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HomeMy WebLinkAbout05-2069 EBAY INC., IN THE COURT OF COMMON CUMBERLAND COUNTY, Petitioner, PENNSYLVANIA V. NO. CS.-- Q )(a C. GREGORY GOLLA, Respondent. VERIFIED PETITION TO COMPEL ARBITRATION AND REQUEST FOR ATTORNEYS' FEES AND COSTS Petitioner eBay Inc. ("eBay" ), by and through its attorneys, hereby submits this Petition to Compel Arbitration and Request for Attorneys' Fees and and in support thereof states: 1. eBay is a Delaware corporation with its headquarters located at 2145 Hamilton Avenue, San Jose, California, 95124. 2. Respondent Gregory Golla ("Respondent") is a citizen of Pennsylvania and resides at 1544 McCormick Drive, Mechanicsburg, Pennsylvania 17055. 3. On March 15, 2005, Respondent filed a complaint with District Justice Charles Clement, Jr., Docket No. CV-0000159-05. Attached hereto as Exhibit is a true and correct copy of Respondent's Complaint. 4. A hearing in this matter is scheduled before District Justice Clement on May 10, 2005, at 2:00 p.m.. 1-HA/118616.1 5. On July 4, 2001, Respondent registered as an eBay member, he continues to be a registered eBay user, under the user identification name ("ID") of "ggollla577." 6. Registering as a user with eBay requires an individual to review the eBay User Agreement, which contains the terms and conditions that govern the relationship between eBay and its users. The potential user, while accessing the User Agreement via the Internet, accepts the Agreement by affirmatively clicking on a that states, "I accept." Failing to "accept" eBay's User Agreement prevents an from being permitted to join eBay and to bid on items or list items for sale. 8. Respondent, therefore, agreed to all terms set forth in eBay Inc. User Agreement when he registered. Attached hereto as Exhibit B is a true and copy of the eBay User Agreement ("Agreement"). 9. Paragraph 17 of the Agreement provides: Resolution of Disputes. In the event a dispute arises between you and eBay ... you and eBay agree that any claim or controversy at law or equity that arises out of this Agreement or our services ("Claims") [emphasis added] shall be resolved in accordance with one of the subsections below or as otherwise mutually agreed upon in writing by the parties. 17.1 Binding Arbitration. For any Claim ... where the total amount of the award sought is less than $10,000, you or eBay may elect to resolve the dispute through binding arbitration conducted by telephone, on-line and/or based solely upon written submissions where no in-person appearance is required. In such cases, the arbitration shall be administered by the American Arbitration Association or JAMS in accordance with their applicable rules, or any other established ADR provider mutually agreed upon by the parties .... 1-HA/118616.1 2 See Exhibit B, Section 17. 10. The parties have not agreed mutually in writing to a resolution procedure different from those in the Agreement. 11. Respondent has not filed for arbitration or filed an action in Santa Clara County, California, or where eBay is located as Section 17.2 of the User Agreement requires. 12. A valid arbitration agreement exists pursuant to 42 Pa. C.S. § ("[a] written agreement to subject any existing controversy to arbitration or a provision in a written agreement to submit to arbitration any controversy thereafter arising the parties is valid, enforceable and irrevocable ..."). 13. Respondent's claim is within the scope of the agreement becaus4 it arises out of the services provided by eBay; consequently, it is subject to arbitration. e.g, Santiago v. State Farm Ins. Co., 453 Pa. Super. 343, 346, 683 A.2d 1216 (1996) ("[w]hen presented with a petition to compel arbitration the court is to determine wh1 an agreement to arbitrate the controversy exists. `If a valid arbitration agreement exis between the parties and appellant's claim is within the scope of the agreement, the controversy must be submitted to arbitration."') (citation omitted).. 14. Section 17 of the User Agreement also provides: Should either party file a claim contrary to this Section 17, the other party may recover attorneys' fees and costs up to $1000, provided that the party seeking the award has notified the other party in writing of the improperly filed Claim, and the other party has failed to withdraw the Claim. See Exhibit B, Section 17. 1-HA/118616.1 15. Despite eBay's request, Respondent refused to withdraw his complaint. Attached hereto as Exhibit C is a true and correct copy of a letter dated March 25, 2005, from eBay to Respondent in which eBay requested that Respondent withdraw his claim and proceed with a resolution method provided by the User Agreement. Also attached hereto as Exhibit C is a true and correct copy a letter Respondent sent to eBay in response and in which Respondent not only refused to withdraw his claim, but also noted he is considering filing a claim in federal court as well. 16. Pursuant to the Uniform Arbitration Act, 42 Pa. C.S. § 7304(a), eBay respectfully requests that this Court to compel arbitration. 17. Pursuant to the Uniform Arbitration Act, 42 Pa. C.S. § 7304(d), eBay respectfully requests that this Court immediately stay the proceeding pending before District Justice Charles Clement, Jr. 18. Pursuant to Section 17 of the User Agreement, eBay requests that this Court order Respondent to pay the reasonable fees eBay incurred in preparing this Petition to Compel Arbitration. eBay will submit a statement of costs attorney's fees to the Court upon resolution of this Petition. 