eBay Commerce Network User Agreement
Revision Date: January 23, 2014
Last Updated: April 1, 2013
This User Agreement is effective immediately for new users and will become automatically effective thirty (30) days after posting on the eBay Commerce Network for current users.
We may amend this Agreement at any time with notice to you by email or by posting the amended terms on the eBay Commerce Network. Our right to amend the Agreement includes the right to modify, add to, or remove terms in this Agreement. Any such amendment shall take effect when such amendment is sent by email or posted on the eBay Commerce Network. By continuing to access or use the eBay Commerce Network after any such amendment, you agree to be bound by the terms of the amended Agreement.
Notice Regarding Dispute Resolution: This Agreement contains provisions that govern how claims you and eBay have against each other are resolved (see (Disclaimer of Warranties), (Limitation of Liability) and (Legal Disputes) for the applicable jurisdictions below). (Legal Disputes (United States)) also contains an Agreement to Arbitrate, which will, with limited exception, require you to submit claims you have against us to binding and final arbitration, unless you opt-out of the Agreement to Arbitrate in accordance with the (Legal Disputes (United States)) section. Unless you opt-out: (A) you will only be permitted to pursue claims against eBay on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding and (B) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis. If you are accessing an ECN website which is not based in the United States, such Agreement to Arbitrate shall not be applicable to you. You shall then be subject to the (Legal Disputes (Europe)) or (Legal Disputes (Australia)) Section of this Agreement as applicable.
A Note About Minors.
The eBay Commerce Network is not intended for use by anyone under the age of 18. By using the eBay Commerce Network, you represent and warrant that you are 18 years of age or older. If you are not at least 18 years of age, do not use, access or register for the eBay Commerce Network. We reserve the right to terminate your access or membership in the event that we become aware you are under 18.
Certain features and services on the eBay Commerce Network (including posting content) require that you register on the site as a "member.” You are responsible for keeping your email address current. You are also responsible for safeguarding the password that you use to access any secure areas of the eBay Commerce Network. You agree not to disclose your password to any third party. You agree to take sole responsibility for any activities or actions conducted under your ECN account. You will immediately notify eBay of any unauthorized use of your ECN account.
Using the eBay Commerce Network.
While using the eBay Commerce Network sites, services and tools, you will not:
- violate any laws, third party rights or our policies;
- use our sites, services or tools if you are not able to form legally binding contracts or are temporarily or indefinitely suspended from using our sites, services, or tools;
- circumvent any ECN policy or determinations about your account status such as temporary or indefinite suspensions or other account holds, limitations, restrictions or terminations;
- create more than one account on any one ECN site;
- transfer or share your eBay Commerce Network account, user ID and/or password to another party without our consent;
- take any action that may undermine the reviews or ratings systems (such as displaying, importing or exporting review information off of the ECN sites or using it for purposes unrelated to the eBay Commerce Network);
- publish the same review more than once (a review may only be published more than once if the review compares two products and there is at least a 100 word difference between the two reviews);
- distribute or post spam, unsolicited or bulk electronic communications, chain letters, or pyramid schemes, including using email tools (such as "Email this page”) to send spam;
- use advertisements, paid links, affiliate marketing, or any form of link spam;
- distribute viruses or any other technologies that may harm eBay, or the interests or property of ECN users;
- export or re-export any ECN tools except in compliance with the export control laws of any relevant jurisdictions and in accordance with posted rules and restrictions;
- copy, modify, or distribute rights or content, including eBay's copyrights and trademarks, from the ECN sites, services, or tools;
- harvest or otherwise collect information about users, including, but not limited to, email addresses, usernames or passwords;
- use any automated means to access the ECN sites or collect any information from the ECN sites;
- request search engines to crawl or index any portion of the eBay Commerce Network;
- modify or create variant versions of any ECN logos or other trademarks;
- customize any ECN sites in a way that adversely affects the display of any advertising or promotional links on such site;
- affect the way ECN displays its pages, such as framing ECN sites or placing pop-up windows over its pages; or
- speak on behalf of eBay, or describe yourself as an eBay employee or use eBay or ECN related letterhead.
