+ 95%, 30-day return optionality offered on at least 95% of live listings.

5.1.2 eBay and the Seller shall bear their own costs and expenses incurred in the Review.

6. Restrictions and Exclusions

6.1 The following are excluded from the Program: 

6.1.1 identical listings that don’t comply with eBay’s Duplicate Listings Policy;

6.1.2 any items listed that don’t comply with eBay’s Listing Policies or Prohibited and Restricted Items Policy; and

6.1.3 any listings outside the Open Categories.

6.2 eBay also reserves the right to exclude Seller on the basis that their Seller accounts have fallen below the minimum required seller performance standards or for any reason in eBay’s discretion. 

6.3 eBay may also disqualify Seller for acting in a way which contravenes the spirit and intention of the Program or eBay's Policies, and/or any guidance that eBay may communicate to the Seller.

7. Representations and Warranties

7.1 Each Party represents and warrants to the other that: (i) it is duly organized and validly existing under the laws of the jurisdiction in which it was organized; and (ii) it has full power and authority to enter into and perform its obligations under this Agreement.

7.2 As of the Effective Date and during the Term, Seller represents and warrants to eBay that:

7.2.1 all listings and Eligible Items do not (i) infringe any third party intellectual property rights, (ii) constitute a misrepresentation, (iii) cause injury to or invade the privacy of any third party, (iv) constitute a misuse of any confidential information of a third party, or (v) be defamatory, abusive or offensive;

7.2.2 Seller’s activities in connection with the Program comply with all applicable laws and eBay’s Policies;

7.2.3 all items listed by Seller as part of the Program comply with the Program Criteria; and

7.2.4 Seller will not relist any item that eBay has deemed does not comply with the Program Criteria.

7.3 eBay makes no representations or warranties of any kind regarding any product or service provided by any third party in connection with the Program.

8. Indemnity 

8.1 Seller shall indemnify, and hold harmless eBay, any eBay Group Company, their respective directors, officers, employees, sublicensees, agents, attorneys, customers, successors or assigns (collectively, the “Indemnified Parties”) against and from any and all claims, liabilities, damages, costs, expenses, suits, actions, government procedures, taxes, penalties or interest (“Claim”), and shall pay all related damages, settlements and associated legal expenses, including reasonable attorneys’ fees that may be imposed on, incurred by or asserted against any Indemnified Party resulting from, arising out of, or relating to: (i) to Seller’s breach of Clause 7 (Representations and Warranties) of this Agreement; (ii) any violation of applicable law by Seller; and (iii) any negligence, willful misconduct, errors or omissions of Seller.

9. Limitation of Liability 

9.1 EXCEPT IN THE EVENT OF A BREACH OF SECTIONS 7 (“REPRESENTATIONS AND WARRANTIES”) OR 10 (“CONFIDENTIALITY”), NEITHER PARTY WILL BE LIABLE FOR LOST PROFITS OR CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR MULTIPLIED DAMAGES, WHETHER IN CONTRACT, TORT OR UNDER STATUTE OR ANY OTHER LEGAL THEORY, ARISING OUT OF OR RELATING TO THIS AGREEMENT. EXCEPT IN THE EVENT OF A BREACH OF SECTIONS 7 (“REPRESENTATIONS AND WARRANTIES”) OR 10 (“CONFIDENTIALITY”), NEITHER PARTY’S CUMULATIVE AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT SHALL NOT EXCEED TWENTY-FIVE THOUSAND DOLLARS ($25,000).

9.2 eBay will not be responsible for any third party's performance or failure to perform any services related to the Program, or for any costs, damages, accident, delay, injury, loss, expense, or inconvenience that may arise in connection with the use of the Program.

9.3 Although eBay will use reasonable efforts to ensure that all information relating to the Program ("Program Material") is accurate, eBay is not responsible for any problems or technical malfunctions of any communications network, online system or computer hardware or software failure that may affect eBay's operation of the Program or the Site, including without limitation the accuracy of any Program Material.