1-HAA 18616.1 WHEREFORE, eBay Inc, respectfully requests that this Court eBay's petition, STAY the matter pending before District Justice Clement, ORDER parties to proceed with arbitration, and ORDER Respondent to pay to eBay the fees costs eBay incurred regarding this Petition. Respectfully submitted, JA "r l'i cl- CLAUDIA M. WILLIAMS (ID # 90588) VINCENT CANDIELLO (ID # 49616) Morgan, Lewis & Bockms LLP One Commerce Square 417 Walnut Street Harrisburg, PA 17101-1904 717.237.4000 Attorneys for Petitioner eBay Inc. Dated: April 21, 2005 1-1 1A/115616.1 VERIFICATION I, Barbara Gooding, Paralegal Specialist at and agent for eBay Inc. regarding the Foregoing Petition to Compel Arbitration ("Petition"), have read the foregoing Petition to Compel Arbitration and Request for Attorneys' Fees and Costs a hereby affirm and verify that it is true and correct to the best of my personal knowledg information and belief. I verify that all of the statements made in the foregoing Petitio are true and correct and that false statements made therein may subject me to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. eBAY INC. By, Barbara Gooding Dated: April L?', 2005 1-HA/I 18616.1 Exhibit A COMMONWEALTH OF PENNSYLVANIA COUNTY OF: 09-1-01 MDd Nanne: Hon. CHARLES A. CLEMENT, JR Add`ess: 400 BRIDGE ST OLDS TON= COMMONS -SUITE 3 NEW CUMBERLAND, PA Telephone: (717) 774-5989 17070 EBAY INC 2145 HAMILTON AVE SAN JOSE, CA 95125 CIVIL ACTION HEARING NOTIC PLAINTIFF: NAME and AD rOOLLA, GREGORY S 1544 KC CORMICS DR MECHANICSBURG, PA 17055 L vs. DEFENDANT: NAME and AD rEBAY INC 2145 HAMILTON AVE SAN JOSE, CA 95125 L Docket No.: CV-0000159-05 Date Filed: 3/15105 f A civil complaint has been filed against you in the above captioned case. A hearing has been set in this lmatter for: Date: 4/15/05 Place: DISTRICT COURT 09-1-01 400 BRIDGE ST Time: OLDE Tomm COMMONS -SUITE 3 1:45 PM MEP CUMBERLAND, PA 17070 717-774-5989 NOTICE TO DEFENDANT J 7 J If you intend to enter a defense to this complaint, you should so notify this office immediately at he above telephone number. YOU MUST APPEAR AT THE HEARING AND PRESENT YOUR DEFENSE. UNLESS YOU DO, JUD MENT MAY BE ENTERED AGAINST YOU BY DEFAULT. If you have a claim against the plaintiff which is within magisterial district judge jurisdiction and which yo inte to assert at the hearing, you must file it on a complaint form at this office at least five days before the dat set for the hearing. Pursuant to Pa.R.C.P.D.J. No. 342(6)(2), no claim by the defendant will be permitted in a supplementary ctii filed for failure of judgment creditor to enter satisfaction. NOTICE TO PLAINTIFF Pursuant to Pa.R.C.P.D.J. No. 318, you or your attorney will be notified if the defendant gives notice of intention to defend. It you are disabled and require a reasonable accommodation to gain access to the Magisterial District Court and its services, please contact the Magisterial District Court at the above address or telephone n tuber. We are unable to provide transportation. DATE PRINTED: 3/15/05 2:25:39 PK AOPC 3088-05 ?UMMONWEALTH OF PENNSYLVANIA _ COUNTY OF., CUMBERLAND 09-1-01 Di.Ma JUCacs NaTe: Non. Charles A. Clement, Jr Addreaa: Olde Towne Commons 400 Bridge St- Suite #3 New Cumberland, Pa. 17070 Ttlapnena: (717)774-5989 AMOUNT DATE PAID FILING COSTS $ L`3 57) 1 1 POSTAGE $ SERVICE COSTS $ CONSTABLE ED. S 1 1 TOTAL $? 3 1/5-10-6 CIVIL. COMPLAINT PLAINTIFF: HAMS and aooaess Greg Golla 1544 McCormick Drive Mechanicsburg,PA 1'7055 L -Phone: 717 870-3020 Fax: VS. 6EFENDANT: NAMF> AOOaess Ebay Inc. 2145 Hamilton Ave. LSan Jose, CA 95125 Docket No.: CI V-/5q-o-5-Date Filed: 3 Z /--F /0-5- 1 :FENDANT: The above named plaintiff(s) asks judgment against you for 1 upon the following claim (Civil fines must include citation of rises under 42 P.S.A. 7534, Breach of 2000.00 together with costs to statute or ordt?man ce vi 1 d): Contract, BaC1 fa ?i Thia a Dealings and failure to remedy. Plaintiff made on online purchase through Ebay, with Defend a: acting as the Auction service. Plaintiff paid the seller of item through Ebay and the seller defaulted. Plaintiff compla to the PA attorney General's Office and was advised to bring PLaintiff has been Defrauded out of approximately $1000.00. Plainitff requests the court award an additional $1000.00 in punitive damages due to the Defendant's bad faith. I, Greg Golla verify that the facts set forth in this best of my knowledge, information, and belief. This statement is made subject to the r Code (18 PA. C.S. 5 4904) related to unsworn falsification to authorities. Plaintiff's Attorney: Prn C2 Telephone: ( 717) 870-3020 Address: 1544 MC it. are true and col6-ect to the Section 4904 of the Crimes ck Drive Mechanicsburg, VA 1/Vpz) IF YOU INTEND TO ENTER A DEFENSE TO THIS COMPLAINT, YOU SHOULD SO NOTIFY THIS OFFICE IMMEDIATELtAT THE ABOVE TELEPHONE NUMBER. YOU MUST APPEAR AT THE HEARING AND PRESENT YOUR DEFENSE. UNLESS OU DO, JUDGMENT MAY BE ENTERED AGAINST YOU BY DEFAULT. If you have a claim against the plaintiff which is within district justice jurisdiction and which you intend assert at the hearing, you must file it on a complaint form at this office at least five (5) days before t date set for the hearing. If you are disabled and require a reasonable