General Terms and Conditions for OfferUp’s Partner Programs
Effective as of April 15, 2019
These OfferUp Partner Program General Terms and Conditions (the “General Partner Terms”), together with any applicable document used to describe a partnership between OfferUp and Partner (the “Partner Agreement”) (the Partner Agreement with the General Partner Terms are the “Agreement”) constitute a binding agreement between OfferUp and Partner (each, a “Party”). Partner agrees to be bound by these General Partner Terms by executing, including clicking through, any document that references these General Partner Terms.
1) Definitions. Unless otherwise defined in the Agreement, capitalized terms have the following meanings:
“Affiliate” means an entity that controls, is controlled by or is under common control with a Party. For this definition, “control” means direct or indirect ownership of more than 50% of the voting interests of the subject entity.
“Connector” means a software and communications interface that connects a Partner’s Solution to an OfferUp Service.
“Customer” means a person or entity who purchases an OfferUp Service in conjunction with Partner’s referral and or Partner’s Connector.
“Documentation” means a Party’s user guides, training manuals, and other similar information, as updated or revised by that Party from time to time.
“Intellectual Property” means all trade secrets, patents and patent applications, Marks, copyrights, moral rights, rights in Inventions, and all other intellectual property and proprietary rights (whether registered or unregistered, any application for the foregoing, and all rights to enforce the foregoing), and all other equivalent rights that may exist anywhere in the world.
“Invention” means any work of authorship, invention, know-how, device, design, algorithm, method, process, improvement, concept, idea, expression, discovery or invention, whether or not copyrightable or patentable and whether or not reduced to practice.
“Mark” means any trade names, trademarks, service marks, marks and logos owned by a Party (whether registered or unregistered and including any goodwill acquired in such trademarks).
“OfferUp” means OfferUp Inc. a Delaware corporation.
“OfferUp Property” means all products and services offered by OfferUp and all underlying OfferUp Technology.
“OfferUp Technology” means the technology and Intellectual Property that OfferUp uses to provide its products and services, including computer software programs, websites, networks, and equipment. OfferUp Technology includes all OfferUp Services and OfferUp Property.
“Partner” means the Party who enters into a partnership agreement with OfferUp or participates in the OfferUp Partner Program.
“Partner Technology” means the technology and Intellectual Property that the Partner uses to provide its Connector and the Solution, if applicable, including computer software programs, Partner’s Documentation, schematics, websites, networks, and equipment.
“Program” means any program OfferUp offers to third parties to partner with OfferUp.
“Service” means the software and/or service provided to Customers by OfferUp.
“Solution” means any software or other technology platform (such as an inventory management system) provided by Partner to Customers.
2) Proprietary Rights.
a) Partner’s Intellectual Property.
i) Partner Technology. Partner retains all right, title, and interest in all Intellectual Property rights in the Partner Technology and all enhancements or improvements to, or derivative works of, the foregoing. Nothing in the Agreement transfers or conveys to OfferUp any ownership interest in the Partner Technology. Partner hereby grants to OfferUp a non-transferable (except as permitted under the Agreement), non-exclusive and sub-licensable license to: (A) demonstrate and sell the Connector to Customers and users of the applicable Solution; (B) test the functionality of the Connector to ensure that the Connector is functional and compatible with OfferUp Technology and Services; and (C) use the Connector and the Partner Technology to satisfy OfferUp’s other obligations under the Agreement. Except to the extent required by OfferUp to exercise its rights or perform its obligations under the Agreement, OfferUp agrees not to reverse assemble, reverse compile, or build a product using Partner’s Confidential Information.
ii) Partner Marks. Subject to the terms of the Agreement, Partner grants to OfferUp a limited, non-exclusive, non-transferable, revocable license to display Partner’s Marks solely to market and promote the relationship contemplated by this Agreement.
b) OfferUp’s Intellectual Property.
i) OfferUp Technology. OfferUp retains and owns all right, title, and interest in all Intellectual Property rights in the OfferUp Technology, OfferUp’s Documentation, OfferUp’s Confidential Information, the Services, and all enhancements or improvements to, or derivative works of, the foregoing. Nothing in the Agreement transfers to Partner any ownership interest in the OfferUp Intellectual Property.
