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Alibaba.com GGS Value-Added Services Marketplace ISV Services Agreement

Date: 2017/7/1

Article 1

This ISV Services Agreement (the “Agreement”) is entered into by and between the ISV and Alibaba.com Singapore E-Commerce Private Limited (incorporated in Singapore with Company Reg. No. 200720572D) (“Alibaba”) in relation to the provision of Services by the ISV on the Marketplace. By utilizing the services provided by the Marketplace, the ISV shall be deemed to have agreed to this Agreement and all other terms and conditions of the Marketplace as may be applicable to it (collectively, the “Platform Terms and Conditions”), as may be amended by Alibaba from time to time. ISVs who do not agree to all the terms in this Agreement and the other Platform Terms and Conditions should not use the Marketplace. Alibaba has the right to amend this Agreement and/or the terms in the Platform Terms and Conditions from time to time. ISVs who continue using the Marketplace shall be deemed to have accepted to such amendments.

Article 2 Definitions

In this Agreement, the following capitalized terms shall be given their meanings as follows:

2.1    “Global Trade Services Marketplace” or the “Marketplace”: means an electronic web-based platform under Alibaba.com, on which an ISV admitted on the platform may publish its products or services. If its products or services are of any interest to any User, both parties may negotiate on their own and conclude an offline transaction after their introduction through the Marketplace. Alibaba shall provide technical support for the Platform (“Technical Services”). In this Agreement, the Marketplace is also referred to as the “Platform”.

2.2    "ISV" means an entity or individual that publishes its products or services on the Marketplace and sells such products or services through such Marketplace, also referred to as a “Service Provider”.

2.3    “Services”: means products and/or services placed on the Marketplace by ISV.

2.4    “User”: means an entity or individual that utilizes the services provided by the Marketplace or orders Services through the Marketplace.

Article 3 Technical Services

3.1    The provision of Technical Services is conditional upon the following provisions:

3.1.1   ISV shall first register as a user of Alibaba.com and shall agree to comply with the service agreement, rules and policies of Alibaba.com.

3.1.2   ISV undertakes that it has already read, understood, accepted and agreed to comply with the Platform Terms and Conditions (including the terms of this Agreement) and ISV agrees that Alibaba has the right to unilaterally change such terms and conditions, which shall be effective upon publishing on Alibaba.com.

3.1.3    ISV has (i) submitted relevant information and materials for entering the Marketplace as required by Alibaba and Alibaba has approved it to enter the Marketplace to publish information and sell the Services; (ii) passed the relevant background checks conducted by Alibaba.

3.2    Contents of Technical Services: Alibaba will use its advantages including network technology to provide technical services and support to ISVs to publish its company or Services’ information on the Marketplace and for Users to order the Services online from ISV.

 3.3    If ISV breaches this Agreement or the other Platform Terms and Conditions, Alibaba has the right to enforce any disciplinary actions (including deduction of Security Deposit), suspend or terminate Technical Services to ISV as stipulated herein at any time at Alibaba’s discretion without prior notice.

3.4    ISV agrees to receive any emails or information sent from Alibaba or Alibaba.com.

Article 4 Charging Standard and Payment of Technical Service Fee

4.1    Alibaba reserves the right to charge the ISV any fees for the Technical Services provided by Alibaba, as may be announced on Alibaba.com.

Article 5 Representations, Warranties and Undertakings

5.1    ISV represents, guarantees and undertakes that it has all legitimate qualifications, authorizations and capacity for confirming and performing this Agreement.

5.2    ISV undertakes to comply with any and all agreements, rules and policies of Alibaba.com.

5.3    ISV may log onto the Marketplace through its account on Alibaba.com. ISV shall properly maintain and keep the account name and password in strict confidence. The ISV expressly agrees that any operation conducted through ISV’s account and password shall be deemed as acts of ISV and any and all legal consequences incurring therefrom shall be borne by ISV.

5.4    ISV guarantees that any information (including those relating to Services) published by it on the Marketplace complies with the following requirements:

5.4.1    The information shall (a) be in compliance with all laws, regulations, rules and policies, and shall be true, accurate and complete, and be free from any content which is obscene, immoral, fraudulent, defamatory (including commercially defamatory), false, misleading, threatening or harassing, and (b) not infringe on the lawful rights or interests of any third parties;

5.4.2    The information published may not directly or indirectly link to any products or services whose publishing or sale is prohibited by any laws, regulations or rules, or any entities/websites competing with Alibaba.com or their products/services, or other contents that Alibaba deems inappropriate to be linked to; and

5.4.3    No malicious computer program or virus of any kind or other materials of a malicious or phishing nature may be included;

5.4.4    ISV guarantees that its publishing or sales of Services complies with its scope of business.

5.5    The information shall not in any way interfere or attempt to interfere with the normal operation of Alibaba.com, the Marketplace or other applications on the Marketplace.

