OFFERUP FOR BUSINESS TERMS OF SERVICE
INTRODUCTION
These OfferUp for Business Terms and Conditions (and any applicable product or service specific terms attached as Exhibits the "Business Terms"), together with any order form (the "Order Form" and collectively with the Business Terms, the "Agreement"), constitute a binding agreement between OfferUp Inc. ("OfferUp") and the person or entity and their agents (the "Customer") who purchase the applicable product or service through an Order Form (the "Service"). OfferUp and the Customer may each be referred to individually as a "Party". By executing an Order Form that references these Business Terms, the Customer agrees to be bound by these Business Terms and all terms incorporated by reference, which include: the OfferUp Terms of Service (the "General Terms"), the OfferUp Privacy Policy (together with any applicable state privacy disclosures, the "Privacy Policy").
The General Terms and Privacy Policy are hereby fully incorporated into these Business Terms, and the Customer acknowledges they have read and agree to the General Terms and the Privacy Policy. In particular, the Customer should note that the General Terms include a mandatory arbitration provision and class action waiver.
Unless otherwise noted, in the event of any conflict or inconsistency among the Business Terms, the Order Form, and the General Terms, precedence will be given in the following order: (a) the Order Form; (b) the Business Terms; and (c) the General Terms. Any defined terms not defined in the Business Terms will have the definition given to them in the Order Form or the General Terms.
SERVICES
Access to the Service
OfferUp grants the Customer a nonexclusive, nontransferable, worldwide right to access and use the Service during the Term. By purchasing, using or accessing the Service, the Customer agrees to pay the applicable Service Fees and to use the Service in compliance with these Business Terms and any other policies provided to Customer by OfferUp.The Customer Service Rules
By purchasing the Services, the Customer acknowledges and agrees to the following:the Customer will be given access to create an OfferUp business account, from which the the Customer will be required to post all of their listings;
the Customer is allowed to post one listing per designated piece of item or service on the OfferUp marketplace, and agrees not to create duplicate listings for the same item or service;
the Customer may only post their listings from their business account, not from any other OfferUp account (including a personal account or an account associated with an employee, friend, or family member);
the Customer must keep their product or service listings up to date and accurate, which includes removing sold or unavailable items or services in a timely manner and not misrepresenting the quality or quantity of the products or services available;
the Customer must comply with all item/service category posting restrictions and limits set by OfferUp; and
The Customer's listings must comply with OfferUp's Posting Rules and Prohibited Items Guidelines.
Leads
The Customer acknowledges that OfferUp may give potential buyers the opportunity to share their contact information with the Customer. If the Customer receives this information through the Service, the Customer agrees to use it only to respond to the specific inquiry or transaction for which it was provided, not to sell, share, or transfer the information to any third party without OfferUp’s prior written consent, to protect the information with reasonable safeguards, to delete it when no longer needed or upon OfferUp’s request, and to comply with all applicable privacy lawsFeed Service
OfferUp works with third-party feed providers ("Inventory Partners") to access and integrate the Customer's inventory into the OfferUp marketplace ("Feed"). OfferUp has full discretion which Inventory Partner to use when powering OfferUp's Feed. If the Customer purchases the Service that OfferUp determines will require a Feed, the Customer authorizes OfferUp's Inventory Partner to aggregate and pull the Customer's inventory data through the Feed for use and display on OfferUp. As needed to provide the Feed services, the Customer grants OfferUp the right to share the Customer's contact details with the Inventory Partner so that the Inventory Partner may contact the Customer and the Customer's applicable service providers to set up the Feed.
It may take up to seven days (or longer if the Customer is unresponsive) for a new Feed to be set up and become active after purchase.
If Feed services are purchased, the Customer's verified inventory Feed will be the only method by which the Customer can post items on OfferUp, and any manual postings created by the Customer may be deleted by OfferUp without prior notice to the Customer.
Promoted Placements
Promoted placements are posts promoted to a higher location within the OfferUp marketplace feed ("Promoted Placements"). Promoted Placements will be applied to the Customer's posts based on the logic the Customer selects during account on-boarding, or if available, as selected in the online business portal.For Storefront Customers: Promoted Placements are purchased as a fixed number of promoted placements that the Customer will receive each month.