ii) Restrictions. Partner shall use the Services only as set forth in the Agreement and the Documentation. Partner 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 or Documentation; (C) except as permitted by this Agreement, distribute or display any of the OfferUp Technology or Documentation; (D) share, sell, rent, lease, or otherwise distribute access to the Services, or use the Services to operate any timesharing, service bureau, or similar business; (E) alter, destroy, or otherwise remove any proprietary notices within the OfferUp Technology or Documentation; or (F) disclose the results of any Service or program benchmark tests to any third parties without OfferUp’s prior written consent.
iii) Marketing Activities; OfferUp Marks. In conducting any marketing activities under a Partner Program, Partner shall use only those marketing materials OfferUp approves in writing (“OfferUp Assets”). Partner shall use the OfferUp Assets and OfferUp Marks in compliance with all guidelines OfferUp provides. Partner shall not modify the OfferUp Assets or OfferUp Marks without OfferUp’s prior written approval. OfferUp grants Partner a limited, non-exclusive, non-transferable, non- assignable, revocable right to display the OfferUp Assets and OfferUp Marks solely to fulfill its obligations under the Agreement. This right to use terminates automatically when the Agreement terminates. Notwithstanding the forgoing, OfferUp retains all right, title, and interest in the OfferUp Assets and OfferUp Marks, and nothing in the Agreement confers any right of ownership in the OfferUp Assets or OfferUp Marks on Partner, and all use of them inures to OfferUp’s benefit.
iv) Suggestions and Feedback If either Party provides the other Party with any suggested improvements to a Program, OfferUp Assets, Intellectual Property, the Services, Partner’s Solution or any other products or services of such Party, then that Party also grants the other Party a nonexclusive, perpetual, irrevocable, royalty free, worldwide license, with rights to transfer, sublicense, sell, use, reproduce, display, and make derivative works of such suggested improvements. Notwithstanding the foregoing, nothing in this Section 2(b)(iv) (Suggestions and Feedback) grants a Party a license to use any Inventions covered by a registered patent owned by the other Party.
3) Modification. Except as may otherwise be provided in the Agreement and except for the rights set forth in this Section 3, OfferUp may modify these General Partner Terms in its sole discretion. If OfferUp modifies these General Partner Terms, it will provide prior written notice (“Modification Notice”) to Partner of those modifications at least 30 days prior to the effectiveness of the modifications. If the modifications materially and adversely affect Partner, and Partner does not wish to accept such modifications, then Partner may withdraw Partner’s participation in the applicable Program and terminate the applicable Partner Agreement, subject to any wind down obligations in the Partner Agreement.
4) Confidential Information.
a) Confidential Information. “Confidential Information” means any information disclosed by a Party to the other Party, either directly or indirectly, in writing, orally, or by inspection that (a) is designated as “Confidential,” “Proprietary,” or some similar designation or (b) by the nature of the information or the circumstances surrounding disclosure, would be reasonably understood as proprietary or confidential.
b) Exclusions. Confidential Information does not include information (i) that is or becomes generally available to the public other than through the action of the receiving Party; (ii) lawfully in the possession of the receiving Party at the time of disclosure without restriction on use or disclosure; (iii) lawfully obtained by the receiving Party from a third party without restriction on use or disclosure or breach of such third party’s obligations of confidentiality; or (iv) independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information.
c) Disclosures Required by Law. If any applicable law, regulation, or judicial or administrative order requires the receiving Party to disclose any of the disclosing Party’s Confidential Information (a “Disclosure Order”) then, unless otherwise prohibited by the Disclosure Order, the receiving Party will promptly notify the disclosing Party in writing prior to making any such disclosure, in order to facilitate the disclosing Party’s efforts to protect its Confidential Information. Following such notification, the receiving Party will cooperate with the disclosing Party, at the disclosing Party’s reasonable expense, in seeking and obtaining protection for the disclosing Party’s Confidential Information. If, in the absence of a protective order or other remedy or the receipt of a waiver by the disclosing Party, the receiving Party is legally compelled to disclose Confidential Information by any tribunal, regulatory authority, agency, or similar entity, the receiving Party may disclose, without liability hereunder, that portion of the Confidential Information which is legally required to be disclosed and the receiving Party will exercise its best efforts to preserve the confidentiality of the remaining Confidential Information.