5.6    ISV shall not obtain others’ information by improper means, nor use, disclose or allow others to utilize the User information (including but not limited to contacts, contact information and transaction information, etc.) and Alibaba.com data (including but not limited to any website data obtained via technical interface of the Marketplace, in the process of performance hereof and other channels) in an unauthorized manner and shall take measures to keep such information and data strictly confidential.

5.7    ISV shall not request, collect, solicit or otherwise obtain access to Users’ accounts, passwords or other authentication credentials on Alibaba.com; it shall not provide proxy authentication credentials for any User to automatically log onto Alibaba.com; it shall not provide “tracking functions”. In the course of providing services to Users, in no event shall ISV directly access Users’ accounts by logging in to their accounts using User’s authentication credentials. This applies regardless of whether such credentials might have been voluntarily provided by any User to ISV. If applicable, Alibaba shall provide the technical means for the Service Providers to operate the Users’ accounts, solely for the purposes of providing the Services to the Users, and the ISV agrees that it shall not use the Users’ accounts for any other purpose.

5.8    ISV shall not in any way imply or mislead others to believe Alibaba or its affiliate(s) has recognized, sanctioned, guaranteed, or endorsed any Services of ISV, including but not limited to those through use of the firm name, trade name, trademark, domain and any other identical or similar information (including any variation, abbreviation or misspellings), such as “Alibaba”(in Chinese), “Alibaba.com”, “Ali”(in Chinese), “Alibaba”, “Ali” and “Taobao” in the name of the commodity, instruction book, any other introduction or URL to the left of top level domain.

5.9    Except as stipulated herein, ISV shall not, on its own or otherwise, charge for any Services to be sold through the Platform or embed or setup a charging interface in its application interface or code to induce or cheat the Users into paying any expense.

5.10    The ISV shall be honest in operations and may not induce or cheat Users into unreasonable consumption. The fees collected from Users shall be in compliance with all laws, regulations, rules, policies, industry practices or standards and the law of market. The ISV shall pay taxes for Services it has sold, in accordance with the law, and issue invoices as required by Users. The invoice amount shall be equal to Users’ payment and it is forbidden to falsify invoices. The ISV shall serve Users based on the “customer first” principle and promptly respond to User questions and inquiries, and address User complaints in a timely manner. ISV shall not utilize the service provided by Alipay to carry out money laundering, bribery, fraud, frame-up and other illegal activities.

5.11    If ISV breaches any representation, guarantee or covenant in this Article, Alibaba has the right to unilaterally dissolve this Agreement.

5.12    ISV expressly understands and agrees to indemnify Alibaba and/or its affiliate any and all losses (such as a claim from any third party or penalty by any administrative authority) (including any lawyer’s fee and litigation fee) incurred to Alibaba and/or its affiliate(s) due to the breach of relevant laws, regulations, provisions herein or rules of the Marketplace on the part of ISV or any of its agents, officers, employees or designates.

5.13    The Parties agree that the ISV (the “Outsourcing ISV”) has the right to engage other ISVs (the “Contractor ISV”) admitted as ISVs on the Marketplace to provide part of or all the Services to the User, provided that (a) the Outsourcing ISV shall continue to be responsible to the User in respect of the Services provided by the Contractor ISV(s), and shall ensure that the Contractor ISV(s) complies with the Platform Terms and Conditions and such other terms and conditions agreed between the Outsourcing ISV and the User in respect of the Services. The Outsourcing ISV shall indemnify and hold harmless Alibaba and/or its affiliates from all claims and losses, damages, costs, and expenses (including but not limited to legal expenses) as may be incurred by Alibaba and/or its affiliates which may arise from the Outsourcing ISV’s and/or the Contractor ISV’s breach of this clause.

Article 6 Prices and Service Standards

6.1    All prices or fees proposed to be charged by ISV to the User in respect of the Services and any changes thereof shall, prior to being effected, be approved in writing by Alibaba. The ISV shall not charge any prices or fees to the User which has not been approved in writing by Alibaba.