Abusing the eBay Commerce Network.
eBay and its community of users (the "Community”) work together to keep our sites, services, and tools working properly and the Community safe. Please report problems, offensive content, and policy violations to us. Without limiting other remedies, we may, in our sole discretion, (A) limit, suspend, or terminate our services and user accounts, (B) prohibit access to our sites, services, and tools, and their content, (C) delay or remove hosted content, and (D) take technical and legal steps to keep users from using our sites, services, or tools, if we think that they are (X) creating problems or possible legal liabilities, (Y) infringing the intellectual property rights of third parties, or (Z) acting inconsistently with the letter or spirit of our policies (for example, and without limitation, circumventing temporary or permanent suspensions or harassing our employees or other users). We also reserve the right to cancel accounts (as further described below), or modify or discontinue ECN sites, services, or tools.
Authorization to Contact You; Recording Calls.
To contact you for reasons relating to your account or your use of our sites, services, application or tools (such as to collect a debt, resolve a dispute, or to otherwise enforce this Agreement) or as authorized by applicable law.
To contact you for marketing, promotional, or other reasons that you have either previously consented to or that you may be asked to consent to in the future. If you do not wish to receive such communications, you can opt-out in the communications preference section of your ECN account.
We may share your telephone numbers with our service providers (such as billing or collections companies) who we have contracted with to assist us in pursuing our rights or performing our obligations under this Agreement, our policies, or any other agreement we may have with you. These service providers may also contact you using autodialed or prerecorded messages calls and/or SMS or other text messages, only as authorized by us to carry out the purposes we have identified above, and not for their own purposes.
Through the eBay Commerce Network, eBay provides a number of different services to assist you in comparison shopping for products. We provide information regarding products and third-party merchants, and links to third-party merchants that are selling listed products. eBay is paid by merchants or other third parties to list products on the eBay Commerce Network. However, the products listed on the eBay Commerce Network are offered for sale by third-party merchants, and not eBay.
You acknowledge that eBay does not sell, resell or license any products listed on the eBay Commerce Network, nor is eBay acting as an agent of sale. We are merely making it easier for you to buy from merchants who choose to offer goods using the eBay Commerce Network. You acknowledge that to the extent allowable by law, eBay disclaims any responsibility for or liability related to such products. You agree to direct any questions, complaints or claims about merchants (for example, about their products, customer service or delivery) to the appropriate merchant.
Consumer reviews and ratings on the eBay Commerce Network are from our members who have elected to post a review on the eBay Commerce Network. As such, these reviews and ratings are intended to be informative for those wishing to use them, but they do not guarantee any level of performance by us, a merchant or other third party.
Participating merchants and other third parties may pay eBay to be presented on the eBay Commerce Network or to have their product or service offerings placed higher in our search results and may also purchase research from eBay.
All right, title and interest in and to the eBay Commerce Network and any content appearing on the eBay Commerce Network will remain the exclusive property of eBay and its licensors. Except as expressly permitted in this Agreement, you may not copy, reproduce, modify or create derivative works from, distribute, sell, transfer, publicly display, publicly perform, transmit or otherwise use the content appearing on the eBay Commerce Network without the prior express written permission of eBay or the appropriate third party, as applicable). You may not copy or modify the HTML code used to generate web pages on the eBay Commerce Network. You may not use the eBay Commerce Network, or any other content appearing on the eBay Commerce Network, on or in connection with any other website for any purpose.
In general, sales taxes (including in Australia, GST) and shipping costs are estimates based on the geographical location of your IP address. Please check with merchants for exact shipping costs.
By contributing or submitting any content to the eBay Commerce Network, you warrant that you are the author and owner of the intellectual property rights thereto or that you have obtained the necessary waiver of any moral rights owned by any third party in any intellectual property, and you grant eBay a worldwide, perpetual (as permitted by law), irrevocable, royalty-free, sublicensable (through multiple tiers) and transferable right and license to use, copy, modify, delete in its entirety, adapt, publish, translate, create derivative works from, sell and distribute, or incorporate such materials into any form, medium or technology, and exercise any and all copyright, trademark, publicity, and database rights you have in the content, in any media known now or in the future, without compensation to you and for the complete duration of such rights. To the extent permitted by law, you warrant that all "moral rights” that you may have in those materials have been voluntarily waived by you or that you have obtained the necessary waiver of any moral rights owned by any third party, including the right to be identified as the author of such materials. None of the materials shall be subject to any obligation of confidence on the part of eBay, its agents, subsidiaries, affiliates, co-brand partners or other partners and their respective directors, officers and employees. eBay reserves the right to change or delete any content on the eBay Commerce Network for any reason or that eBay deems, in its sole discretion, to violate the content guidelines or any other provision of this Agreement.
