IMPORTANT PRIOR NOTICE
Before you enter into this agreement to collaborate with AliExpress on the proposed sale of virtual and other pre-paid products on the AliExpress Platform, you must carefully read and comply with its content. Please read all the clauses carefully, and make sure you understand them, including, without limitation, the clauses on intellectual property rights, access to the Partner’s System, indemnity, limitation of liability, and the clauses on governing law and dispute resolution. If you have any questions about any clause in this agreement, please contact us through the AliExpress customer service, where you will be provided with the relevant explanations. If you disagree with any provision of this agreement or do not clearly understand the explanationn of the clauses given by AliExpress, please refrain from any further action. Otherwise, accessing and continuing to use the services under this agreement indicates your acceptance of these terms and conditions, you will be understood to have accepted the following terms and conditions, and will be bound by this agreement.
VIRTUAL PRODUCTS SELLER RELATED SUPPLEMENTAL AGREEMENT
Updated on 3 December 2020
This Agreement is between you as European Union/European Economic Area virtual products seller user (hereinafter, the “Partner” or “You”) and the service provider Alibaba.com Singapore E-Commerce Private Limited, with registered office in 8 Shenton Way, #45-01 AXA Tower, Singapore 068811, incorporated in Singapore with Company Reg. No. 200720572D (hereinafter, collectively, “We”, “Us” or “AliExpress”). The Partner and AliExpress shall be jointly referred to as the “Parties” and each one as a “Party”. This Agreement is binding.
A. Partner has agreements with product suppliers for the distribution and sale of products and services, which, when sold, may be redeemed by customers in order to purchase and/or access virtual goods and/or services offered by the product provider in certain territory(ies) (the “Territory”).
B. Alibaba, together with its Affiliates (as defined below), comprises an e-commerce conglomerate which, among other things, operates an online business-to-consumer e-commerce marketplace under the URL of https://www.aliexpress.com/, or such successor URL as Alibaba may provide, and through its mobile device application (jointly, the “AliExpress Platform”).
For purposes of this agreement, “Affiliate” means, with respect to any entity, any other entity or person Controlled by, Controlling, or under common Control with, such entity; whereas “Control” means the power to direct the management and policies of an entity, whether through voting rights, contract, or otherwise.
C. The Parties intend to, among other things, collaborate on the proposed sale of virtual and other pre-paid products agreed between the Parties from time to time (including initially the ones listed in Appendix 1, the “Prepaid Product Providers”) on the AliExpress Platform by Partner (each, a “Listed Product”) to allow end-users (the “End-Users”) of the AliExpress Platform to purchase the Listed Products through the AliExpress Platform, in accordance with the terms, and subject to the conditions, set forth in this Agreement. Parties may in future, subject to further agreements being entered into, agree to introduce more products to be sold by the Partner on the AliExpress Platform.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree to be bound by the following terms and conditions.
1. SCOPE AND COOPERATION
1.1 The Parties agree to cooperate in good faith and perform their respective obligations for the collaborations set forth in Schedule 1 to this Agreement (the “Collaborations”). The detailed work flow and procedures for the Collaborations may be further amended, agreed, supplemented or confirmed by the Parties in writing from time to time.
1.3 In the event of any conflict or inconsistency between the terms of this Agreement and the Platform Agreements, the terms of this Agreement shall prevail.
2. INTELLECTUAL PROPERTY RIGHTS
i. License. Subject to the terms and conditions of this Agreement:
(a) You hereby authorize, or procure the authorization of Alibaba and its Affiliates, on a non-exclusive, non-transferable, non-sublicenseable basis, during the Term (as defined below), to use the trademarks, service marks, and logos made available in your AliExpress channel and/or storefront and on the AliExpress Platform (or such successor URL as Alibaba may provide), free of charge solely for the purposes of this Agreement and not otherwise;
(b) You shall procure the Prepaid Product Providers to authorize Alibaba and its Affiliates on a non-exclusive, non-transferable basis, during the Term (as defined below), to use the relevant trademarks, service marks and logos of the Prepaid Product Providers being made available in your AliExpress channel and/or storefront (the “Providers’ Marks”) in the Territory and on the AliExpress Platform (or such successor URL as Alibaba may provide), free of charge solely for the purposes of this Agreement and not otherwise; and
(c) You shall, and shall procure your relevant Affiliate(s) to grant Alibaba and its Affiliate(s) a non-exclusive, non-transferable basis, during the Term (as defined below), a license or sub-license (as may be applicable) to use the API of the Partner (where applicable) and such other software and/or technical means (collectively, the “Technical Means”) in Territory and on the AliExpress Platform (or such successor URL as Alibaba may provide), free of charge solely for the purpose of this Agreement and to enable the End-Users to purchase the Listed Products through the AliExpress Platform.
