Publisher Agreement

Last updated on March 19, 2013

This is an agreement (the “Agreement”) between you (“Publisher” or “You”) and (a) if You reside in the United States of America,  eBay Inc., a Delaware corporation, located at 2145 Hamilton Avenue, San Jose, California 95125, U.S.A.; and (b) if You reside in any other country, eBay International AG, Helvetiastrasse 15/17, 3005, Bern, Switzerland (each, “eBay”) (each a “Party” and together the “Parties”). This Agreement relates to Your provision of Information (as defined below)  to eBay and eBay’s use of such Information, including, without limitation, via the mobile application and web service owned and operated by eBay, currently branded RedLaser, that allows users to scan product codes and compare product prices, among other functions (“RedLaser”). Please read this Agreement carefully. By submitting Information, You agree to be bound by the terms and conditions set forth in this Agreement, in addition to those set forth on www.redlaser.com, including RedLaser’s privacy policy (currently available at http://redlaser.com/legal/us/privacy/) and RedLaser’s terms of service (currently available at http://redlaser.com/legal/us/web-tos/) (collectively, the “RedLaser Terms”). You agree that any of Your agents, representatives, employees or any person or entity acting on Your behalf with respect to the matters covered by this Agreement shall be bound by, and shall abide by, the RedLaser Terms. You further agree that You are bound by the RedLaser Terms whether You are acting on Your own behalf or on behalf of a third party.

 

1. Definitions.

Affiliate” means any entity which controls, is controlled by, or is under common control of either Party. For purposes of this definition, “control” of an entity means having (i) direct or indirect ownership of more than fifty percent (50%) of the voting equity or beneficial interest of such entity, (ii) the right to vote for or appoint a majority of the board of directors or other governing body of such entity, or (iii) management or operational control of such entity.

Information” means all content made available by or on behalf of Publisher to eBay and may include, without limitation: product title, specifications, descriptions, serial numbers, barcodes, variations and pricing/taxes; brand, category and inventory information; images, logos and other marks; and retail store and website information.

Intellectual Property” means all copyright, patent, trademark, trade secret, moral, authorship and other proprietary rights relating to any content, data, device, object code, source code or other asset of any kind, including, without limitation, all rights necessary for worldwide development, manufacture, modification, enhancement, sale, licensing, use, reproduction, publishing and display.

RedLaser Sites” means www.redlaser.com, and the websites, WAP and mobile sites, social media, applications, web properties, widgets and other online or offline points of presence of eBay and its Affiliates (or those of third parties that receive syndicated content from eBay or its Affiliates as part of their respective standard content distribution networks).

2. Implementation and Delivery.

You agree to provide eBay with, or otherwise make available to eBay, the Information. You represent that the Information shall be free from any spyware, malware, virus, worm, Trojan horse, or other malicious or harmful code, or any software application not expressly and knowingly authorized by users prior to being downloaded or installed on their computer or other electronic device. You shall be solely responsible for ensuring that the Information is current, complete and accurate. In the event that the Information is or becomes outdated, incomplete or inaccurate, You shall immediately take action to revise the Information.

eBay specifically disclaims any warranty regarding the quantity, rank, location and prominence of Information anywhere on RedLaser or the RedLaser Sites. eBay reserves the right to determine whether and where the Information will be displayed in response to any given search. eBay may elect to not display Information (or any portion thereof), or any of Your content, in its sole discretion. Additionally, eBay reserves the right to remove any Information from any media on which it is displayed at any time, with or without notice to You, if, in its sole opinion, such Information (i) conflicts with or is in breach of this Agreement or (ii) the nature or quality of the Information or underlying content is inconsistent with eBay’s mission or standards. You acknowledge and agree that eBay may display, store or otherwise use any content (including, without limitation, content that would constitute Information if provided by You and user-generated content), artwork, creative copy, images, Intellectual Property, product titles, descriptions or reviews, or any other information of eBay and/or obtained from third parties in combination with the Information.

3. Display and Distribution Rights & Obligations; Intellectual Property.

You hereby grant to eBay and its Affiliates a non-exclusive, worldwide, royalty-free or fully paid up, sub-licensable (through multiple tiers), perpetual (or where proper, for the term of the protection granted by the relevant intellectual property rights) and transferable license to exercise the copyright, trademark, patent, publicity, database and all other Intellectual Property in the Information, as well as the right to host, cache, route, transmit, store, copy, modify, reproduce, distribute, publish, translate, use, publicly perform, publicly display, reformat, excerpt, analyze, and create algorithms from and derivative works of the Information, for displaying and making the Information available on any media known now or in the future, including, without limitation, RedLaser and any RedLaser Site.

eBay retains all Intellectual Property in and to all RedLaser content, data, code, software, functionalities and designs.  Publisher grants eBay the foregoing license but it remains (i) holder of the ownership of any Intellectual Property in the Information, or (ii) where proper, the licensor of such Information.

