PRELOVED PARTNER PROGRAM SELLER AGREEMENT

This Seller Agreement (“Agreement”) is made by and between eBay Marketplaces GmbH (ABN 64 652 016 681), whose registered business address is Helvetiastrasse 15/17, 3005 Bern ("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.au (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 by eBay, and following 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. “Buyer” means an eBay buyer who commits to buy an item listed by Seller included in Program.
2. “Consumer Laws” means The Australian Consumer Law as set out at Schedule 2 to the Australian Competition and Consumer Act 2010 (Cth), any relevant State or Territory equivalent, and all other applicable laws and regulations relating to consumers in force in Australia from time to time.
3. “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.
4. “eBay Policies” means the terms of eBay’s User Agreement (located at https://www.ebay.com.au/help/policies/member-behaviour-policies/user-agreement?id=4259), User Privacy Policy (located at https://www.ebay.com.au/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, including but not limited to the prohibited items list, 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 take precedence.
5. “eBay Site” means https://www.ebay.com.au/.
6. “Top Rated” means Top Rated status according to eBay’s Seller Standards Policy as may be updated from time to time (located at https://www.ebay.com.au/help/policies/selling-policies/seller-standards-policy?id=4347).
7. “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.
8. Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular. The words include, including and in particular and for example or e.g. shall be read in each case as being without limitation.
2. Authorisation to be in the Program
1. eBay hereby authorises Seller to be enrolled into the Program, subject to the terms contained in this Agreement and in the eBay Policies.
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.
3. Seller acknowledges that eBay does not have full control over and makes no warranty or guarantees regarding the timing by which the “Preloved Partner Program” label and blue tick will be available for use on the Site, nor of the design, ultimate appearance or placement of the label as it may appear on Seller’s store or otherwise be displayed on the Site, nor that the label will continue to be an available feature for the whole Term or into the future.
4. eBay may elect to rename the Program for marketing purposes at any time, and may modify, add to, remove terms or update the requirements of the Program in this Agreement from time to time. Such updated Program terms will take effect upon 30 days’ written notice to Seller (email or through the eBay Message Centre will be sufficient). Unless Seller has notified eBay within the 30-day notice period that they do not agree to the updated Program terms, and/or the Parties have entered into discussions regarding such updated Program terms, in accordance with clause 11.9, Seller’s continued access to the Program once the changes take effect shall constitute their acceptance of the amended terms.
3. Program Criteria and Seller Obligations
1. The Seller will comply with the following Program criteria and processes (the “Program Criteria”):
   
2. Seller shall notify eBay immediately of any material change to Seller’s processes to meet the Grading and Cleaning 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. 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 endeavours to meet the Program Criteria for such items to be reincluded to the Program.
1. the Seller and their Eligible Items must meet the program requirements set out in Exhibit A (“General Program Requirements”);
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; and
3. the Seller must provide appropriate evidence of Grading and Cleaning Requirements (set forth in Exhibit A) within 14 days of any request by eBay by providing eBay with documentation or additional images or item details, as requested from time to time.
4. Term and Termination
1. The term of this Agreement begins on the Effective Date and continues for one year unless terminated earlier in accordance this Agreement will renew for a further 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”).
2. eBay may terminate this Agreement at any time upon at least thirty (30) days prior written notice to Seller.
3. Seller may terminate this Agreement by providing no less than thirty (30) days’ prior written notice to eBay if, at the end of any three (3) month period, the Seller has had no current listings.
4. 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.
5. 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 falling to Below Standard status and does not regain Above Standard (or higher) status within thirty (30) days thereafter; (iii) a material change to Seller’s processes to meet the Grading and Cleaning Requirements which, in eBay’s reasonable discretion, no longer meets the required Grading and Cleaning Requirements, or (iv) any violation of eBay’s Policies.
6. 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
1. Upon request, but no more than once per quarter per calendar year, Seller shall provide eBay with verification of its compliance with the Program Criteria ("Review"):
1. examples of what the Review will consider are key performance indicators (KPIs), and/or Cleaning and Grading requirements;
2. upon eBay’s request, the Seller will provide eBay with evidence that the Seller is compliant with the Program Criteria to enable eBay to verify the Seller’s compliance with the Program;
3. eBay and the Seller may agree on a specific procedure in writing (email is sufficient); and
4. eBay and the Seller shall bear their own costs and expenses incurred in the Review.
6. Restrictions and Exclusions
1. The following are excluded from the Program:
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.
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.
1. any listings not published on the Site;
2. any listings that do not meet the Item Eligibility Criteria set out in the General Program Requirements at Exhibit A;
3. identical listings that don’t comply with eBay’s duplicate listings policy;
4. any items listed that don’t comply with eBay’s Selling policies or prohibited and restricted items policies; and
5. any listings outside the Open Categories.
7. Representations and Warranties
1. Each Party represents and warrants to the other that: (i) it is duly organised and validly existing under the laws of the jurisdiction in which it was organised; and (ii) it has full power and authority to enter into and perform its obligations under this Agreement.
2. As of the Effective Date and during the Term, Seller represents and warrants to eBay that:
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.
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;
2. Seller’s activities in connection with the Program comply with all applicable laws and eBay’s Policies;
3. all items listed by Seller as part of the Program comply with the Program Criteria;
4. Seller will not relist any item that eBay has deemed does not comply with the Program Criteria.
8. Indemnity
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) 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, and except to the extent that such Claim is caused or contributed to by eBay’s negligence, willful misconduct, errors or omissions.
9. Limitation of Liability
1. 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.
2. Nothing in this Agreement shall exclude or limit liability for death or personal injury resulting from the negligence of either party or their contractors, agents or employees.
3. With the exception of clause 9.2 and clause 8 (Indemnity), the liability of either party in contract, tort, negligence, pre-contract or other representations or otherwise arising out of the Agreement or the performance of its obligations under the Agreement shall be limited in aggregate to AUD $10,000 (ten thousand dollars).
4. Neither party shall be liable in contract, tort (including negligence), pre-contract or other representations (other than fraudulent or negligent misrepresentations) or otherwise under this Agreement for: (i) any loss of revenues, profits, contracts, business, anticipated savings, or similar types of loss; or (ii) any special, indirect or consequential losses whether or not such losses were known to the parties at the commencement of this Agreement.
5. 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
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.
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 recognised 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 unauthorised disclosure of such Confidential Information as the Receiving Party uses to protect its own confidential information of a like nature.
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.
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
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.
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.
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.
4. Except as expressly set out in the Agreement, a person who is not a party to the Agreement has no right to rely upon or enforce any term of the Agreement, including any rights under the Contracts (Rights of Third Parties) Act 1999. Any eBay Group Company may rely upon or enforce any provision of the Agreement relating to it for its benefit with the agreement of eBay.
5. 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.
6. The validity, construction and performance of this Agreement (and any claim, dispute or matter arising under or in connection with it or its enforceability) shall be governed by and interpreted in accordance with the law of New South Wales. Each party irrevocably agrees to the exclusive jurisdiction of the New South Wales courts over any claim, dispute or matter arising under or in connection with the Agreement or its enforceability or the legal relationships established by this Agreement.
7. 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 international recorded airmail. Notices shall be sent to:
   a. the address referred to on the first page of the Agreement; and
   b. eBay Marketplaces GmbH, Level 18, 1 York Street, Sydney NSW 2000;
   c. in the case of emails, to fashionau@ebay.com and such other email addresses 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.
   8. Subject to eBay’s rights in clause 2.4 above, the Agreement may only be amended in writing and signed by the Parties.
   9. If Seller does not agree to any amendments to the Program terms as set out in clause 2.4, they should cease participation in the Program and notify eBay during the notice period. Where Seller has notified eBay that they do not agree to any amended Program terms, the Parties agree to work together in good faith with an aim to come to a mutually agreed resolution or otherwise mutually agreed position in relation to varying or terminating the Agreement. Nothing in the foregoing obligates Seller to continue participation in the Program if Seller has notified eBay (within the 30-day notice period provided by eBay to Seller in accordance with clause 2.4) that they do not agree to any amended Program terms.
   10. 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. 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

