Alibaba.com EPR-related Services Agreement
 
This Alibaba.com EPR-related Services Agreement (“Agreement”) governs the Seller’s access to and use of the EPR-related Services as defined herein. “Alibaba.com” or “our” means Alibaba.com Singapore E-Commerce Private Limited (“Alibaba.com”), a company incorporated under the laws of Singapore and having its registered address at 51 Bras Basah Road, #01-21 Lazada One, Singapore 189554. “You”, “your” or “Seller” means the Seller registering on Alibaba.com and using the EPR-related Services. Each of Alibaba.com and Seller is referred to as a “Party” and collectively as “Parties”.
 
By clicking on “Accept” to this Agreement or using the EPR-related Services, you shall be considered as having accepted this Agreement. Such acceptance shall also be deemed to happen if you sell products to a jurisdiction where EPR compliance obligations arise for Alibaba.com and you and/or any of your products have not successfully passed the checks referred to in Clause 3.1.1 below. You agree to be bound by the terms and conditions of this Agreement. You acknowledge and agree that you understand the nature and functioning of the EPR-related Services, you have independently evaluated the desirability of using the EPR-related Services and you are not relying on any representation, guarantee, or statement other than as expressly set forth in this Agreement; and hereby represent and warrant that you are lawfully able to enter into contracts, the person agreeing to this Agreement on your behalf is authorized and lawfully able to bind you to this Agreement and that you are and will remain in compliance with this Agreement. In addition, if this Agreement is being agreed to by a company or other entity, then the person agreeing to this Agreement on behalf of that company or entity hereby represents and warrants that he or she is authorized and lawfully able to bind that company or entity to this Agreement.
  
1.                 DEFINITIONS
 
Unless otherwise defined herein, the following terms in this Agreement or in connection with the performance hereof shall have the specific meaning defined below:
 
1.1              “EPR” means the Extended Producer Responsibility, under which producers, including without limitation the Seller, are required to provide for or contribute to the prevention and management of waste resulting from the products they manufacture, import, sell or otherwise place on the market in different jurisdictions, to adopt an eco-design approach and to promote the durability of the said products. Producers may fulfil their EPR obligations by 1) adhering to eco-organizations, in whose governance they participate and to which they transfer their EPR obligations by paying the EPR Fees in return or 2) implementing individual EPR system(s).
 
1.2              “EPR-related Services” means the services provided by Alibaba.com to Seller from time to time, to the extent the Seller has not provided Alibaba.com with evidence of Seller and/or its products already being EPR compliant in the relevant jurisdiction; and where such services are allowed in such jurisdiction and to the extent that Alibaba.com actually provides services for such categories and countries (e.g. excluding among others any categories in Germany and Austria, tires in France and Spain, etc.). Depending on the market jurisdiction regulations as well as the products and/or wastes (including product category, nature and weight) that Seller puts on the relevant market, such services may include, among others, Alibaba.com adhering to the competent eco-organizations, calculating, declaring and paying the relevant EPR Fees on account of the obligations of the relevant Seller, and/or arranging take-back for old products. Such EPR-related Services shall be without prejudice to the Seller’s own EPR-related obligations (where applicable).
 
1.3               “EPR Fees” shall have the meaning ascribed to it in Clause 5.1 of this Agreement.
 
1.4                “Service Fees” shall have the meaning ascribed to it in Clause 5.1 of this Agreement.
 
1.5              “Platform” means the website with the URL: https://www.alibaba.com and the related app and mobile applications.
 
1.6              “Term” shall have the meaning ascribed to it in Clause 11.1 of this Agreement.
 
2.                 SCOPE OF AGREEMENT
 
2.1              This Agreement, together with the following rules (the “Relevant Rules”), constitute the entire agreement between the Parties:
2.1.1          Alibaba.com Free Membership Agreement;
2.1.2          Relevant Alibaba.com Trade Assurance Services Agreement applicable to the Seller depending on the origin of the Seller;
2.1.3          Product Listing Policy; and
 
2.1.4          Any and all rules, policies, announcements and terms and conditions as published and amended by Alibaba.com on the Platform from time to time.
 
2.2              The scope covered by this Clause 2 shall be an integral part of this Agreement and shall have the same force and effect as this Agreement.
 
2.3              The Seller agrees to abide by the terms and conditions set forth in this Agreement and all Relevant Rules when using or accessing to the EPR-related Services.
 
2.4              Alibaba.com shall have the right, in its sole discretion, to amend and restate any Relevant Rules from time to time (the “Amended and Restated Relevant Rules”) without notification to Seller. All Amended and Restated Relevant Rules shall become effective immediately upon its publication on the Platform.
 
2.5              In the event that Seller does not agree to any of the Amended and Restated Relevant Rules, Seller shall terminate this Agreement in accordance with the terms and conditions set forth in Clause 11 of this Agreement. The Amended and Restated Relevant Rules shall nevertheless apply to Seller until the effective date of the termination.
 
3.                 Service Scope and Alibaba.com’s Rights
 
3.1               During the Term, subject to the terms of this Agreement and to the extent allowed under the relevant applicable regulations, Alibaba.com will make available to Seller certain EPR-related Services and technical services including but not limited to:
 
3.1.1          EPR checks: assessing, at Alibaba.com’s discretion, whether the Seller and/or its products have been properly registered for EPR related obligations in the relevant markets where Alibaba.com is obliged to make such checks.
 
