This Premium Tax Application Program Agreement (“Tax Agreement”) is entered into by and between eBay and Seller. By using the Premium Tax Application Program, you as the Seller agree to comply with the terms of this Tax Agreement.
eBay has installed a tax calculation software program and integrated it with the eBay Site (the “Application”) to assist Seller in connection with its sales transacted on eBay Site. The Application is powered by software provided by a third party service provider, currently “Vertex” (“Application Provider”). eBay will provide Seller access to the Application, at no cost, solely for purposes of Seller’s activity on the eBay Site under this Tax Agreement and eBay agrees that Seller will self-configure in the Application Seller’s tax profile and other tax requirements in connection with its activity on the eBay Site. Seller understands, acknowledges and agrees that even though eBay is providing Seller access to the Application, eBay is not providing tax advice to Seller. Seller further understands, acknowledges and agrees that eBay is not making any representation that the Application will satisfy the tax calculation needs of Seller or that the Application will be able to calculate all taxes imposed on and/or applicable to Seller’s business. Seller maintains sole responsibility for the collection, reporting and paying of taxes applicable to Seller’s business.
Seller authorizes eBay to access the data available to eBay through Seller’s use of the Application, which may pertain to, among others, Seller Listings or the Seller branded store (“Seller Data”) if such access is required for the interoperation of the Application with the eBay Site. Seller authorizes Application Provider to access the Seller Data to the extent necessary to assist eBay in evaluating the Application, the performance thereof, troubleshooting same, and providing support regarding same.
eBay shall use commercially reasonable efforts to implement any updates and patches to the Application which Application Provider issues eBay from time to time. Updates and patches may include additions, deletions or modifications to the Application, including but not limited to, additions, deletions or modifications to the jurisdictions and categories supported by the Application. Updates and patches may require Seller to take certain actions, including, but not limited to, modifying and testing Seller’s systems to utilize the Application.
eBay may immediately terminate Seller’s access to the Application in the event eBay’s license to the software expires or terminates pursuant to the terms of the license agreement between Application Provider and eBay. Such termination will not relieve Seller of any of its tax obligations, including, but not limited to, its obligation to calculate, collect, remit and report such taxes to applicable authorities.
Application Provider Confidential Information. Seller shall have a legal duty to protect Application Provider Confidential Information. “Application Provider Confidential Information” means Application Provider’s software, data and documentation and all enhancements, updates and upgrades to the foregoing (collectively “Application Provider Materials”), that Seller is provided or permitted to access/use in connection with this Tax Agreement, as well as information related to Application Provider Materials that under the circumstances of the disclosure, ought to be treated as confidential, including, without limitation, information related to Application Provider Materials that is disclosed during training or support, if any. Seller shall hold Application Provider Confidential Information in confidence and shall not disclose Application Provider Confidential Information to third parties nor use Application Provider Confidential Information for any purpose other than as expressly permitted under this Tax Agreement. Seller’s use of the Application Provider Confidential Information shall be restricted to Seller’s configuration activities.
Notwithstanding the foregoing, such restrictions shall not apply to Application Provider Confidential Information which (a) is already known by Seller other than pursuant to an agreement between Seller and Application Provider, (b) becomes publicly known through no act or fault of Seller, (c) is received by Seller from a third party without a restriction on disclosure or use, or (d) is independently developed by Seller without reference to the Application Provider Confidential Information. Where Application Provider Confidential Information is required to be disclosed by a court, government agency, regulatory requirement, or similar disclosure requirement, Seller shall immediately notify eBay and Application Provider upon learning of the existence or likely existence of such requirement and shall use reasonable efforts to avoid such disclosure and, if necessary, use reasonable efforts to obtain confidential treatment or protection by order of any disclosed Application Provider Confidential Information.
APPLICATION PROVIDER LIMITATION OF LIABILITY. IN NO EVENT WILL APPLICATION PROVIDER BE LIABLE TO SELLER IN ANY WAY, WHETHER INVOLVING DIRECT, INDIRECT, PUNITIVE, MULTIPLIED, STATUTORY, INCIDENTAL, CONSEQUENTIAL, OR ANY OTHER FORM OF DAMAGES WHATSOEVER ARISING OUT OF OR RELATED TO THIS TAX AGREEMENT, THE APPLICATION, USE OF THE APPLICATION, OR SELLER BENEFIT FROM SUCH USE, INCLUDING, WITHOUT LIMITATION, DAMAGES BASED ON ANY FORM OF NEGLIGENCE, WILLFUL MISCONDUCT, OR BREACH OF CONTRACT, EVEN IF APPLICATION PROVIDER OR EBAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EBAY DOES NOT REPRESENT OR WARRANT THAT THE APPLICATION WILL OPERATE SECURELY OR WITHOUT INTERRUPTION OR THE ACCURACY, VALIDITY, RELIABILITY, COMPLETENESS, USEFULNESS OR QUALITY OF THE APPLICATION OR ANY TAX CALCULATIONS OR REPORTS GENERATED BY EBAY, APPLICATION PROVIDER OR SELLER RESULTING FROM THE USE OF THE APPLICATION. EBAY SHALL NOT BE RESPONSIBLE FOR ANY FAILURE TO CALCULATE TAX DURING NON-SECURE OPERATION OR INTERRUPTION OF THE EBAY SITE OR APPLICATION, OR FOR ANY LOSS OF DATA ASSOCIATED WITH SELLER’S USE OF THE APPLICATION.
EBAY SHALL HAVE NO LIABILITY FOR ANY 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 TAX AGREEMENT OR SELLER’S USE OR RELIANCE ON THE APPLICATION. IN NO EVENT WILL EBAY’S CUMULATIVE AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS TAX AGREEMENT EXCEED FIFTY THOUSAND U.S. DOLLARS ($50,000).