OfferUp Pro Seller Service Terms and Conditions
Last Updated June 16, 2020
These OfferUp Pro Seller Service Terms and Conditions, including any terms incorporated herein (these “Pro Seller Terms”), together with any applicable Order Form (together with the Pro Seller Terms, the “Agreement”), constitute a binding agreement between OfferUp Inc. (“OfferUp”) and the seller or its agents that purchase the Service (“Pro Seller”) (each, a “Party”) for Pro Seller’s purchase of seller services on the OfferUp Pro platform, including all related applications and tools (collectively, the “Service”). By creating an OfferUp Pro account or by executing an Order Form that references these Pro Seller Terms, Pro Seller agrees to be bound by these Pro Seller Terms. If Pro Seller does not agree to all of these Pro Seller Terms, it may not access or use the Service. The Terms of Service available at https://offerup.com/terms (“General Terms”) for using the OfferUp applications, website, and other products or services (collectively, the “OfferUp Service”) are hereby incorporated into the Pro Seller Terms. In particular, Pro Seller should note that the General Terms include (a) terms of sale for services made available for a fee in connection with the OfferUp Service including, without limitation, the Service; and (b) a mandatory arbitration provision and class action waiver. In the event of any conflict or inconsistency among the Pro Seller Terms, the Order Form, and the General Terms, precedence will be given in the following descending order: (a) the Order Form, (b) these Pro Seller Terms and (c) the General Terms.
“Business Day” means any day except Saturday, Sunday or any other day on which commercial banks located in the country where the Service is offered are authorized or legally required to be closed for business.
“Buyer” means any individual who uses the OfferUp Service to view, offer to purchase Pro Seller’s Listing(s) in accordance with the General Terms.
“Buyer Data” means any information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly with a particular Buyer.
“Final Value Fee” means the amount of money OfferUp charges Pro Seller when an Item sells. This fee is calculated by applying the applicable rate from the Order Form to the final selling price of the Item, excluding sales tax, plus the shipping fees.
“Item” means one stock-keeping unit (“SKU”) and may include SKU variations if designated by Pro Seller. For example, if a sweatshirt comes in three sizes, Pro Seller can elect to treat each variation as a unique Item or designate them as a single Item with SKU variations.
“Listing” means an Item posted for sale on the OfferUp Pro platform.
“Order Form” means the Pro Seller Services Order Form referencing these Pro Seller Terms that Pro Seller used to purchase the Service from OfferUp.
“Process” means any operation or set of operations performed on Buyer Data, whether or not by automated means, such as the access, collection, use, storage, retention, disclosure, sale, dissemination, combination, recording, organization, structuring, adaption, alteration, copying, transfer, retrieval, consultation, disposal, restriction, erasure and/or destruction of Buyer Data.
- Pro Seller Service.
A. Provision of the Service. OfferUp will use commercially reasonable efforts to provide the Service in accordance with the Agreement.
B. Accessing the Service. OfferUp grants Pro Seller a nonexclusive, nontransferable, right to access and use the Service in the territories in which it is offered during the effective period of Pro Seller’s subscription to the Service as set forth in the Order Form (the “Subscription Period”). By purchasing access to the Service, Pro Seller agrees to pay all monthly fees (“Subscription Fees”) as well as all Final Value Fees and additional listing fees (collectively, the “Additional Fees”) specified in the Order Form and to use the Service in compliance with the Agreement.