accommodation to gain access to the Magisterial District Court and its services, please contact the Magisterial District Court at the above address or telephone number. We are unable to provide transportation. AOPC 30BA-03 CHARLES A. CLEMENT, JR. DISTRICT JUSTICE SHIREMANSTOWN BOROUGH DISTRICT COURT 09-1.01 OFFICE LOWER ALLEN TOWNSHIP OLDIE TOWNE COMMONS ( 17) 774-5989 NEW CUMBERLAND BOROUGH 400 BRIDGE STREET - SUITE #3 ( 17) 774-8839 LEMOYNE BOROUGH NEW CUMBERLAND, PA 17070 FAX ( 17) 774.6684 TO THE DEFENDANT: If you agree with the information on this complaint, and you choose NOT to appear at the trail, a judgement in the stated amount will be entered against you (including Court filling fees). You must settle directly with the Plaintiff. If you DISAGREE with this action, and wish to APPEAR at the trial to present a defense, you MUST NOTIFY THIS OFFICE IMMEDIATELY of your intention to DEFEND. If you do not notify this Court of your intention, the plaintiff is not obligated to be present. If you appear in the Court, AND HAVE NOT GIVEN PROPER NOTIFICATION the trial will either be re-scheduled or a judgement maybe entered against you. TO THE PLAINTIFF: You are NOT required to appear for the trial UNLESS YOU HAVE BEEN NOTIFIED BY THIS COURT THAT THE DEFENDANT WISHES TO DEFEND AGAINST THE ACTION (this will be done by mail). If the defendant files a "NOTICE OF INTENT TO DEFENI With this court, the court will notify you of same. You will Then be required to appear at the scheduled/re-scheduled time to present your testimony. BOTH PARTIES HAVE THE RIGHT TO APPEAL ANY DECISION OF THIS COURT WITHIN THIRTY (30) DAYS OF THE JUDGEMENT DATE. Exhibit B eBay Help : Community Standards : Policies and conduct : User Agreement ® home I my eBay I site map I n to Browse. Sell. Services. Search. Help. and Communitv to Basics, Buyer Guide, Seller Guide, My Info, Billing, and Community Search Advanced Search ?Search titles and descriptions User Agreement THE FOLLOWING DESCRIBES THE TERMS ON WHICH EBAY OFFERS YOU ACCESS TO OUR SERVICES. Welcome to the user agreement (the "Agreement" or "User Agreement") for eBay Inc. If you reside outside of the United States, the party you are contracting with is eBay International AG. This Agreement describes the terms and conditions applicable to your use of our services available under the domain and sub-domains of www.ebay.com (the "Site") (including half.ebay.com, stores.ebay.com) and the general principles for the websites of our subsidiaries and international affiliates. If you do not agree to be bound by the terms and conditions of this Agreement, do not use or access our services. If you have any questions, please refer to our User Agreement Frequently Asked Questions or our User Agreement Revision Frequently Asked Questions. You must read, agree with and accept all of the terms and conditions contained in this User Agreement and the Privacy Policy, which include those terms and conditions expressly set out below and those incorporated by reference, before you may become a member of eBay. We strongly recommend that, as you read this User Agreement, you also access and read the information contained in the other pages and websites referred to in this document, as they may contain further terms and conditions that apply to you as an eBay user. Please note: underlined words and phrases are links to these pages and websites. By accepting this User Agreement, you also agree that your use of other eBay websites will be governed by the User Agreement and Privacy Policy posted on those websites. We may amend this Agreement at any time by posting the amended terms on the Site. Except as stated below, all amended terms shall automatically be effective 30 days after they are initially posted on the Site. In addition, we will notify you in accordance with your Notification Preferences. This Agreement may not be otherwise amended except in a writing signed by you and eBay Inc. This Agreement is effective upon acceptance in registration for new registering users, and is otherwise effective on May 25th, 2003 for all users. The previous amendment to this Agreement was effective for all users on April 19th, 2002. 1. Membership Eligibility. Our services are available only to, and may only be used by individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, our services are not available to children (persons under the age of 18) or to temporarily or indefinitely suspended eBay members. If you are a under the age of 18, you can use this service only in conjunction with, and under the supervision of your parents or guardians. If you do not qualify, please do not use our Site. Further, your eBay account (including feedback) and User ID may not be transferred or sold to another party. If you are registering as a business entity, you represent that you have the authority to bind the entity to this Agreement. 