Production Monitoring Services Terms and Conditions
Production Monitoring Services Terms and Conditions
Version: [●] 2019
These terms and conditions (these "Terms") govern the Production Monitoring Services (as defined below) offered to you by Alibaba.com (as defined below) in relation to your account on the Alibaba.com’s international website (URL: http://www.alibaba.com (the “Alibaba.com Website”), together with the mobile device either through applications or mobile optimized website(s) of Alibaba.com Website, the “Alibaba.com Platforms”). BY CLICKING “AGREE” OR OTHERWISE ACCEPTING THESE TERMS OR BY SUBMITTING YOUR APPLICATION FOR OR CONTINUING WITH YOUR SUBSCRIPTION FOR THE PRODUCTION MONITORING SERVICE, YOU INDICATE YOUR AGREEMENT TO BE BOUND BY THESE TERMS AS MAY BE AMENDED FROM TIME TO TIME. The contracting Alibaba entity you are contracting with under these Terms is Shenzhen One Touch Supply Chain Service Co., Ltd., and shall be referred to as “Alibaba.com”.
“Effective Date” have the meaning ascribed to in Clause 14 herein.
“Eligible Buyer” have the meaning ascribed to in Clause 3 herein.
“Product” means the products purchased by the Eligible Buyer and supplied by the Seller pursuant to the Trade Assurance Order, and the inventory of such finished products are stored in any of the Territories.
“Production Monitoring Report” means the report specified by Alibaba.com on the Alibaba Platforms or in other form(s) which may be specified and amended by Alibaba.com from time to time.
“Production Monitoring Services” have the meaning ascribed to in Clause 2 herein.
“Samples” have the meaning ascribed to it in Clause 5 herein.
“Seller” means, for the purposes of these Terms, a user, registered or resident in Mainland China, who sells products on the Alibaba.com Platforms.
“Service Fees” have the meaning ascribed to it in Clause 4 herein.
“Term” have meaning ascribed to it in Clause 14 herein.
“Territories” means Dongguan, Foshan, Guangzhou, Huizhou, and Shenzhen of the People’s Republic of China and any other territories as agreed by Alibaba.com in writing.
“Trade Assurance” or “Trade Assurance Services” shall have the meaning ascribed to it in the Trade Assurance Services Rules (URL: https://rule.alibaba.com/rule/detail/4709.htm?spm=a271m.8038918.104.22.1688e6d82BxGfGU).
“Trade Assurance Order” means a sales and purchase contract entered into by and between an Eligible Buyer and a Seller using an execution method approved by the Alibaba.com Platforms which stipulates the rights and obligations in connection with the exportation of products and Trade Assurance Services.
2. PRODUCTION MONITORING SERVICE
The production monitoring services is a value-added service provided by Alibaba.com, together with its authorized agents and/or representatives (if applicable), for the Eligible Buyer in the Territories with the aim to enabling the Eligible Buyer to enhance on-time delivery and fulfillment of obligations by the Seller through active tracking and reporting of progress and risks to the Eligible Buyer (the “Production Monitoring Services”).
Your eligibility to sign up for the Production Monitoring Services is conditioned upon the fulfilment of all of the following conditions: (i) you are registered as a user on the Alibaba.com Platforms; (ii) you entered into a Trade Assurance Order with a Seller in the Territories; (iii) the inventory of the Products purchased under the Trade Assurance Order are located in one single location within any of the Territories for on-site product checks; (iv) the payment of the Production Monitoring Services is made at least seven (7) working days before shipment of the Products; (v) the Seller has confirmed that Production Monitoring Services are applicable to the Trade Assurance Order and it will cooperate with Alibaba.com and the Eligible Buyer in respect of the Production Monitoring Services; and (vi) you have clicked and/or agreed to all the terms and conditions of these Terms (“Eligible Buyer”).
4. SERVICE AND PAYMENT TERMS
(i) The fees for the Production Monitoring Services payable by the Eligible Buyer is at the rate to be displayed on the Alibaba.com Platforms from time to time where the Production Monitoring Services can be purchased (“Service Fees”).
(ii) Alibaba.com has no commitment or obligation to fulfill these Terms until (a) full payment of the Service Fees; (b) adequate information and/or confirmation (as applicable) in connection with the Trade Assurance Order is provided by the Seller; and (c) the Eligible Buyer and the Seller have provided all necessary information and/or confirmation as required by Alibaba.com from time to time in a cooperative manner.