C. Using the Service.
By purchasing access to the Service, Pro Seller acknowledges and agrees that it:
i). will create an OfferUp Pro account pursuant to Section 6 below;
ii). is permitted to post one Listing per Item on the OfferUp Pro platform, and agrees not to create duplicate Listings for the same Item;
iii). may only post its Listings from its OfferUp Pro account, not from any other OfferUp account (such as an employee, friend, or family member’s personal account);
iv). will comply with OfferUp’s profile guidelines if it chooses to create a custom profile;
v). will not disclose the results of any benchmark tests to any third parties without OfferUp’s prior written consent;
vi). is responsible for the accuracy and quality of information Pro Seller provides to OfferUp to create an OfferUp Pro account and use the Service;
vii). will comply with any documentation or policies provided by OfferUp that are applicable to the Service, and all applicable laws and regulations, including, without limitation, the Federal Trade Commission’s Guide Against Deceptive Pricing and any applicable local, state or federal consumer protection law; applicable United States Postal Service and shipping regulations, including but not limited to U.S. Postal Service Publication 52; and laws and regulations applicable to the processing of information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household such as the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq. (“CCPA”) (collectively, “Applicable Law”); and
viii). will Process Buyer Data for the sole purpose of posting, offering and selling Items to Buyers, including responding to inquiries, fulfilling orders, and processing refunds, warranty claims and product recalls in accordance with Applicable Law. Pro Seller shall not Process Buyer Data outside of the Service, including for any marketing or advertising purposes.
i). Pro Seller shall comply with the Shipping and Refunds Policy. When Pro Seller receives an order, Pro Seller must ship the Item within 7 days after receiving the order and provide the relevant tracking information to OfferUp through its OfferUp Pro account. If Pro Seller fails to ship the Item within 30 days after receiving the order, OfferUp may cancel the order, refund the Buyer, and impose penalties in its sole discretion by, for example, deprioritizing Pro Seller’s Listings and increasing the Additional Fees pursuant to these Pro Seller Terms. Pro Seller may cancel an order up until the time the package is initially scanned for mailing.
ii). Pro Seller shall not mail or cause to be mailed, or ship or cause to be shipped, any Item purchased and sold through OfferUp in a manner that violates Applicable Law. Pro Seller shall not ship any package that contains weapons, ammunition, explosives, living or infectious biological matter, human remains, pornography, alcohol, prescription drugs, illegal drugs, currency, dangerous goods, hazardous goods, or other goods that are prohibited by from being shipped or mailed. Pro Seller assumes full responsibility for compliance with Applicable Law, and will indemnify OfferUp for any third party claims related to Pro Seller’s offer and sale of goods via the OfferUp Pro platform. Anyone who sends, or causes to be sent, a prohibited, illegal, or improperly packaged or labeled material can be subject to legal penalties such as civil penalties, fines and/or imprisonment, including but not limited to those specified in 18 U.S.C. § 1716 and 39 U.S.C. § 3018.
E. Payments to Pro Seller. OfferUp will remit the Buyer’s payment, minus OfferUp’s relevant fees, to Pro Seller as described in OfferUp’s Payment Policy. Any eligible balance due to Pro Seller will be remitted on Business Days.
F. Buyer Protection. When responding to Buyer refund requests, Pro Seller must comply with the minimum requirements established in the Shipping and Refunds Policy. Pro Seller may choose to honor a return policy that is more favorable to Buyers than the OfferUp policy. Pro Seller’s failure to meet the minimum standards from the Shipping and Refunds Policy may result in the Pro Seller being removed from the OfferUp Pro platform. If Pro Seller issues a refund to the Buyer consistent with the Shipping and Refunds Policy and these Pro Seller Terms, OfferUp will also refund the Final Value Fee it collected from the transaction to the Buyer.
G. Sales Tax. OfferUp will collect applicable sales tax if it determines that it has a duty to collect sales tax in a given state. OfferUp maintains a list of the states where it collects sales tax. For the states where OfferUp does not have a duty to collect sales tax on Pro Seller’s behalf, Pro Seller will collect and remit all applicable sales taxes for any transaction conducted using the OfferUp Pro platform. Pro Seller acknowledges that it is the seller in any sales transaction that occurs through the OfferUp application or website and that, except for these states, OfferUp has no obligation to calculate, collect, or remit sales tax on Pro Seller’s behalf.