ii. No Rights. Except as set forth in this Agreement or otherwise expressly agreed to in writing by the Parties, nothing in this Agreement will be deemed to grant or assign to either Party any ownership rights, license rights, or interests of any kind in the other Party’s products, services or technology or in the other Party’s intellectual property or proprietary rights.
iii. Ownership. Except as set forth in this Agreement or otherwise expressly agreed to in writing by the Parties, each Party (the “Creating Party”) shall own all right, title and interest in and to all inventions, improvements, products, services, technology, information and materials or work product of any kind that the Creating Party independently creates, develops or prepares which are unrelated to this Agreement during the Term, including all intellectual property and proprietary rights therein.
3. ACCESS TO THE PARTNER’S SYSTEM
Where applicable or necessary for selling the relevant Listed Products, you shall, and shall procure your relevant Affiliate(s) to permit Alibaba and/or its Affiliate(s) access to your System (as defined in Schedule 1) (including providing to Alibaba the relevant access codes and/or access information (the “Access Information”)). Alibaba shall be responsible for the custody and non-dissemination of the Access Information furnished by You.
For the purposes of this Agreement, a “Business Day” shall mean a day on which banks are generally open for business in Territory, the People’s Republic of China (excluding Hong Kong, Macau and Taiwan), and Singapore.
4. COMPLIANCE WITH LAWS AND THIRD PARTY INTELLECTUAL PROPERTY
i. The Partner shall at all times comply in all respects with applicable laws, rules, regulations and orders of all governmental, administrative, regulatory or supervisory entities to which it is subject. For the avoidance of doubt, the obligations of the Partner and/or the relevant Prepaid Product Providers to comply with applicable laws and regulations (including Spanish telecommunications laws and regulations) shall be the responsibility of the Partner and/or the relevant Prepaid Product Providers (as the case may be), and in no event shall Alibaba be responsible or liable in any respect for failure by the Partner and/or the relevant Prepaid Product Provider (as the case may be) to comply with any such laws and/or regulations.
ii. The Partner shall ensure that it does not infringe the intellectual property rights of any person (including the Prepaid Product Providers), including when used by Alibaba and/or its Affiliate(s) for the purposes of this Agreement.
iii. Alibaba shall provide such reasonable assistance as may be necessary for the Partner and/or the relevant Prepaid Product Providers to comply with applicable laws and/or regulations. The Partner shall inform Alibaba of any specific technical specifications for the Platform necessary for Partner and/or the relevant Prepaid Product Providers to comply with applicable laws and/or regulations.
i. Confidential Information. “Confidential Information” means business or technical information disclosed by either Party to the other Party, including, without limitation, information relating to a Party’s product plans, customers, suppliers, designs, costs, products and services, pricing, finances, marketing plans, operations, business opportunities, personnel, source codes, object codes, research and development, that: (a) if disclosed in writing, is marked “confidential” or “proprietary” at the time of such disclosure; (b) if disclosed orally, is identified as “confidential” or “proprietary” at the time of such disclosure, and is summarized in a writing sent by the disclosing Party to the receiving Party within thirty (30) days after any such disclosure; or (c) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. Without limiting the foregoing, the existence of this Agreement and the terms and conditions of this Agreement (including the Schedules and Appendices) is the Confidential Information of both Parties.
