ALIBABA.COM MATCH (BUYER) SERVICE
TERMS AND CONDITIONS
These terms and conditions (these "Terms") govern the Alibaba.com Match (Buyer) Service (“Service”) offered to you by Alibaba.com (as defined below) through the Alibaba.com’s international website (URL: http://www.alibaba.com) and mobile apps (collectively, the “Alibaba.com Website”). BY CLICKING “AGREE” OR OTHERWISE ACCEPTING THESE TERMS OR CONTINUING WITH YOUR USE OF THE SERVICE, YOU INDICATE YOUR AGREEMENT TO BE BOUND BY THESE TERMS AS MAY BE AMENDED FROM TIME TO TIME. If you are outside of India and Malaysia, you are contracting with Alibaba.com Singapore E-Commerce Private Limited under these Terms. If you are from India, you are contracting with Alibaba.com India E-Commerce Private Limited. If you are located in Malaysia, you are contracting with Alibaba Commerce Services (Malaysia) Sdn. Bhd. The contracting Alibaba entity shall be referred to as “Alibaba.com”.
Definitions:
1. Acceptance
You agree and accept that, in addition to these Terms, your application and use of the Service is bound by any and all of the rules, policies, privacy policy and terms of use of Alibaba.com Website (including without limitation the Alibaba.com Free Membership Agreement available on the Alibaba.com Website).
2. Eligibility
You must be a registered user of Alibaba.com Website and shall ensure that your Alibaba.com membership is and will continue to be activated and valid, to be qualified for using the Service.
3. Scope of Service
3.1 The Service consists of three (3) appointments (“Appointment”) with a maximum duration of each of one (1) hour. In the event that the duration of such Appointment exceeds one (1) hour, Alibaba.com may, at its sole discretion, identify such Appointment as an additional Appointment; in the event that any additional Appointment shall occur, each additional Appointment will be subject to a fee of USD 300.
3.3 You can decide attendees of the Appointment to be (a) Alibaba.com Account Manager (“Alibaba.com AM”); or (b) sellers, with Alibaba.com AM offering reasonable assistance. In the event that you would like to have Appointments with sellers, you can then decide the scope of sellers who you would like to meet online. Once such list of sellers is confirmed, Alibaba.com will arrange the timing and initiate online meeting for you to meet and communicate with such sellers. For the avoidance of any doubt, Alibaba.com makes no guarantee or commitments regarding the quality and the quantity in connection with such sellers.
3.4 Alibaba.com shall be regarded as having delivered the Service(a) one (1) Appointment has been arranged in accordance with your request within 180 days after payment of Service fee; (b) you do not send any request of arranging Appointments to Alibaba.com within 180 days after payment of Service fee; and (c) subject to the conditions set forth in Clause 6.2.
3.5 After such Appointment, Alibaba.com will also initiate a communication group for you to further communicate with such sellers.
3.6 You acknowledge and agree that Alibaba.com only provides the Service for exchanging information between sellers and you of products and services. The matching results do not constitute an advice, advertisement, recommendation, or invitation of any form for anyone to enter into transactions. Alibaba.com will not recommend any products or services to any party. Alibaba.com does not guarantee any transaction will be concluded by providing the Service. Communication and transactions conducted through the Service are solely controlled and decided by you and relevant sellers. Alibaba.com does not control and is not liable or responsible for the quality, safety, lawfulness or availability of the products or services offered for sale,the ability of you to complete a purchase or the ability of sellers to complete a sale.
3.7 You acknowledge and agree that Alibaba.com does not guarantee any transaction will be concluded by providing the Service.
3.8 Alibaba.com shall reserve the right to change, upgrade, modify and/or assign the Service (including its version and functions, where applicable) at its own discretion. Notwithstanding the foregoing, unless otherwise determined by Alibaba.com, all terms set forth hereunder shall continue to apply.
4. Fees and Payment
4.1 The fees for use of the Services shall be subject to the fees set forth in the relevant purchase order. Unless otherwise provided herein and/or otherwise agreed by Alibaba.com in writing, any Fee paid by you shall not be refunded, whether in part or in whole.
4.2 In the event where Alibaba.com fails to arrange any Appointment upon your request due to causes of Alibaba.com within 180 days after payment of Service fee, you are entitled to apply for pro-rata refund or continue to use the Services. Notwithstanding the foregoing, any fee paid by you shall not be refunded, whether in part or in whole, in the event of conditions as set forth in Clause 3.4.
