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Alibaba.com Transaction Services Agreement

January 25, 2014

PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY! PLEASE PAY ATTENTION TO PROVISIONS THAT EXCLUDE OR LIMIT LIABILITY AND TERMS OF DISPUTE RESOLUTION, GOVERNING LAW AND JURISDICTION, WHICH MAY APPEAR IN CAPITAL LETTERS.

Thank you for trading on Alibaba.com’s web-based transaction platforms.  This Alibaba.com Transaction Services Agreement (this “Agreement”) describes the terms and conditions on which you conclude online transactions for products and services by using the web-based transaction platforms on the websites of www.alibaba.com and www.aliexpress.com.  This Agreement contains various limitations on Alibaba.com’s transaction services as well as gives various powers and authority to Alibaba.com with respect to online transactions using Alibaba.com’s transaction services.  This includes without limitation the power and authority to reject or cancel an online transaction, to refund the funds to a buyer and to release the funds to a seller.  You should read this Agreement and the relevant transactional terms, and other website rules and policies of Alibaba.com carefully which are hereby incorporated into this Agreement by reference.

1.  Application and Acceptance of Terms

 

1.1 Contracting Party. This Agreement is entered into between you (also referred to as “Member” hereinafter) and the Alibaba.com entity listed below (“Alibaba.com” or “we”) for use of Alibaba.com’s transaction services.  If you are registered or resident outside the mainland China, you are contracting with Alibaba.com Singapore E-Commerce Private Limited (incorporated in Singapore with Company Reg. No. 200720572D).   If you are registered or resident in the mainland China, you are contracting with Alibaba.com Singapore E-Commerce Private Limited and Alibaba (China) Technology Co Ltd.  Alibaba (China) Technology Co Ltd provides technical support in connection with the transaction services utilizing its strengths in network technologies, etc.

 

1.2  Transactional Terms. Alibaba.com provides an online transaction platform and ancillary services (“Transaction Services”) on the websites www.alibaba.com and www.aliexpress.com (each a “Website”) which allow registered members of the Websites to conclude online transactions for products or services within the Websites subject to the terms of this Agreement.  Alibaba.com may publish transaction rules, dispute rules and other rules and policies for any type of online transactions (“Transactional Terms”).  Such Transactional Terms are expressly incorporated into this Agreement by reference and you agree to be bound by such rules and policies. 

 

1.3  General Terms. You agree that you shall also comply with relevant website rules and policies published on the Websites which are also incorporated into this Agreement by reference (“General Terms”).   The General Terms include without limitation:

 

1.4 Binding Agreement. This Agreement including the Transactional Terms and the General Terms forms a legally binding agreement between you and Alibaba.com in relation to your use of the Transaction Services.  By accessing and using the Transaction Services, you agree to accept and be bound by this Agreement.  Please do not use the Transaction Services if you do not accept all of the terms of this Agreement.

 

1.5 Amendments. You acknowledge and agree that Alibaba.com may amend any terms of this Agreement including the Transactional Terms and the General Terms at any time by posting the relevant amended and restated version on the Website.  The amended terms shall be effective immediately upon posting.  By continuing to use the Transaction Services, you agree that the amended terms will apply to you.   This Agreement may not otherwise be amended except in writing by an authorized officer of Alibaba.com.

 

1.6 Language Version. If Alibaba.com has posted or provided a translation of the English version of any terms of this Agreement including the Transactional Terms and the General Terms, you agree that the translation is provided for convenience only and that the English language version will govern your use of the Transaction Services.

 

1.7 Alibaba.com Affiliates.  Some of the Transaction Services may be supported by our affiliates.

 

1.8 Additional Terms.  In some cases, you may be required to additionally enter into a separate agreement with Alibaba.com or our affiliates in connection with the Transaction Services (“Additional Terms”).  If there is any contradiction between the provisions of this Agreement and the provisions of the Additional Terms, the Additional Terms shall control regarding the relevant types of Transaction Services or Online Transactions, as appropriate.