For Motors Customers: Promoted Placements are purchased on a percentage basis of the Customer's available inventory ("Lot Size"). The number of Promoted Placements the Customer will receive is based on the Lot Size in place at the time the Order Form is executed, and the number of Promoted Placements is fixed even as a Lot Size fluctuates.
RIGHTS RESERVED BY OFFERUP
OfferUp reserves the right, in its sole discretion, to:Modify these Business Terms, the OfferUp Technology, or the Service;
Impose rules for, limits on use of, or access to, the Service;
Restrict the Customer's access to part, or all, of the Service without prior notice;
Change, suspend, or discontinue any aspect of the Service; or
Change pricing for the Service.
Except as set forth herein, OfferUp will not be liable to the Customer or to any third party for taking any of the actions listed above. OfferUp may terminate the Customer's use of the Service at any time, for any or no reason, and without prior notice. In the event that OfferUp terminates the the Customer's access to the Service for any reason other than the Customer's breach of these Business Terms or related policies, or if OfferUp modifies the Service in a manner that materially impacts the Customer's use of the Service, the Customer's sole remedy for such termination will be the refund of the pro-rata amount (if any) of any prepaid amounts for the Service that the Customer had not yet used at the time of termination or modification.TERM AND FEES
The Customer shall pay all fees specified in the Order Form (the "Service Fees") as follows:Payment
OfferUp will bill the Customer for all Service Fees due as outlined in the applicable invoice. credit card and ACH payments are due at the beginning of the relevant Initial or Renewal Term. Pay-by-check payments are due within 30 days of receiving the invoice date. The Customer authorizes OfferUp to charge their payment method on file for all Service Fees when due. OfferUp may enable other forms of payment, which may be subject to additional terms. OfferUp may adjust the Customer's monthly billing date at any time, but will provide all the necessary prorations to ensure the Customer is billed the correct amount. If a payment is not processed for any reason, OfferUp may suspend access to the Service until the Customer is paid in full and up to date on all outstanding Service Fees. Except as otherwise stated, all Service Fees owed during the Term are non-cancellable and non-refundable.Term, Auto-Renewal, Fees, Termination
The effective period of a subscription is set forth in the Order Form which includes the initial term ("Initial Term") and as applicable, subsequent renewal term(s) ("Renewal Terms") (collectively with the Initial Term, the "Term"). Unless otherwise stated in the Order Form, following the Initial Term, the Service will automatically renew for additional one-month Renewal Terms until the Service is terminated by either Party. OfferUp may terminate an Order Form at any time in its sole discretion upon written notice to the Customer. The Customer must email OfferUp at [email protected] to terminate the Services.Price Increases
Service Fees are subject to change. OfferUp will provide the Customer with at least 30 calendar days advance notice of any price increase. The price increase will go into effect at the start of the Customer's next applicable Term following the 30-day notice. After receiving such notice, the new pricing will supersede the pricing listed in the Customer's pre-existing Order Form. If the Customer does not want to pay the increased price for the Services, then the Customer should elect not to renew the Service and must terminate the Service in accordance with Section 3(b) above.Disputes
If the Customer wants to dispute a Service Fee invoice or charge (a "Charge"), they are free to do so, but any such dispute must be done in accordance with this subsection. All disputed Charges must be raised by the Customer within 30 calendar days after receiving the applicable invoice. Any disputes received after those 30 calendar days will not be reviewed and the Service Fees must be paid in full by the Customer. To dispute a Charge, the Customer must email [email protected] outlining the details of the dispute and any evidence that the Charge was incorrect. OfferUp will review the dispute email and reply providing a determination on whether the Charge was made in error or is correct. All decisions made by OfferUp are final and may not be appealed.
MODIFICATIONS
The Agreement
OfferUp reserves the right to change these Business Terms, or any terms contained in applicable Order Form from time to time. Such notice will be provided by either email, an invoice, or an in-Service notification. Upon receipt of the notice, it is the Customer's responsibility to carefully read any such notice and changes. If the Customer does not wish to accept the updated and modified Agreement, they can elect to not renew in accordance with Section 3(b) above. Any continued use of the Service after the start of the Customer's next applicable Renewal Term will constitute acknowledgment and agreement of the modified Agreement.The Services
The Customer may elect to upgrade their Service offerings by upgrading or downgrading their package and may be required to sign a new Order Form accordingly. If the Customer upgrades their package, the Customer will be given access to the new package on the date the new contract is signed and be billed on a prorated basis during the first month of service.
