Common use of Prohibited Conditions Clause in Contracts

Prohibited Conditions. If one or more of the CPO Conditions is: (i) a term or condition with which eBay is not reasonably capable of complying, (ii) a term or condition applicable to merchants with which the eBay Merchants (in the aggregate) are not reasonably capable of complying, as described below; (iii) unique to such Competitive Platform Operator (such that only the Competitive Platform Operator could comply); or (iv) designed or intended to, or operates to, frustrate or interfere with, or otherwise has the effect of, discriminating against eBay or eBay Merchants or frustrating or circumventing the application of this Section 3.4 (collectively, the “Prohibited Conditions”), then eBay and the eBay Merchants shall receive the CPO MFP without having to comply with such CPO Condition (provided, that eBay complies with all CPO Conditions that are not Prohibited Conditions). By way of example: (A) eBay and eBay Merchants will be deemed to be not “reasonably capable of complying” with any and all terms or conditions to the extent that they (1) impose a condition or requirement of size or ranking (in aggregate or with respect to a specific jurisdiction) that is unrelated to the Competitive Platform Operator’s payments volume on PayPal and that exceeds the size or ranking of the applicable eBay Covered Properties, (2) require eBay or eBay Merchants to violate any applicable Law or Contract (other than any Contract that may be amended by eBay without the consent of the other party or parties thereto to eliminate such violation) or (3) would require eBay to operate a Property that is not an eBay Covered Property or own or control operations in a jurisdiction that is not a Covered Jurisdiction; and (B) subject to clause (A), eBay shall not be deemed to be not “reasonably capable of complying” with a term or condition solely because such term or condition requires eBay to pay or commit to pay any amount or incur any obligation in favor of or offer or grant any accommodation (financial or otherwise) to the Competitive Platform Operator or in respect of such CPO MFP.