TERMS AND CONDITIONS OF USE OF "PriceBook Facility" through short messaging services

("PriceBook SMS User Agreement")

These short messaging services (SMS) related terms and conditions (“PriceBook SMS User Agreement”) between You and eBay Motors India Private Limited, a company incorporated under Companies Act, 1956 having its registered offices at 101-B, Akruti Corporate Park, LBS Marg, Kanjurmarg (West), Mumbai 400079 (hereinafter referred to as “eBay ”) and governs your use of eBay Motors PriceBook features, tools, data /material / reports / contents through SMS or any related services. You must read, agree with and accept all the terms and conditions contained in this PriceBook SMS User Agreement as these terms constitute your legal and contractual obligations towards eBay.

This PriceBook SMS User Agreement shall be effective and binding upon your initiating / originating any communication (including any electronic communication through short messaging service or any related service of a mobile or telecommunication service provider). If you do not agree or are not willing to be bound by the terms and conditions of this PriceBook SMS User Agreement, please do not use any information or data provided to you by eBay and shall neither seek to obtain access to nor otherwise avail eBay Motors PriceBook features and tools and PriceBook Facility.

In the case of legal persons, including a partnership firm (defined as ‘Organization’ in PriceBook SMS User Agreement), the individual accepting / signing PriceBook SMS User Agreement shall be presumed, by the act of accepting / signing, to have represented that he/she has the full authority of the Organization to sign and act on behalf of the Organization. The Organization and the individual

accepting / signing on its behalf shall be responsible and liable in case of any misuse of eBay Motors PriceBook and/or PriceBook SMS User Agreement.
eBay may amend this PriceBook SMS User Agreement at any time by posting a revised version on the www.pricebook.in or any successor website (“PriceBook Website”). The revised version will be effective at the time eBay posts it. You are advised to regularly check updates on the PriceBook SMS User Agreement.

When You use SMS services to access and use eBay Motors PriceBook features, tools, data /material / reports / contents or submit other data, information or communication to eBay , You agree and understand that You are communicating with eBay through electronic records and You consent to receive communications via electronic records from eBay periodically and as and when required. eBay will communicate with You by SMS or by posting notices or electronic records on the PriceBook Website which will be deemed adequate service of notice / electronic record.

1. DEFINITIONS

1.1. The term “Authorized User” would include a natural person, or Organization, competent to contract as per Indian Contract Act, 1872 or any other relevant laws of such country, state, province or territory having jurisdiction on such natural person or Organization, who has agreed to use PriceBook Facility and for that purpose communicates with eBay through SMS or other related services. It is made abundantly clear that only the Authorized User has the right to use the PriceBook Facility so offered by eBay for its eBay Motors PriceBook. It is presumed, unless proved contrary or eBay discovers otherwise, that Authorized User is the person who has the valid authorization to use the number allocated by the mobile or any telecommunication service provider (such number is herein after referred to as “SMS Originating Number”); and further eBay has the right to seek such person’s details (including personally identifiable details) from such mobile / telecommunication service provider.

Provided that, for the purposes of this PriceBook SMS User Agreement, any person who does not have a legal or a contractual right to use PriceBook Facility, but does so, will fall within the definition of an “Unauthorized User” and will be subject to the terms and conditions of this PriceBook SMS User Agreement, and expressly so with respect to respecting the intellectual property rights of the provider, and abiding by usage terms and conditions.

1.2. The terms “eBay Motors PriceBook” would mean to include the interactive electronic facility, feature and tools offered by eBay under the name and style of “eBay Motors PriceBook” or such other name / trade name as may be decided by eBay from time to time, through which the Authorized User may access PriceBook Facility and/or such other / additional facility, feature and tools as may be offered by eBay from time to time through an independent third-party value added services provider and/or related mobile or telecommunication services provider.

1.3. The term “Organization” would include any company, partnership firm, institute, trust or any such entity which has a legal personality but is not a natural person.

1.4. The term “PriceBook Facility” means the facility provided by eBay to Authorized Users for use of its eBay Motors PriceBook available through SMS and containing material /content / report / data which is / are downloaded from or displayed through SMS and stored (including temporary storage) to a storage device under Authorized User’s exclusive control.