Alibaba.com shall enable corresponding means (including customer service channel) for Seller to appeal the relevant decision by Alibaba.com where appropriate.
 
3.1.2          Calculation, declaration, payment and/or contribution by Alibaba.com on account of Seller’s own EPR obligations; and
 
3.1.3          Enabling the Seller to obtain the EPR Fees and Service Fees information (if applicable).
 
3.2               Alibaba.com reserves the right to reject, in its sole and absolute discretion, Seller’s application to use EPR-related Services and to decide, among others, the geographic and category scope of such EPR-related Services. Further, Alibaba.com reserves the right to determine all aspects of the EPR-related Services, and may modify, restrict, or discontinue any services and tools offered through the EPR-related Services (including but not limited to in order to comply with applicable laws and regulations) at any time, whether fully or partially.
 
Should Alibaba.com intend to reject totally or partially Seller’s use of EPR-related Services, Seller shall provide tangible evidence showing that a) the Seller and/or its products have proper EPR related compliance information (including without limitation registration number where applicable); as well as either b.1) it adheres to one or several relevant eco-organizations, in whose governance they participate and to which they transfer their EPR obligations; or b.2) it implements individual EPR system(s). In the event Seller is unable to produce the abovementioned evidence, it shall be prohibited from selling the products subject to the EPR obligation through the Platform.
 
4.                 REPORTING AND TRACKING
 
4.1              Alibaba.com will use algorithm, tracking and technology systems to estimate the information (including but not limited to the quantity and weight) applicable to the products or wastes put on the market by Seller to calculate the relevant Fees.
 
4.2              Seller acknowledges and agrees that in case of discrepancy and/or error, Seller shall report to Alibaba.com the correct information. The information kept in Alibaba.com systems shall prevail and shall be the basis on which the fees will be calculated, declared and paid.
  
5.                 EPR FEES, SERVICE FEES, PAYMENT TERM AND REFUND
 
5.1              On the basis of the information relating to the products or wastes put on the market by Seller, Alibaba.com will, on Seller’s account, calculate the EPR Fees and declare and pay the same to eco-organizations, at the payment schedule fixed by them (“EPR Fees”).
 
To perform the EPR-related Services, Seller agrees that Alibaba.com shall deduct an amount equal to 100% of the EPR Fees and an amount equal to a certain percentage of the same (“Service Fees”) (collectively with the EPR Fees, the “Fees”) directly from the order amount paid by the buyer to the Seller (“Order Amount”). Seller acknowledges and agrees that:
 
5.1.1          the EPR Fees will be calculated in accordance with the tariffs set by the relevant eco-organization determined by Alibaba.com and in the relevant currency for such tariffs (unless otherwise specified);
 
5.1.2          the extra amount calculated according to Clause 5.1 over the said EPR Fees shall be the Service Fees charged by Alibaba.com to Seller (if applicable); Alibaba.com can formulate and publish the said Service Fees in accordance with Clause 2.1.4;
 
5.1.3          Alibaba.com will deduct the Fees in the base currency of the Order Amount or other currency as the Parties may mutually agree from time to time, at the prevailing exchange rate and payment schedules previously determined by Alibaba.com; and
 
5.1.4          if the Order Amount is insufficient to cover any of the Fees specified in Clause 5.1, the Fees will be deducted directly from the Seller's account.
 
5.2              In case the relevant Fees has already been charged, the system will account for a refund of all or part of the relevant Fees if the order is cancelled and the product is returned. Refund requests made through other means may not be eligible for a refund.
 
5.3              Once a refund request is confirmed by Alibaba.com, refund will be made to the Seller Account. Upon the refunded amount being credited to the Seller Account, in accordance with this Agreement, Alibaba.com shall be relieved and released from any liability hereunder.
 
5.4              If the Seller fails to promptly pay any of the Fees specified in Clause 5 in full, Alibaba.com shall be entitled to impose any penalty, temporarily or permanently suspend or terminate your use of any Platform services, temporarily or permanently suspend or terminate or procure the suspension or termination of your paid or free membership on the Platform. Alibaba.com also reserves the right to temporarily suspend or restrict the transaction functionalities of your account with Alibaba.com for a prescribed period determined by Alibaba.com (including without limitation restricting the opening of new stores and/or application for sale of other product categories), or permanently terminate the use of your Alibaba.com account without any liability for any losses or damages arising out of or in connection with such suspension or termination. Alibaba.com may also publish the findings, penalties and other records regarding the breaches on the Platform.
 
In addition, if the due amount payable by the Seller is in arrears for more than 10 business days, Alibaba.com shall be entitled to terminate this Agreement unilaterally and the Seller shall be responsible for all damages Alibaba.com may suffer due to the late payment. In case of late payment, the Seller is also obliged to pay a penalty to Alibaba.com in the amount of ten percent of the Fees per day and the expenses incurred for each day of delay (where applicable).
 
6.                 TAXES
 
6.1              All amounts otherwise due and payable by the Seller to us under this Agreement are exclusive of any 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.
 