RESTRICTIONS
OfferUp does not grant the Customer license, express or implied, to any OfferUp intellectual property except as specifically authorized by these Business Terms. All the technology and intellectual property used in providing the Service, including computer software programs, websites, networks, and equipment, and any content (collectively, the "OfferUp Technology") is the property of OfferUp or its third-party content suppliers and is protected by the United States and international copyright and trademark laws. The Customer shall only use the OfferUp Technology and Service as set forth herein and the applicable Order Form, and not for the benefit of any third party unless expressly permitted by OfferUp. The Customer shall not: (a) reverse assemble, reverse engineer, decompile, or otherwise attempt to derive source code from any of the OfferUp Technology; (b) reproduce, modify, create, or prepare derivative works of any of the OfferUp Technology; (c) distribute or display any of the OfferUp Technology; (d) share, sell, rent, lease, or otherwise distribute access to the Service; (e) alter, destroy or otherwise remove any proprietary notices within the OfferUp Technology; or (f) disclose the results of any benchmark tests to any third parties without OfferUp's prior written consent.ACCOUNT PASSWORD AND SECURITY
The Service requires the Customer to create an account with OfferUp, and the Customer must complete the registration process by providing current, complete, and accurate information as prompted by the applicable registration form. In addition to entering relevant account information, the Customer will be asked to choose a password and a username. The Customer is solely responsible for maintaining the confidentiality of the password, username, and other account information. Furthermore, the Customer is solely responsible for all activities that occur under their account, whether authorized or not. OfferUp will not be liable for any loss or damages that the Customer may incur as a result of the use by any party, authorized or otherwise, of the Customer's password or account. The Customer shall notify OfferUp immediately of any unauthorized use of the account or any other breach of security.COMPLIANCE WITH APPLICABLE LAWS
The Customer agrees to comply with all laws and regulations applicable to the business in which the Customer operates, this includes but is not limited to, advertising laws, deceptive pricing laws, and all other applicable consumer protection laws (the "Applicable Laws"). When listing products or services for sale on OfferUp, the Customer acknowledges and agrees that the Customer is responsible, not OfferUp, for including all necessary disclosures, information, and other requirements mandated by the Applicable Laws. Furthermore, the Customer agrees to indemnify OfferUp, their employees and directors from any and all claims that the Customer is in violation of any Applicable Laws by any third party, including an end user, government agency or other regulatory body.NO UNLAWFUL OR PROHIBITED USE
The Customer shall not use the Service for any purpose that is unlawful or prohibited by the Agreement, the General Terms, or any of OfferUp’s posted policies. This prohibition includes, but is not limited to, using the Service in a manner that could damage, disable, overburden, or impair any OfferUp server, or the networks connected to any OfferUp server, or interfere with any other party's use and enjoyment of any of the Service. The Customer shall not attempt to gain unauthorized access to the Service, other accounts, computer systems, or networks connected to OfferUp through hacking, password mining, scraping or any other means. The Customer shall not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service. The Customer shall not use the Service to, nor permit any third party to: (a) defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others or publish, post, upload, or distribute any information that would result in the same; (b) download, upload, or otherwise make available materials, software, or information that is not legally the Customer's and without permission of the intellectual property rights owner; or (c) impersonate someone else or falsely represent the Customer's identity or qualification, or to breach another's privacy.CONFIDENTIALITY
From time to time, OfferUp may share information with the Customer that is confidential (e.g., OfferUp may reveal new and upcoming features or internal company metrics). Information will be deemed confidential if it's marked confidential, or a reasonable person would consider it confidential under the circumstances. If OfferUp shares any confidential info with the Customer about OfferUp or the Service, the Customer agrees to keep it confidential and use reasonable measures to prevent others from accessing the confidential information.DATA SECURITY
OfferUp will maintain commercially appropriate administrative, physical, and technical safeguards designed to protect the security of the Service and the Customer Data. "The Customer Data" means the Customer's OfferUp listings, the content of the messages the Customer sends, and any personal information the Customer provides when creating their OfferUp account. The Customer Data does not include any other listings, the message content sent by another user, OfferUp's Technology, or the personal information of any other user, whether or not they become a Customer of the Customer at a later date.DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
