Market Check. Annually during the Term (or more frequently as mutually agreed by the Parties), a third-party, independent expert mutually agreed upon by the Parties (the “Independent Expert”) will, with respect to each Covered Jurisdiction, review the actual Take Rate for comparable (x) eBay Merchants with an Account Nationality in such Covered Jurisdiction (determined on an aggregate or average basis) and (y) Non-eBay Merchants in such Covered Jurisdiction, including Non-eBay Merchants that use or access PayPal’s services through Properties operated by a Competitive Platform Operator (other than Non-eBay Merchants that are also Competitive Platform Operators) (each such review, a “Market Check”), in accordance with the following procedures: (a) The Independent Expert shall be an independent, external internationally recognized firm with appropriate qualifications and experience in conducting reviews of this nature. (b) Before beginning a Market Check for a Covered Jurisdiction, the Independent Expert shall execute a confidentiality agreement with PayPal and eBay (or their respective Subsidiaries in such Covered Jurisdiction), the terms of which shall not frustrate or impede the purpose of the review or the disclosure of the results thereof to the Parties. If the Independent Expert has executed a confidentiality agreement in accordance with this Section 3.2(b) during the Term and such confidentiality agreement remains in full force and effect, the Independent Expert shall not be required to reexecute a second confidentiality agreement. (c) The Independent Expert shall create a detailed written report of the results and findings of the Market Check for such Covered Jurisdiction (each, a “Market Check Report”) and simultaneously provide copies of each Market Check Report to both eBay and PayPal. The Independent Expert shall not disclose any Highly Sensitive Information that, if disclosed to eBay or PayPal, as applicable, would cause PayPal or eBay, as applicable, competitive harm, and shall not disclose any information to the extent disclosure of such information to such Party would violate applicable Law (including the law of a Covered Jurisdiction). Neither Party shall be required to disclose to the Independent Expert any information to the extent disclosure of such information to such Independent Expert would violate applicable Law (including the law of a Covered Jurisdiction). (d) The Independent Expert shall conduct the Market Check in a manner that does not unreasonably interfere with eBay’s or PayPal’s business operations. Each Party and its respective Subsidiaries shall reasonably cooperate with the Independent Expert in connection with the Market Check, including by providing the Independent Expert with access to relevant financial and accounting books and statements, management and operating data, records and sample or survey data previously collected by such Party, financial statements, Systems, facilities, operations, and management Personnel and other Personnel, but only as reasonably necessary for the purposes of the Market Check, and ensure that its Personnel cooperate with the Market Check and all other reasonable requests by the Independent Expert for additional information or documentation related to the Market Check. (e) Each of the Parties acknowledges that the Market Check Reports will contain information that is commercially sensitive and, accordingly, each Party agrees to restrict access to the Market Check Reports to its Personnel to whom disclosure is essential to execute their job responsibilities (each, a “Permitted Recipient”), which Permitted Recipients shall be mutually agreed in writing by the Parties from time to time. Before receiving a Market Check Report, each Permitted Recipient shall agree in writing not to distribute the Market Check Report to any Person that is not a Permitted Recipient. Upon the consummation of a Change of Control of eBay, eBay shall, at its option and as promptly as practicable after such Change of Control, either (i) return to PayPal all Market Check Reports in its possession or (ii) confirm to PayPal that it has destroyed such Market Check Reports (other than any such information located in back-up, archival electronic storage that is accessed only by eBay’s information technology Personnel).
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Market Check. Annually during the Term (or more frequently as mutually agreed by the Parties), a third-party, independent expert mutually agreed upon by the Parties (the “Independent Expert”) will, with respect to each Covered Jurisdiction, review the actual Take Rate for comparable (x) eBay Merchants with an Account Nationality in such Covered Jurisdiction (determined on an aggregate or average basis) and (y) Non-eBay Merchants in such Covered Jurisdiction, including Non-eBay Merchants that use or access PayPal’s services through Properties operated by a Competitive Platform Operator (other than Non-eBay Merchants that are also Competitive Platform Operators) (each such review, a “Market Check”), in accordance with the following procedures:
(a) The Independent Expert shall be an independent, external internationally recognized firm with appropriate qualifications and experience in conducting reviews of this nature.
(b) Before beginning a Market Check for a Covered Jurisdiction, the Independent Expert shall execute a confidentiality agreement with PayPal and eBay (or their respective Subsidiaries in such Covered Jurisdiction), the terms of which shall not frustrate or impede the purpose of the review or the disclosure of the results thereof to the Parties. If the Independent Expert has executed a confidentiality agreement in accordance with this Section 3.2(b) during the Term and such confidentiality agreement remains in full force and effect, the Independent Expert shall not be required to reexecute a second confidentiality agreement.
(c) The Independent Expert shall create a detailed written report of the results and findings of the Market Check for such Covered Jurisdiction (each, a “Market Check Report”) and simultaneously provide copies of each Market Check Report the report to both eBay and PayPal. The Independent Expert shall not disclose any Highly Sensitive Information that, if disclosed to eBay or PayPal, as applicable, would cause PayPal or eBay, as applicable, competitive harm, and shall not disclose any information to the extent disclosure of such information to such Party would violate applicable Law (including the law of a Covered Jurisdiction). Neither Party shall be required to disclose to the Independent Expert any information to the extent disclosure of such information to such Independent Expert would violate applicable Law (including the law of a Covered Jurisdiction).
(d) The Independent Expert shall conduct the Market Check in a manner that does not unreasonably interfere with eBay’s or PayPal’s business operations. Each Party and its respective Subsidiaries shall reasonably cooperate with the Independent Expert in connection with the Market Check, including by providing the Independent Expert with access to relevant financial and accounting books and statements, management and operating data, records and sample or survey data previously collected by such Party, financial statements, Systems, facilities, operations, and management Personnel and other Personnel, but only as reasonably necessary for the purposes of the Market Check, and ensure that its Personnel cooperate with the Market Mar- ket Check and all other reasonable requests by the Independent Expert for additional information or documentation related to the Market Check.
(e) Each of the Parties acknowledges that the Market Check Reports will contain information that is commercially sensitive and, accordingly, each Party agrees to restrict access to the Market Check Reports to its Personnel to whom disclosure is essential to execute their job responsibilities (each, a “Permitted Recipient”), which Permitted Recipients shall be mutually agreed in writing by the Parties from time to time. Before receiving a Market Check Report, each Permitted Recipient shall agree in writing not to distribute the Market Check Report to any Person that is not a Permitted Recipient. Upon the consummation of a Change of Control of eBay, eBay shall, at its option and as promptly as practicable after such Change of Control, either (i) return to PayPal all Market Check Reports in its possession or (ii) confirm to PayPal that it has destroyed such Market Check Reports (other than any such information located in back-up, archival electronic storage that is accessed only by eBay’s information technology Personnel).
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