10. Confidentiality

10.1 Confidential Information Defined. “Confidential Information” means all information (whether in written, electronic or oral form) disclosed or made accessible by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), or its officers, directors, employees, consultants, contractors, subcontractors, agents, advisors and other representatives of such Party (“Representatives”) under the terms and for purposes of this Agreement (including information disclosed in the course of negotiation of this Agreement and the existence and terms of this Agreement) that is not generally known to the public and that is designated as confidential or otherwise should reasonably be understood as confidential given the nature and circumstances of its disclosure. Confidential Information shall not include (i) information that is or becomes publicly available through no act or omission of the Receiving Party; (ii) information rightfully disclosed to the Receiving Party by a third party not bound by any confidentiality obligation with respect to such information; (iii) information developed  by the Receiving Party independent of any of the Disclosing Party’s Confidential Information; or (iv) information that is rightfully in the possession of the Receiving Party and not subject to any duty of confidentiality as of the Effective Date.

10.2 Use; Standard of Care. The Receiving Party may use the Confidential Information solely for purposes of this Agreement. No other use will be made of the Confidential Information by the Receiving Party or its Representatives, it being recognized that the Disclosing Party has reserved all rights to the Confidential Information not expressly granted herein. The Receiving Party shall, and shall cause its Representatives to, protect the Confidential Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized disclosure of such Confidential Information as the Receiving Party uses to protect its own confidential information of a like nature.

10.3 Obligations of Confidentiality. The Receiving Party shall not, and shall cause its Representatives not to, directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information without the prior written consent of the Disclosing Party.

10.4 No Publicity. No Party shall make any public statement or press release regarding the terms of this Agreement or any aspect thereof without the prior written approval of the other Party.

11. General

11.1 This Agreement and the documents referenced in this Agreement together constitute the entire agreement and supersede all prior or contemporaneous oral or written agreements regarding the subject matter of this Agreement.

11.2 For the avoidance of doubt, all targets, obligations etc. entered into by the Parties in other agreements between the Parties continue in full force and effect unless amended or terminated in accordance with the terms of those agreements.

11.3 Nothing in this Agreement is intended to limit the rights and remedies of eBay under the eBay Policies. In the case of conflict between the explicit terms of this Agreement and the terms of the Listing Agreement or the eBay Policies, the terms of this Agreement shall prevail to the extent of the conflict.

11.4 No Party may assign its rights or obligations under this Agreement without the prior written consent of the other Party; provided that eBay may assign this Agreement and its obligations to any eBay Group Company.

11.5 The rights and obligations of the Parties shall be governed by, and this Agreement shall be construed and enforced in accordance with, the laws of the State of California, excluding its conflict of laws rules to the extent such rules would apply the law of another jurisdiction. The Parties consent to the jurisdiction of all federal and state courts in California and agree that venue shall lie exclusively in Santa Clara County, California.

11.6 Any notice given under this Agreement shall be in writing in English and served by hand, email, prepaid recorded or special delivery post or prepaid mail. Notices shall be sent to the address referred to on the first page of the Agreement and to email address as notified by each party to the other as being acceptable for service of notices. Any such notice shall be deemed to have been served at the time of delivery. The parties shall notify each other of changes in addresses (including email addresses) for service during the Term of the Agreement.

11.7 The Agreement may only be amended in writing and signed by the Parties.  Additionally, eBay has the right to modify, add to, or remove terms in the Program as described in clause 2.3 above. 

11.8 In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and be enforceable. If any provision of this Agreement is declared invalid or unenforceable by any arbitrator, any court of competent jurisdiction or any appropriate legislature, such provision shall be ineffective only to the extent of such invalidity or unenforceability, so that the remainder of that provision and all remaining provisions of this Agreement will continue in full force and effect. No usage of trade or industry course of dealing shall be relevant to explain or supplement any term expressed in this Agreement.

11.9 This Agreement may be signed in two or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.

Exhibit A: General Program Requirements