6.2              Notwithstanding anything else contained herein, if any amounts are required to be withheld by law, Seller shall notify us and shall pay us any additional amounts necessary to ensure that the net amount that we receive, after any deduction and withholding of taxes or levies or any similar amount, equals the amount we would have received if no deduction or withholding of taxes or levies or any similar amount had been required. Additionally, Seller will provide us with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority. We will provide Seller with such tax forms as are reasonably requested in order to reduce or eliminate the amount of any withholding or deduction for taxes or levies or any similar amount in respect of payments made under this Agreement. Seller agrees that in the event the tax law requires Seller to register in accordance with the applicable statute, Seller shall promptly complete such registration and shall at all times remain compliant with and responsible in respect of such statute. Seller agrees to promptly share the registration number or other unique identity/number with us to enable us to undertake relevant compliances.
 
“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.
 
6.3              If any regulatory fees, penalties, fines or charges are assessed against us as a result of performing the EPR-related Services for Seller pursuant to this Agreement, the Seller shall be responsible for such fees, penalties, fines or charges. We reserve the right to charge or collect from you any applicable regulatory fees, penalties, fines or charges and you will indemnify and hold us harmless from such regulatory fees, penalties, fines or charges regardless of whether it is due to your false declaration or the lack of information.
 
If Alibaba.com is penalized by any regulatory authority as a result of your information for declaration, Alibaba.com shall be entitled to impose any penalty, temporarily or permanently suspend or terminate your use of any Platform services, temporarily or permanently suspend or terminate or procure the suspension or termination of your paid or free membership on the Platform. Alibaba.com also reserves the right to temporarily suspend or restrict the transaction functionalities of your account with Alibaba.com for a prescribed period determined by Alibaba.com (including without limitation restricting the opening of new stores and/or application for sale of other product categories), or permanently terminate the use of your Alibaba.com account without any liability for any losses or damages arising out of or in connection with such suspension or termination. Alibaba.com may also publish the findings, penalties and other records regarding the breaches on the Platform.
 
7.                 CONFIDENTIALITY AND DATA PROTECTION
 
7.1              “Confidential Information” means business or technical information disclosed by either Party to the other Party that: (i) if disclosed in writing, is marked “confidential” or “proprietary” at the time of such disclosure; (ii) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary; (iii) without limiting the foregoing, shall include all information relating to Alibaba.com’s technology, and terms and conditions of this Agreement (including the Schedule if applicable) as the Confidential Information of both Parties.
 
7.2              Each Party will not use the other Party’s Confidential Information, except as necessary for the performance of this Agreement, and will not disclose such Confidential Information to any third party, except to those of its officers, directors, employees and agents that need to know such Confidential Information for the performance of this Agreement. The foregoing obligations will not restrict either Party from disclosing the other Party’s Confidential Information, if pursuant to the order or request of a court, administrative agency, or other governmental body, provided that the Party required to make such a disclosure gives reasonable written notice to the other Party to enable it to contest such order or request. The restrictions set forth in this Clause 7.2 shall survive and remain effect for a period of three (3) years after the expiry or termination of this Agreement.
 
7.3              The Seller shall ensure any contractor or agent or other third party to which Seller discloses or which otherwise receives or collects data under this Agreement is bound and abides by confidentiality obligations and use and disclosure restrictions at least as restrictive as those on Seller under this Agreement.
 
8.                 REPRESENTATIONS AND WARRANTIES
 
8.1              Seller represents and warrants that:
 
8.1.1      it has the necessary corporate power and authority to enter into this Agreement, to carry out its obligations hereunder and to grant the rights herein granted;
 
8.1.2      the execution, delivery and performance of this Agreement 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;
 
8.1.3      all information and materials submitted by the Seller to Alibaba.com are complete, true and accurate and current and each Seller represents that, it has the right to conduct its business, including offering its products or services;
 
8.1.4      it will make no false or misleading representations, warranties or guarantees with respect to its business including but not limited to:
 
(i)         false, incorrect or misleading information about the Seller and/or its products for EPR compliance (including without limitation submitting false EPR information or EPR information of a third-party without being properly entitled to use such third-party information);
(ii)       any information that violates or encourages violation of any applicable law;
(iii)      fraudulent or deceptive information or incentives; and
(iv)      content in violation of relevant laws, regulations, policies, or the Relevant Rules and/or expressly prohibited by Alibaba.com pursuant to its announcement. 
 
9.                 DISCLAIMERS AND LIMITATION OF LIABILITIES
 
9.1              To the fullest extent permissible pursuant to applicable law, Alibaba.com disclaims all warranties, including but not limited to (a) merchantability, fitness for a particular purpose of the EPR-related Services, (b) that there are no viruses or other harmful components, (c) that Alibaba.com's security methods will be sufficient, (d) regarding correctness, accuracy or reliability of the EPR-related Services, or (e) against interference with enjoyment of the EPR-related Services. All information and computer programs provided to Seller in the course of this Agreement are provided "as is" with all faults, and the entire risk as to satisfactory quality, performance, accuracy and effort is with Seller. Alibaba.com is under no circumstances responsible for the practices, acts or omissions of any third party or any website, or the content of any website or that any party makes available. Alibaba.com makes no representation or guarantee with respect to the availability or uptime of EPR-related Services or any technology, tools, software, tracking functionality or the network. Alibaba.com may conduct maintenance on any of the foregoing at any time with or without notice to Seller.
 