The Service is made available to the Customer on an "as is" and "as available" basis, unless otherwise specified in writing. To the fullest extent permissible by applicable law, OfferUp disclaims all warranties expressed or implied, including the implied warranties of merchantability, noninfringement, and fitness for a particular purpose. The remedies described in this section are the Customer's only remedies for any breach of warranty or any other claim. OfferUp's total liability arising out of the Service, whether based on warranties, claim of negligence, or otherwise, shall not in any case exceed the cost paid by the Customer to access the Service during the twelve-month period preceding the events giving rise to the claim or $300, whichever is less, and OfferUp will not be liable to the Customer or any third party for any incidental, consequential, or special damages, including damages for loss of data, goodwill, use of money, stoppage of work, or any other claim.THIRD PARTY SERVICES
Third parties may be allowed from time-to-time to offer non-OfferUp products or features to the Customers in conjunction with the Services. Any use by the Customer or their users of such non-OfferUp products is the sole responsibility of the Customer and the applicable provider. OfferUp does not warrant or offer support for non-OfferUp products.ENTIRE AGREEMENT; MISCELLANEOUS
This Agreement constitutes the entire agreement and understanding between the parties and supersedes any prior agreement or understanding with respect to the subject matter hereof. Neither failure nor delay by either party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege. If any provision of this Agreement is held invalid or unenforceable by a body of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect and, if legally permitted, such provision will be replaced with an enforceable provision, so as to come as close as possible to achieving the economic, legal or other purpose of such unenforceable provision.
EXHIBIT A: ADDITIONAL TERMS FOR MOTORS
These OfferUp Motors Service Terms ("Motor Terms") apply to any Customer who purchases or uses OfferUp's motor-related services ("Motor Services"). These Motors Terms are incorporated by reference into and are subject to the OfferUp for Business Terms of Service.
RESELLERS
If the Customer purchased the Service through an approved and verified OfferUp reseller partner ("Reseller") the Customer agrees that these Service Terms will apply to their use of the Services. The Reseller was obligated to share these Service Terms at the time of purchase for review and acceptance, and the Customer's continued use of the Service indicates the Customer's continued acceptance of the Service Terms. Reseller may not modify these Service Terms in any way nor make any commitments on OfferUp's behalf.LEADFILTER
If the Customer uses OfferUp's lead vetting service ("LeadFilter"), the Customer grants OfferUp the right to respond to the chat messages received by the Customer from other users in the OfferUp marketplace,using any method or technology selected by OfferUp, including but not limited to automation, artificial intelligence, machine learning, or human agents, as determined by OfferUp in its sole discretion. The LeadFilter service will be generally available 24 hours a day, 7 days a week unless otherwise noted by OfferUp (subject to unexpected changes in volume, staffing, service interruptions, or closure for holidays). OfferUp will provide LeadFilter in a commercially reasonable and professional manner, which may include the use of automated or AI-powered tools.
The Customer should take note of the following limitations of the LeadFilter service: (i) OfferUp cannot guarantee that LeadFilter messages will be without fault or error-free; (ii) OfferUp does not guarantee that using LeadFilter will lead to any specific results, such as an increase in sales volumes; and (iii) LeadFilter relies on the Customer for accurate and up-to-date information on the Customer's business and inventory and the failure of the Customer to provide accurate or timely information may result in errors or interruption to the LeadFilter service. Furthermore, OfferUp is not responsible or liable for such errors or interruptions due to the Customer's inaccurate information. As well, OfferUp is not responsible or liable for any claims that are the result of information provided by the Customer to OfferUp regarding the Customer's inventory, listings, or business, when OfferUp relied on it to respond to user messages through LeadFilter.
EARLY TERMINATION
If the Customer's Initial Term is longer than three months, the Customer may terminate the Motors Services for convenience during the Initial Term by providing 30 days advance written notice to [email protected] and paying OfferUp a one-time early termination fee of $500 or 50% of the remaining amount committed, whichever is greater. The fee is due at the end of the 30 day notice period. The fee covers OfferUp's costs for the Customer onboarding and account set up and is not a penalty. The Customer's access to the Motors Services will cease at the end of the 30 day notice period.