4.3 Alibaba.com shall have the right to adjust the price setting mechanism, fee rates and payment terms for the Service from time to time based on the actual prevailing situations without obtaining your prior consent. Any adjustment shall become effective seven (7) days after the date of announcement made by Alibaba.com. Notwithstanding the aforesaid, in the event where you have applied and made a full payment for the Service prior to such adjustment being effective, your use of the Service will continue to be subject to the Terms which were in force prior to such adjustment and will not be affected by the adjustment until the completion thereof.
5. Alibaba.com Rights and Obligations
5.1 Alibaba.com shall have the right to (a) reject the provision of the Service to you; or (b) conduct promotional pricing or conduct other incentives for the Service at its sole discretion from time to time.
5.2 In the event where the information in the Proposal (or any part thereof) is discovered to be obscene, pornographic, false, misleading, defamatory, unlawful, or infringing on third parties’ intellectual property rights, or due to the request or demands from any governmental or regulatory authority, Alibaba.com shall be entitled to: (a) refuse to provide you the Service without obtaining your prior consent; (b) request you to modify Proposal; and/or (c) take down the relevant information without obtaining your prior consent. In any of the foregoing events, you agree and acknowledge that Alibaba.com shall not be required and does not have any obligation to refund any Fees received from you, and shall not be responsible for any liability in respect thereof. Any liability which may arise as a result thereof shall be solely borne by you.
5.3 Your agreement to pay the Fees for the Service shall not guarantee that Alibaba.com will provide the Service to you. If the information submitted by you does not comply with the requirements of relevant provisions of these Terms, Alibaba.com will specify the reasons for non-compliance, or suggest you to modify the Proposal.
6. Your Obligations
6.1 You shall be solely responsible for:
(1)
all decision making on whichsellersto communicate with and/or to enter into transaction with;
(2)
the quality,safety,lawfulness or availability of the products or services offered for sale.
6.2 You shall attend the Appointment in accordance with arranged time and shall provide at least twenty-four (24) hours’ notice to Alibaba.com to any change of such Appointment. In the event that there is any request of belated change or you fail to attend the Appointment without any prior notice (collectively, “No-Show”), Alibaba.com may, at its sole discretion, determine that corresponding quota of such Appointments has been consumed; in the event of two consecutive No-Shows, Alibaba.com shall have the right to terminate these Terms and no fee shall be refunded. In the case where quota of three (3) Appointments has been consumed due to the No-Show, Alibaba.com’s obligations under these Terms are fulfilled.
6.2 You shall use the Service in accordance with these Terms and in accordance with all applicable laws and regulations.
7. Amendments and Cessation
7.1 Alibaba.com reserves the right to amend these Terms at any time by posting the amended and restated version on the Alibaba.com Website. The amended and restated Terms shall be effective immediately upon posting. After posting by Alibaba.com of the amended and restated Terms, your continued use of the Service shall be deemed as your acceptance of the amended and restated Terms.
7.2 Alibaba.com reserves the right to temporarily or permanently change, upgrade, modify, limit, suspend, or cease the provision of the Serviceor any of its related functionalities or applications at any time in its sole discretion. In the case of any permanent discontinuation or termination of the Service, Alibaba.com shall have the right at its sole discretion to refund any unused amounts as at the date of termination of the Service based on the records held by Alibaba.com, at such exchange rate utilized by Alibaba.com as at the relevant date in the event of any currency conversion (if applicable), less any applicable bank fees or charges.
8. Acknowledgement and Undertaking
You agree and undertake that you will:
(1)
not submit any untrue, falsified, incorrect, incomplete, misleading, fraudulent, or unlawful information to Alibaba.com pursuant to your application or use oftheService;
(2)
not copy, reproduce, exploit or expropriate Alibaba.com's various proprietary directories, databases and listings;
(3)
not use or distribute any computer viruses or other destructive devices and codes that may harm, interfere with, intercept or expropriate any software or hardware system, data or personal information;
(4)
not gain or attempt to gain authorized access to the computer systems or networks used by Alibaba.com or engage in any other activities that may harm the integrity of such computer systems or networks;
(5)
not carry on activities on Alibaba.com Website that are not in compliance with any laws and regulations;
(6)
not submit or provide any information to Alibaba.com that directly or indirectly infringe the intellectual property rights of any third party.