d) Restrictions on Use and Disclosure. Subject to the permitted disclosures set forth in Section 4(c) (Disclosures Required by Law), the receiving Party shall hold Confidential Information in strict confidence and shall not directly or indirectly disclose Confidential Information to third parties. The receiving Party may disclose Confidential Information to an employee, advisor, or consultant (“Representatives”) who needs such access in order to fulfill a Party’s obligations under these Terms on the condition that the receiving Party: (i) ensures that such Representatives are bound by a written agreement that is as substantially protective as the Agreement; and (ii) accepts full responsibility for its Representatives’ use of the Confidential Information. The receiving Party shall protect Confidential Information from unauthorized access and disclosure using the same degree of care, but in no event less than a reasonable standard of care, that it uses to protect its own Confidential Information and refrain from reverse engineering, decompiling, or disassembling any Confidential Information.
e) Notice. Each Party will promptly notify the other Party, as reasonably practicable under the circumstances, not to exceed 72 hours from the time of confirmation, of unauthorized access, use, or disclosure of Confidential Information; each Party will reasonably cooperate with the other with respect to such unauthorized access, use, or disclosure, including its containment and investigation. Upon confirmation of any vulnerability or breach of security, a Party will modify its processes and security program as necessary to remediate the vulnerability or breach, at such Party’s sole cost and expense.
a) Mutual Warranties. Each Party represents and warrants to the other Party that (i) it has the authority to enter into the Agreement and perform its obligations hereunder; (ii) the Agreement does not conflict with any other agreement entered into by it; and (iii) it does not conduct business for any unlawful purpose.
b) Partner Warranties. Partner represents and warrants that: (i) the information Partner provides in connection with any Program is accurate, complete and not misleading; (ii) Partner will comply with all applicable laws in performing its obligations under the Program; (iii) Partner will not engage in any unfair or deceptive marketing practices whether by statement, act, omission, or implication and will immediately cease all such marketing upon a written request from OfferUp; and (iv) any Customers that Partner refers or resells to are not on the United States Department of Treasury, Office of Foreign Asset Control’s list of Specially Designated National and Blocked Persons.
c) Disclaimer of Implied Warranties. Except as expressly provided in the Agreement, the Programs, the Services, and the OfferUp Technology are provided on an “as is” and “as available” basis, and neither Party makes any warranties of any kind, whether express, implied, statutory, or otherwise, and each party specifically disclaims all implied warranties to the maximum extent permitted by applicable law.
a) Indemnification by OfferUp. OfferUp shall indemnify and defend Partner against any Losses arising from a third-party claim that (1) the use of the OfferUp Technology in accordance with the Agreement infringes a copyright, registered trademark, issued patent, or other Intellectual Property right of such third party (an “Infringement”); (2) results from OfferUp’s breach of the Agreement; or (3) results from OfferUp’s violation of applicable laws. “Loss” means any liability, loss, claim, settlement payment (including any settlement the Indemnitee agrees to pay as long as it is in a written settlement approved by Indemnitor in writing), cost and expense, interest, award, judgment, damages (including punitive damages), fines, fees, penalties, or other charges, filing fees and court costs, witness fees, costs of investigating and defending third party claims, and reasonable attorneys’ and other professionals’ fees, and any other fees.
b) Indemnification by Partner. Partner will indemnify and defend OfferUp against any Losses arising from a third-party claim that (1) the use of the Partner Technology in accordance with the Agreement causes an Infringement; (2) results from Partner’s breach of the Agreement; (3) results from Partner providing Personal Information to OfferUp without the prior affirmative consent of the individual data subject; or (4) results from Partner’s violation of applicable law.
c) Process. The obligations of a Party (“Indemnitor”) to defend or indemnify the other (“Indemnitee”) under this Section 6 (Indemnification) are subject to the following: (i) the Indemnitee must promptly inform the Indemnitor in writing of any claim within the scope of the Indemnitor’s defense or indemnity obligations set forth in the Agreement, provided that Indemnitor shall not be excused from its indemnity obligations for failure to provide prompt notice except to the extent that the Indemnitor is prejudiced by any such failure to provide prompt notice; (ii) the Indemnitor shall be given exclusive control of the defense of such claim and all negotiations relating to the settlement thereof (except that the Indemnitor may not make any admissions on the Indemnitee’s behalf or settle any such claim unless the settlement unconditionally releases the Indemnitee of all liability and the Indemnitee may participate in the defense of the claim at its sole cost and expense); and (iii) the Indemnitee must reasonably assist the Indemnitor in all necessary respects in connection with the defense of the claim at the Indemnitor’s expense.