1.5. The term “User” would include both Authorized User and Unauthorized User.

2. PRICEBOOK FACILITY DOWNLOAD, USE AND ACCESS

2.1. eBay grants the Authorized User non-exclusive, non-transferable, revocable and limited right to one-time download, access and use the PriceBook Facility in accordance with the terms and conditions of PriceBook SMS User Agreement and limited to the one-time download on one electronic instrument used to operate SMS Originating Number from where the SMS seeking to download PriceBook Facility is originated.

2.2. Authorized User has a limited right to use the PriceBook Facility strictly and only for personal, internal and non-commercial (whether for profit or otherwise) use.

2.3. PriceBook Facility shall not be reproduced, forwarded, transmitted, distributed or stored in any other electronic instrument or in any other mode / media / medium / manner not in personal control of the Authorized User and in violation of PriceBook SMS User Agreement. PriceBook Facility shall not be disseminated, either in electronic or non-electronic form, or included in any public or private electronic retrieval system or service without the prior written permission of eBay.

2.4. eBay shall have a right to make such additions to, deletions from and other modifications, as it may deem fit, to the database and in the database, and/ or the manner of presenting and providing such databases, including the basic structure and features thereof, without giving notice thereof to the Authorized User.

2.5. User acknowledge and agree that eBay is only providing material /content / report / data in the form of PriceBook Facility which is transmitted, upon User’s request / origination to SMS Originating Number, through third party mobile value added service provider and mobile / telecommunication services operator(s). eBay is not providing any mobile, telecommunication or mobile value added services. User’s messages shall be deemed to be received by eBay only when such messages reach the electronic devises or computer systems under control of eBay.

3. USE OF PRICEBOOK FACILITY AS AN AUTHORIZED USER:

3.1. In order to one-time download, use and access PriceBook Facility on SMS Originating Number, an Authorized User has to send message(s) (“User Query”) in text form and/or in such other form as may be specified by eBay in any advertisement or promotion or any user communication, from Authorized User’s SMS Originating Number to a designated number or electronic address as may be specified by eBay in any advertisement or promotion or any user communication.

3.2. Authorized User shall be directly responsible and liable to eBay in case of any misuse of PriceBook Facility or breach / violation of PriceBook SMS User Agreement by such person(s). Authorized User agrees and acknowledges that eBay shall have the right and may monitor and/or control the creation, distribution and nature and extent of use of PriceBook Facility by Authorized Users and also to check the compliance of PriceBook SMS User Agreement by Authorized User and for such purpose eBay may seek Authorized User’s information (including personally identifiable information) from any third party and/or provide Authorized User’s information (including personally identifiable information) to any third party.

3.3. There shall be only one-time download, use and access of PriceBook Facility by one Authorized User for one User Query originated from SMS Originating Number. Concurrent use of PriceBook Facility is not permitted and any such use or attempt of use shall be considered as breach of PriceBook SMS User Agreement.

3.4. The Authorized User shall be responsible for keeping confidential and secure any password or any secret code if provided by eBay and the same should never be shared with any third-party not authorized or permitted by eBay. For the purpose of this PriceBook SMS User Agreement, all actions performed by any person using such password / secret code shall be deemed to have been committed by the Authorized User who has been allotted the password / secret code and such Authorized User shall be responsible and liable for the same. eBay AG reserves the right to terminate this PriceBook SMS User Agreement at any time if it is found or notified that the Authorized User has shared or given the access to or has been negligent in securing and keeping confidential the password / secret code with any third-party not authorized or permitted by eBay and eBay shall claim losses and damages from such Authorized User.

3.5 You acknowledge and agree that You are solely responsible for the User Query, form, text and accuracy of any User Query, material, content or text, therein placed by You.

4. USER CHARGES:

4.1. Currently, eBay does not charge any consideration or fee or download / use / access charge directly from the User. However, the operator of your SMS Originating Number may charge or levy consideration in any form as per such operator terms and conditions with are independently agreed between you and such operator.