4. Representations and Warranties.

Each Party represents and warrants that (i) if a Party is an entity, it is duly organized, validly existing, and in good standing in the jurisdiction of its incorporation, (ii) this Agreement is a valid agreement enforceable against that Party according to its terms, (iii) if a Party is an entity, the person entering into this Agreement on behalf of such entity has been properly authorized and empowered to do so and (iv) it has the right and authority to enter into this Agreement and grant all rights granted herein.

You represent, warrant and covenant that (i) You own or have sufficient rights to all Intellectual Property necessary to fulfill Your obligations and actions taken under this Agreement, including but not limited to the full power and authority to grant the licenses described herein, and that Your granting of the license(s), and subsequent exercise thereof by eBay or its Affiliates, do not and will not violate any third-party rights, including, without limitation, Intellectual Property rights and rights of privacy and publicity; (ii) the Information (as a whole or in part) (a) is not and will not be obscene, false, inaccurate, deceptive, illegal, hateful, racist, pornographic, or sexually explicit, (b) does not and will not infringe or violate the Intellectual Property, privacy, publicity or contractual rights of any third party and (c) complies with all applicable laws; and (iii) Your performance hereunder does not and will not violate applicable laws or any agreement to which You are a party or by which You are bound.

To the extent that You are promoting, offering, or selling pharmaceuticals, drugs, health products or services or medical advice or devices, You represent, warrant and covenant that You are a licensed health care provider or are otherwise fully authorized to advise, prescribe, distribute or otherwise deal in such products and/or services in the jurisdictions in which they are promoted, offered or sold.

You represent, warrant and covenant that You shall be solely responsible for (i) the receipt, processing and fulfillment of orders for the products represented in the Information and all related actions, including but not limited to, shipping, invoicing, product returns or replacements, customer service, and payment of any taxes or other charges, and (ii) Your sales practices, product safety and warranties, and the regulatory compliance of products represented in the Information.

5. Indemnification.

Each Party hereby agrees to indemnify, hold harmless and defend the other Party and its respective successors and permitted assigns, and the officers, directors, employees and agents of each of them, against any and all third party claims, counterclaims, suits, demands, actions and causes of action and any and all resulting 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, and reasonable attorneys’ fees) (“Claims”) arising from or out of or in connection with: (i) any actual or alleged breach of any of a Party’s representations or warranties set forth in this Agreement and (ii) gross negligence, willful misconduct or fraudulent acts or omissions of the indemnifying Party or its respective directors, officers, employees or agents in connection with the entry into or performance of this Agreement.

You also agree to indemnify, hold harmless and defend eBay and its Affiliates and their respective successors and assigns, and the officers, directors, employees and agents of each of them, against any and all Claims arising from or out of or in connection with: (i) Your violation of any law, rule or regulation in connection with Your use of RedLaser or the RedLaser Sites, (ii) Your breach of any covenant set forth in this Agreement, (iii) claims of false advertising, defamation, disparagement, infringement of moral rights, violation of privacy, publicity or identity relating to any Information, (iii) claims of false advertising, defamation, disparagement, infringement of moral rights, violation of privacy, publicity or identity relating to any Information, (iv) claims that the Information (or any part thereof) or its use hereunder infringes the patent, copyright, trademark, trade secret or other Intellectual Property rights of any third party, (v) claims related to any inaccuracies, errors or misrepresentations in any content represented in the Information, and (vi) claims related to product liability with respect to products represented in the Information.

6. DISCLAIMER OF WARRANTY.

EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW OR AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EBAY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, RESULTS OF USE, RELIABILITY, FITNESS FOR A PARTICULAR PURPOSE, THE AMOUNT OF REVENUE THAT MAY BE GENERATED, ANY ECONOMIC OR OTHER BENEFIT THAT YOU MIGHT OBTAIN THROUGH YOUR PARTICIPATION IN THIS AGREEMENT, TITLE, INTERFERENCE WITH QUIET ENJOYMENT AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. EBAY DISCLAIMS ANY WARRANTY THAT YOUR USE OF REDLASER OR THE REDLASER SITES WILL BE UNINTERRUPTED OR ERROR FREE. EBAY DOES NOT GUARANTEE THE ACCURACY OF CONTENT ON REDLASER OR THE REDLASER SITES, AND WILL NOT ASSUME ANY LIABILITY FOR REDLASER USERS’ (1) PURCHASE DECISIONS (AND THE SUBSEQUENT USE OF PURCHASED PRODUCTS AND SERVICES) THAT MAY BE INFORMED BY, THE INFORMATION PROVIDED BY REDLASER OR ON THE REDLASER SITES OR (2) THIRD PARTIES’ CONTENT, ACTIONS OR INACTIONS, OR YOUR INTERACTIONS WITH ANY THIRD PARTIES IN CONNECTION WITH REDLASER OR THE REDLASER SITES. IF YOU HAVE A DISPUTE WITH ONE OR MORE THIRD PARTIES IN CONNECTION WITH YOUR USE OF REDLASER OR THE REDLASER SITES, YOU RELEASE EBAY AND ITS AFFILIATES (AND EACH OF THEIR OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS) FROM CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”