d) Exceptions. Neither Party has any obligation with respect to any actual or claimed Infringement to the extent that the Infringement is caused by (A) the Indemnitee’s technology, (B) use or modification of the Indemnitor’s technology other than as specified in the Documentation or the Agreement, (C) combination of the Indemnitor’s technology with any products, software, services, data, or other materials not provided by the Indemnitor or approved by the Indemnitor in writing if the Infringement would not have occurred but for such combination, or (D) any act or omission by the Indemnitee or any employee, agent, or Affiliate of the Indemnitee in violation of the Agreement, another agreement between the Parties, or applicable law.
e) No Third Party Beneficiaries. This Section 6 (Indemnification) does not confer any rights or remedies upon Customers or any other party but the Parties.
f) Exclusive Remedy. This Section 6 (Indemnification) states the Indemnitor’s sole liability and the Indemnitee’s exclusive remedy with respect to claims.
7) Exclusion of Certain Claims; Limitation of Liability.
a) Exclusion of Certain Claims. Neither Party will be liable to the other Party or any other party for any consequential, indirect, special, punitive, incidental, exemplary, or lost profits damages of any kind, whether foreseeable or unforeseeable, including damages for loss of data, goodwill, investments, use of money or use of facilities, interruption in use or availability of data, stoppage of other work, or impairment of other assets, even if advised of the possibility of such damages, arising out of (i) the performance or nonperformance of the Agreement or of products, software, Services, or provided under the Agreement, or (ii) any claim, cause of action, breach of contract, indemnity, or any express or implied warranty, misrepresentation, negligence, strict liability, or other tort. The previous sentence will not apply to instances of gross negligence or willful misconduct, a Party’s breach of its confidentiality obligations set forth in Section 4 (Confidential Information), or a Party’s indemnification obligations set forth in Section 6 (Indemnification).
b) Limitation of Liability. Except for instances of gross negligence or willful misconduct, a Party’s aggregate liability will not exceed the fees paid or payable between the Parties under the Agreement in the 12-month period immediately preceding the event giving rise to the claim. The previous sentence does not apply to a Party’s indemnification obligations set forth in Section 6 (Indemnification), to a Party’s confidentiality obligations set forth in Section 4 (Confidential Information), to a Party’s obligations to pay fees and expenses when due and payable, or to any infringement or misappropriation by a Party of any Intellectual Property rights of the other Party.
c) Limitation of Claims. Except with respect to claims of infringement or misappropriation of any Intellectual Property, misuse of Confidential Information, or a Party’s failure to pay amounts due, neither Party may bring any claim relating to the Agreement more than two years after the events giving rise to the claim occurred.
d) General. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some or all of the above exclusions or limitations may not apply and the Parties may have additional rights.
8) Additional Terms Applicable to Chat Integration Partners
a) User Content. In the course of using the OfferUp Service, you may transmit or otherwise make available certain content, including messages, materials, data, information, text, photos, graphics, code or other items or materials (“User Content”). User Content may be publicly viewable in some instances. You will not (and will not allow or authorize any third-party to) post, upload to, transmit, distribute, store, create, solicit, disclose, or otherwise, publish through the OfferUp Service:
- Any User Content that: (1) you do not have the right to provide or transmit using the OfferUp Service, (2) may expose OfferUp or its affiliates, licensors, or users to any harm or liability, or (3) is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, unlawful, untrue, or otherwise objectionable;
- Use the OfferUp Service in any manner to stalk, harass, invade the privacy of, or otherwise cause harm to, any person;
- Falsely state, impersonate, or otherwise misrepresent your identity;
- Use or attempt to use Customer’s account without authorization;
- Share User Content that may infringe the patent, trademark, trade secret, copyright, intellectual, privacy or proprietary right of any party;
- Share any private information, including addresses, phone numbers and payment card information, without the express consent to do so;
- Use the OfferUp Service in any manner that could damage, overburden, or otherwise impair the OfferUp Service (or the networks connected to the OfferUp Service); or
- Use the OfferUp Service to engage in any illegal or unauthorized purpose or to engage in, encourage, or promote activities that are unlawful, misleading, malicious or discriminatory, including, but not limited to violations of these General Partner Terms, illegal gambling, fraud, money-laundering, or terrorist activities.
