Alibaba.com Transaction Services Agreement for PRC Customers
Alibaba.com Transaction Services Agreement for PRC Customers
Thank you for choosing Alibaba.com web-based transaction management services! This Transaction Services Agreement applies to our registered mainland China customers. It describes the terms on which you access to the web-based transaction management and ancillary services provided on or through www.alibaba.com and www.aliexpress.com. Please read this Agreement carefully.
1. Acceptance of Terms
1.1 This Agreement is entered into between you and Alibaba.com Singapore E-Commerce Private Limited (incorporated in Singapore with Company Reg. No. 200720572D) and Alibaba (China) Technology Co Ltd (collectively, “Alibaba.com”) and applies to your use of the web-based transaction management and ancillary services provided on and through the websites www.alibaba.com and www.aliexpress.com (“Services”). The following policies (“Policies”) are incorporated into this Agreement by reference:
· Product Listing Policy for Transaction Services;
· General Transactions Policy;
· Alibaba Rules for Online Transaction Disputes; and
1.2 We may amend this Agreement and any of the Policies at any time by posting an updated version on the www.alibaba.com and www.aliexpress.com websites (“Sites”). The updated version shall be effective immediately upon posting. If an updated version contains material changes, we will notify you of the changes by posting an announcement on the Sites. This Agreement was last amended on February 10, 2010.
1.3 Each time you use our Services you confirm your agreement to be bound by this Agreement and the Policies, as may be revised from time to time.
1.4 This Agreement does not affect your agreement with us or any of our affiliates concerning your subscription and use of the paid or free membership services of the Sites.
2. Services and Limits on Services
2.1 The Services are web-based transaction management and ancillary services provided by Alibaba.com to facilitate a registered paid or free member of the Sites (“Member”) to complete a sale and purchase transaction on and through the Sites (“Transaction”). Alibaba.com reserves the right to change, upgrade, modify, limit or suspend the Services or any of its related functionalities or applications at any time temporarily or permanently without prior notice. Alibaba.com further reserves the right to introduce new features, functionalities or applications to the Services or to future versions of the Services. All new features, functionalities, applications, modifications, upgrades and alterations shall be governed by this Agreement, unless otherwise expressly stated by Alibaba.com. Alibaba (China) Technology Co Ltd (“Alibaba.com China”) provides technical support in connection with the Services utilizing its strengths in network technologies, etc.
2.2 The Services are only available to Members. Members from outside mainland China may only participate in a Transaction as a buyer (“Buyer”), and Members from mainland China may only participate in a Transaction as a supplier (“Supplier”). If your subscription to the paid or free membership of the Sites expires or is early terminated for any reason, you are not eligible to use the Services. In addition, Alibaba.com is not obliged to provide the Services to a Supplier without a designated valid bank account verified and confirmed by Alipay.com Co., Ltd. (“Alipay”) to receive the purchase prices under the Transactions.
2.3 The Services are only available to the sale and purchase by Members of lawful items and items not otherwise prohibited or restricted by this clause 2.3. Members shall not use the Services or the Sites in connection with any Transaction that:
(a) is in breach of this Agreement, the Product Listing Policy and the Product Listing Policy for Transaction Services or any other agreement you have entered with Alibaba.com or Alipay (including a policy of Alibaba.com or Alipay);
(b) involves real property or interest in real property;
(c) involves sale, assignment or transfer of any licence, permit or approval; or
(d) infringes Alibaba.com, Alipay or any third party’s legitimate rights including but not limited to copyright, trademark right, patent or other intellectual property rights.
In addition, Alibaba.com, in our sole discretion, may refuse to process any Transaction that Alibaba.com or Alipay has reason to believe is unauthorized or made by someone other than you, violate any law, rule or regulations or may otherwise subject Alibaba.com or Alipay or our affiliates to liability.
2.4 The Services are available to Transactions which satisfy the following conditions:
(a) the total contract price of the Transaction does not exceed US$10,000;
(b) Buyer and Supplier must settle their payments for the Transaction using the escrow services provided by Alipay; and
(c) Buyer and Supplier must appoint one of the Alibaba.com approved shipping services to deliver the products under the Transaction.
Alibaba.com may impose other limitations on the use of the Services in the General Transactions Policy or otherwise by announcements on the Sites.
2.5 The Services are not available to any transactions not made on or through the Sites. In case of any dispute in connection with any Transaction, the records of Alibaba.com and Alipay shall be final and conclusive.
3. Transactions between Members
3.1 All Transactions are made by and between the Members only. Supplier and Buyer shall be responsible for ensuring that they have agreed to and specified all the relevant terms and conditions in connection with a Transaction in the relevant online order form on the Sites (“Order Form”), including but not limited to the unit price, currency, foreign exchange rate, product specifications, safety requirements, etc. Alibaba.com may refuse to process or cancel any Transaction that, in Alibaba.com’s reasonable opinion, has insufficient information to create a binding order.