 

1.9 Membership Services.   This Agreement does not affect your agreement with us or any of our affiliate concerning your subscription and use of the paid or free membership services of the Websites, unless otherwise stipulated in this Agreement or the relevant service agreement.

 

2.   Transaction Services

 

2.1 Transaction Services.  Alibaba.com’s Transaction Services are designed to facilitate registered members of the Websites to place, accept, conclude, manage and fulfill orders for the provision of products and services online within the Websites (“Online Transactions”). Alibaba.com reserves the right to change, upgrade, modify, limit or suspend the Transaction 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 Transaction Services or to future versions of the Transaction Services. All new features, functionalities, applications, modifications, upgrades and alterations shall be governed by this Agreement, unless otherwise expressly stated by Alibaba.com.

 

2.2 Members Only.  Alibaba.com’s Transaction Services are only available to registered members of the Websites.  If your subscription to the paid or free membership of the Websites expires or is early terminated for any reason, you are not eligible to use the Transaction Services.  In the event that you have a valid Online Transaction under this Agreement whilst your paid or free membership registration on the Websites is terminated, Alibaba.com shall have the full discretion and authority to refund to Buyer and/or release to Seller (both Buyer and Seller as defined below) all or part of the funds under the Online Transactions as Alibaba.com considers appropriate.   If you are a Seller, you are required to a valid bank account subject to verification and confirmation by Alibaba.com and our affiliates.

 

2.3 Types of Transactions. Alibaba.com’s Transaction Services are available to types of Online Transactions permitted by Alibaba.com only.  For any type of Online Transactions, Alibaba.com may limit the Transaction Services to a specified group of members in the relevant Transactional Terms.  The types of Online Transactions and other benefits, features and functions of the Transaction Services available to a registered member may vary for different countries and regions.  No warranty or representation is given that the same type and extent of transactions, benefits, features and functions will be available to all members.

 

2.4 Lawful Items. The products or services of an Online Transaction using the Transaction Services must be lawful items and must not be otherwise prohibited or restricted by this clause 2.4.  You shall not use the Transaction Services in connection with any Online Transaction that:

(a)  may infringe Alibaba.com’s or any third party’s legitimate rights including but not limited to copyright, trademark right, patent or other intellectual property rights.

(b) may be in breach of the Product Listing Policy or the Intellectual Property Right (IPR) Protection Policy;

(c) may be in breach of other terms of this Agreement including the Transactional Terms and the General Terms.

Alibaba.com shall have the right to refuse or cancel any Online Transaction in breach of this clause 2.4.

 

2.5 Refuse or Cancel Transactions.  Apart from clause 2.4, Alibaba.com reserves the right, at our sole discretion, to refuse or cancel any Online Transaction for any reason. Some situations that may result in an Online Transaction being rejected or canceled include where problems are identified by our credit and fraud control department, where Alibaba.com has reason to believe the Online Transaction is unauthorized, violates any law, rule or regulations or may otherwise subject Alibaba.com or any of our affiliates to liability.  Alibaba.com may also require additional verifications or information for any Online Transaction.

 

2.6 Escrow Services. Alibaba.com may provide escrow services for certain Online Transactions.  Escrow Services are provided by Alipay Singapore E-Commerce Private Limited and its affiliates (collectively, “Alipay”) to settle the payments for the Online Transactions.  The Escrow Services are provided in accordance with the terms and conditions set out in the Escrow Services AgreementThe Escrow Services are currently not available to members incorporated, resident, or located within Washington state.

 

2.7 Buyer Protection Plan.  Alibaba.com may also provide buyer protection plan for certain Online Transactions.  In case of Seller who has subscribed to the buyer protection plan, Seller may be required to pay deposits to secure Seller’s due performance of obligations under the relevant buyer protection plan. Seller agrees to permit and hereby authorize Alibaba.com to deduct, withhold and dispose any deposits provided in accordance with the terms under the relevant buyer protection plan. In case of Buyer, you acknowledge and agree that the protection afforded to you under a buyer protection plan applies to those Online Transactions falling within the scope of the relevant plan only and no escrow services will be provided or otherwise applicable to you for such Online Transactions.