You agree that you shall not post any information:
- that is false, inaccurate, or misleading;
- that infringes any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
- that violates any law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising);
- that is or may reasonably be considered to be defamatory, libelous, hateful, profane, vulgar, racially or religiously biased or offensive, unlawfully threatening or unlawfully harassing to any individual, partnership or corporation;
- that includes any pornographic content (including any sexually explicit pictures) or content on a product/topic that is reasonably likely to offend a person looking for information on that product/topic;
- for which you were compensated or granted any consideration by any third party;
- that includes any information (including personal information) that references addresses, email addresses, contact information, phone numbers or websites outside of the eBay Commerce Network; or
- that contains any computer viruses, worms Trojan horses, time bombs, cancelbots or other potentially damaging computer programs or files or may pose a threat to the proper technical operation of the system or to the security of other users or members or their information.
Subject to the terms of this Agreement, you retain all ownership rights to information, text, graphics or other materials you publish on the eBay Commerce Network. However, you acknowledge and agree that, without notice to you, we can reproduce, publish and distribute all or teaser portions of your content online and offline and permit others to do the same. Reviews and other content submitted through the eBay Commerce Network cannot be deleted once uploaded. For some of our features, other members may be able to request email notifications of your new public content or publish their own comments to your reviews. We may use the public content to develop aggregate ratings, personalize site views, market products or identify or feature popular members. Although, it is not a violation of this Agreement to post your reviews to other sites, posting substantially similar reviews to other price comparison sites, in particular, may make you ineligible for status as a Top Reviewer, Advisor, Moderator, or Category Lead on certain eBay Commerce Network Sites. We ask that you refer or provide links to the eBay Commerce Network if you choose to republish your content elsewhere and that you do not publish the same items of content on both the eBay Commerce Network and other product or price comparison sites. Please see the appropriate country version of the Shopping.com FAQ (United States, United Kingdom, France, Germany, or Australia) or the Epinions FAQ as applicable for more information on cross-posting ECN reviews to other sites.
Notice for Claims of Intellectual Property Violations and Copyright Infringement.
If you have a good faith belief that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA”) by providing eBay's Copyright Agent with the following information in writing, (pursuant to 17 U.S.C 512(c)(3)):
- a physical or electronic signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest that is allegedly infringed;
- identification or description of the copyrighted work or other intellectual property that you claim has been infringed. If you are asserting infringement of an intellectual property right other than copyright, please specify the intellectual property right at issue (for example, trademark or patent);
- identification or description of where the material that you claim is infringing is located on the eBay Commerce Network, with enough detail that we may find it on the eBay Commerce Network;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the use of the material complained of is not authorized by the copyright or intellectual property owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
eBay’s agent designated to receive claims of copyright or other intellectual property infringement may be contacted as follows:
173 W. Election
Draper, UT 84020
The eBay Commerce Network has adopted and implements a policy that provides for the termination in appropriate circumstances of the accounts of users who repeatedly infringe copyrights or other intellectual property rights of the eBay Commerce Network and/or others.
eBay's Verified Rights Owner (VeRO) program works to ensure that content does not infringe upon the copyright, trademark or other intellectual property rights of third parties. If you are accessing an ECN site outside of the United States and you have a good faith belief that your intellectual property rights have been infringed, please notify our VeRO team through our Verified Rights Owner (VeRO) Program for France; the United Kingdom; Germany; or Australia as applicable and we will investigate.
All content available on the eBay Commerce Network, including site design, text, graphics, interfaces and the selection of arrangements thereof is copyrighted by eBay Inc. or Shopping.com, Ltd. with all rights reserved, or is the property of eBay Inc. or third parties protected by intellectual property rights.
Epinions®, DealTime®, PriceTool.com, Shopping.com and eBay Commerce Network are service marks of eBay. eBay's service marks/trademarks may not be used in connection with any product or service that is not provided on the eBay Commerce Network or in any matter that (i) is likely to cause confusion among customers or (ii) disparages or discredits eBay.
Access and Interference.
The ECN sites contain robot exclusion headers. Information on our sites is subject to constant updates and changes. You agree that you will not use any robot, spider, scraper, or other automated means to access our sites for any purpose without our express written permission.