3.2 Supplier and Buyer shall complete the Transaction according to the terms of the relevant Order Form, the General Transactions Policy and this Agreement. Supplier or Buyer may cancel any Transaction according to the General Transactions Policy.
3.3 Alibaba.com does not represent Supplier or Buyer in any Transaction. As a result, Alibaba.com will not be responsible for the quality, safety, lawfulness or availability of the products offered under any Transaction or the ability of any Member to complete a Transaction.
3.4 For any Transaction, you agree that the full payment of the contract price of a Transaction without any deductions must be made in immediately available funds to the bank account designated by Alipay through the specified payment methods as set forth on the Sites. The payment will be monitored and released by Alipay in accordance with the terms and conditions of Alipay Escrow Services Agreement. You agree that neither of Buyer or Supplier will receive interest nor other earnings on any amount under escrow.
3.5 If any loss or damage to the products under a Transaction occurs during the delivery, Member may make a claim to the relevant shipping company. Member agrees that you will not hold Alibaba.com liable for any losses, damages, costs or expenses arising from the delivery services provided by such shipping company.
3.6 If any other dispute arises between Buyer and Supplier, each of you agrees to negotiate with the other party to resolve the dispute amicably. If a dispute is not resolved within the prescribed time period according to the General Transactions Policy, it will automatically be submitted to Alipay for determination. Buyer and Supplier agree that Alipay shall have right to make the final decision with respect to the dispute in favor of the Buyer or Supplier at its sole discretion and each party shall comply with Alipay’s decision.
4. Fees and Payment
4.1 Where Member is a Supplier, such Member agrees to pay Alibaba.com service fees for using the Services based on the fee schedule announced by Alibaba.com on the Sites, and mainland China Suppliers shall pay the service fees to Alibaba.com China. Member hereby authorizes Alibaba.com to instruct Alipay to deduct any fees that are due and payable to Alibaba.com and pay the same to Alibaba.com when Alipay releases any amount held in escrow under the Transaction.
4.2 The service fees charged by Alibaba.com include the fees for Alipay’s provision of escrow services, but do not include the fees for the delivery services charged by the shipping company. It is Supplier’s responsibility to settle any fees charged by the shipping company selected by Buyer and Supplier.
4.3 All fees charged by Alibaba.com are exclusive of any taxes, duties or other governmental levies or any financial charges. You agree to pay and be responsible for any taxes, duties, levies or charges for the use of the Services in addition to our fees. In the event Alibaba.com is required by any applicable law to collect or withhold any taxes or duties, you agree to pay such taxes or duties to Alibaba.com. If any amount is refunded to Buyer, bank charges will be deducted from the refunded amount.
4.4 Alibaba.com reserves the right to modify its pricing structure, discounts and payment conditions relating to the Services from time to time at its sole discretion.
5. Members’ Responsibilities
5.1 Member agrees to give all notices, provide all necessary information, materials and approval, and render all reasonable assistance and cooperation necessary for the smooth completion of the Transaction and Alibaba.com’s provision of the Services. If the Member’s failure to do so results in delay in the provision of any Service, cancellation of any Transaction, or release of any funds under escrow, Alibaba.com shall not be liable for any loss or damages arising from such delay.
5.2 Each Member represents and warrants that:
(a) you will use the Services in good faith and in compliance with all applicable laws and regulations;
(b) all information and material you provide in connection with the use of the Services is true, lawful and accurate, and is not false, misleading or deceptive;
(c) you will not use the Services to defraud Alibaba.com, Alipay or other Members of the Sites or engage in other unlawful activities (including without limitation dealing in products prohibited by law); and
(d) in case of a Supplier, you have the legitimate right and authorization to sell, distribute or export your products using the Services and your products using the Services do not infringe any third party’s rights.
5.3 If Member is, in Alibaba.com’s opinion, not acting in good faith, abusing the Services, or in breach of this Agreement, Alibaba.com shall have the right to cancel the relevant Transaction(s). Alibaba.com also reserves the right to temporarily or permanently suspend or terminate or procure the suspension or termination of the Member’s paid or free membership.
5.4 Member shall be solely responsible for payment of any taxes, duties or other governmental levies or any charges or fees that may be imposed on any products purchased or sold through the Services or otherwise arising from the Transaction.
5.5 Member shall not take any action which may undermine the integrity of Alibaba.com’s feedback system, such as providing positive feedback on oneself on the Sites using secondary Member IDs or through third parties or by providing unsubstantiated negative feedback on another Member on the Sites.
5.6 Member agrees to indemnify Alibaba.com and its affiliates and their employees, agents and representatives and to hold them harmless, from any and all losses, damages, actions, claims and liabilities (including legal costs on a full indemnity basis) which may arise, directly or indirectly, from your use of the Services or from Member’s breach of this Agreement. Alibaba.com reserves the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Member, in which event Member shall cooperate with Alibaba.com in asserting any available defenses.
6. Confidentiality
6.1 Member shall keep confidential all confidential information provided by the other Members, Alibaba.com or Alipay in connection with any Transaction or the Services and marked as confidential.