9.2              Except as expressly set forth in this Agreement, and to the fullest extent permissible by law, Seller acknowledges and agrees that Alibaba.com and its affiliates do not make and expressly disclaim all representations or warranties, express or implied, with respect to the EPR-related Services.
 
9.3              Any obligation or liability of Alibaba.com under this Agreement shall be limited to the total of the payments due by Seller to Alibaba.com under this Agreement during the twelve (12) months immediately preceding the claim. The existence of one or more claims will not enlarge the limit. No action, suit or proceeding shall be brought against Alibaba.com pursuant, or in any way related, to this Agreement more than one (1)  year after the termination of this Agreement. Seller agrees that Alibaba.com shall not be liable to the Seller, or any third party, for any consequential, exemplary, special, incidental or punitive damages arising out of or in connection with this Agreement, including, but not limited to loss of goodwill, loss of profits, business interruption, loss of programs or other data, even if Alibaba.com has been advised of the possibility of such damages or claim.
 
10.              INDEMNIFICATION
 
10.1           To the fullest extent permissible by the law, the Seller will indemnify, defend, and hold harmless us, our affiliates, and each of our and their directors, officers, employees, agents, successors, and assigns against any liability, damage, loss, or expenses including attorneys’ fees or other legal expenses (collectively, “Losses”), arising directly or indirectly from or in connection with any third party claim, suit, action, demand, or judgment (“Claim”) arising from or in connection with: (a) Seller’s use of the EPR-related Services; (b) Seller’s actual or alleged breach of the Agreement, including the Relevant Rules; or (c) fraud, intentional misconduct, gross negligence, by Seller or its contractors, subcontractors, agents, or suppliers in connection with this Agreement. 
 
10.2           Alibaba.com will promptly notify Seller of any claim that is subject to Clause 10.1, and will permit Seller to assume and control the defense of that claim. Alibaba.com will, however, have the right to employ separate counsel and participate in the defense of claims (at the Seller’s sole cost). Seller will have the sole authority to defend, compromise, settle, or otherwise dispose of a claim, but Seller shall not agree to any disposition or settlement of a claim that admits liability of Alibaba.com or imposes duties of performance or payment on Alibaba.com without Alibaba.com’s prior written consent.
 
11.              TERM AND TERMINATION
 
11.1           This Agreement shall be effective from the time you have clicked “Accept and Continue” button on the EPR-related Services acceptance process adopted by Alibaba.com (or by otherwise continuing to sell to the relevant market) and shall remain unless it is terminated in accordance with the terms of this Agreement (the “Term”).
 
11.2           Alibaba.com shall be entitled to immediately terminate this Agreement by informing the Seller, unless prior written notice is required in accordance with any applicable law, in which case the relevant notice period shall be given.
 
11.3           Seller can terminate this Agreement by giving Alibaba.com a termination request indicating clearly and expressly the category(ies) of products/wastes for which the EPR-related Services are no longer needed, together with the justification that for these product(s) or waste(s), Seller and/or its products either (i) has in place individual waste collection and management systems in compliance with the applicable laws and regulations or (ii) has adhered to one or several eco-organisations approved by the relevant authority (in which case Seller shall communicate with Alibaba.com about the relevant unique EPR identifier(s) or other relevant information for Alibaba’s check and records). In the event that Seller’s unique EPR identifier(s) or other relevant information are invalid or that Seller only requests to terminate the EPR-related Services for certain categories of products or wastes, it shall remain subject to this Agreement with Alibaba.com for the products or wastes covered by the invalid EPR identifiers/information as well as for those not covered by the termination request.
 
Unless otherwise specified on the Platform, Alibaba.com shall communicate to Seller the effective date of the termination, which shall correspond to the beginning of the following declaration cycle due by Alibaba.com to the relevant eco-organisations.
 
11.4           In case of termination or Seller’s refusal to adhere to this Agreement, Alibaba.com shall be entitled to restrict sales of products to the relevant countries and/or regions for which (a) the Seller has not provided evidence of Seller’s own compliance as per clause 3.1.1 above; and (b) Alibaba.com is obliged to make such compliance checks.
 
12.              GENERAL
 
12.1       Assignment. Seller shall not assign or transfer this Agreement or any rights and obligations hereunder, in whole or in part, without Alibaba’s prior written consent.
 
12.2       Independent Parties. The relationship between the Parties is that of independent contracting parties. Nothing in this Agreement shall constitute or be deemed to constitute a relationship of joint venture, partnership, franchise or similar arrangement between the Parties.
 
12.3       Governing Law. This Agreement will be governed by and construed in accordance with the laws of the People’s Republic of China. Any dispute, controversy, or claim shall be resolved through negotiation to the extent possible. In the event the Parties fail to resolve any dispute arising hereunder through negotiation, each Party shall submit to the jurisdiction of the courts of the People’s Republic of China.
 
12.4       Entire Agreement. This Agreement, together with the Relevant Rules, form the complete and exclusive agreement between the Parties with respect to the subject matter hereof, superseding any prior agreements and communications (both written and oral) regarding such subject matter save for fraudulent misrepresentations.
 