ii. Confidentiality Obligations. 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 professional advisers, Affiliates, consultants, or its employees (the “Representatives”) that need to know such Confidential Information for the performance of this Agreement, provided that each such Representatives are subject to binding use and disclosure restrictions that are at least as protective as those set forth herein. Each Party will use all reasonable efforts to maintain the confidentiality of the other Party’s Confidential Information in its possession or control, but in no event less than the efforts that it ordinarily uses with respect to its own confidential information of similar nature and importance. The foregoing obligations will not restrict either Party from disclosing the other Party’s Confidential Information or the terms and conditions of this Agreement: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body or pursuant to any requirement of an applicable stock exchange, provided that, if legally permitted, the Party required to make such a disclosure gives reasonable written notice to the other Party to enable it to contest such order or requirement; (b) on a confidential basis to its legal or professional financial advisors; or (c) as required under applicable securities regulations. The restrictions set forth in this Section 5(ii) will remain in effect during the Term and for a period of one (1) year after the expiry or termination of this Agreement (whichever is earlier). Upon expiry or termination of the Agreement, the Partner shall, upon Alibaba’s instructions, return to Alibaba and/or destroy, the Confidential Information and any derivatives and copies thereof and provide a certificate signed by an authorised officer to Alibaba within seven (7) Business Days of having complied with this provision.
iii. Exclusions. The obligations set forth in Section 5(ii) will not apply to any Confidential Information that: (a) is in or enters the public domain without breach of this Agreement by the receiving Party; (b) the receiving Party lawfully receives from a third party without restriction on use or disclosure; (c) the receiving Party knew prior to receiving such information from the disclosing Party without breach of a non-disclosure obligation, or (d) the receiving Party independently develops without reference to the other Party’s Confidential Information.
6. TERM AND TERMINATION
i. Term. By clicking the accept button or signing this Agreement, You acknowledge and confirm that you have read this Agreement, understood it, and agreed to be bound by the terms and conditions of this Agreement. This Agreement shall take effect from the date of its acceptance (the “Effective Date”) and shall remain valid for twelve (12) months (as may be extended, the “Term”). Unless any of the Parties notifies the other Party of its intention not to extend the duration of this Agreement by providing a one (1) month prior written notice to the other Party, the Term shall be automatically extended for subsequent periods of twelve (12) months on each anniversary of the Effective Date.
ii. Termination for Convenience. During the Term of this Agreement, a Party may terminate this Agreement (or terminate the listing of any and all Listed Product(s) on the AliExpress Platform) by providing a one (1) month prior written notice to the other Party.
iii. Termination for Cause. A Party shall have the right to terminate this Agreement immediately if the other Party: (a) breaches any material term or condition of this Agreement or Schedule and fails to cure or begin to take reasonable measures to cure such breach within thirty (30) days upon written notice by the non-defaulting Party; (b) becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; (c) becomes 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; or (d) the other Party undergoes a change of Control that in the opinion of the terminating Party, has or may lead to a material adverse effect on the interests of the terminating Party.
iv. Termination for Cause by Alibaba. Alibaba shall have the right, at its sole discretion, to terminate this Agreement (or terminate or suspend the listing of any or all Listed Product(s) on the AliExpress Platform) immediately if, in relation to any Listed Product, (a) any Prepaid Product Provider no longer authorizes or suspends the right of the Partner to sell and/or distribute such Listed Products for such Prepaid Product Provider by way of listing on third-party e-commerce platforms or in accordance with the terms of this Agreement; or (b) the Partner ceases to be registered as a seller on the AliExpress Platform.
v. Notification and Removal of Listed Products. In the event that any Prepaid Product Provider no longer authorizes or supends the right of the Partner to sell the Listed Products for such Prepaid Product Provider by way of listing on third party e-commerce platforms or in accordance with the terms of this Agreement, the Partner shall provide Alibaba with prompt written notice of the occurrence of such event, and the Parties shall work together to remove such Listed Product from the AliExpress Platform. Partner shall have no liability to Alibaba or its Affiliates for any suspension under this Section provided that Partner fully complies with its notification and removal obligations under this paragraph.