2. Fees and Services. Joining and bidding on items at eBay is free. We do charge fees for listing items for sale through our Site and when you list an item you have an opportunity to review and accept the fees that you will be charged. Our Fees and Credits Policy is available and is incorporated into this Agreement by reference. We may change our Fees and Credits Policy and the fees for our services from time to time. Our changes to the policy are effective after we provide you with at least fourteen (14) days' notice of the changes by posting the changes on the Site. However, we may choose to temporarily change our Fees and Credits Policy and the fees for our Page I of 6 file://C:\Documents%20and%2OSettings\bgooding\Desktop\eBay%2OUser%20Agreement.htm 1 3/25/2005 eBay Help : Community Standards : Policies and conduct : User Agreement services for promotional events (for example, free listing days) and such changes are effective when we post the temporary promotional event on the Site.. We may in our sole discretion change some or all of our services at any time. In the event we introduce a new service, the fees for that service are effective at the launch of the service. Unless otherwise stated, all fees are quoted in U.S. Dollars. You are responsible for paying all fees associated with using our service and the Site and all applicable taxes. 3. eBay is a Venue. 3.1 eBay is not an Auctioneer. Although we are commonly referred to as an online auction web site, it is important to realize that we are not a traditional "auctioneer." Instead, the Site acts as a venue to allow anyone to offer, sell, and buy just about anything, at anytime, from anywhere, in a variety of pricing formats, including a fixed price format and an auction-style format commonly referred to as "online auctions" or "auctions." We are not involved in the actual transaction between buyers and sellers. As a result, we have no control over the quality, safety or legality of the items advertised, the truth or accuracy of the listings, the ability of sellers to sell items or the ability of buyers to pay for items. We cannot ensure that a buyer or seller will actually complete a transaction. Consequently, we do not transfer legal ownership of items from the seller to the buyer, and nothing in this agreement shall modify the governing provisions of Ca. Com. Code § 2401(2) and Uniform Com. Code § 2-401(2), under which legal ownership of an item is transferred upon physical delivery of the item to the buyer by the seller. 3.2 Fixed Price Marketplace. We also offer you the availability to purchase items at a fixed price from a service on an area of the Site called Half.com by eBay. This area is a venue that allows users to find and purchase items from other users at a fixed price. Specific terms and conditions apply to your use of the Half.com area that you can read by going to http://half.ebay.com/help/index.cfm?heli)section=halfpolicv 3.3 Identity Verification. We use many techniques to verify the accuracy of the information our users provide us when they register on the Site. However, because user verification on the Internet is difficult, eBay cannot and does not confirm each user's purported identity. Thus, we have established a user-initiated feedback system to help you evaluate with whom you are dealing. We also encourage you to communicate directly with potential trading partners through the tools available on the Site. You may also wish to consider using a third party escrow service or services that provide additional user verification. See our Buying and Selling Tools page. 3.4 Release. Because we are a venue, in the event that you have a dispute with one or more users, you release eBay (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code §1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." 3.5 Information Control. We do not control the information provided by other users that is made available through our system. You may find other user's information to be offensive, harmful, inaccurate, or deceptive. Please use caution, common sense, and practice safe trading when using the Site. Please note that there are also risks of dealing with underage persons or people acting under false pretense. Additionally, there may also be risks dealing with international trade and foreign nationals. By using this Site, you agree to accept such risks and eBay is not responsible for the acts or omissions of users on the Site. 4. Bidding and Buying. As a buyer, you are obligated to complete the transaction with the seller: o if you purchase an item through one of our fixed price formats; or o if you are the highest bidder at the end of an auction (meeting the applicable minimum bid or reserve requirements) and your bid is accepted by the seller, unless the item is listed in a category under the Non-Binding Bid Policy or the transaction is prohibited by law or by this Agreement. By bidding on an item you agree to be bound by the conditions of sale included in the item's description so long as those conditions of sale are not in violation of this Agreement or unlawful. Unless you and the seller agree otherwise, you will become the item's lawful owner upon physical receipt of the item from the seller, in accordance with Ca. Com. Code § 2401(2) and Uniform Com. Code § 2-401(2). Bids are not retractable except in exceptional circumstances, such as: when the seller materially changes the item's description after you bid; a clear typographical error is made; you cannot authenticate the seller's identity; or when the seller does not confirm your purchase in the Half.com area of our services. If you choose to bid Page 2 of 6 file://C:\Documents%20and%20Settings\bgooding\Desktop\eBay%20Uscr%20Agreement.htm 3/25/2005 ,eBay Help : Community Standards : Policies and conduct : User Agreement on mature audience Items or items that are restricted to adult use, you are certifying that you have the legal right to purchase such items. 