 
 
Alibaba.com EPR-related Services Agreement
 
This Alibaba.com EPR-related Services Agreement (“Agreement”) governs the Seller’s access to and use of the EPR-related Services as defined herein. “Alibaba.com” or “our” means Alibaba.com Singapore E-Commerce Private Limited (“Alibaba.com”), a company incorporated under the laws of Singapore and having its registered address at 51 Bras Basah Road, #01-21 Lazada One, Singapore 189554. “You”, “your” or “Seller” means the Seller registering on Alibaba.com and using the EPR-related Services. Each of Alibaba.com and Seller is referred to as a “Party” and collectively as “Parties”.
 
By clicking on “Accept” to this Agreement or using the EPR-related Services, you shall be considered as having accepted this Agreement. Such acceptance shall also be deemed to happen if you sell products to a jurisdiction where EPR compliance obligations arise for Alibaba.com and you and/or any of your products have not successfully passed the checks referred to in Clause 3.1.1 below. You agree to be bound by the terms and conditions of this Agreement. You acknowledge and agree that you understand the nature and functioning of the EPR-related Services, you have independently evaluated the desirability of using the EPR-related Services and you are not relying on any representation, guarantee, or statement other than as expressly set forth in this Agreement; and hereby represent and warrant that you are lawfully able to enter into contracts, the person agreeing to this Agreement on your behalf is authorized and lawfully able to bind you to this Agreement and that you are and will remain in compliance with this Agreement. In addition, if this Agreement is being agreed to by a company or other entity, then the person agreeing to this Agreement on behalf of that company or entity hereby represents and warrants that he or she is authorized and lawfully able to bind that company or entity to this Agreement.
  
1.                 DEFINITIONS
 
Unless otherwise defined herein, the following terms in this Agreement or in connection with the performance hereof shall have the specific meaning defined below:
 
1.1              “EPR” means the Extended Producer Responsibility, under which producers, including without limitation the Seller, are required to provide for or contribute to the prevention and management of waste resulting from the products they manufacture, import, sell or otherwise place on the market in different jurisdictions, to adopt an eco-design approach and to promote the durability of the said products. Producers may fulfil their EPR obligations by 1) adhering to eco-organizations, in whose governance they participate and to which they transfer their EPR obligations by paying the EPR Fees in return or 2) implementing individual EPR system(s).
 
1.2              “EPR-related Services” means the services provided by Alibaba.com to Seller from time to time, to the extent the Seller has not provided Alibaba.com with evidence of Seller and/or its products already being EPR compliant in the relevant jurisdiction; and where such services are allowed in such jurisdiction and to the extent that Alibaba.com actually provides services for such categories and countries (e.g. excluding among others any categories in Germany and Austria, tires in France and Spain, etc.). Depending on the market jurisdiction regulations as well as the products and/or wastes (including product category, nature and weight) that Seller puts on the relevant market, such services may include, among others, Alibaba.com adhering to the competent eco-organizations, calculating, declaring and paying the relevant EPR Fees on account of the obligations of the relevant Seller, and/or arranging take-back for old products. Such EPR-related Services shall be without prejudice to the Seller’s own EPR-related obligations (where applicable).
 
1.3               “EPR Fees” shall have the meaning ascribed to it in Clause 5.1 of this Agreement.
 
1.4                “Service Fees” shall have the meaning ascribed to it in Clause 5.1 of this Agreement.
 
1.5              “Platform” means the website with the URL: https://www.alibaba.com and the related app and mobile applications.
 
1.6              “Term” shall have the meaning ascribed to it in Clause 11.1 of this Agreement.
 
2.                 SCOPE OF AGREEMENT
 
2.1              This Agreement, together with the following rules (the “Relevant Rules”), constitute the entire agreement between the Parties:
2.1.1          Alibaba.com Free Membership Agreement;
2.1.2          Relevant Alibaba.com Trade Assurance Services Agreement applicable to the Seller depending on the origin of the Seller;
2.1.3          Product Listing Policy; and
 
2.1.4          Any and all rules, policies, announcements and terms and conditions as published and amended by Alibaba.com on the Platform from time to time.
 
2.2              The scope covered by this Clause 2 shall be an integral part of this Agreement and shall have the same force and effect as this Agreement.
 
2.3              The Seller agrees to abide by the terms and conditions set forth in this Agreement and all Relevant Rules when using or accessing to the EPR-related Services.
 
2.4              Alibaba.com shall have the right, in its sole discretion, to amend and restate any Relevant Rules from time to time (the “Amended and Restated Relevant Rules”) without notification to Seller. All Amended and Restated Relevant Rules shall become effective immediately upon its publication on the Platform.
 
2.5              In the event that Seller does not agree to any of the Amended and Restated Relevant Rules, Seller shall terminate this Agreement in accordance with the terms and conditions set forth in Clause 11 of this Agreement. The Amended and Restated Relevant Rules shall nevertheless apply to Seller until the effective date of the termination.
 
3.                 Service Scope and Alibaba.com’s Rights
 
3.1               During the Term, subject to the terms of this Agreement and to the extent allowed under the relevant applicable regulations, Alibaba.com will make available to Seller certain EPR-related Services and technical services including but not limited to:
 
3.1.1          EPR checks: assessing, at Alibaba.com’s discretion, whether the Seller and/or its products have been properly registered for EPR related obligations in the relevant markets where Alibaba.com is obliged to make such checks.
 