H. Integrating with OfferUp. If Pro Seller wishes to integrate directly with the OfferUp Pro platform, it will comply with all technical requirements and other documentation made available by OfferUp. If Pro Seller accesses the OfferUp Pro platform through a multi-channel listing service or other third-party connector, Pro Seller will comply with all requirements related to that connector that are issued by the connector provider. Pro Seller releases and will hold harmless and indemnify OfferUp from any liability related to the operation, or non-operation, of any third-party connector.
I. Rights Reserved by OfferUp. OfferUp reserves the right, in its sole discretion, to (a) modify these Pro Seller 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”), or the Service; (b) impose rules for, limits on use of, or access to, the Service; (c) restrict Pro Seller’s access to part, or all, of the Service without notice; (d) change, suspend, or discontinue any aspect of the Service or the Service altogether; or (e) change the pricing for the Service including applicable Subscription Fees and Additional Fees. Except as set forth herein, OfferUp will not be liable to Pro Seller or to any third party for taking any of the actions listed in (a)-(e) above. In the event that OfferUp modifies these Pro Seller Terms, such modification will be communicated via email, messages exchanged through the OfferUp Pro system, or any other form of communication routinely used by OfferUp and Pro Seller no less than 14 days prior to the effective date of the modified Pro Seller Terms. If Pro Seller does not agree to such changes, Pro Seller must send a notice to OfferUp pursuant to the Order Form to terminate the subscription to the Service prior to the effective date of the modified Pro Seller Terms. By failing to terminate its subscription to the Service or by continuing to use the Service after the effective date of the modified Pro Seller Terms, Pro Seller agrees to be bound by the modified Pro Seller Terms.
- Term and Fees. Pro Seller shall pay the Subscription Fees and Additional Fees during the Subscription Period as follows:
A. Subscription Fees and Additional Fees.
i). Payment Method. Pro Seller agrees to provide and maintain at least one valid payment method on file at all times for the purpose of paying the Subscription Fees and Additional Fees incurred by Pro Seller as well as any applicable taxes and other charges. In the event that Pro Seller’s preferred payment method on file is no longer valid or cannot be charged or processed for any reason, Pro Seller authorizes and agrees that OfferUp may (i) charge a different payment method on Pro Seller’s file for the Subscription Fees and/or Additional Fees that are due; or (ii) request that Pro Seller’s bank or other payment method network provide updated Pro Seller payment information so that OfferUp can charge Pro Seller for the Subscription Fees and/or Additional Fees owed. If a payment is not processed for any reason, OfferUp may immediately suspend Pro Seller’s access to the Service and any Pro Seller Listings until payment is made. Pro Seller shall not access the Service except during a paid-up Subscription Period.
ii). Subscription Fees. Unless otherwise stated in the Order Form, at the beginning of a Subscription Period, OfferUp will automatically charge Pro Seller’s preferred payment method on file for the Subscription Fees that are due, and thereafter, OfferUp will charge the Subscription Fees to Pro Seller on the first day of each subsequent month of the Subscription Period.
ii). Additional Fees. Unless otherwise stated in the Order Form, at the end of a Subscription Period, OfferUp will charge Pro Seller’s preferred payment method on file for the Additional Fees that are due.
B. Term, Auto Renewal, Termination. Each Subscription Period, which is either the Initial Term or a Renewal Term as defined in the Order Form, will automatically renew for additional one-month Renewal Terms, unless (i) Pro Seller or OfferUp terminate the applicable Order Form and cancel the subscription to the Service by providing notice to the other party in accordance with the Order Form at least 5 Business Days before the end of the then-current Initial Term or Renewal Term, in which case, the termination will be effective at the end of such Initial Term or Renewal Term; or (ii) OfferUp suspends or stops providing access to the Service in accordance with the General Terms, these Pro Seller Terms, or the Order Form. In the event that OfferUp terminates the applicable Order Form for any reason including, without limitation, Pro Seller’s breach of these Pro Seller Terms, Pro Seller’s sole remedy for such termination will be the refund of the pro-rata amount (if any) of any Subscription Fees that Pro Seller had not yet used at the time of termination or modification.