6.2    The ISV shall provide high quality and reasonable Services to the Users. Alibaba has the right to determine in its sole discretion whether an ISV satisfies this requirement, and shall have the right to require the ISV to improve on its standard of Service if it is of the opinion that the ISV does not satisfy such service standards. An Outsourcing ISV shall ensure that its Contractor ISV(s) provides high quality and reasonable Services to the User. Alibaba shall have the right to require the ISV to procure its Contractor ISV(s) to improve on its standard of Service if it is of the opinion that such Contractor ISV(s) does not satisfy such service standards.

Article 7 Dispute Resolution with User

7.1    ISV shall provide services to Users on the principle of operation in good faith and customer first and shall resolve any complaint made by the customers professionally and in a timely fashion.

7.2    To safeguard Users’ interests, ISV authorizes Alibaba to assist in solving complaints or disputes with Users. Alibaba has the right to determine in its sole discretion whether ISV has provided high quality and reasonable services to Users and has the right to ask ISV to refund or compensate Users and ISV agrees to be so bound by Alibaba’s determination forthwith. In the event that Alibaba makes any refund or compensation, Alibaba shall be entitled to deduct such amounts from the Security Deposit.

7.3    In the case that certain Services have been purchased by the User, if ISV exits the Marketplace for any reason or discontinues its provision of Services or services to Users, it shall carry out an exit settlement and deal with any and all remaining issues and complaints as directed by Alibaba. ISV agrees to provide reasonable compensation and indemnification for Users who have already purchased its products or services and are still within the service term on the principle of safeguarding User’s interest and acknowledges and agrees to Alibaba’s right to act on the behalf of such Users.

Article 8 Security Deposit

8.1    ISV shall remit a security deposit (“Security Deposit”) to Alibaba in a currency and to such account as may be notified to the ISV in writing as a guarantee of ISV’s compliance with this Agreement and the Marketplace rules. The specific amount of Security Deposit payable will be based on the "Standard Security Deposit Fee on Global Gold Suppliers Value-Added Services Marketplace" as published by Alibaba on the Marketplace which may be amended by Alibaba from time to time without notification to the ISV, subject to the fact that any revised Security Deposit fees shall be published in the aforementioned website.

8.2    Alibaba shall have the right to use and deduct the Security Deposit in accordance with this Agreement and the other Platform Terms and Conditions (in particular, please refer to the “Disciplinary Action against Non-compliance” as published by Alibaba on the Marketplace which may be amended by Alibaba from time to time) in the event ISV breaches its obligations under this Agreement or the other Platform Terms and Conditions. Alibaba shall notify ISV in writing (including but not limited to by email) every time a deduction from the Security Deposit is made.  The notice shall set forth the amount of Security Deposit deducted and the reason(s) for the deduction.

8.3    In addition, Alibaba shall have the right to make any adjustment to the amount of the Security Deposit required and Alibaba shall notify ISV by email as soon as practicable of any sum of adjustment to be deposited upon increase of the Security Deposit. ISV shall be required to top-up the difference within fifteen (15) days upon receipt of such notice, otherwise Alibaba shall have the right to suspend or terminate Technical Services to ISV as stipulated herein in addition to deducting all the remaining Security Deposit at any time at Alibaba’s discretion without prior notice.

8.4    In the event that the amount of Security Deposit falls below the required level due to any deductions made pursuant to this Agreement, ISV shall restore the Security Deposit to the required level as soon as reasonably practicable. Alibaba shall have the right to issue a written notice to demand ISV to restore any shortfall of funds to the required level and ISV shall, within fifteen (15) days from the date of issuance of such notice, remit the shortfall to Alibaba’s bank account set out above, failing which Alibaba shall have the right to suspend or terminate Technical Services to ISV as stipulated herein in addition to deducting all the remaining Security Deposit at any time at Alibaba’s discretion without prior notice.

8.5    If there has been no instances where Alibaba was required to deduct any amount from the Security Deposit and within three (3) months upon termination of this Agreement, there has been no incomplete transactions, no unresolved claims or disputes, and no claims or disputes raised against ISV by any User, Alibaba shall return the balance of the Security Deposit with no interest accruals to ISV into the bank account designated by ISV within sixty (60) days.

Article 9 Disclaimer and Limited Liability

9.1    In the circumstance that Alibaba breaches the provisions herein, the total liability assumed by Alibaba to ISV shall be no more than the total income gained by Alibaba based on the Technical Services provided for relevant Services as of the time of breach, and such income from Technical Service fees is limited to the actual income collected in monetary form and does not include other interests.