4A. LEAD GENERATION:

4A.1. Upon receiving Your Sharing Consent, eBay may share the SMS Originating Number and User Query to one or more third-party/ies and may charge such third-party/ies consideration to such extent and in any form and in any manner as may be deemed appropriate by eBay.

4A.2. eBay shall not share with You and You are not entitled to claim or earn from any consideration received by eBay from the aforesaid third parties. You acknowledge and agree that Your appropriate, sufficient and valid consideration has been discharged by eBay by providing You PriceBook Facility in terms of this PriceBook SMS User Agreement.

4A.3. eBay shall not be liable and responsible for any communication and/or dealing of the aforesaid third parties with SMS Originating Number and/or User Query and/or with You and You hereby expressly waive all Your claims against eBay arising out of (i) sharing SMS Originating Number and User Query with third-parties; and (ii) any use of SMS Originating Number and User Query by third-parties; and (iii) any wrongful loss caused to You and/or any wrongful loss or wrongful gain caused to any third party.

4A.4. For the purpose of this PriceBook SMS User Agreement and the related Privacy Policy, the term “Sharing Consent” shall include, without limitation, an express or implied or direct or indirect consent given by You either orally or through electronic mode (including any check box or click through on world wide web or sending any SMS to PriceBook Facility) or through Your use of PriceBook Facility.

5. INTELLECTUAL PROPERTY RIGHTS

5.1. eBay, its holding company, ultimate holding company and affiliates, as the case may be, owns or have the rights over all the intellectual property rights in PriceBook Facility, PriceBook Web Site, eBay Motors PriceBook including without limitation the trademark, trade name, logo, data, process, methodologies, look and feel, domain name, algorithms, software and applications. Except as expressly provided in PriceBook SMS User Agreement, nothing contained herein shall be construed as conferring by eBay to User / You any license or right, by implication, estoppel or otherwise, under copyright or other intellectual property rights.

5.2. You agree that copyrights, trademarks, patents, designs and other proprietary rights and laws of Republic of India and other countries of the world protect the PriceBook Facility, PriceBook Web Site and/or eBay Motors PriceBook. Any rights not expressly granted herein are reserved.

5.3. You are also cautioned against any conduct on Your part that infringes or purports to infringe the copyright or other proprietary rights or eBay , its holding company, ultimate holding company and affiliates or applicable laws. You shall not, under any circumstances whatsoever, use the printouts of the material available on PriceBook Facility and/or PriceBook Web Site and/or eBay Motors PriceBook for any purpose that violates PriceBook SMS User Agreement and the copyright or any other proprietary rights of eBay , its holding company, ultimate holding company and affiliates or any applicable laws. You shall not remove the copyright notices or other notices from the printouts of material taken from PriceBook Facility and/or PriceBook Web Site and/or eBay Motors PriceBook.

6. LIMITATIONS ON USE

6.1. PriceBook Facility is strictly for internal and personal use only and not for any direct or indirect commercial (whether for profit or otherwise) exploitation.

6.2. You shall neither decompile, reverse engineer, disassemble, rent, lease, loan, sell, license, sub-license, or create derivative works from the PriceBook Web Site and/or eBay Motors PriceBook and/or PriceBook Facility nor shall You use any network monitoring or discovery software to determine the PriceBook Facility and/or PriceBook Web Site and/or eBay Motors PriceBook architecture, or extract information about usage or Users.

6.3. You shall not use any robot, spider, other automatic device, or manual process to monitor or copy PriceBook Web Site and/or eBay Motors PriceBook and/or PriceBook Facility without eBay’s prior written permission.

6.4. You shall not alter, add, amend, copy, modify, reproduce, republish, distribute, display, or transmit for commercial, non-profit or public purposes all or any portion of PriceBook Facility and the PriceBook Web Site and/or eBay Motors PriceBook, except to the extent permitted in PriceBook SMS User Agreement.

6.5. You shall not use PriceBook Facility or PriceBook Web Site and/or eBay Motors PriceBook in violation of the laws and regulations of Republic of India and of such province, state, territories and countries having personal jurisdiction over You. Any unauthorized use of the PriceBook Web Site and/or eBay Motors PriceBook and/or PriceBook Facility is prohibited and illegal.