5. Listing and Selling. 5.1 Listing Description. You must be legally able to sell the item(s) you list for sale on the Site. You must describe your item and all terms of sale on the listing page of the Site. Your listings may only include text descriptions, graphics, pictures and other content relevant to the sale of that item. All listed items must be listed in an appropriate category. All items in multiple item listings must be identical. 5.2 Binding Bids. Except for items listed in a category under the Non-binding Bid Policy, if you receive at least one bid at or above your stated minimum price (or in the case of reserve auctions, at or above the reserve price), you are obligated as the seller to complete the transaction with the highest bidder upon the auction's completion, unless there is an exceptional circumstance, such as: (a) the buyer fails to meet the terms of your listing (such as payment method), or (b) you cannot authenticate the buyer's identity. 5.3 Fraud. Without limiting any other remedies, eBay may suspend or terminate your account if we suspect that you (by conviction, settlement, insurance or escrow investigation, or otherwise) have engaged in fraudulent activity in connection with the Site. 5.4 VeRO Program. eBay's Verified Rights Owner (VeRO) program works to ensure that listed items do not infringe upon the copyright, trademark or other rights of third parties. VeRO program participants and other rights owners can report listings offering infringing items, and request that such items be removed. VeRO program participants and other rights owners may have limited access to some of your personal information as described in the Privacy Policy at (http:/Ipages.ebay.com/help/policies/privacy-policy.htmi). 5.5 Manipulation. Neither you, bidders nor sellers may manipulate the price of any item nor may you interfere with other user's listings or transactions. 6. Your Information. 6.1 Definition. "Your Information" is defined as any information you provide to us or other users in the registration, bidding or listing process, in any public message area (including the Cafe or the feedback area) or through any email feature. You are solely responsible for Your Information, and we act as a passive conduit for your online distribution and publication of Your Information. 6.2 Restricted Activities. Your Information (or any items listed) and your activities on the Site shall not: (a) be false, inaccurate or misleading; (b) be fraudulent or involve the sale of counterfeit or stolen items; (c) infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (d) violate any law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, antidiscrimination or false advertising); (e) be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (f) be obscene or contain child pornography or, if otherwise adult in nature or harmful to minors, shall be posted only in the Mature Audiences section and shall be distributed only to people legally permitted to receive such content; (g) contain any viruses, Trojan horses, worms, time bombs, cancelbots, easter eggs or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (h) create liability for us or cause us to lose (in whole or in part) the services of our ISPs or other suppliers; and (1) link directly or indirectly to or include descriptions of goods or services that: (aa) are prohibited under this Agreement; (bb) are identical to other items you have up for auction but are priced lower than your item's reserve or minimum bid amount; (cc) are concurrently listed for sale on a web site other than eBay's (this does not prevent linking to or advertising an eBay item from another web site); or (dd) you do not have a right to link to or include. Furthermore, you may not list any item on the Site (or consummate any transaction that was initiated using our service) that, by paying to us the listing fee or the final value fee, could cause us to violate any applicable law, statute, ordinance or regulation, or that violates our current Prohibited. Questionable and Infringing Items. 6.3 License. Solely to enable eBay to use the information you supply us with, so that we are not violating any rights you might have in that information, you agree to grant us a non- exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise the copyright, publicity, and database rights (but no other rights) you have in Your Information, in any media now known or not currently known, with respect to Your Information. eBay will only use Your Information in accordance with our Privacy Policy. 7. Access and Interference. The Site contains robot exclusion headers. Much of the information on the Site is updated on a real time basis and is proprietary or is licensed to eBay by our users or third parties. You agree that you will not use any robot, spider, scraper or other automated means to access the Site for any purpose without our express written permission. Additionally, you agree that you will Page 3 of 6 filc://C:\Documents%20and%20Settings\bgooding\Desktop\eBay%20User%20Agreement.htm 3/25/2005 &Bay Help : Community Standards : Policies and conduct : User Agreement not: (i) take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure, (ii) copy, reproduce, modify, create derivative works from, distribute or publicly display any content (except for Your Information) from the Site without the prior expressed written permission of eBay and the appropriate third party, as applicable; (iii) interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site, or (iv) bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Site. 8. Feedback. 