9.2    Alibaba shall not be liable for or required to pay compensation of any nature whatsoever for any loss arising from the unavailability, inconvenience or failures of the services or systems due to the following reasons: (1) system shut-down for maintenance; (2) inability to transmit data due to failures in communications terminals or telecommunications equipment; (3) systems failure and inability to perform its functions) due to force majeure events including but not limited to typhoons, earthquakes, tsunamis, floods, power failure, war, political unrest, labour strikes, or terrorist attack; (4) suspension or delay of services or systems failure due to reasons beyond the reasonable control of Alibaba such as hacker or cyber attacks, technical adjustments or failure of the telecommunications department, website upgrades or third-party problems.

9.3    ISV shall be solely liable for any risks and consequences arising from the development, operation and maintenance of its Services, and Alibaba or Alibaba.com has no liability or obligation to be responsible for ISV’s release and sales of Services or other acts.

9.4    The Marketplace is an electronic web-based platform for exchange information between the User and the ISV of the Services. Alibaba or Alibaba.com does not become a participant to any transactions between User and ISV of the Services. In respect of the aforesaid transactions, Alibaba and Alibaba.com make no express or implied warranties as to the legitimacy or validity of the acts of ISV and User, or to the truthfulness, legitimacy and effectiveness of the Services, nor do they assume any liability for the losses incurred by any User or ISV.

Article 10 Intellectual Property

10.1    The ownership and intellectual property right in all content (including but not limited to pictures, archives, information, materials, website configuration, and arrangement of graphics on the website and webpage design) on Alibaba.com or the Marketplace shall be vested in Alibaba and/or its affiliate(s). Without prior written consent from the rights holder, ISV shall not use, permit others to use or disclose any such content.

10.2    To perform this Agreement, ISV agrees that Alibaba has the right to use the ISV’s name, trade name, trademark, logo and other marks of ISV or its affiliates on Alibaba.com on a royalty-free, sub-licensable, and worldwide basis.

10.3    Without prior written consent from Alibaba, ISV may not on its own or authorize others to use the firm name, trade name, trademark or logo of Alibaba and/or its affiliates or any domain names and any other marks identical with or similar to those of Alibaba and/or its affiliates. ISV shall not infringe the lawful interests of Alibaba and/or its affiliates in any other ways. If ISV breaches the provision in this Article, Alibaba has the right (exercisable at any time at Alibaba’s discretion) to immediately and unilaterally terminate this Agreement without prejudice to any rights or remedies that Alibaba may have in law or at equity.

Article 11 Dissolution of this Agreement

11.1    Without prejudice to other provisions of this Agreement, this Agreement may be dissolved upon mutual agreement.

11.2    If ISV’s usage of the services provided by the Marketplace is discontinued or its account on Alibaba.com is closed for any reason, this Agreement shall simultaneously terminate.

11.3    After giving ISV a 15 days’ prior written notice, Alibaba has the right to unilaterally terminate this Agreement without liability for breaching the Agreement.

11.4    Alibaba has the right (but not the obligation) to unilaterally terminate this Agreement at any time after the occurrence of any of the following:

11.4.1    Any information and/or documents provided by ISV to Alibaba for its admission into the Marketplace is or becomes false, incorrect, or inaccurate; or

11.4.2    ISV breaches the provisions herein or under the other Platform Terms and Conditions; or

11.4.3    ISV has entered any voluntary or involuntary bankruptcy, liquidation, reception, winding up or debt reorganization procedure or any similar procedure; or

11.4.4    ISV has been deregistered or any of its relevant licences to the subject matter of this Agreement has been revoked; or

11.4.5    An event of force majeure has occurred and continues for 15 days or more.

Article 12 General Terms

12.1    This Agreement is governed by the laws of the Hong Kong Special Administrative Region of the People’s Republic of China (“Hong Kong”). Any dispute in connection herewith shall be submitted to the exclusive jurisdiction of the courts of Hong Kong.

12.2    If either party fails or delays in performing any of its obligations hereunder due to any event beyond its reasonable control (including but not limited to war, acts of God or breakdown of technology, equipment, network or utilities), the party affected by such force majeure event shall not be liable in any manner.

12.3    Any terms herein held as illegal, unenforceable or invalid shall be implemented to the extent permitted by law while the other terms herein shall remain in full force and effect and not be affected.

12.4    Failure of either party in exercising any of its rights hereunder shall not be deemed as waiver of such right.

 

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