6.6. PriceBook Facility shall not be stored or used in an archival database or other searchable database except as expressly permitted by this PriceBook SMS User Agreement or agreed to by eBay in writing. You shall ensure that PriceBook Facility shall be kept secure and prevent any third party duplicating or otherwise reproducing in whole or in part of PriceBook Facility other than for the exercise of the rights granted by this PriceBook SMS User Agreement.

6.7. eBay has the right to prevent access (including but not limited to, the right to block access from a particular number of any mobile / telecommunication service provider) to all or part of the PriceBook Facility without notice, if the conduct of the Authorized User is in contravention with PriceBook SMS User Agreement or the applicable laws.

7. ERRORS, CORRECTIONS AND DISCLAIMER OF WARRANTY:

7.1. eBay makes reasonable effort to ensure that PriceBook Facility is accurate but does not represent or warrant that PriceBook Facility will be correct, accurate, reliable, uninterrupted, or timely. PriceBook Facility is provided on ‘as is’ basis. eBay accepts no responsibility with respect to the PriceBook Facility and expressly disclaims to the maximum limit permissible by law, all warranties, express or implied, including but not limiting to implied warranties of merchantability, fitness for a particular purpose and non-infringement.

7.2. eBay does not represent or warrant that the PriceBook Facility will be error free, free of viruses or other harmful components, or that the defects / deficiencies / errors will be corrected.

7.3. You are responsible for implementing sufficient procedures and checkpoints to satisfy his particular requirements for accuracy of User Query, data, input and output and for maintaining a means, external to the PriceBook Facility for the reconstruction of any lost data.

7.4. You shall not post or transmit any User Query or material that is illegal or violate any laws of India or of any other country, state, province or territory and You shall not transmit any User Query or material that contains a virus or corrupted data.

7.5. eBay reserves the right in its sole discretion and without any obligation, to make improvements and/or changes to its features, functionality or material, at any time.

7.6 You understand the nature and limitations of the Internet, telecom network and the fact that eBay is not responsible for any mechanical, technical problems or malfunctions of any communications network, (online) system, computer hardware or software failure, disruption, interruption, closure etc.

7.7. PriceBook Facility shall further be subject to the following disclaimer:

The report, content information or data (‘report’) as displayed in the SMS is electronically generated and is based on historic information and data processed by a computer system by using one or more statistical or mathematical process. This report is only indicative and approximate and not conclusive and is provided on ‘as is’ basis. Actual value, information and data will vary based upon manufacturing company’s pricing policy, dealer policies, financial assistance policies, taxes, duties and other levies and other conditions and circumstances. eBay specifically disclaims any warranty and assumes no responsibility related to the report. eBay shall not be liable for any loss, damage or consequences arising from your using or referring to this report.

8. ADVERTISEMENTS

8.1. PriceBook Facility or the SMS sent to your SMS Originating Number may contain advertisements and sponsorships. Advertisers and sponsors are responsible for ensuring that material submitted for inclusion or hyperlinked from the PriceBook Facility is accurate and complies with applicable laws and eBay shall not be liable or responsible for any loss or damaged caused to You by such advertisements and/or sponsorships.

8.2. eBay will not be responsible for the illegality of, or any error or inaccuracy in advertisers or sponsors materials.

9. PRIVACY

9.1. Your information will be used in accordance with this Agreement and with PriceBook SMS Privacy Policy. For any inconsistencies between the provisions of this Agreement and PriceBook SMS Privacy Policy the provisions of this Agreement shall prevail.

10. NOTICE
All notices and requests in connection with this Agreement will be deemed given as of the day they are (i) deposited in the mails, postage prepaid, certified or registered, return receipt requested; or (ii) sent by overnight courier, charges prepaid, with a confirming fax; and addressed to eBay at the address given at the beginning of this Agreement, or to such other address as the party to receive the notice or request so designates by written notice to the other party.
eBay may send notice to you at your SMS Originating Number or at such other address (including electronic address) obtained by eBay from your mobile / telecommunication operator.