6.2 All information and material provided by another Member, Alibaba.com or Alipay will be deemed to be confidential information unless such information has been published on the Sites by the party providing such information which is accessible to non-registered members of the Sites or otherwise available to the public without any breach by a party of its confidentiality obligations.
7. Disclaimer and Limitation of Liability
7.1 Alibaba.com represents and warrants that we will provide the Services with reasonable care and skill.
7.2 You expressly agree that your use of the Services is at your sole risk. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND TO THE FULL EXTENT PERMITTED BY LAW THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND ALIBABA.COM MAKES NO REPRESENTATION OR WARRANTY THAT THE SITES OR THE SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR FREE. ALIBABA.COM MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE ACCURACY, TRUTHFULNESS AND COMPLETENESS OF THE INFORMATION PROVIDED BY MEMBERS. YOU WILL BE SOLELY RESPONSIBLE FOR ALL CONSEQUENCES RESULTING FROM YOUR OWN JUDGEMENT AND DECISION TO USE OR OTHERWISE RELY ON SUCH INFORMATION. ALIBABA.COM FURTHER EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF CONDITION, QUALITY, DURABILITY, PERFORMANCE, ACCURACY, RELIABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH POSSIBILITY WAS REASONABLY FORESEEABLE. ALL SUCH WARRANTIES, REPRESENTATIONS, CONDITIONS, UNDERTAKINGS AND TERMS ARE HEREBY EXCLUDED.
7.3 TO THE FULL EXTENT PERMITTED BY LAW, ALIBABA.COM SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS OR REVENUES, BUSINESS INTERRUPTION, LOSS OF BUSINESS OPPORTUNITIES OR LOSS OF DATA, WHETHER IN CONTRACT, NEGLIGENCE, TORT OR OTHERWISE, ARISING FROM THE USE OF OR INABILITY TO USE THE SERVICES. THE AGGREGATE LIABILITY OF ALIBABA.COM AND ITS AFFILIATES INCLUDING ALIPAY ARISING FROM THE SERVICES IN CONNECTION WITH ANY TRANSACTION SHALL NOT EXCEED THE TOTAL SERVICE FEES THAT ARE CHARGED BY ALIBABA.COM FOR SUCH TRANSACTION.
7.4 Some states do not allow the exclusion of implied warranties or the limitation or exclusion of liability for incidental or consequential damages, so the foregoing exclusions or limitations may not apply to you. You may also have other rights that vary from state to state.
8. Force Majeure
8.1 Under no circumstances shall Alibaba.com be held liable for any delay or failure or disruption of the Services resulting directly or indirectly from acts of nature, forces or causes beyond its reasonable control, including without limitation, acts of God, Internet failures, computer, telecommunications or any other equipment failures, electrical power failures, strikes, labour disputes, riots, insurrections, civil disturbances, shortages of labour or materials, terrorism, war, governmental actions, orders of domestic or foreign courts or tribunals.
9. Governing Law; Jurisdiction
9.1 This Agreement shall be governed by the laws of the Hong Kong Special Administrative Region (“Hong Kong”) without regard to conflict of law principles.
9.2 If any dispute or claim arising out of this Agreement or your use of the our Services between you and Alibaba.com (“Dispute”) is not resolved between the parties within a maximum 14 business days after either party serves a notice of the Dispute on the other party, you and Alibaba.com agree that the Dispute shall be finally resolved by arbitration with the Hong Kong International Arbitration Centre (“HKIAC”). The arbitration shall be conducted under the UNCITRAL Arbitration Rules in force at the time of applying for arbitration by a sole arbitrator as amended by this clause. The arbitration shall be conducted by telephone, online and/or solely based on written submissions as specified by the party initiating the arbitration, provided that the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
9.3 The place of arbitration shall be Hong Kong. Unless the parties otherwise agree, the language of arbitration shall be English.
9.4 The arbitration award shall be final and binding on both parties.
9.5 Notwithstanding the foregoing provisions, either party may seek injunctive or other equitable relief against the other party in any court of competent jurisdiction prior to or during the arbitration.
10. General Provisions
10.1 This Agreement constitutes the entire agreement between Member and Alibaba.com with respect to and governs the use of the Services, superseding any prior written or oral agreements in relation to the same subject matter herein.
10.2 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.
10.3 Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
10.4 No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
10.5 Any failure by Alibaba.com to exercise any of its rights under this Agreement shall not constitute a waiver of such right or a waiver with respect to subsequent or similar breach. A waiver shall be effective only if made in writing.
10.6 Alibaba.com shall have the right to assign this Agreement (including all of its rights, titles, benefits, interests, and obligations and duties in this Agreement) to any of its affiliates and to any successor in interest. Alibaba.com may delegate certain of Alibaba.com rights and responsibilities under this Agreement to independent contractors or other third parties. Member may not assign, in whole or part, this Agreement to any person or entity.
10.7 If there is any conflict between the English version and another language version of this Agreement, the English version shall prevail.