8.1 Integrity. You may not take any actions that may undermine the integrity of the feedback system. We may limit the number of bids and listings you may place on the Site based upon the level of your feedback. If you earn a net feedback rating of 4 (minus four), your membership may be suspended, and you may be unable to list or bid. 8.2 Export. You acknowledge that your feedback consists of comments left by other users and a composite feedback number compiled by eBay, and that the composite number without the comments does not convey your full user profile. Because feedback ratings are not designed for any purpose other than for facilitating trading between eBay users, you agree that you shall not market or export your eBay feedback rating in any venue other than an eBay operated website. 8.3 Import. We do not provide you the technical ability to import feedback from other (non- eBay operated) websites to eBay because a composite number, without the corresponding feedback does not reflect your true online reputation within our community. 9. Breach. Without limiting other remedies, we may limit your activity, immediately remove your bids or item listings, warn our community of your actions, issue a warning, temporarily suspend, indefinitely suspend or terminate your membership and refuse to provide our services to you if: (a) you breach this Agreement or the documents it incorporates by reference; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that your actions may cause financial loss or legal liability for you, our users or us. 10. Privacy. We do not sell or rent your personal information to third parties for their marketing purposes without your explicit consent and we only use your information as described in the Privacy Policy. We view protection of users' privacy as a very important community principle. We understand clearly that you and your information is one of our most important assets. We store and process your information on computers located in the United States that are protected by physical as well as technological security devices. We use third parties to verify and certify our privacy principles. Our current Privacy Policy is available at http://Daqes.ebaV.com/help/policies/privacy-policy.htmi. If you object to your Information being transferred or used in this way please do not use our services. 11. No Warranty. WE, OUR SUBSIDIARIES, OFFICERS. DIRECTORS, EMPLOYEES AND OUR SUPPLIERS PROVIDE OUR WEB SITE AND SERVICES "AS IS" AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. WE, OUR SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES AND OUR SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you. This warranty gives you specific legal rights and you may also have other legal rights that vary from state to state. 12. Liability Limit. IN NO EVENT SHALL WE, OUR SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES OR OUR SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH OUR SITE, OUR SERVICES OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE). OUR LIABILITY, AND THE LIABILITY OF OUR SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES YOU PAY TO US IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, AND (B) $100. Some States do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. 13. Indemnity. You agree to indemnify and hold us and (as applicable) our parent, subsidiaries, affiliates, officers, directors, agents, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your breach of this Page 4 of 6 file://C:\Documents%20and%20Settings\bgooding\Desktop\eBay%20User%20Agreement.htm 1 3/25/2005 eBay Help : Community Standards : Policies and conduct : User Agreement Agreement or the documents it incorporates by reference, or your violation of any law or the rights of a third party. 14. Legal Compliance. You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of our service and your bidding on, listing, purchase, solicitation of offers to purchase, and sale of items. 15. No Agency. You and eBay are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement. 16. Notices. Except as explicitly stated otherwise, any notices shall be given by postal mail to eBay Attn: Legal Department 2145 Hamilton Ave., San Jose, CA 95125 (in the case of eBay) or to the email address you provide to eBay during the registration process (in your case). Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to eBay during the registration process. In such case, notice shall be deemed given 3 days after the date of mailing. 17. Resolution of Disputes. In the event a dispute arises between you and eBay, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and eBay agree that any claim or controversy at law or equity that arises out of this Agreement or our services ("Claims") shall be resolved in accordance with one of the subsections below or as otherwise mutually agreed upon in writing by the parties. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution and we will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation, as an alternative to litigation. 