25 July 2011

PLEASE READ THIS AGREEMENT CAREFULLY 

 

This Agreement is made between you and Alipay Singapore E-Commerce Private Limited (“Alipay” or “we”) regarding your use of the escrow services provided to registered paid and free members of the www.alibaba.com and www.aliexpress.com sites (“Services”). 

1.   Acceptance of Terms

1.1   You acknowledge that you have read this Agreement prior to your use of our Services.  Each time you use our Services you confirm that you agree to be bound by this Agreement as may be amended from time to time. 

1.2   We may amend this Agreement any time by posting an updated version at www.alibaba.com and www.aliexpress.com (each an “Alibaba.com Site”).   The updated version of this Agreement shall take effect immediately upon posting.   If an updated version contains material changes, we will notify you of the changes by announcement on the Alibaba.com Sites. 

1.3   Some of the Services may be supported by our affiliates.  We also delegate some of the Services to Alipay.com Co., Ltd (“Alipay China”) (For ease of reference only, the references to Alipay’s affiliates include Alipay China).   If you are a registered member of the www.alipay.com website (“Alipay Site”), this Agreement shall not apply to your use of payment services or other services provided by Alipay China on and through the Alipay Site.  

 

2.   Services

2.1   The Services are escrow services provided by Alipay and our affiliates for the payments in connection with the online transactions for products or services concluded on and through the Alibaba.com Sites subject to the Alibaba.com Transaction Services Agreement (“Online Transactions”).  Unless otherwise defined in this Agreement, the capitalized terms shall have the same meanings as used in the Alibaba.com Transaction Services Agreement.

2.2   The Services are only available to the registered paid or free members of the Alibaba.com Sites (“Users”).  A User who purchases or acquires any product or service in an Online Transaction is referred to also as a Buyer, and a User who sells or provides any product or service in an Online Transaction is also referred to as a Seller.  If your subscription to the paid or free membership of the Alibaba.com Sites expires or is terminated for any reason, you are not eligible to use the Services.  In addition, Alipay is not obliged to provide the Services where the bank account designated by a Seller in an Online Transaction to receive the transaction price has not been verified and confirmed by Alipay and our affiliates. 

2.3  The Services provided by Alipay and our affiliates may not be provided to customers incorporated and/or registered and/or having a place of business in Arizona, California, Idaho, Montana, Nevada, New Mexico and Washington.  Alipay is not licensed as an escrow company in the above-mentioned states.

2.4   Alipay shall have the right to refuse to provide the Services for any Online Transaction if (a) the Online Transaction does not satisfy the terms and conditions in the Alibaba.com Transaction Services Agreement or the other applicable terms, rules and policies concerning Alibaba.com’s transaction services under the Alibaba.com Transaction Services Agreement or (b) if Alipay has reason to believe that the Online Transaction may violate any laws, rules or regulations or may otherwise subject Alipay or any of our affiliates to liability.

2.5   The Services are not available to any transactions not concluded on or through the Alibaba.com Sites.  

2.6   You agree that Alipay shall have the absolute discretion to dispose the funds according to this Agreement.

 

3.   Escrow of Payment

3.1   Buyer of an Online Transaction shall pay the full transaction price under the Online Transaction in clear funds to the bank accounts or other accounts using the payment methods both designated by Alipay on the Alibaba.com Sites.  The funds so received will then be held by in escrow in the escrow accounts in the name of either Alipay or one of our affiliates.  The payment must be made in US Dollar only. 

3.2   Upon receipt of the Buyer’s payment, Alipay shall promptly notify Alibaba.com of the details of the payment.  Alipay shall also monitor and keep safe custody of the received funds in the escrow accounts and shall not release the funds unless an event set forth in clause 3.3 below occurs.     

3.3   Alipay shall not release the funds received in connection with an Online Transaction unless any of the following events occurs: 

(a)  in case of the successful completion of the Online Transaction, all the funds will be released to Seller;

(b)  in case of the cancellation of the Online Transaction, all the funds will be refunded to Buyer;

(c)  in case of any settlement agreement reached by Buyer and Seller, the funds will be disposed in accordance with such settlement agreement;

(d)  in case that a Dispute has been submitted to Alibaba.com for our determination and Alibaba.com’s determination has become final and binding according to clause 10 of the Alibaba.com Transaction Services Agreement, the funds will be disposed in accordance with Alibaba.com’s determination; or 

(e)  if Alibaba.com or Alipay or our affiliates receives any order, ruling, award or judgment from a competent court, arbitration tribunal or authority which directs us to release the funds, the funds will be disposed in accordance with such order, ruling, award or judgment.