5. ALIBABA.COM’S RIGHTS AND OBLIGATIONS
Subject to Clause 8 (Disclaimer and Acknowledgement) of these Terms, upon the successful subscription to the Production Monitoring Services by the Eligible Buyer, Alibaba.com shall:
(i) communicate with each of the Eligible Buyer and the Seller no more than two (2) times in preparation for the Production Monitoring Services, including to seek confirmation from the Seller in relation to status and eligibility of the Products for Production Monitoring Services, provided that the Production Monitoring Services are subscribed prior to completion of Products production;
(ii) follow up with the Seller once a week, and thereafter every three (3) days in the last seven (7) days before the date of packaging of the Products, and notify the Eligible Buyer of any potential risks of delay (if any) through sending online messages on the Alibaba.com Platforms, provided that the Production Monitoring Services are subscribed prior to completion of Products production;
(iii) conduct an on-site product checks based on the requirements on the Production Monitoring Report, upon receipt of notice from the Seller that the production of the Products have been completed;
(iv) issue and upload the Production Monitoring Report to the Alibaba.com Platforms; and
(v) have the right in contracting with any third party to perform any obligations hereunder in relation to the Production Monitoring Services.
6. ELIGIBLE BUYER’S RIGHTS AND OBLIGATIONS
Notwithstanding other conditions in these Terms, upon the successful subscription to Production Monitoring Services, the Eligible Buyer shall:
(i) negotiate independently with the Seller in relation to the requirements of the Products and conclude the Trade Assurance Order (including but not limited to the specification, quantity, quality, delivery information, contact details etc.);
(ii) actively collaborate with the Seller to avoid or remedy uncooperative behaviour and promptly inform Alibaba.com of any collaboration or negotiation results, including the provision of communication evidence if required by Alibaba.com;
(iii) comply with all applicable laws and regulations and any relevant codes and standards, and these Terms and all reasonable instructions and directions (if any) of Alibaba.com or its employees, agents and representatives and will maintain any permits, licences and approvals required to perform its obligations hereunder;
(iv) review any contracts or agreements and the accuracy of any information in connection with the Trade Assurance Order and/or the Production Monitoring Services at its own risks;
(v) communicate with Alibaba.com and/or the Seller on all necessary issues, inquiries or other information, material or not, and render all reasonable assistance and cooperation necessary for the provision of the Production Monitoring Services, and promptly respond to the questions and enquiries of the Seller and/or Alibaba.com in a timely manner. If the Eligible Buyer’s failure to do so results in delay in the provision of the Production Monitoring Services, Alibaba.com shall not be obliged to provide the Production Monitoring Services nor be liable for any loss or damages arising from such delay;
(vi) authorize Alibaba.com or its employees, agents and representatives to use the Eligible Buyer’s Information for the purpose of the Production Monitoring Service;
(vii) conduct all activities on the Alibaba.com Platforms in accordance with all applicable laws and regulations and commonly accepted commercial practices;
(viii) conduct its business affairs with integrity and in an ethical manner; and
(ix) fulfil any other reasonable requests of Alibaba.com from time to time for the performance of the Production Monitoring Services.
7. REPRESENTATIONS, WARRANTIES AND COVENANTS
You as the Eligible Buyer represent, warrant and covenant (as applicable) to Alibaba.com that each of the statement contained in this Clause 7 is true, accurate, complete and not misleading in all respects and will continue to be so until the cessation of use of Production Monitoring Services:
(i) it has the necessary corporate power and authority to enter into these Terms, to carry out its obligations hereunder and to grant the rights herein granted;
(ii) all consents, license, approvals or authorizations of, filings with, notices to or other acts carried out by or in respect of, any agency or governmental authority which are required to be obtained or made (as the case may be) by it in connection with the execution, delivery, performance, validity or enforceability of these Terms have been obtained or made (as the case may be);
(iii) these Terms constitutes the legal, valid and binding obligation of the Eligible Buyer, enforceable against him/her in accordance with its terms;
(iv) the execution, delivery and performance of these Terms will not result in a breach of or default under applicable law or under any agreement or instrument to which it is a party or by which it is bound or to which its property or assets are subject;
(v) all information provided to Alibaba.com and/or the Seller, pursuant to the Trade Assurance Order and the application for and use of Production Monitoring Services is true, accurate, complete, lawful and valid and do not directly or indirectly, infringe the intellectual property rights of any third party;
(vi) it has and will continue to, at all times during its use of Production Monitoring Services, abide by these Terms and all relevant rules published on the Alibaba.com Platforms; and
(vii) the use of the Production Monitoring Services complies or will comply with any and all applicable laws and regulations in any applicable jurisdiction.