7. LIMITATION OF LIABILITY.

SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON LIABILITY. ONLY LIMITATIONS THAT ARE LAWFUL IN THE APPLICABLE JURISDICTION WILL APPLY TO YOU AND EBAY’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. EBAY WILL HAVE NO DIRECT, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, STATUTORY, PUNITIVE, OR OTHER LIABILITY, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, UNDER THIS AGREEMENT OR IN ANY WAY RELATING TO REDLASER, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH LIABILITY AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN THE EVENT THAT THE IMMEDIATELY PRECEDING SENTENCE IS NOT ENFORCEABLE, EBAY’S AGGREGATE LIABILITY IS LIMITED TO AMOUNTS PAID OR PAYABLE TO EBAY BY YOU UNDER THIS AGREEMENT IN THE MONTH PRECEDING THE CLAIM. IN THE EVENT THAT THE LIMITATION OF LIABILITY IN THE IMMEDIATELY PRECEDING SENTENCE IS NOT ENFORCEABLE, EBAY’S AGGREGATE LIABILITY IS IN ANY CASE LIMITED TO $5,000. THE FOREGOING LIMITATIONS SHALL APPLY TO ALL CLAIMS AND CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS.

8. Term, SUSPENSION, TERMINATION, SURVIVAL.

The term of this Agreement will begin on the date on which you accept this Agreement as reflected by eBay’s records. It will continue until terminated in accordance with this Agreement. If you wish to terminate this Agreement, you must mail a termination notice to eBay Inc., Attention: RedLaser, 2145 Hamilton Avenue, San Jose, California 95125; any other methods used by you to terminate the Agreement will be void and will not result in a termination.  Your termination notice will be effective thirty (30) days after it is received by eBay.  eBay reserves the right to terminate or suspend this Agreement for any or no reason at any time upon notice to you and without liability to you for the termination or suspension.

Upon termination of this Agreement, You will promptly pay to eBay all undisputed payments due through the effective date of the termination, if any. Notwithstanding the expiration or termination of this Agreement, the following Sections shall survive termination of this Agreement: 5, 6, 7, 11, 13 and any other sections that expressly indicate they are to survive, such as this paragraph.

9. NOTICES.

Notices to You (including notice of changes to or termination of this Agreement by eBay) may be given by email from eBay. It is Your responsibility to ensure that Your e-mail address and any other contact information You provide to eBay is updated and correct. Even if You do not receive an e-mail notification, You will be deemed to have received any notice posted in the appropriate section(s) of the RedLaser Sites.

10. ASSIGNMENT.

You may not assign to any person, entity or Affiliate, Your rights, duties or obligations set forth in this Agreement, in whole or in part, whether by assignment, merger, transfer of assets, sale of stock, bankruptcy, operation of law or otherwise, without the prior written consent of eBay. Any attempt to make such an assignment or transfer shall be void.

11. CHOICE OF LAW.

This Agreement and any action related thereto shall be governed by and under the laws of the State of California, without regard to any conflicts of laws provisions, and any claim arising under or relating to this Agreement must be brought exclusively in State or Federal court in Santa Clara County, California.

12. FORCE MAJEURE.

Non-performance of either Party will be excused to the extent that performance is rendered impossible by strike, fire, flood, earthquake, government acts or orders or restrictions, failure of supplier, or any other reason where failure to perform is beyond the reasonable control of the non-performing Party.

13. MISCELLANEOUS.

eBay reserves the right to make changes to this Agreement or the RedLaser Terms from time to time. Any material changes will take effect immediately upon acceptance for new users and, for current users, upon the expiration of thirty (30) days after posting on www.redlaser.com or any successor site.

No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement. There are no third-party beneficiaries hereunder.

Notwithstanding anything else herein, Publisher hereby authorizes eBay to use its name and the Information in marketing materials, media coverage and other publicity efforts relating to RedLaser products and services.

No failure to exercise or delay in exercising any right under this Agreement will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise of any other right hereunder. Any waivers or amendments shall be effective only if made in writing and signed by You and eBay.

If any provision of this Agreement is found by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that the Agreement shall otherwise remain in full force and effect and enforceable.

This Agreement constitutes the entire Agreement between the Parties in connection with your submission of content to eBay hereunder and supersedes all previous and contemporaneous agreements, proposals and communications, written or oral, between You and eBay with respect to the subject matter herein.

 

Last updated: March 19, 2013



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