17.1 Binding Arbitration. For any Claim (excluding Claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, you or eBay may elect to resolve the dispute through binding arbitration conducted by telephone, on-line and/or based solely upon written submissions where no in-person appearance is required. In such cases, the arbitration shall be administered by the American Arbitration Association or JAMS in accordance with their applicable rules, or any other established ADR provider mutually agreed upon by the parties. Any judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. 17.2 Court. Alternatively, any Claim may be adjudicated by a court of competent jurisdiction located in Santa Clara County, California or where the defendant is located (in our case San Jose, California, and in your case your home address or principal place of business). You and eBay agree to submit to the personal jurisdiction of the courts located within the county of Santa Clara, California. 17.3 Alternative Dispute Resolution. Alternatively, eBay will consider use of other alternative forms of dispute resolution, such as binding arbitration to be held in Santa Clara County, California or another location mutually agreed upon by the parties. Al Claims (excluding requests for injunctive or equitable relief) between the parties must be resolved using the dispute resolution mechanism that is selected in accordance with this Section by the first party to file a Claim. Should either party file an action contrary to this Section 17, the other party may recover attorneys' fees and costs up to $1000, provided that the party seeking the award has notified the other party in writing of the improperly filed Claim, and the other party has failed to withdraw the Claim. 18. Additional Terms. The following policies are incorporated into this Agreement by reference and provide additional terms and conditions related to specific services offered on the Site: Privacy Policy: Outage Policy: hlto://pa Board Usage Policy: htt Non-Binding Bid Policy: Listing Pc Half.com Policy: http:// Investigations Prohibited, QuestionaW ov.html, Real Es and the Page 5 of 6 file://C:\Documents%20and%20Settings\bgooding\Desktop\eBay%20User°/u20Agreement.htm 1 3/25/2005 tate Policy: http://Pages ebav com/help/community/re agreement.html, Non-Paying Bidder Policy: http://pages.ebay.com/help/sell/bidders overview.html. eBay Help : Community Standards : Policies and conduct : User Agreement Each of these policies may be changed from time to time and are effective immediately after we post the changes on the Site, except for the Privacy Policy for which we will provide you with thirty days prior notice. In addition, when using particular services on the Site, you agree that you are subject to any posted policies or rules applicable to services you use through the Site, which may be posted from time to time. All such posted policies or rules are hereby incorporated by reference into this Agreement. 19. General. This Agreement shall be governed in all respects by the laws of the State of California as such laws are applied to agreements entered into and to be performed entirely within California between California residents. We do not guarantee continuous, uninterrupted or secure access to our services, and operation of the Site may be interfered with by numerous factors outside of our control. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. You agree that this Agreement and all incorporated agreements may be automatically assigned by eBay in accordance with Section 16 "Notices", in our sole discretion, Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between us with respect to the subject matter hereof. Sections 2 (Fees and Services) with respect to fees owed for our services, 3.4 (Release), 6.3 (License), 7 (Access and Interference), 12 (Liability Limit), 13 (Indemnity) and 17 (Resolution of Disputes) shall survive any termination or expiration of this Agreement. 20. Disclosures. The services hereunder are offered by eBay Inc., located at 2145 Hamilton Ave., San Jose, CA 95125. If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information. If you reside outside of the United States, the services are offered by eBay International AG, located at Bubenberg Platz 5, Ch-3001, Bern, Switzerland. Fees for our services are described at httl):Hpages.ebay.com/help/sell/fees.html. Commercially available parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. If you are interested in learning more about these protections, information is available at htto://www.safetvsurf.com/ or other analogous sites providing information on such protections. The preceding link is provided for information purposes only, and is not intended as an endorsement of SafetySurf.com's Internet site, services, or policies. eBay is not affiliated with SafetySurf.com. Disputes between you and eBay regarding our services may be reported to Customer Support by going to htti)://pages.ebay.com/help/new/customer-supporthtml. We encourage you to report all user- to-user disputes to your local law enforcement, postmaster general, or a certified mediation or arbitration entity. Additionally, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210. Announcements Register I Shop eBay-o-rama I Safe Trading Tips Policies I Feedback Forum About eBav Home I My eBay I Site Map I eBay Downloads I eBay Gift Certificates Browse I Sell I Services I Search I Help I Community Overview I News I Chat I Library I Charity I eBay Gear I AbouteBay Copyright © 1995-2003 eBay