b) Moderation. You agree that OfferUp may moderate access to and use of the OfferUp Service in our sole discretion through any means (including, for example, blocking, filtering, deletion, delay, omission, verification, and/or termination of your access). OfferUp reserves the right, but does not have the obligation, to remove, screen or edit any User Content posted, transmitted, or stored on the OfferUp Service at any time and for any reason without notice. Furthermore, we have the right to remove any Use Content you make on the OfferUp Service if, in our opinion, your post does not comply with the content standards set out above, and any other OfferUp Service rules. You agree not to bypass or attempt to bypass such moderation. You further agree that OfferUp is not liable for moderating, not moderating or making any representations regarding moderating.
a) Payment Information. If Partner is to receive payments pursuant to a Partner Agreement, Partner shall promptly provide OfferUp with any documentation reasonably required by OfferUp, including, for example, a W-9.
b) Relationship of the Parties. The Agreement does not create a partnership, joint venture, agency, or fiduciary relationship between the Parties. Partner’s and OfferUp’s other business partners are independent of OfferUp and are not OfferUp’s agents.
c) Governing Law; Jurisdiction and Venue. The Agreement will be governed by laws of the State of Washington, without regard to any laws, treaties, or conflicts of laws principles that would apply the law of any other jurisdiction. For any claims or causes of action arising out of the Agreement, the Parties agree to the exclusive jurisdiction of, and venue in, the state and federal courts located in King County, Washington.
d) Equitable Relief. Each Party acknowledges that damages may be an inadequate remedy if the other Party violates the obligations under the Agreement, and each Party shall have the right, in addition to any other rights it may have, to seek injunctive relief without any obligation to post any bond or similar security.
e) Force Majeure. Neither Party will be responsible for failure or delay of performance caused by circumstances beyond its reasonable control, including earthquake, storm, or other act of God; labor disputes; electrical, telecommunications, or other utility failures; embargoes; riots; acts of government; or acts of terrorism or war (collectively, “Force Majeure Condition”). A Party seeking relief from performance under this Section 9(e) (Force Majeure) must (i) provide notice of such circumstances to the other Party as soon as practicable, (ii) use all commercially reasonable efforts to avoid or mitigate such circumstances, and (iii) resume performance as soon as practicable upon the cessation of the circumstances. If the failure or delay continues for more than 30 days, the other Party may, in its discretion, terminate this Agreement. That termination will not result in any liability by either Party.
f) Notices. OfferUp will communicate announcements of general interest by email or by posting on its website. OfferUp will provide Partner with legal notices by email, mail, or courier to the address provided by Partner. Partner shall immediately notify OfferUp if Partner’s address for notice changes. Except as otherwise specified in the Agreement, all notices must be in writing, with account notices and legal notices sent to firstname.lastname@example.org.
g) Successors and Assigns. Either Party may assign the Agreement without the other Party’s consent to an entity that acquires all or substantially all of its assets or that is an Affiliate of the assigning Party, provided that (i) the assigning Party must provide notice to the other Party of the assignment, (ii) the assignee must agree in writing to be bound by the Agreement, and (iii) the non-assigning Party may prohibit assignment to a competitor. Except as provided above, neither Party may assign its rights or obligations under the Agreement without the other Party’s prior written consent, such consent not to be unreasonably withheld or delayed, and any attempt to so assign the Agreement will be null and void. The Agreement will bind and inure to the benefit of each Party’s permitted successors and assigns.
h) Severability. If any provision of the Agreement is determined to be invalid or unenforceable by any court, then to the fullest extent permitted by law, that provision will be deemed modified to the extent necessary to make it enforceable and consistent with the original intent of the Parties and all other provisions of the Agreement will remain in full force and effect.
i) Waiver. No waiver of any provision of the Agreement, nor consent by a Party to the breach of or departure from any provision of the Agreement, will in any event be binding on or effective against such Party unless it is in writing and signed by such Party, and then the waiver will be effective only in the specific instance and for the purpose for which given.
j) Entire Agreement. These General Partner Terms, together with the Partner Agreement, and all other terms incorporated by reference, constitutes the entire agreement and understanding between the Parties. Except as provided in Section 3 (Modification) of these General Partner Terms, the Agreement may not be modified or amended except by a written instrument executed by both Parties. Partner’s standard terms of purchase (including purchase order terms), if any, are inapplicable.