7. REPRESENTATIONS AND WARRANTIES
i. Representations and Warranties of the Partner. Partner represents and warrants to Alibaba that during the Term of this Agreement:
(a) it is duly incorporated or organized and validly existing under the laws of the jurisdiction of its incorporation or organization, and it has the necessary corporate power and authority to enter into, execute and deliver this Agreement, and to carry out its obligations hereunder and to grant the rights herein granted;
(b) it has entered into agreements with each of the Prepaid Product Providers which have and will continue to duly authorize the Partner to sell and/or distribute Listed Products for such Prepaid Product Providers, including but not limited to the Listed Products, and the scope of such authorization does not restrict the Partner from selling any Listed Products on third-party e-commerce platforms within the Territory;
(c) it is in compliance with all applicable laws, rules and regulations, and all consents, license, approvals or authorizations of, filings with, notices to or other acts carried out by or in respect of, any agency or governmental authority or any third party (including any third party consent and/or approvals required from each of the relevant Prepaid Product Providers in respect of the selling of the Listed Products on the AliExpress Platform and/or for the performance of this Agreement) which are required to be obtained or made (as the case may be) by it in connection with the execution, delivery, performance, validity or enforceability of this Agreement have been obtained or made (as the case may be);
(d) copies of the consents, licenses, approvals and authorizations from any governmental, regulatory authority and/or third parties (including the Prepaid Product Providers) which are required to be obtained in order for the Partner to sell the Listed Products on the AliExpress Platform and/or for the performance of this Agreement (the “Licenses”) as provided to Alibaba, where applicable, are at all times true, complete and accurate. The Partner shall immediately inform Alibaba if any of the content of such Licenses is varied, suspended, terminated or renewed;
(e) the execution, delivery and performance of this Agreement will not conflict with or result in a breach or violation of, or constitute a default under, any provisions of its organizational or governing documents or 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;
(f) there is no litigation, arbitration or administrative proceedings pending or threatened or contemplated to which it is a party or of which any of its property is the subject that, if determined adversely to it, would have a material adverse effect on its ability to perform its obligations under this Agreement;
(g) the Partner’s System (as defined under Schedule 1) and the Technical Means are free from material downtime or material errors, complies with applicable laws and regulations, and does not infringe the intellectual property rights of any person (including when used by Alibaba and/or its Affiliate(s) for the purposes of this Agreement);
(h) it shall at all times remain an online registered user of the AliExpress Platform and (except where Section 1.3 applies) comply with the rules and policies of the AliExpress Platform; and
(i) the Partner has all the rights to grant Alibaba and its Affiliates the authorisations on a non-exclusive, non-transferrable basis, to use the Prepaid Product Providers’ Marks, in the Territory and on the AliExpress Platform (or such successor URL as Alibaba may provide), free of charge for the purposes of this Agreement.
ii. Representations and Warranties of Alibaba. Alibaba represents and warrants to Partner that during the Term of this Agreement:
(a) 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;
(b) all consents, license, approvals or authorisations of, filings with, notices to or other acts carried out by or in respect of, any agency or governmental authority which are required to be obtained or made (as the case may be) by it in connection with the execution, delivery, performance, validity or enforceability of this Agreement have been obtained or made (as the case may be); and
(c) the AliExpress Platform (for clarification purposes, expressly excluding any content which has been uploaded therein by third parties) complies with applicable laws and regulations and does not infringe the intellectual property rights of any person in the Territory.
iii. Warranty Disclaimer.Except as expressly set forth in this Section 7 to the fullest extent permitted by the applicable laws, each Party disclaims all warranties, whether express or implied, oral or in writing.
Without prejudice to other remedies which may be available to Alibaba and/or its Affiliates at law or in equity, Partner shall fully compensate, indemnify, defend and hold harmless Alibaba and/or its Affiliates, their respective successors and permitted assigns and representatives, from and against any and all liabilities, damages, losses, settlements, penalties, fines, costs and expenses, including, without limitation, reasonable attorneys’ fees, of whatever kind of nature, to the extent arising from any third party’s claim, action, suit, proceeding, investigation or demand (a) for any personal injury (including death resulting therefrom) or any loss of or damages to property which arise out of or in connection with a breach of duty of Partner and/or its Affiliates (as applicable); (b) any infringement of intellectual property rights in relation to the Marks and/or any Providers' Marks; or (c) based on negligence or misconduct of Partner and/or its Affiliates, their respective successors and permitted assigns and representatives with respect to this Agreement.
i. Notifications regarding permits, licences and system errors. The Partner shall immediately notify Alibaba of any occurrence which has led to or may lead to the inaccuracy of its representations and warranties in Section 7, in particular (without limitation), that of Sections 7(i)(b), (c) and (g).
ii. Payment terms. The Parties agree to the payment terms as set out in Schedule 1. Furthermore, Alibaba shall have the right to deduct or withhold any financial charges, service fees, commissions due and payable from Partner to Alibaba, pursuant to the terms of this Agreement and/or the Platform Agreements.