3.4   When releasing any funds, Alipay shall have the right to deduct any financial charges or service fees due and payable to Alibaba.com (if any) and in such amount as instructed by Alibaba.com.

3.5   Unclaimed funds will remain in escrow for a period of three years, at which time, you will be deemed to have waived any claim in respect of such funds or, if required by applicable escheat laws, we will remit the funds (less any fees) to the relevant competent authority.

3.6   User acknowledges and agrees that you will not receive interest or other earnings on any amount under escrow.

 

4.   Users’ Responsibilities

4.1   All Online Transactions are concluded by and between Users only.  Users shall complete your Online Transactions in accordance with the Alibaba.com Transaction Services Agreement and Alibaba.com’s terms, rules and policies.  Each User agrees that you will not hold Alipay and our affiliates liable for any Online Transaction or any products or services supplied under any Online Transaction. 

4.2   User agrees to give all notices, provide all necessary information, materials and approval, and render all reasonable assistance and cooperation necessary for Alipay’s provision of the Services.  If User’s failure to do so results in any delay in the provision of any Service or cancellation of any Online Transaction, Alipay and our affiliates shall not be liable for any loss or damages arising from such delay.

4.3   Each User represents and warrants that:

(a)  you will use the Services in good faith and in compliance with all applicable laws and regulations;

(b)  the 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 Alipay, our affiliates  or other members or users of the Alibaba.com Sites or engage in other unlawful activities (including without limitation dealing in products or services prohibited by law);

(d)  in case that you are a Seller of products, you have the legitimate right and authorization to sell, distribute or export the products using the Transaction Services and such products do not infringe any third party’s rights;

(e)  in case that you are a Seller of products, you have good title to the products ordered under the Online Transaction, and the products meet the agreed descriptions and requirements; and

(f) in case that you are a Seller of services, you will provide the services ordered with reasonable care and skills.

4.4   If in Alipay’s opinion, any User is not acting in good faith, abusing the Services, or in breach of this Agreement, Alipay shall have the right to request Alibaba.com to cancel the Online Transaction. 

4.5   User shall be solely responsible for payment of any taxes, duties or other governmental levies or any financial charges that may be imposed on any products or services purchased or supplied through the Services or otherwise arising from the Online Transaction.

4.6   User agrees to indemnify Alipay and our affiliates and our employees, directors, officers, 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 User’s breach of this Agreement.  Alipay reserves the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by User, in which event User shall cooperate with Alipay in asserting any available defenses.

 

5.   Personal Data Privacy

5.1   We collect, hold, use and transfer your personal data in accordance with the Privacy Policy of the Alibaba.com Sites.

 

6.   Suspension or Breakdown of Systems

6.1   If you are unable to use the Services as a result of improper operation of the systems due to any of the following reasons, you agree you will not hold Alipay and our affiliates liable:

(a)  system suspension which has been announced by Alipay in advance on the Alibaba.com Sites;

(b)  failure in data transmission due to breakdown in the telecommunications equipment and systems;

(c)  failure in system operations due to breakdown resulting from typhoon, earthquake, tsunami, flood, electricity blackout, war, terrorist attack, and other force majeure events which are beyond our reasonable control; or

(d)  the Services are interrupted or delayed due to hacking, breakdown in the telecommunications authority, website upgrade, banks, and other reasons.

 

7.   Disclaimer and Limitation of Liability

7.1   Alipay will only be liable for the obligations expressly set forth in this Agreement. 

7.2   You agree that all risks arising from the Online Transaction will be borne by you and your counterparty. 

7.3   Users’ information is provided by Users themselves.  Alipay makes no representation or warranty with respect to the accuracy, truthfulness and completeness of the Users’ information.  You will be solely responsible for all consequences resulting from your own judgment and decision to use or otherwise rely on such information. 

7.4   Alipay makes no warranty regarding the Services or any products OR SERVICES SUPPLIED under any ONLINE Transaction, including but not limited to:

(a)  the Services will meet your requirements;

(b)  the Services will be uninterrupted, timely or error free; OR

(c)  any products, information or material obtained by you in connection with the Services will meet your requirements.