8. DISCLAIMER AND ACKNOWLEDGEMENT
The Eligible Buyer acknowledges and agree that:
(i) Alibaba.com is not liable/responsible for:
a) the accuracy of the Trade Assurance Order, the finalization and conclusion of which shall be borne by the Eligible Buyer;
b) any misconduct or negligence of the Seller arising out of or in connection with the Trade Assurance Order and/or the Production Monitoring Services (including but not limited to, the false or incorrect information provided by the Seller);
c) any uncooperative act of the Seller, the Eligible Buyer or any relevant third parties for whatever reason affecting or limiting the ability of Alibaba.com in providing or completing the Product Monitoring Services;
d) any lack of information or failure to provide the Production Monitoring Services arising out of the Eligible Buyer’s breach of these Terms or negligence;
e) any delay in the delivery of the Products by the Seller;
f) any actual errors or defects of the Products (such as color, weight and size);
g) the damage or lost parts of the Products caused by the external force or non-external force during the logistics process; and
h) any dispute between the Seller and the Eligible Buyer, nor the losses or damages arising out of such disputes.
(ii) Alibaba.com will not be able to provide Product Monitoring Services in the following event:
a) the Seller and/or the Eligible Buyer fails to collaborate or provide the necessary information and/or confirmation in a cooperative manner for whatever reason;
b) any uncooperative act, misconduct or negligence of the Seller, the Eligible Buyer or any relevant third parties for whatever reason;
c) the Seller fails to facilitate the on-site product checks to be carried out by Alibaba.com within one (1) hour after the relevant personnel have arrived at the site; and
d) any other circumstances beyond Alibaba.com’s control in the sole opinion of Alibaba.com,
affecting or limiting the ability of Alibaba.com in providing or completing the Product Monitoring Services;
(iii) if the Product Monitoring Services have only been subscribed by the Eligible Buyer after the production of Products have been completed, Alibaba.com shall only be able to provide a limited scope of post-production service;
(iv) Alibaba.com disclaims all liabilities and warranties, whether express or implied, oral or in writing, with respect to the Products, the Seller and/or the Production Monitoring Services, to the extent permitted by the applicable laws;
(v) Alibaba.com does not make any representation nor warranties with respect to any Products or the Seller in connection with the Product Monitoring Services;
(vi) Alibaba.com is only a third party, and does not represent the Eligible Buyer, to review the production process and inventory of the Products before shipment;
(vii) Alibaba.com will only conduct the on-site checks of the Products on a sampling basis limited to one carton and such inspection of the Products shall be conducted on an objective basis, limited to the basic product information, quantity counting, packaging method, carton inspection, product specification and sample pictures as shown on the pro-forma invoice;
(viii) Any conclusion as stipulated on the Production Monitoring Report shall only be in relation to the sampled Products which Alibaba.com has inspected;
(ix) If, in the sole opinion of Alibaba.com, the onsite conditions are not suitable for the commencement or continuation of product checks, such inspection obligation shall be exempted and waived unless otherwise agreed by Alibaba.com; and
(x) Alibaba.com will only make objective statements on (i) the product checks, (ii) the Production Monitoring Report and (iii) the production or delivery progresses, and that the Eligible Buyer shall independently determine its appropriate action thereon.
You agree 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 breach of any of these Terms pursuant to your use of the Production Monitoring Services, and/or any third party claim or liability arising out of or related to your use of the Production Monitoring Services. Alibaba.com reserves the right, at its own expense, 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.
You shall be responsible for and shall pay all Taxes due under these Terms and on all amounts payable hereunder. Unless otherwise indicated, all amounts payable by you to Alibaba.com are exclusive of Taxes that may be levied by any jurisdiction. Taxes will be added to the amounts payable by you to Alibaba.com as applicable and as required by law such that the net amount actually received by Alibaba.com equals the full amount of the payment due hereunder. For greater certainty, Taxes will not be added to the amounts payable by you to Alibaba.com where you has provided Alibaba.com with evidence to Alibaba.com's satisfaction of a lawful and applicable exemption for such Taxes. ‘“Taxes” means all federal, state, provincial, territorial, county, municipal, local or foreign taxes, including but not limited to sales, use, license, excise, good and services, value added, stamp or transfer taxes, duties, imposts, levies, assessments, tariffs, fees, charges or withholdings of any nature whatsoever levied, imposed, assessed or collected by a taxation authority together with all interest, penalties, fines or other additional amounts imposed in respect thereof, but for greater certainty excludes any of the foregoing which are (i) based on gross or net income, (ii) franchise taxes, or (iii) property, personal property or rental taxes (collectively "Excluded Taxes"). Each party shall be responsible for any and all Excluded Taxes that it is liable for under applicable law. Notwithstanding anything else contained herein, all amounts payable by you pursuant to these Terms shall be free of withholding on account of any Taxes. If any Taxes are required to be withheld from any such amount payable by you under these Terms, you (A) shall pay an additional amount such that the net amount actually received by Alibaba.com, after such withholding, equals the full amount of the payment then due, (B) shall timely pay to the relevant taxation authority the full amount required to be withheld in accordance with applicable law, and (C) shall furnish Alibaba.com as soon as practicable (but in no event later than thirty (30) calendar days post payment to the relevant taxation authority) an official receipt evidencing payment of the withheld amount to the relevant taxation authority. “Taxation Authority” means any government, state, municipality or any local, provincial, state or other fiscal, customs, excise or taxing authority, body or official anywhere in the world with responsibility for, and competency to, impose, collect, audit, assess, administer or levy any Taxes or make any decision or ruling in respect of any Taxes.