 

2.8 Transactional Terms.  For any type of Online Transactions, Alibaba.com may impose additional restrictions, limitations and prohibitions as well as penalties for any violations in the relevant Transactional Terms.

 

2.9 Disputes between Buyers and Sellers. You agree that any Dispute arising between you and the other party to an Online Transaction will be handled in accordance with clause 10, and that Alibaba.com shall have the full right and power to make a determination for such Dispute.  Upon receipt of a Dispute, Alibaba.com shall have the right to request either or both of Buyer and Seller to provide supporting documents.  You agree that Alibaba.com shall have the absolute discretion to reject or receive any supporting document. You also acknowledge that Alibaba.com is not a judicial or arbitration institution and will make the determinations only as an ordinary non-professional person.   Further, we do not warrant that the supporting documents that the parties to the Dispute submit will be true, complete or accurate.  You agree not to hold Alibaba.com and our affiliates liable for any material which is untrue or misleading.

 

2.10 Powers of Alibaba.com.  YOU expressly ACKNWOLEDGE AND agree that Alibaba.com shall have the full power, authority and discretion to reject or cancel aN Online Transaction and to make a determination on any dispute between buyer and seller including the disposal of the funds UNDER AN ONLINE TRANSACTION THAT ARE in escrow BY ALIPAY in accordance with this Agreement and the relevant TRANSACTIONAL TERMS.  You also acknowledge that this Agreement and the relevant Transactional Terms may not cover all issues that may arise in connection with an Online Transaction.  You agree and accept that Alibaba.com shall have the right to modify or supplement the Transaction Terms.  You further agree and accept that Alibaba.com shall have the right to make determinations wherever Alibaba.com considers appropriate having regard to the evidence received by us, commonly accepted principles and practices in the relevant industries and interests of both Buyer and Seller regardless whether the issue in question has been expressly addressed in the Transactional Terms or this Agreement.

 

2.11 Alibaba.com’s Records. In case of any dispute in connection with any Online Transaction, the records of Alibaba.com shall take precedence and be conclusive.

 

3.   Transactions between Sellers and Buyers

 

3.1 Seller and Buyer.  For the purpose of this Agreement, the term “Seller” means the registered member who supplies the product(s) or service(s) under an Online Transaction, and the term “Buyer” means the registered member who purchases or acquires the product(s) or service(s) under an Online Transaction.

 

3.2 Online Order.  Seller and Buyer shall enter into an Online Transaction for products or services by completing, submitting and accepting an order online using the applicable standard order form on the Websites.  Seller and Buyer yourselves shall be responsible for ensuring that you have agreed to, and specified, all the relevant terms and conditions for the products or services in the relevant online order form, including but not limited to the pricing, quantity, specifications, quality standards, inspection, shipping etc.   Alibaba.com may refuse to process or cancel any Online Transaction which in Alibaba.com’s reasonable opinion, has insufficient information to constitute a binding contract.

 

3.3 Online Transactions Subject to This Agreement.  An Online Transaction is additionally subject to the applicable terms and conditions set forth in this Agreement and the Transactional Terms.  Seller and Buyer shall complete the Online Transaction according to the terms of the online order, the relevant Transactional Terms and this Agreement.  Seller or Buyer may only cancel any Online Transaction according to the relevant Transactional Terms.

 

3.4 Transaction between Seller and Buyer Only. Each Online Transaction is made by and between a Seller and a Buyer only.   Despite that Alibaba.com provides the Transaction Services and, if applicable, may conduct formality review of an Online Transaction, Alibaba.com shall not be considered as a party to the Online Transaction.  Alibaba.com does not represent Seller or Buyer in any Online Transaction.  Alibaba.com will not be responsible for the quality, safety, lawfulness or availability of the products or services offered under any Online Transaction or the ability of either Seller or Buyer to complete any Online Transaction.  You agree that you will not hold Alibaba.com and our affiliates and agents liable for any losses, damages, claims, liabilities, costs or expenses arising from any Online Transactions, including any breach, partial performance or non-performance of the Online Transaction by the other party to the transaction.