Alibaba.com shall enable corresponding means (including customer service channel) for Seller to appeal the relevant decision by Alibaba.com where appropriate.
 
3.1.2          Calculation, declaration, payment and/or contribution by Alibaba.com on account of Seller’s own EPR obligations; and
 
3.1.3          Enabling the Seller to obtain the EPR Fees and Service Fees information (if applicable).
 
3.2               Alibaba.com reserves the right to reject, in its sole and absolute discretion, Seller’s application to use EPR-related Services and to decide, among others, the geographic and category scope of such EPR-related Services. Further, Alibaba.com reserves the right to determine all aspects of the EPR-related Services, and may modify, restrict, or discontinue any services and tools offered through the EPR-related Services (including but not limited to in order to comply with applicable laws and regulations) at any time, whether fully or partially.
 
Should Alibaba.com intend to reject totally or partially Seller’s use of EPR-related Services, Seller shall provide tangible evidence showing that a) the Seller and/or its products have proper EPR related compliance information (including without limitation registration number where applicable); as well as either b.1) it adheres to one or several relevant eco-organizations, in whose governance they participate and to which they transfer their EPR obligations; or b.2) it implements individual EPR system(s). In the event Seller is unable to produce the abovementioned evidence, it shall be prohibited from selling the products subject to the EPR obligation through the Platform.
 
4.                 REPORTING AND TRACKING
 
4.1              Alibaba.com will use algorithm, tracking and technology systems to estimate the information (including but not limited to the quantity and weight) applicable to the products or wastes put on the market by Seller to calculate the relevant Fees.
 
4.2              Seller acknowledges and agrees that in case of discrepancy and/or error, Seller shall report to Alibaba.com the correct information. The information kept in Alibaba.com systems shall prevail and shall be the basis on which the fees will be calculated, declared and paid.
  
5.                 EPR FEES, SERVICE FEES, PAYMENT TERM AND REFUND
 
5.1              On the basis of the information relating to the products or wastes put on the market by Seller, Alibaba.com will, on Seller’s account, calculate the EPR Fees and declare and pay the same to eco-organizations, at the payment schedule fixed by them (“EPR Fees”).
 
To perform the EPR-related Services, Seller agrees that Alibaba.com shall deduct an amount equal to 100% of the EPR Fees and an amount equal to a certain percentage of the same (“Service Fees”) (collectively with the EPR Fees, the “Fees”) directly from the order amount paid by the buyer to the Seller (“Order Amount”). Seller acknowledges and agrees that:
 
5.1.1          the EPR Fees will be calculated in accordance with the tariffs set by the relevant eco-organization determined by Alibaba.com and in the relevant currency for such tariffs (unless otherwise specified);
 
5.1.2          the extra amount calculated according to Clause 5.1 over the said EPR Fees shall be the Service Fees charged by Alibaba.com to Seller (if applicable); Alibaba.com can formulate and publish the said Service Fees in accordance with Clause 2.1.4;
 
5.1.3          Alibaba.com will deduct the Fees in the base currency of the Order Amount or other currency as the Parties may mutually agree from time to time, at the prevailing exchange rate and payment schedules previously determined by Alibaba.com; and
 
5.1.4          if the Order Amount is insufficient to cover any of the Fees specified in Clause 5.1, the Fees will be deducted directly from the Seller's account.
 
5.2              In case the relevant Fees has already been charged, the system will account for a refund of all or part of the relevant Fees if the order is cancelled and the product is returned. Refund requests made through other means may not be eligible for a refund.
 
5.3              Once a refund request is confirmed by Alibaba.com, refund will be made to the Seller Account. Upon the refunded amount being credited to the Seller Account, in accordance with this Agreement, Alibaba.com shall be relieved and released from any liability hereunder.
 
5.4              If the Seller fails to promptly pay any of the Fees specified in Clause 5 in full, Alibaba.com shall be entitled to impose any penalty, temporarily or permanently suspend or terminate your use of any Platform services, temporarily or permanently suspend or terminate or procure the suspension or termination of your paid or free membership on the Platform. Alibaba.com also reserves the right to temporarily suspend or restrict the transaction functionalities of your account with Alibaba.com for a prescribed period determined by Alibaba.com (including without limitation restricting the opening of new stores and/or application for sale of other product categories), or permanently terminate the use of your Alibaba.com account without any liability for any losses or damages arising out of or in connection with such suspension or termination. Alibaba.com may also publish the findings, penalties and other records regarding the breaches on the Platform.
 
In addition, if the due amount payable by the Seller is in arrears for more than 10 business days, Alibaba.com shall be entitled to terminate this Agreement unilaterally and the Seller shall be responsible for all damages Alibaba.com may suffer due to the late payment. In case of late payment, the Seller is also obliged to pay a penalty to Alibaba.com in the amount of ten percent of the Fees per day and the expenses incurred for each day of delay (where applicable).
 
6.                 TAXES
 
6.1              All amounts otherwise due and payable by the Seller to us under this Agreement are exclusive of any 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.
 