C. Increases. Subscription Fees and Additional Fees are subject to increase up to the level of then-current standard pricing, which will become effective beginning on the first day of each renewal Subscription Period. OfferUp will notify Pro Seller of any increase at least 30 days prior to Pro Seller’s renewal Subscription Period. Such notice may be in the form of an invoice or any other form of notice commonly used by OfferUp to communicate with Pro Seller. If Pro Seller objects to the increase, then Pro Seller must notify OfferUp pursuant to the Order Form, of its election to not renew its order of the Service before the renewal Subscription Period begins.
A. Definition. “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances under which it was disclosed. Confidential Information of each party will include the terms and conditions of the Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party and without improper action by a third party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party rightfully in possession of the information and without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party without breach of these Pro Seller Terms.
B. Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Pro Seller Terms and will protect and maintain the confidentiality of the Confidential Information using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care). Except as expressly authorized by the Disclosing Party in writing, the Receiving Party will limit access to Confidential Information of the Disclosing Party to employees, contractors and agents of the Receiving Party and its Affiliates who need such access for purposes consistent with these Pro Seller Terms and who have signed confidentiality agreements with the Receiving Party containing provisions, or are otherwise legally bound by duties of confidentiality, no less stringent than those herein.
C. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled to do so by law, provided that the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
- Communications & Advertising.
A. Communications. By registering for an OfferUp Pro account, using the Service, sending OfferUp an electronic message, or otherwise communicating with OfferUp, Pro Seller has agreed to communicate with OfferUp electronically, which may include receiving emails from OfferUp or its partners.
B. Advertising. OfferUp may advertise Pro Seller’s Listings and Items across the internet through various advertising platforms. Pro Seller consents to OfferUp conducting such advertising, and to OfferUp reproducing and displaying the Listings and Items (and their corresponding images, descriptions, prices, etc.) in the advertisements.
- Accurate Information; Account Password and Security. The Service requires Pro Seller to create an OfferUp Pro account, and Pro Seller must complete the registration process by providing current, complete, and accurate information as prompted by the applicable registration form. Pro Seller will also be required to choose a password and a username. Pro Seller is solely responsible for maintaining the confidentiality of the password, username, and other account information. Furthermore, Pro Seller is solely responsible for all activities that occur under its account, whether authorized or not. OfferUp will not be liable for any loss or damages that Pro Seller may incur as a result of the use by any party, authorized or otherwise, of Pro Seller’s password or account. Pro Seller shall notify OfferUp immediately of any unauthorized use of the account or any other breach of security.
- No Unlawful or Prohibited Use. Pro Seller shall not use 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 aspect of the Service. Pro Seller shall not attempt to gain unauthorized access to the Service, other accounts, computer systems, or networks connected to OfferUp through hacking, password mining, or any other means. Pro Seller shall not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service. Pro Seller 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 Pro Seller’s and without permission of the intellectual property rights owner; or (c) impersonate someone else or falsely represent Pro Seller’s identity or qualification, or to breach another’s privacy.
- Disclaimer of Warranties and Limitation of Liability. To the fullest extent permitted under Applicable Law and except as otherwise set forth explicitly in this Agreement, the Service is made available to Pro Seller on an “as is” and “as available” basis, unless otherwise specified in writing. To the fullest extent permissible by Applicable Law, OfferUp expressly disclaims, and Pro Seller waives, all warranties of any kind, whether express or implied, including, without limitation, the implied warranties of merchantability, noninfringement, and fitness for a particular purpose. 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 Pro Seller to access the Service during the twelve-month period preceding the events giving rise to the claim or $300, whichever is less. OfferUp shall not be liable to Pro Seller 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.