Inc. All Rights Reserved. Designated trademarks and brands are the property of their respective s „„„ s owners. Use of this Web site constitutes acceptance of the eBay User Agreement and Privacy Policy. Page 6 of 6 file://C:\Documents%20and%20Settings\bgooding\Desktop\eBay%20User%20Agreement.htm 3/25/2005 Exhibit C et?lf VIA FEDERAL EXPRESS Mr. Gregory E. Golla 1554 McCormick Dr. Mechanicsburg, PA 17055 Dear Mr. Golla, March 25, 2005 eBay Inc. 2145 Hamilton Sanjoee. Calid www.ebay.com We are writing with respect to the lawsuit you filed against eBay in New Cumberland, Jersey. You state in your Complaint that you purchased an item through eBay from a seller tl defaulted. eBay does not guarantee the performance of a seller or a buyer. Our User Agreeme clearly states at Paragraph 3.1: We are not involved in the actual transaction between buyers and sellers. As a result, have no control over the quality, safety or legality of the items advertised, the truth or accuracy of the listings, the ability of sellers to sell items or the ability of buyers to pq items. We cannot ensure that a buyer or seller will actually complete a transaction. 95125 We are writing to remind you that when you registered an account with eBay and acce ted the terms of eBay's User Agreement, you agreed to specific procedures regarding disputes wit eBay. For disputes with eBay, you are required to resolve the matter through binding arbitration or by filing a lawsuit in a court of competent jurisdiction in Santa Clara County, California. Arb atie may be conducted by telephone, on-line or based solely upon written submissions. A copy of he User Agreement is attached for your review. The dispute resolution agreement can be found Paragraph 17. In light of this agreement, we request that you dismiss your claim and pursue it either through arbitration or in the appropriate court in Santa Clara County. Please note that pursu to the terms of the User Agreement, eBay is entitled to seek its legal costs up to $1,000 related to enforcing the dispute resolution provision if you refuse to comply with the terms of this sectio . Please let us know by April 6, 2005 if you intend to withdraw the complaint currently pending in New Cumberland, NJ. If we do not hear from you, we will file a challenge to ven and a counterclaim against you along with a request that eBay be reimbursed for its fees and costs associated with enforcing the terms of the User Agreement. Please contact me at the address above or via fax at (408) 376-7514. Very truly yours, y?a?bat? codocll 01 Barbara Gooding Paralegal Specialist, Litigation ; Mar 28 05 11:57a GREG GOLLR 7177900407 3-28-05 To: Bambara Gooding From: Greg Golla re; litigation In response to your letter dated 3-25-05, Ebay breached it's contract with me when it refused to process my claim for reimbursement- [ contacted the Pennsylvania Attorney General's Office and have been advised by them to bring this suit. I never agreed to your terms. I may also bring a Federal Suit against Ebay under a Diversity Jurisdiction for Breach of Contract and Bad Faith. Or I would also be interested in settling this case for $500.00. Please keep in mind that over six months have elapsed since I filed my claim and Ebay has failed to take corrective action. I think a jury will see things my way. It will only cost me $150.00 to file in Federal District Court but it will cost you thousands of Dollars to Defend. Respond, Greg Golla 1544 McCormick Drive Mechanicsburg, PA 17055 (717)870-3020 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Petition to Compel Arbitration, with all attachments, was served via first-class, U.S. Mail, pre-paid, on this 21st day of April, 2005, upon the following: Gregory Golla 1544 McCormick Dr. Mechanicsburg, PA 17055 I further certify that a true and correct copy of the foregoing Petition to Compel Arbitration, with all attachments, was served via facsimile (without exhibits) and first-class, U.S. Mail, postage pre-paid, on this 21st day of April, 2005, upon the following: The Honorable Charles Clement, Jr. Olde Towne Commons 400 Bridge Street, Suite #3 New Cumberland, PA 17070 kCLAUDIA M. WILLIAMS 1-HA/118616.1 (O _ T, EBAY, INC., Plaintiff V. GREGORY GOLLA, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-2069 CIVIL TERM ORDER OF COURT AND NOW, this 2nd day of May, 2005, upon consideration of Plaintiff's Verified To Compel Arbitration and Request for Attorneys' Fees and Costs, the petition is denied without prejudice to the right of Plaintiff to raise this issue before the Honorable Charles A. Clement, Jr., at No. CV-0000159-05. Claudia M. Williams, Esq. Vincent Candiello, Esq. One Commerce Square 417 Walnut Street Harrisburg, PA 17101-1904 Attorneys for Plaintiff ,6regory Golla 1544 McCormick Drive Mechanicsburg, PA 17055 Defendant, pro se fihe Honorable Charles A. Clement, Jr. Olde Towne Commons - Suite 3 400 Bridge Street New Cumberland, PA 17070 BY THE COURT, ?=r? r 0.? 03a5 :rc F,0 :I I !'I'l £- 1,1114 SOUR 1 I I ??i Curtis R. Long Prothonotary office of the Protbonotarp Cuntbprlanb Countp Renee K. Simpson Deputy Prothonotary John E. Slike Solicitor ps_ ?Q(pQ CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 29TH DAY OF OCTOBER 2008 AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R C P 230.2 BY THE COURT, CURTIS R. LONG PROTHONOTARY One Courthouse Square • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6573