(a) Partner shall be responsible for and shall pay all Taxes due under this Agreement and on all amounts payable hereunder. Unless otherwise indicated, all amounts payable by the Partner to Alibaba are exclusive of Taxes that may be levied by any jurisdiction. Taxes will be added to the amounts payable by the Partner to Alibaba as applicable and as required by law such that the net amount actually received by Alibaba equals the full amount of the payment due hereunder. For greater certainty, Taxes will not be added to the amounts payable by the Partner to Alibaba where the Partner has provided Alibaba with evidence to Alibaba's satisfaction of a lawful and applicable exemption for such Taxes.
“Taxes” means all federal, state, provincial, territorial, county, municipal, local or foreign taxes, including but not limited to sales, use, license, excise, good and services, value added, stamp or transfer taxes, duties, imposts, levies, assessments, tariffs, fees, charges or withholdings of any nature whatsoever levied, imposed, assessed or collected by a taxation authority together with all interest, penalties, fines or other additional amounts imposed in respect thereof, but for greater certainty excludes any of the foregoing which are (i) based on gross or net income, (ii) franchise taxes, or (iii) property, personal property or rental taxes (collectively “Excluded Taxes”). Each party shall be responsible for any and all Excluded Taxes that it is liable for under applicable law.
(b) Withholding Taxes. Notwithstanding anything else contained herein, all amounts payable by the Partner pursuant to this Agreement shall be free of withholding on account of any Taxes. If any Taxes are required to be withheld from any such amount payable by the Partner under this Agreement, the Partner (A) shall pay an additional amount such that the net amount actually received by Alibaba, 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 as soon as practicable (but in no event later than thirty (30) calendar days post payment to the relevant taxation authority) an official receipt evidencing payment of the withheld amount to the relevant taxation authority.
“Taxation Authority” means any government, state, municipality or any local, provincial, state or other fiscal, customs, excise or taxing authority, body or official anywhere in the world with responsibility for, and competency to, impose, collect, audit, assess, administer or levy any Taxes or make any decision or ruling in respect of any Taxes.
iv. Notices.Any notices required or permitted to be given under this Agreement shall be given in writing and shall be delivered (a) in person, (b) by certified mail, postage prepaid, return receipt requested, (c) by electronic means through platform communication messaging system; or (d) by a commercial overnight courier that guarantees next day delivery and provides a receipt, and such notices shall be addressed as follows:
If to Alibaba:
c/o 26/F Tower One, Times Square, 1 Matheson Street, Causeway Bay, Hong Kong
Attention: General Counsel
If to the Partner:
To its address recorded in AliExpress system
or to such other address as either Party may from time to time specify in writing to the other Party which shall be effective only upon confirmed receipt by the receiving Party.
v. Limitation of Liability. No Party shall be liable for any punitive, consequential, special or other indirect damages, whether arising from claims of contract or tort (including negligence) in connection with this Agreement. Notwithstanding any liability which may arise in the same context vis-à-vis third parties (such as, without limitation, End-Users), the liability of each Party to the other Party in contract, tort (including negligence), or for breach of statutory duty or otherwise arising by reason of or in connection with this Agreement shall be limited to the sum of the Commission (as defined in Schedule 1) in the twelve (12) months immediately preceding the date of the claim for any incident or series of incidents within that twelve (12) month period. If the date of the incident or series of incidents is within twelve (12) months of the Effective Date, the liability limit shall be the sum of the Commission (as defined in Schedule 1) paid by the Partner to Alibaba from the Effective Date up until the date of the claim. The Liability Limit shall however not apply to a wilful or deliberate breach, a breach consisting of or arising out of any act of dishonesty, a breach by either Party of its payment obligations under this Agreement, or in respect of any indemnity given in this Agreement.