Additionally, you agree that you will not:
- take any action that imposes or may impose (to be determined in our sole discretion) an unreasonable or disproportionately large burden on our infrastructure;
- interfere or attempt to interfere with the proper working of our sites, services, or tools, or any activities conducted on or with our sites, services, or tools; or
- bypass our robot exclusion headers or other measures we may use to prevent or restrict access to our sites.
If you are accessing an ECN site in Australia, the provisions of the Privacy Act 1988 (Cth) including but not limited to the National Privacy Principles set out in Schedule 3 of the Privacy Act 1988 (Cth) (and such amendments to the Privacy laws, rules and regulations as applicable) apply, notwithstanding any exemption that may apply.
You agree to comply with all laws and regulations applicable to your access and use of the eBay Commerce Network and publishing your content including all applicable site rules, agreements and policies. You may not harvest personal data (including email addresses) from the eBay Commerce Network, and specifically you may not use email addresses displayed on our sites to ask users to join or contribute to your services. We have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. We may involve and cooperate with law enforcement authorities in prosecuting users who are suspected of violating the law or the terms of this Agreement. You acknowledge that eBay has no obligation to monitor your access to or use of the eBay Commerce Network.
Eroyalties.If you are 18 or older, and have registered through an epinions.com site and have been accepted as a registered member, you may accrue Eroyalties pursuant to the terms of the Eroyalties Program and Earnings which are hereby incorporated by reference. Regardless of your Eroyalties balance on the site, all Eroyalties are subject to our verification and approval. Among other reasons, we may disapprove Eroyalties if your account terminates or is suspended or if we suspect fraud or a failure by you to comply with our policies. Thus, you should not consider Eroyalties "earned” until we have approved your redemption request for payment. All redemptions will need to comply with applicable redemption and validation policies (including, without limitation, (A) when you can redeem and how often, (B) minimum redemption amount, (C) any redemption fees and (D) any geographical restrictions). Eroyalties are not transferable. We will issue checks only in the accountholder's name. We are not responsible for fraudulently redeemed Eroyalties if the redeemer presents your password. You are solely responsible for paying any taxes on your Eroyalties (which shall be inclusive of taxes) and you shall be responsible for the remittance of all taxes paid on Eroyalties.
You may cancel your account at any time by contacting the applicable ECN site Customer Support in the United States, in the United Kingdom, in France, in Germany or in Australia (for Shopping.com) or clicking here (for Epinions.com). We may cancel your account or otherwise refuse service to you at any time for any reason. eBay may choose to assume that you intended to terminate your account if you do not access it for more than 3 months. Following termination of your account for any reason (including inactivity), at our sole option, eBay and our licensees may, among other things, continue or discontinue publicly displaying some or all of your content, and with relation to the Epinions.com sites, all of your existing Eroyalties will automatically expire, and no new credits will accrue. We may retain some information from closed accounts so that we can comply with law, prevent fraud, assist with investigations, resolve disputes, analyze or troubleshoot programs, enforce this Agreement, or take other actions permitted by law.
By choosing to use the eBay Commerce Network, you agree to indemnify, hold harmless and defend eBay, our affiliates and subsidiaries and our and their respective successors and permitted assigns, officers, directors, employees, agents, and partners of each against any and all present or future, actual or contingent, direct or third party claims, counterclaims, suits, demands, actions and causes of action and any and all resulting losses (including actual and consequential losses), costs, damages, setoffs, liens, attachments, debts, expenses, judgments, or other liabilities of whatever kind or nature as they are incurred (including but not limited to cost of defense, settlement, mediation or appeal and reasonable legal fees) arising from or in connection with (A) content you choose to submit, post or transmit through the eBay Commerce Network; (B) your use of or connection to the eBay Commerce Network; (C) your violation of this Agreement or any of the applicable agreements or policies posted on the eBay Commerce Network; or (D) your violation of any law or the rights of another.
If you have a dispute with one or more users (including merchants) of the eBay Commerce Network, you release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees, and agents) from claims, demands, liabilities, costs or expenses and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release you expressly waive any protections (whether statutory or otherwise) to the extent permitted by applicable law, that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
Disclaimer of Warranties; Limitation of Liability.