9. Representations, Warranties and Covenants
9.1 You represent, warrant and covenant (as applicable) to Alibaba.com that each of the statements contained in this Clause 9 is true, accurate, complete and not misleading in all respects and will continue to be so until your cessation of use of the Service:
(1)
you have fulfilled all of the conditions set forth in Clause 6;
(2)
any and all information you provided to Alibaba.com pursuant to your application for and use of theService is true, accurate, complete, lawful and valid;
(3)
you have and will continue to, at all times during your use of theService, abide by the Terms and all relevant rules published on the Alibaba.com Website;
(4)
you will not infringe the legitimate rights of any third parties, including but not limited to the intellectual property rights, property ownership right and any third parties pursuant to your use of theService; and
(5)
your use of theService complies or will comply with any and all applicable laws and regulations in any applicable jurisdiction.
9.2 You represent and warrant that the information in the Proposal shall not contain anything which may be in contravention with any laws, regulations and policies, including but not limited to any content that may jeopardize state security, and/or is reasonably deemed as obscene, pornographic, false, illegal, defamatory (including business defamation), unlawfully intimidating or harassing, or infringing upon others’ intellectual property, personal and/or other legitimate rights, interests and/or benefits, and any content that may be in violation of public order and good customs, or any link to such contents.
9.3 You agree that Alibaba.com may conduct verification via telephone, email, by personal visit and/or other methods as may be determined by Alibaba.com. You may be requested by Alibaba.com to provide the relevant supporting documents and information. Upon receipt of such request, you shall promptly provide the same. In the event where you fail to do so, Alibaba.com may terminate forthwith the Service without having to refund the Fees paid by you and/or any liability whatsoever.
9.4 You represent and warrant that: you will be solely liable for all dispute arising from (i) the contents, products and/or services in connection with the Proposal; and (ii) any business transaction that is entered into directly or indirectly pursuant to the Service hereunder.
9.5 You hereby undertake that your use of the Service will not cause Alibaba.com to be involved or the subject of any demand, request, complaint, lawsuit, arbitration and/or claim initiated by any third party. In the event where Alibaba.com is involved in any of the foregoing events, you agree and acknowledge that Alibaba.com may immediately suspend and/or terminate the provision of the Service, and you undertake to indemnify Alibaba.com for any damages, losses, costs and/or expenses incurred thereby (including but not limited to court costs, attorney’s fees, notarization costs, and damages).
10 Indemnification
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 Service, and/or any third party claim or liability arising out of or related to you or the information in the Proposal in breach of any third party’s intellectual property rights. Alibaba.com reserves the right, at its own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, in which event you shall cooperate with Alibaba.com in asserting any available defences.
11 Taxes
11.1 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 have provided Alibaba.com with evidence to Alibaba.com's satisfaction of a lawful and applicable exemption for such Taxes.
11.2 “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 (a) based on gross or net income, (b) franchise taxes, or (c) property, personal property or rental taxes (collectively "Excluded Taxes").
11.3 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.
11.4 “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.
12. Limitation of Liability
THE SERVICE IS PROVIDED ON AN “AS IS” BASIS 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 SERVICE. 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 SERVICE OR THE DISCONTINUATION OF THE SERVICE.
13. TERMINATION OF SERVICES
Alibaba.com shall be entitled to suspend or terminate the Service immediately in the event of the following:
(1)
breach of any material term or condition of these Terms, and fails to cure such breach within thirty (30) days after written notice;
(2)
two consecutive no-shows occur as subject to Clause 6.2;
(c) illegal use of the Service, or if there are any valid judicial orders or judgments against you in respect of your use of the Service;
(d) the content of the Proposal infringes the intellectual property rights or interests of third parties;
(e) 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;
(f) 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..
14 General Terms
14.1 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 Services
14.2 Except as specified in these Terms, neither you nor Alibaba.com will be held to have defaulted on its contractual obligations to the extent that its performance has been hindered or prevented by force majeure. Force majeure means an unforeseeable, irresistible occurrence without the fault or negligence of the Party invoking the force majeure and which such Party is unable to prevent or provide against by the exercise of reasonable diligence, including without limitation, Internet failures, computer, telecommunications or any other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, flood, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, or non-performance of third parties or any suspension or disruption of transportation or business operation (including but not limited to delays or disruption of the resumption of work or operation ordered by any government agency) in the event of a national or regional spread of epidemic or pandemic.
14.3 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, war, and riot.
14.4 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.
14.5 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.