 

3.5 Payment of Contract Price.  For any Online Transaction, you agree that the full payment of the contract price of the Online Transaction without any deductions must be made in US dollar in clear funds by one of the payment methods designated by Alibaba.com only.  In the case the Online Transaction adopts Escrow Services, the funds will be monitored and held in escrow by Alipay.  Alipay shall not dispose any fund except in accordance with the terms and conditions of the Escrow Services Agreement.  You agree that neither Buyer nor Seller will receive interest or other earnings on any amount under escrow.

 

3.6 Payment Methods.  Please note that the payment methods available on the Websites are provided by Alibaba.com’s partners.  If there is any chargeback or reversal of any payment requested by a payment service partner, Seller agrees that Alibaba.com has the right to refund the money so requested by the payment service partner without liability to Seller.  Alibaba.com will use reasonable efforts to assist you in participating in the dispute resolution process of the relevant payment service partners.  However, if the participation in the dispute resolution process is subject to additional fees, this will be at your own cost only.

 

3.7 Third Party Vendors.  You may engage one or more third party vendors for the purpose of completing and fulfilling an Online Transaction such as the warehousing and logistic service companies, shipping agents, inspection agents, insurance companies, etc.   Some of such third party vendors may be partners of Alibaba.com and thus designated by Alibaba.com to you.  Among such designated partners, you may be required to agree and accept the terms and conditions of their services online within the Websites.  Notwithstanding the foregoing circumstances, for all third party vendors, you acknowledge and agree that such third party vendors are engaged at your own discretion and cost and that you will not hold Alibaba.com and our affiliates and agents liable for any losses, damages, claims, liabilities, costs or expenses arising from the services of such third party vendors.

 

3.8 Your Agent. If you are required to conclude and complete an Online Transaction through an agent e.g. a Seller may be required to engage a qualified import and export agent as its export agent, such agent is merely an agent of you.   If any obligations are required to be performed by the agent, you shall remain solely liable to the other party of the Online Transaction for the non-performance or default by your agent.

 

4.   Alibaba.com Service Fees

 

4.1 Service Fees. Alibaba.com does charge service fees for AliExpress transactions and inspection transactions according to the fee schedules announced by Alibaba.com on the Websites.  Alibaba.com reserves the right to charge any service fees for other types of Online Transactions upon reasonable prior notification published on the Websites.  In the case the Online Transaction adopts Escrow Services, you hereby authorize Alibaba.com to instruct Alipay to deduct any service fees that are due and payable to Alibaba.com under an Online Transaction and to pay the same to Alibaba.com when Alipay releases any amount held in escrow under the Online Transaction. The service fees charged by Alibaba.com include the fees for Alipay’s provision of Escrow Services. Alibaba.com does not have any control over, and are not responsible or liable for, the products or services that are paid for with our service. We cannot ensure that a buyer or a seller you are dealing with will actually complete the transaction.

 

4.2 Third Party Fees Not Included. The service fees charged by Alibaba.com do not include any fees for any service or product that you may acquire or purchase in connection with the Online Transaction.  It shall be your responsibility to settle the fees with such third party vendors.

 

4.3 Taxes, Financial Charges Not Included. 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 Transaction Services in addition to our service 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.  Alibaba.com and Alipay shall have the right to deduct any financial charges incurred as a result of providing the Transaction Services and the party receiving the funds will bear the costs of such bank charges.

 

5.   Member’s Responsibilities

 

5.1 Provision of Information and Assistance.  You agree to give all notices, provide all necessary information, materials and approval, and render all reasonable assistance and cooperation necessary for the completion of the Online Transactions and Alibaba.com’s provision of the Transaction Services.  If your failure to do so results in delay in the provision of any Transaction Service, cancellation of any Online Transaction, or disposal of any funds, Alibaba.com shall not be liable for any loss or damages arising from such default.