We try to keep the eBay Commerce Network sites, services, applications, and tools safe, secure, and functioning properly. You acknowledge that we cannot guarantee the continuous operation of or access to our sites, services, applications, or tools. You further acknowledge that operation of and access to our sites, services, applications, or tools may be interfered with as a result of technical issues or numerous factors outside of our control. You agree that you are making use of our sites, services, applications, and tools at your own risk, and that they are being provided to you on an "AS IS” and "AS AVAILABLE” basis. Accordingly, to the extent permitted by applicable law, we exclude all express or implied warranties, terms and conditions including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
eBay does not warrant that product descriptions, pricing, editorial commentary or any other content on the eBay Commerce Network, regardless of its source, is accurate, complete, reliable, current or error-free. The eBay Commerce Network content is provided for informational purposes only and does not constitute an endorsement by eBay of any product, service, or merchant. eBay assumes no liability for inaccuracy or incompleteness in its search results, editorial content, user ratings (e.g., user merchant rating or user product rating) or other content on the eBay Commerce Network.
The eBay Commerce Network may contain links to third-party websites or resources. You acknowledge and agree that we are not responsible or liable for: (A) the availability or accuracy of such websites or resources; or (B) the content, products or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement of such websites or resources or the content, products or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources. Your correspondence with or participation in promotions of merchants or advertisers found on the eBay Commerce Network, including payment and delivery of related goods or service, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party. You agree not to hold eBay liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such merchants or advertisers on the eBay Commerce Network. In addition, eBay does not endorse, warrant or guarantee the products or services of any merchant, lender or broker, including any rates, points and loan programs posted by sellers, lenders or brokers. Nothing on the eBay Commerce Network constitutes an advertisement for credit as defined by Paragraph 226.24 of Regulation Z of the federal Truth in Lending Act.
IN ADDITION, TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE (INCLUDING OUR SUBSIDIARIES AND AFFILIATES) WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, ANY LOST PROFITS, DATA, GOODWILL OR REPUTATION, OR ANY OTHER INTANGIBLE LOSSES, WHETHER FORESEEABLE OR NOT AND WHETHER OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITY, ARISING OUT OF THIS AGREEMENT OR YOUR USE OF ANY SERVICES OFFERED BY EBAY (INCLUDING THE EBAY COMMERCE NETWORK) OR ITS SUBSIDIARIES OR AFFILIATES. NOTWITHSTANDING ANYTHING ELSE IN THIS PARAGRAPH, OUR LIABILITY ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF (A) THE TOTAL AMOUNTS PAID BY YOU TO US FOR THE SERVICES DESCRIBED HEREIN DURING THE PRECEDING TWELVE (12) MONTHS OR (B) $1000.
Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to you. IF YOU are accessing a united kingdom version of an ecn site NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR LIMIT LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM THE NEGLIGENCE OF EITHER PARTY OR THEIR SERVANTS, AGENTS OR EMPLOYEES.
Except as explicitly stated otherwise, legal notices shall be served on eBay's national registered agent (in the case of eBay) or to the email address you have designated in your ECN account (in your case). Notice to you shall be deemed given 24 hours after the email is sent. Alternatively, we may give you legal notice by mail to the address associated with, or identified in, your account. In such case, notice shall be deemed given three days after the date of mailing.
Legal Disputes (United States).
If you are accessing an ECN site based in the United States:
You and eBay agree that any claim or dispute at law or equity that has arisen or may arise between us relating in any way to or arising out of this Agreement or your use of or access to the eBay Commerce Network will be resolved in accordance with the provisions set forth in this Section (Legal Disputes (United States)). Please read this Section (Legal Disputes (United States)) carefully. It affects your rights and will have a substantial impact on how claims you and we have against each other are resolved.
A. Applicable Law
You agree that the laws of the State of Utah, without regard to principles of conflict of laws, will govern this Agreement and any claim or dispute that has arisen or may arise between you and eBay, except as otherwise stated in this Agreement.
B. Agreement to Arbitrate
You and eBay each agree that any and all disputes or claims that have arisen or may arise between you and eBay relating in any way to or arising out of this Agreement or your use of or access to the eBay Commerce Network shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court, if your claims qualify. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.
I.Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND EBAY AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND EBAY AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER EBAY COMMERCE NETWORK USERS.
II. Arbitration Procedures
Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator must also follow the terms of this Agreement in the same manner as a court would.
The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute or claim arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement to Arbitrate, any part of it, or of this Agreement, including, but not limited to, any claim that all or any part of the Agreement to Arbitrate or this Agreement is void or voidable.