6.2              Notwithstanding anything else contained herein, if any amounts are required to be withheld by law, Seller shall notify us and shall pay us any additional amounts necessary to ensure that the net amount that we receive, after any deduction and withholding of taxes or levies or any similar amount, equals the amount we would have received if no deduction or withholding of taxes or levies or any similar amount had been required. Additionally, Seller will provide us with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority. We will provide Seller with such tax forms as are reasonably requested in order to reduce or eliminate the amount of any withholding or deduction for taxes or levies or any similar amount in respect of payments made under this Agreement. Seller agrees that in the event the tax law requires Seller to register in accordance with the applicable statute, Seller shall promptly complete such registration and shall at all times remain compliant with and responsible in respect of such statute. Seller agrees to promptly share the registration number or other unique identity/number with us to enable us to undertake relevant compliances.
 
“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.
 
6.3              If any regulatory fees, penalties, fines or charges are assessed against us as a result of performing the EPR-related Services for Seller pursuant to this Agreement, the Seller shall be responsible for such fees, penalties, fines or charges. We reserve the right to charge or collect from you any applicable regulatory fees, penalties, fines or charges and you will indemnify and hold us harmless from such regulatory fees, penalties, fines or charges regardless of whether it is due to your false declaration or the lack of information.
 
If Alibaba.com is penalized by any regulatory authority as a result of your information for declaration, Alibaba.com shall be entitled to impose any penalty, temporarily or permanently suspend or terminate your use of any Platform services, temporarily or permanently suspend or terminate or procure the suspension or termination of your paid or free membership on the Platform. Alibaba.com also reserves the right to temporarily suspend or restrict the transaction functionalities of your account with Alibaba.com for a prescribed period determined by Alibaba.com (including without limitation restricting the opening of new stores and/or application for sale of other product categories), or permanently terminate the use of your Alibaba.com account without any liability for any losses or damages arising out of or in connection with such suspension or termination. Alibaba.com may also publish the findings, penalties and other records regarding the breaches on the Platform.
 
7.                 CONFIDENTIALITY AND DATA PROTECTION
 
7.1              “Confidential Information” means business or technical information disclosed by either Party to the other Party that: (i) if disclosed in writing, is marked “confidential” or “proprietary” at the time of such disclosure; (ii) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary; (iii) without limiting the foregoing, shall include all information relating to Alibaba.com’s technology, and terms and conditions of this Agreement (including the Schedule if applicable) as the Confidential Information of both Parties.
 
7.2              Each Party will not use the other Party’s Confidential Information, except as necessary for the performance of this Agreement, and will not disclose such Confidential Information to any third party, except to those of its officers, directors, employees and agents that need to know such Confidential Information for the performance of this Agreement. The foregoing obligations will not restrict either Party from disclosing the other Party’s Confidential Information, if pursuant to the order or request of a court, administrative agency, or other governmental body, provided that the Party required to make such a disclosure gives reasonable written notice to the other Party to enable it to contest such order or request. The restrictions set forth in this Clause 7.2 shall survive and remain effect for a period of three (3) years after the expiry or termination of this Agreement.
 
7.3              The Seller shall ensure any contractor or agent or other third party to which Seller discloses or which otherwise receives or collects data under this Agreement is bound and abides by confidentiality obligations and use and disclosure restrictions at least as restrictive as those on Seller under this Agreement.
 
8.                 REPRESENTATIONS AND WARRANTIES
 
8.1              Seller represents and warrants that:
 
8.1.1      it has the necessary corporate power and authority to enter into this Agreement, to carry out its obligations hereunder and to grant the rights herein granted;
 
8.1.2      the execution, delivery and performance of this Agreement 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;
 
8.1.3      all information and materials submitted by the Seller to Alibaba.com are complete, true and accurate and current and each Seller represents that, it has the right to conduct its business, including offering its products or services;
 
8.1.4      it will make no false or misleading representations, warranties or guarantees with respect to its business including but not limited to:
 
(i)         false, incorrect or misleading information about the Seller and/or its products for EPR compliance (including without limitation submitting false EPR information or EPR information of a third-party without being properly entitled to use such third-party information);
(ii)       any information that violates or encourages violation of any applicable law;
(iii)      fraudulent or deceptive information or incentives; and
(iv)      content in violation of relevant laws, regulations, policies, or the Relevant Rules and/or expressly prohibited by Alibaba.com pursuant to its announcement. 
 
9.                 DISCLAIMERS AND LIMITATION OF LIABILITIES
 
9.1              To the fullest extent permissible pursuant to applicable law, Alibaba.com disclaims all warranties, including but not limited to (a) merchantability, fitness for a particular purpose of the EPR-related Services, (b) that there are no viruses or other harmful components, (c) that Alibaba.com's security methods will be sufficient, (d) regarding correctness, accuracy or reliability of the EPR-related Services, or (e) against interference with enjoyment of the EPR-related Services. All information and computer programs provided to Seller in the course of this Agreement are provided "as is" with all faults, and the entire risk as to satisfactory quality, performance, accuracy and effort is with Seller. Alibaba.com is under no circumstances responsible for the practices, acts or omissions of any third party or any website, or the content of any website or that any party makes available. Alibaba.com makes no representation or guarantee with respect to the availability or uptime of EPR-related Services or any technology, tools, software, tracking functionality or the network. Alibaba.com may conduct maintenance on any of the foregoing at any time with or without notice to Seller.
 