 

5.2 Representations and Warranties.  You represent and warrant that:

(a)  you will use the Transaction 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 Transaction Services is true, lawful and accurate, and is not false, misleading or deceptive;

(c)  you will not use the Transaction Services to defraud Alibaba.com, our affiliates, or other members or users of the Websites or engage in other unlawful activities (including without limitation dealing in products prohibited by law); and

(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; and

(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.

 

5.3 Breaches. If you are, in Alibaba.com’s opinion, not acting in good faith, abusing the Transaction Services, or otherwise in breach of this Agreement, Alibaba.com shall have the right to cancel the relevant Online Transaction(s).  Alibaba.com also reserves the right to impose any penalty, or to temporarily or permanently suspend or terminate your use of the Transaction Services, temporarily or permanently suspend or terminate or procure the suspension or termination of your paid or free membership on the Websites.  Alibaba.com also reserves to right to authorize Alipay to temporarily suspend the transaction functionalities of your Alipay account for a prescribed period determined by Alibaba.com, or permanently terminate the use of your Alipay account.  Alibaba.com may also publish the findings, penalties and other records regarding the breaches on the Websites.

 

5.4 Obligations to Pay Taxes.  You 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 or services purchased or supplied under or in connection with the Online Transactions.

 

5.5 Feedback System.  You 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 Websites using secondary Member IDs or through third parties or by providing unsubstantiated negative feedback on another member on the Websites.

 

5.6 Indemnification by Member.   You agree to indemnify Alibaba.com and our affiliates, 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 Transaction Services or from your breach of this Agreement.  Alibaba.com reserves the right, at our own discretion, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you shall cooperate with Alibaba.com in asserting any available defenses.

 

6.   Confidentiality

 

6.1 Confidential Obligations.  You shall keep confidential all confidential information provided by other members of the Websites or Alibaba.com in connection with any Online Transaction or the Transaction Services.

 

6.2 Confidential Information.  All information and material provided by another member of the Websites or Alibaba.com will be deemed to be confidential information unless such information or material is already in the public domain or has subsequently becomes public other than due to your breach of the confidential obligations.

 

7.   Disclaimer and Limitation of Liability

 

7.1 No Warranty.  You expressly agrees that your use of the Transaction Services is at your sole risk.  TO THE FULL EXTENT PERMITTED BY LAW THE TRANSACTION SERVICES ARE PROVIDED "AS IS", "AS AVAILABLE" AND “WITH ALL FAULTS”, AND ALIBABA.COM MAKES NO REPRESENTATION OR WARRANTY THAT THE TRANSACTION 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 ANY MEMBER OF THE WEBSITES.  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 AND OUR AFFILIATES 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.

 

7.2 Exclusion and Limitation of Liabilities. 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, EQUITY OR OTHERWISE, ARISING FROM THE USE OF OR INABILITY TO USE THE TRANSACTION SERVICES.  THE AGGREGATE LIABILITY OF ALIBABA.COM AND OUR AFFILIATES AND AGENTS INCLUDING ALIPAY ARISING FROM THE TRANSACTION SERVICES IN CONNECTION WITH ANY ONLINE TRANSACTION SHALL NOT EXCEED THE HIGHER OF THE SERVICE FEES CHARGED BY ALIBABA.COM OR US$1,000. 

 

7.3 SOME OR ALL OF THESE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU IF YOUR STATE, PROVINCE OR COUNTRY DOES NOT ALLOW 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 under your local law in your state, province or country THAT VARY FROM STATE TO STATE.  Nothing in this Agreement is intended to affect those rights if they are applicable TO YOU.

 

8.   Force Majeure

 

8.1 Force Majeure. Under no circumstances shall Alibaba.com and our affiliates and agents be held liable for any delay or failure or disruption of the Transaction Services resulting directly or indirectly from acts of nature, forces or causes beyond our 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.  Notices

 

9.1 Notices.  Except as explicitly stated otherwise, legal notices shall be served on you by sending notices to the email address in your latest membership profile on the Websites.  Notice shall be deemed given 24 hours after email is sent, unless we are notified that the email address is invalid.   Alternatively, we may give you legal notices by mail to the address in your latest membership profile in which case the notice shall be deemed given five days after the date of mailing.  Except as explicitly stated otherwise, legal notices shall be served on Alibaba.com by sending the notices to Alibaba.com at 26/F, Tower One, Times Square, 1 Matheson Street, Causeway Bay, Hong Kong.