The arbitration will be conducted by the American Arbitration Association ("AAA”) under its rules and procedures, including the AAA's Supplementary Procedures for Consumer-Related Disputes (as applicable), as modified by this Agreement to Arbitrate. The AAA's rules are available at http://www.adr.org. A form for initiating arbitration proceedings is available on the AAA's website at http://www.adr.org. In addition to filing this form with the AAA in accordance with its rules and procedures, you must send a copy of the completed form to us at the following address to initiate arbitration proceedings: eBay Inc. c/o National Registered Agents, Inc., 2778 W. Shady Bend Lane, Lehi, UT 84043.
The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or eBay may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and eBay subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. Attendance at an in-person hearing may be made by telephone by you and/or eBay, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with the laws of the State of Utah, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different eBay Commerce Network users, but is bound by rulings in prior arbitrations involving the same eBay Commerce Network user to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
III. Costs of Arbitration
Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in this Agreement to Arbitrate. If the value of the relief sought is $10,000 or less, at your request, eBay will pay all filing, administration, and arbitrator fees associated with the arbitration. Any request for payment of fees by eBay should be submitted by mail to the AAA along with your Demand for Arbitration and eBay will make arrangements to pay all necessary fees directly to the AAA. If the value of the relief sought is more than $10,000 and you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, eBay will pay as much of the filing, administration, and arbitrator fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse eBay for all fees associated with the arbitration paid by eBay on your behalf, which you otherwise would be obligated to pay under the AAA’s rules.
With the exception of any of the provisions in Section I of this Agreement to Arbitrate (Prohibition of Class and Representative Actions and Non-Individualized Relief), if an arbitrator or court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate shall still apply. If an arbitrator or court decides that any of the provisions in Section I of this Agreement to Arbitrate (Prohibition of Class and Representative Actions and Non-Individualized Relief) is invalid or unenforceable, then the entirety of this Agreement to Arbitrate shall be null and void. The remainder of this Agreement and this section (Legal Disputes (United States)) will continue to apply.
V. Opt-Out Procedure
You can choose to reject this Agreement to Arbitrate ("opt-out”) by mailing us a written opt-out notice ("Opt-Out Notice”). The Opt-Out Notice must be postmarked no later than thirty (30) days after the date you accept this Agreement for the first time. You must mail the Opt-Out Notice to eBay Inc., Attn: Litigation Department, Re: eBay Commerce Network Opt-Out Notice, 173 West Election Road, Draper, UT 84020.
The Opt-Out Notice must state that you do not agree to this Agreement to Arbitrate and must include your name, address, (including street address, city, state and zip code), phone number and the user ID(s) and email address(es) associated with the eBay Commerce Network account(s) to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt-out of the Agreement to Arbitrate. If you opt-out of the Agreement to Arbitrate, all other parts of this Agreement and this Section (Legal Disputes (United States)) will continue to apply to you. Opting out of this Agreement to Arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with us.
VI. Future Changes to the Agreement to Arbitrate
Notwithstanding any provision in this Agreement to the contrary, you and we agree that if we make any change to this Agreement to Arbitrate (other than a change to any notice address or website link provided herein) in the future, that change shall not apply to any claim that was filed in a legal proceeding against eBay prior to the effective date of the change. The change shall apply to all other disputes or claims governed by the Agreement to Arbitrate that have arisen or may arise between you and eBay. We will notify you of changes to this Agreement to Arbitrate by posting the amended terms on the eBay Commerce Network at least thirty (30) days before the effective date of the changes and by providing notice to your email on file in your ECN account (where possible). If you do not agree to these amended terms, you may close your account within the thirty (30) day period and you will not be bound by the amended terms.
Moreover, if we seek to terminate the Agreement to Arbitrate as included in this Agreement, any such termination shall not be effective until thirty (30) days after the version of this Agreement not containing the Agreement to Arbitrate is posted to the eBay Commerce Network, and shall not be effective as to any claim that was filed in a legal proceeding against eBay prior to the effective date of termination.
Legal Disputes (Europe).
This Agreement shall be deemed to have been made in and shall be construed pursuant to: (A) If you are accessing an ECN site based in the United Kingdom, the laws of England and Wales without regard to conflicts of law principles, and any disputes related to this Agreement shall be resolved in the courts of England and Wales, to whose sole and exclusive jurisdiction and venue the parties hereto irrevocably submit; (B) If you are accessing an ECN site based in France, the laws of France without regard to conflicts of law principles, and any disputes related to this Agreement shall be resolved in the courts located in Paris, France, to whose sole and exclusive jurisdiction and venue the parties hereto irrevocably submit; or (C) If you are accessing an ECN site based in Germany, the laws of Germany without regard to conflicts of law principles, and any disputes related to this Agreement shall be resolved in the courts located in Berlin, Germany, to whose sole and exclusive jurisdiction and venue the parties hereto irrevocably submit.