11. ENTIRE AGREEMENT AND SEVERABILITY OF PROVISIONS

11.1. The PriceBook SMS User Agreement incorporates by reference, any notices and disclaimers contained on the PriceBook Web Site, the eBay Privacy Policy, copyright notices, trademark declarations which together constitute the entire agreement with respect to access and use of the PriceBook Facility and/or PriceBook Web Site and/or eBay Motors PriceBook. If any provision of the terms of use is unlawful, void or unenforceable, then that provision shall be deemed severable from the remaining provisions and shall not affect the validity and enforceability of the remaining provisions.

12. INDEMNIFICATION

12.1. You are solely liable for any content, messages or other data that You transmit or provide to eBay and/or to eBay’s computer system and computer network. You agree and undertakes to indemnify eBay , its holding company, ultimate holding company and affiliates from any third party claim, action, demand, loss, or damages (including attorney’s fees and costs) arising out of or relating to Your violation of PriceBook SMS User Agreement, Your use of the PriceBook Facility, PriceBook Website and/or eBay Motors PriceBook, or Your violation of any rights of a third party. You, as an Authorized User, agree that You shall indemnify for any acts or omission or negligence or violation on the part of the persons who had accessed or used passwords / secret code provided to the Authorized User.

13. GOVERNING LAW AND JURISDICTION

13.1. The PriceBook SMS User Agreement is governed by and construed in accordance with the Indian laws and any action arising out of, or relating to these terms shall be subject to the exclusive jurisdiction of the appropriate Courts at Mumbai, India only and You hereby consent and submit to the personal jurisdiction of such courts for the purpose of litigating any such action.

14. WAIVER

14.1. The failure by either party to enforce at any time or for any period any one or more of the terms and conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions herein.

15. EXCLUSION AND LIMITATION OF LIABILITY

15.1. eBay shall not be liable in contract, tort or otherwise for any loss of whatsoever kind howsoever arising suffered in connection with the use of PriceBook Facility and/or PriceBook Web Site and/or eBay Motors PriceBook (whether or not caused by the negligence of eBay) including without limitation any direct or indirect loss of revenue, business, anticipated savings or profits, loss of goodwill or data or for any indirect or consequential loss.

15.2. In no event shall eBay be liable for any claim(s) relating in any way to Your inability or failure to access PriceBook Facility pertaining to the costs, comparison rates, specifications etc. of the new and used cars or other motor vehicles in the specified territory, even if assisted by eBay or any decision made or action taken by You by placing reliance on PriceBook Facility and/or PriceBook Web Site and/or eBay Motors PriceBook.

15.3. Your exclusive remedy and eBay’s entire liability, if any, under this PriceBook User Agreement for any claim[s] for damages relating to PriceBook Facility and/or PriceBook Web Site and/or eBay Motors PriceBook made against eBay whether based in contract or negligence shall be limited to the amount of the charges paid by You to Your respective mobile / telecommunication service provider for the message(s) sent by You to the one-time download of such PriceBook Facility which is disputed by You.

16. LINK TO OTHER WEBSITES AND LINKING DISCLAIMER

16.1. Third party content or advertisements may appear on the PriceBook Web Site and/or PriceBook Facility or may be accessible via links from the same. eBay shall not be responsible for and assumes no liability for any mistakes, misstatements of law, defamation, slander, libel, omissions, falsehood, obscenity, pornography or profanity in the statements, opinions, representations or any other form of content contained in any third party content or advertisements appearing on the PriceBook Web Site and/or PriceBook Facility. eBay has no control or authority either over the content or presentations thereof, which solely represent the thoughts of the author and is neither endorsed by, nor does it reflect the belief of eBay.

16.2. Any claim either in contract, tort or otherwise relating to damages, loss, injury or determined caused by, or on account of reliance on such content or advertisement, is wholly disclaimed by eBay.

17. FORCE MAJEURE

17.1. eBay’s performance under this PriceBook SMS User Agreement is subject to interruption and delay due to causes beyond its reasonable control such as acts of God, acts of any Government, war or other hostility, civil disorder, the elements, fire, explosion, power failure, failure of the Internet and other networks beyond the reasonable control of eBay , equipment failure, industrial or labour dispute, inability to obtain essential supplies and the like.