 

10.   Governing Law; Jurisdiction

 

10.1 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION (“HONG KONG”) WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.

 

10.2 Amicable Negotiations. If any dispute or claim arises from or in connection with this Agreement, an Online Transaction or your use of the Transaction Services (“Dispute”), the relevant parties shall resolve the Dispute through amicable negotiations.

 

10.3 DISPUTE BETWEEN BUYER AND SELLER. IN CASE A DISPUTE ARISES BETWEEN BUYER AND SELLER FROM OR IN CONNECTION WITH AN ONLINE TRANSACTION, IF THE DISPUTE IS NOT RESOLVED THROUGH AMICABLE NEGOTIATION WITHIN THE PRESCRIBED TIME PERIOD ACCORDING TO THE RELEVANT TRANSACTIONAL TERMS, YOU AGREE TO SUBMIT THE DISPUTE TO ALIBABA.COM FOR DETERMINATION.  IF YOU ARE DISSATISFIED WITH ALIBABA.COM’S DETERMINATION, YOU MUST APPLY TO THE HONG KONG ARBITRATION CENTRE (“HKIAC”) FOR ARBITRATION AND NOTIFY ALIBABA.COM OF SUCH APPLICATION WITHIN 20 CALENDAR DAYS AFTER ALIBABA.COM’S DETERMINATION.  IF EACH OF BUYER AND SELLER IN THE DISPUTE DOES NOT APPLY FOR ARBITRATION WITHIN THE ABOVE 20 CALENDAR DAYS, EACH OF THE BUYER AND THE SELLER SHALL BE DEEMED TO HAVE AGREED THAT ALIBABA.COM’S DETERMINATION SHALL BE FINAL AND BINDING ON YOU.  WITH A FINAL DETERMINATION, IN THE CASE THE ONLINE TRANSACTION ADOPTS THE ESCROW SERVICES, ALIBABA.COM MAY INSTRUCT ALIPAY TO DISPOSE THE FUNDS IN ESCROW BY ALIPAY ACCORDING TO SUCH DETERMINATION.  FURTHER, EACH OF BUYER AND SELLER SHALL BE DEEMED TO HAVE WAIVED ANY CLAIM AGAINST ALIBABA.COM, ALIPAY AND OUR AFFILIATES AND AGENTS.

 

10.4 Other Disputes. In case a Dispute arises between you and Alibaba.com in any other circumstances, if the Dispute is not resolved between you and Alibaba.com, you and Alibaba.com agree that the Dispute shall be finally resolved by arbitration with the HKIAC.

 

10.5 HKIAC ARBITRATION. 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.

 

10.6 Indemnification.  If you initiate any legal proceedings against Alibaba.com or our affiliates in breach of this clause 10, including any legal proceedings disputing Alibaba.com’s determination which has become binding on you according to this clause 10, you shall hold Alibaba.com and our affiliates, agents, employees, directors, officers harmless and indemnified against any claim, losses, damages that may be suffered by us.

 

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

 

10.8 Injunctive Relief.  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.

 

11.    General Provisions

 

11.1 Entire Agreement. This Agreement constitutes the entire agreement between you and Alibaba.com with respect to and governs the use of the Transaction Services, superseding any prior written or oral agreements in relation to the same subject matter herein.

 

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

 

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

 

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

 

11.5 No Waiver. Any failure by Alibaba.com and our affiliates 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.

 

11.6 Assignment. Alibaba.com 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.  Alibaba.com may delegate certain of Alibaba.com rights and responsibilities under this Agreement to independent contractors or other third parties.  You may not assign, in whole or part, this Agreement to any person or entity.

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