Legal Disputes (Australia).
A. Applicable Law
If you are accessing an ECN site in Australia or if your dispute arises out of, or in connection with your use of an Australian version of one of the ECN sites, the laws of New South Wales, Australia will govern this agreement and the dispute and the parties submit to the exclusive jurisdiction of the Courts of New South Wales or any competent Federal Court exercising jurisdiction in New South Wales.
B. Notice of Dispute
If there is a dispute that is not resolved by negotiation between the parties, either party must give to the other party notice specifying the dispute and requiring its resolution under this Section (Notice of Dispute).
C. Agreement to Mediate
If the dispute is not resolved within 7 days after the Notice of Dispute is given to the other party ("Notice Period”), the dispute is by this clause submitted to mediation. The mediation must be conducted in New South Wales. The Institute of Arbitrators and Mediators Australia Mediation and Conciliation Rules (at the date of this agreement available at: http://www.iama.org.au/resources/rules-guidelines/mediation-and-conciliation) as amended by this clause apply to the mediation, except where they conflict with this clause.
If the parties have not agreed upon the mediator and the mediator’s remuneration within 7 days after the Notice Period:(a) the mediator is the person appointed by; and (b) the remuneration of the mediator is the amount or rate determined by; the President of the Law Society of New South Wales or the President’s nominee, acting on the request of any party to the dispute. I. Costs of Mediation
The parties must pay the mediator’s remuneration in equal shares. Each party must pay its own costs of the mediation.
This clause does not prevent any party from obtaining any injunctive, declaratory or other interlocutory relief from a court which may be urgently required.
Subject to this clause, a party must not commence or maintain a court action or proceeding upon a dispute in connection with this Agreement until the dispute has been submitted to mediation under this clause.
III. Future Changes to Mediation Clause
Notwithstanding any provision in this
Agreement to the contrary, you and we agree that if we make any change to this (Agreement
to Mediate) clause (other than a change to any notice address or website
link provided herein) in the future, that change shall not apply to any claim
that was filed in a legal proceeding against eBay prior to the effective date
of the change.
The change shall apply to all other disputes or claims governed by the Agreement to Mediate that have arisen or may arise between you and eBay. We will notify you of changes to this Agreement to Mediate by posting the amended terms on the eBay Commerce Network at least thirty (30) days before the effective date of the changes and by providing notice to your email on file in your ECN account (where possible). If you do not agree to these amended terms, you may close your account within the thirty (30) day period and you will not be bound by the amended terms.
Moreover, if we seek to terminate the Agreement to Mediate as included in this Agreement, any such termination shall not be effective until thirty (30) days after the version of this Agreement not containing the Agreement to Arbitrate is posted to the eBay Commerce Network, and shall not be effective as to any claim that was filed in a legal proceeding against eBay prior to the effective date of termination.
The following Sections survive any termination of this Agreement: Termination, Release, Content, Disclaimer of Warranties; Limitation of Liability, Indemnification, and Legal Disputes.
You agree that this Agreement and all agreements and information incorporated herein may be assigned, transferred or novated by eBay, in its sole discretion, to a third party without notice to you. You may not assign, transfer or novate your obligations to another entity. Any attempt by you to make such an assignment, transfer or novation shall be void.
This Agreement does not create any agency, partnership, joint venture, employment or franchise relationship. Because you are not an employee, minimum wage laws do not apply to your relationship with eBay or the eBay Commerce Network. Our performance under this Agreement shall be excused for any problem due to a factor beyond our control. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law. Our failure to act in a particular circumstance does not waive our right to act with respect to that or other circumstances. Any waiver of any provision of this Agreement will be effective only if in writing and signed by eBay. We do not guarantee we will take action against all breaches of this Agreement. Unless stated otherwise in this Agreement, nothing in this Agreement is intended to confer benefits, rights or remedies unto any person or entity other than the parties hereto and their permitted successors and assigns. Subject headings in this Agreements are for reference purposes only and do not limit the scope or extent of such Section.
If you area California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.