1. Item Eligibility Criteria

Eligible Items must:
a) be listed on the eBay Site;
b) be listed in the item categories on the Site which are open and approved for the Program by eBay when applicable (“Open Categories”); and
c) be listed with ‘Used’ item condition as defined on the eBay Site. 

Open Categories include the following item categories: 

2. Listing and Image Guidelines All listings of Eligible Items must include:

a) comprehensible and complete item descriptions in English with precise information, which will contain at least the following contents:

i any defects or imperfections on the item;

ii functionality of zips, buttons and pockets;

iii any modifications made to the item from its original condition; and

iv packaging (whether original packaging or seller’s own packaging).

b) at least six (6) high-resolution images that comply with the eBay images, videos and text policy (as set out https://www.ebay.com.au/help/policies/listing-policies/images-videos-text-policy?id=4240) and show at least the following parts of the item:

i Full view (i.e. full length)

ii Any defects (e.g. factory flaw etc.) or wear and tear (e.g. stains, holes/tear)

iii Front

iv Back

v Zippers/buttons,

vi Labels

c) mandatory information that the Seller must provide based on the eBay Policies or legal requirements, including seller’s return policy, the correct indication of any included taxes or applicable import or customs fees, fees and other costs (if applicable).

3. Grading and Cleaning Requirements

The Seller must perform a physical review of each item, checking its condition and quality, before it is listed on the eBay Site, including but not limited to:

a) review the condition and quality of the item, including but not limited to:

i. bobbling;

ii. fading;

iii. stretching or distortion of the fabric;

iv. marks; or

v. stains.

b) ensure that any zips, buttons, and pockets are fully functionable;

c) ensure that the fabric does not have any fraying, rips, or holes, or if it does that these features are part of the design of the item. If the item does have fraying, rips or holes and it is a part of the design of the item, then each of these features must be pictured and added to the item description; and

d) ensure the item is clean and there is no odour to the garment.

4. Shipping and Returns

The Seller must offer for all Eligible Items:

a) return policy (of at least 30 days).

5. Seller Status

From the date the Seller joins the Program, the Seller must:

a) obtain or already have and maintain the Top Rated or higher status;

b) have Buyer feedback rating greater than 98%;

c) have an ‘item not as described’ rate no greater than 4%; and

d) have an ‘item not received’ rate no greater than 1%.

6. Price 

a) Seller agrees to list Eligible Items on the Site at a price that is the same or lower than the price offered by Seller to consumers for such items via Seller’s own website.

b) Seller agrees to list Eligible Items on the Site at an attractive price when compared to an equivalent item in brand new condition.