11. LIMITATION OF LIABILITY
PRODUCTION MONITORING SERVICES IS PROVIDED “AS IS” AND AT YOUR OPTION AND RISK AND NONE OF ALIBABA.COM, ITS AFFILIATES OR RELATED COMPANIES MAKE ANY GUARANTEE OR REPRESENTATION IN CONNECTION WITH THE RESULTS OF THE PRODUCTION MONITORING SERVICES OR RESULTS OF THE ORDER TRACKING REPORT. TO THE FULLEST EXTENT PERMITTED BY LAW, ALIBABA.COM SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTIAL, 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 OR INABILITY TO YOUR USE OF THE PRODUCTION MONITORING SERVICES, OR THE DISCONTINUATION OF ANY OF SUCH SERVICE.
12. USE OF DATA
You acknowledge and authorize Alibaba.com and/or its affiliates, their respective agent, representatives and authorized third party to use, collect and disclose data in respect of the Production Monitoring Services, including but not limited to information in relation to the Trade Assurance Order, the Seller, the Products and the Eligible Buyer Information, for the purposes of providing, maintaining, promoting or improving the Production Monitoring Service.
These Terms shall come into effect from the date the Service Fees have been fully paid (the “Effective Date”), and shall remain valid until the earlier of (i) the date of receipt of the Product(s) under the Trade Assurance Order by the Eligible Buyer or (ii) 120 days from the date of the Trade Assurance Order, subject to any early termination pursuant to Clause 14 below (the “Term”).
14. TERMINATION OF SERVICES
(i) Alibaba.com shall be entitled to suspend or terminate the Production Monitoring Services immediately in the event of the following:
a) breach of any relevant agreements entered into with Alibaba.com or any material term or condition of these Terms, and fails to cure such breach within seven (7) days after written notice;
b) infringement by the Eligible Buyer of any intellectual property rights of third parties;
c) you become the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or
d) you become the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within thirty (30) days of filing.
(ii) Alibaba.com may terminate these Terms by providing a seven (7) day prior written notice to the Eligible Buyer. In such case, the Eligible Buyer shall be entitled to a refund of the Service Fee and/or a compensation of a sum to be determined by Alibaba.com in its sole and absolute discretion.
15. AMENDMENTS AND CESSATION
(i) Alibaba.com reserves the right to amend these Terms at any time by providing no less than seven (7) days’ notice to you (“Notice Period”). The amended and restated Terms shall be effective immediately after the Notice Period. After posting of the amended and restated Terms, your continued use of the Production Monitoring Services shall be deemed as its acceptance of the amended and restated Terms.
(ii) Alibaba.com reserves the right to temporarily or permanently change, upgrade, modify, limit, suspend, or cease the provision of Production Monitoring Services or any of its related functionalities or applications at any time without notice to the Eligible Buyers.
16. GENERAL RULES
(i) These Terms are governed by and construed in accordance with the laws of the Hong Kong Special Administrative Region (“Hong Kong”) without regard to any of its conflict of law provisions. You and Alibaba.com hereby agree to submit to the exclusive jurisdiction of the courts of Hong Kong for any disputes that arise out of your use of the Production Monitoring Services.
(ii) Alibaba.com shall not be responsible for any failure or delay in its performance under these Terms due to causes beyond its reasonable control, including, but not limited to, system failure, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, war, terrorism, riot, or pandemics.
(iii) If any provision of these Terms is held to be unenforceable for any reason, such provision shall be adjusted rather than voided, if possible, in order to achieve the intent of the parties to the maximum extent possible. In any event, all other provisions of these Terms shall be deemed valid and enforceable to the full extent possible.
(iv) The relationship between the parties is that of independent contracting parties. Nothing in these Terms shall constitute or be deemed to constitute a relationship of joint venture, partnership, franchise or similar arrangement between the parties.
(v) If any provision of these Terms is held to be unenforceable for any reason, such provision shall be adjusted rather than voided, if possible, in order to achieve the intent of the parties to the maximum extent possible. In any event, all other provisions of these Terms shall be deemed valid and enforceable to the full extent possible.
(vi) If there is any conflict between the English version and another language version of these Terms, the English version shall prevail. Any non-English language version of these Terms is provided for reference purposes only.
(vii) Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
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