9.2              Except as expressly set forth in this Agreement, and to the fullest extent permissible by law, Seller acknowledges and agrees that Alibaba.com and its affiliates do not make and expressly disclaim all representations or warranties, express or implied, with respect to the EPR-related Services.
 
9.3              Any obligation or liability of Alibaba.com under this Agreement shall be limited to the total of the payments due by Seller to Alibaba.com under this Agreement during the twelve (12) months immediately preceding the claim. The existence of one or more claims will not enlarge the limit. No action, suit or proceeding shall be brought against Alibaba.com pursuant, or in any way related, to this Agreement more than one (1)  year after the termination of this Agreement. Seller agrees that Alibaba.com shall not be liable to the Seller, or any third party, for any consequential, exemplary, special, incidental or punitive damages arising out of or in connection with this Agreement, including, but not limited to loss of goodwill, loss of profits, business interruption, loss of programs or other data, even if Alibaba.com has been advised of the possibility of such damages or claim.
 
10.              INDEMNIFICATION
 
10.1           To the fullest extent permissible by the law, the Seller will indemnify, defend, and hold harmless us, our affiliates, and each of our and their directors, officers, employees, agents, successors, and assigns against any liability, damage, loss, or expenses including attorneys’ fees or other legal expenses (collectively, “Losses”), arising directly or indirectly from or in connection with any third party claim, suit, action, demand, or judgment (“Claim”) arising from or in connection with: (a) Seller’s use of the EPR-related Services; (b) Seller’s actual or alleged breach of the Agreement, including the Relevant Rules; or (c) fraud, intentional misconduct, gross negligence, by Seller or its contractors, subcontractors, agents, or suppliers in connection with this Agreement. 
 
10.2           Alibaba.com will promptly notify Seller of any claim that is subject to Clause 10.1, and will permit Seller to assume and control the defense of that claim. Alibaba.com will, however, have the right to employ separate counsel and participate in the defense of claims (at the Seller’s sole cost). Seller will have the sole authority to defend, compromise, settle, or otherwise dispose of a claim, but Seller shall not agree to any disposition or settlement of a claim that admits liability of Alibaba.com or imposes duties of performance or payment on Alibaba.com without Alibaba.com’s prior written consent.
 
11.              TERM AND TERMINATION
 
11.1           This Agreement shall be effective from the time you have clicked “Accept and Continue” button on the EPR-related Services acceptance process adopted by Alibaba.com (or by otherwise continuing to sell to the relevant market) and shall remain unless it is terminated in accordance with the terms of this Agreement (the “Term”).
 
11.2           Alibaba.com shall be entitled to immediately terminate this Agreement by informing the Seller, unless prior written notice is required in accordance with any applicable law, in which case the relevant notice period shall be given.
 
11.3           Seller can terminate this Agreement by giving Alibaba.com a termination request indicating clearly and expressly the category(ies) of products/wastes for which the EPR-related Services are no longer needed, together with the justification that for these product(s) or waste(s), Seller and/or its products either (i) has in place individual waste collection and management systems in compliance with the applicable laws and regulations or (ii) has adhered to one or several eco-organisations approved by the relevant authority (in which case Seller shall communicate with Alibaba.com about the relevant unique EPR identifier(s) or other relevant information for Alibaba’s check and records). In the event that Seller’s unique EPR identifier(s) or other relevant information are invalid or that Seller only requests to terminate the EPR-related Services for certain categories of products or wastes, it shall remain subject to this Agreement with Alibaba.com for the products or wastes covered by the invalid EPR identifiers/information as well as for those not covered by the termination request.
 
Unless otherwise specified on the Platform, Alibaba.com shall communicate to Seller the effective date of the termination, which shall correspond to the beginning of the following declaration cycle due by Alibaba.com to the relevant eco-organisations.
 
11.4           In case of termination or Seller’s refusal to adhere to this Agreement, Alibaba.com shall be entitled to restrict sales of products to the relevant countries and/or regions for which (a) the Seller has not provided evidence of Seller’s own compliance as per clause 3.1.1 above; and (b) Alibaba.com is obliged to make such compliance checks.
 
12.              GENERAL
 
12.1       Assignment. Seller shall not assign or transfer this Agreement or any rights and obligations hereunder, in whole or in part, without Alibaba’s prior written consent.
 
12.2       Independent Parties. The relationship between the Parties is that of independent contracting parties. Nothing in this Agreement shall constitute or be deemed to constitute a relationship of joint venture, partnership, franchise or similar arrangement between the Parties.
 
12.3       Governing Law. This Agreement will be governed by and construed in accordance with the laws of the People’s Republic of China. Any dispute, controversy, or claim shall be resolved through negotiation to the extent possible. In the event the Parties fail to resolve any dispute arising hereunder through negotiation, each Party shall submit to the jurisdiction of the courts of the People’s Republic of China.
 
12.4       Entire Agreement. This Agreement, together with the Relevant Rules, form the complete and exclusive agreement between the Parties with respect to the subject matter hereof, superseding any prior agreements and communications (both written and oral) regarding such subject matter save for fraudulent misrepresentations.
 
 
 
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