7.5   Any proposal or material that you may obtain from Alipay or our staff or through the use of the Services, whether in writing or oral, shall not constitute Alipay’s warranty regarding the Services.

7.6   EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND TO THE FULL EXTENT PERMITTED BY LAW THE SERVICES ARE PROVIDED "AS IS", "AS AVAILABLE" AND “WITH ALL FAULTS”.   ALL SUCH WARRANTIES, REPRESENTATIONS, CONDITIONS, UNDERTAKINGS AND TERMS, WHETHER EXPRESS OR IMPLIED, ARE HEREBY EXCLUDED. 

7.7   TO THE FULL EXTENT PERMITTED BY LAW, ALIPAY AND OUR AFFILIATES 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, LOSS OF DATA OR LOSS OF OTHER ECONOMIC INTERESTS, WHETHER IN CONTRACT, NEGLIGENCE, TORT OR OTHERWISE, ARISING FROM THE USE OF OR INABILITY TO USE THE SERVICES. 

7.8   THE AGGREGATE LIABILITY OF ALIPAY AND OUR AFFILIATES ARISING FROM THE SERVICES IN CONNECTION WITH ANY ONLINE TRANSACTION SHALL NOT EXCEED THE TOTAL REMUNERATIONS THAT ALIPAY MAY DERIVE FROM SUCH TRANSACTION. 

7.9   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.

7.10  If you have a dispute with other parties, you release us (and our affiliates and officers, directors, agents, and employees thereof) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.  If you are a California resident, you waive California Civil Code Section 1542, which states, in part: “A general release does not extend to claims which a creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if not known by him or her must have materially affected his or her settlement with the debtor.”

 

8.   Jurisdiction

8.1   This Agreement shall be governed by the laws of the Hong Kong Special Administrative Region (“Hong Kong”) without regard to conflict of law principles.

8.2   If any dispute or claim arises from or in connection with this Agreement, an Online Transaction or your use of the Services (“Dispute”), the relevant parties shall resolve the Dispute through amicable negotiations.  If any Dispute arises between Buyer and Seller in connection with an Online Transaction, you agree that such Dispute shall be resolved in accordance with the procedures set forth in clause 10 of the  Alibaba.com Transaction Services Agreement only.  If you initiate any legal proceedings against Alipay or our affiliates in breach of clause 10 of the Alibaba.com Transaction Services Agreement, you shall hold Alipay and our affiliates, agents, employees, directors, officers and agents harmless and indemnified against any claim, losses, damages that may be suffered by us.

8.3  In case a Dispute arises between you and Alipay in any other circumstances, if the Dispute is not resolved between you and Alipay, you and Alipay agree that the Dispute shall be finally resolved by arbitration with the Hong Kong International Arbitration Centre (“HKIAC”).

8.4   If any Dispute is submitted to the HKIAC for arbitration, the arbitration shall be conducted in accordance with the rules of the HKIAC in force at the time of applying for arbitration as amended by this clause.  The arbitration panel shall consist of one single arbitrator.  Unless the parties agree otherwise, the arbitration shall be conducted in English and in Hong Kong.  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.  The arbitration award rendered by the HKIAC shall be final and binding on all the relevant parties. The arbitration expenses shall be borne by the losing party unless otherwise determined in the award.

8.5  In any event, you may not make any claim against Alipay or our affiliates under this Agreement after one year from the occurrence of the matter giving rise to the claim.

8.6   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. 

 

9.   General Provisions

9.1   This Agreement constitutes the entire agreement between you and Alipay 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.

9.2   If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be deleted and the remaining provisions shall be enforced.

9.3   Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.

9.4   No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.

9.5   Any failure by Alipay to exercise any of our 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.

9.6   Alipay shall have the right to assign this Agreement (including all of our rights, titles, benefits, interests, and obligations and duties in this Agreement) to any of our affiliates and to any successor in interest.  Alipay may delegate certain of Alipay rights and responsibilities under this Agreement to independent contractors or other third parties.  User may not assign, in whole or part, this Agreement to any person or entity.

9.7   If there is any conflict between the English version and another language version of this Agreement, the English version shall prevail.