vi. Assignment. Alibaba may assign or transfer this Agreement, either in whole or in part, to any of its Affiliates without the written consent of the Partner. The Partner shall not assign any part of this Agreement to any person without the prior written consent of Alibaba and any purported assignment, without such consent, shall be null and void. This Agreement will bind and inure to the benefit of the Parties’ successors and permitted assigns.
vii. Interpretation. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section and shall not affect the meaning of the language included therein.
viii. No Agency. The Parties are independent from each other and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between the Parties. Neither Party will have the power to bind the other Party or to incur any obligations on its behalf without the other Party’s prior consent. Each Party is solely responsible for all of its employees and agents and its labor costs and expenses arising in connection herewith and for any and all claims, liabilities or damages or debts of any type whatsoever that may arise on account of its own activities or those of its employees or agents in the performance of this Agreement. No Party shall incur any obligations for or in the name of the other Party, or have the authority to bind or obligate the other Party.
ix. Force Majeure. Neither Party will be responsible for any failure or delay in its performance under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, war, terrorism, riot, or pandemics.
x. Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to give effect to the intent of the Parties, and the remainder of this Agreement will continue in full force and effect.
xi. Waiver. The failure by either Party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.
xii. Entire Agreement. This Agreement, together with its Schedules and Appendices and documents referred to, is 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. This Agreement may only be modified, or any rights under it waived, by a written document executed by both Parties.
xiii. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
xiv. Publicity. The Parties agree that any public announcements or press releases with respect to this Agreement or the Collaborations between the Parties created by this Agreement shall be expressly approved in writing in advance by each Party.
xv. Governing Law and Dispute Resolution. This Agreement shall be governed by the laws of Hong Kong. Any dispute, controversy or claim arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be first settled through friendly consultations between the Parties. In the event that no settlement is reached within thirty (30) days from the date of notification by either Party to the other that it intends to submit a dispute, controversy or claim to arbitration, then such dispute, controversy or claim shall be settled by arbitration in accordance with the HKIAC Administered Arbitration Rules in effect at the time of applying for arbitration and as may be amended by the rest of this Section. The arbitration institute shall be the Hong Kong International Arbitration Centre (“HKIAC”) and the place of arbitration shall be in Hong Kong at HKIAC. The language of the arbitration shall be English. The tribunal shall consist of three arbitrators. Each of the Parties shall select an arbitrator. The third and presiding arbitrator shall be selected by HKIAC. The arbitral award shall be final and binding upon the Parties.
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WITHOUT LIMITING THE FOREGOING, THE PARTNER HEREBY EXPRESSLY REPRESENTS THAT IT HAS READ, UNDERSTOOD AND AGREED TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND HEREBY ACCEPT THEM, IN ACCORDANCE WITH APPLICABLE LAW, WITHOUT ANY RESERVE AND/OR EXCEPTIONS.
Unless otherwise defined herein, capitalized terms defined in the Agreement shall have the same meaning in this Schedule 1.
The detailed scope of work, workflow, procedures, rights and obligations in the following collaborations may be further amended, agreed, confirmed, or supplemented by both Parties in writing from time to time.
1. SCOPE OF COLLABORATION
i. Alibaba. During the Term, Alibaba agrees to:
a) use the Partner’s System (as defined below) only for the purposes of and in accordance with the terms of this Agreement;
b) provide Partner with marketing services (the “Marketing Services”) in respect of the Listed Products (either by itself or by appointing any person, including any of Alibaba’s Affiliates to provide the same) as may be determined by Alibaba in its sole discretion from time to time;
c) conduct any joint promotion campaigns or activities in respect of the Listed Products with the Partner, the details of which shall be mutually agreed by the Parties in writing;
d) work with the Partner in relation to the wording and placement of wording on the purchase page for Listed Products on the AliExpress Platform; and
e) in urgent cases and subject to Partner’s written instruction (eg by email), make changes to the Listed Products pricing and other characteristics.
ii. Partner. During the Term, Partner agrees to:
a) where applicable or necessary, provide to Alibaba and/or the AliExpress Platform, the technological resources to enable the End-Users to purchase the Listed Products through the AliExpress Platform, which will be connected through the Partner’s “Universal Protocol” to the Partner’s system (the “Partner’s System”) or such other Technical Means (where applicable), developed and implemented by the Partner, which enables sale of Listed Products;
b) register itself, and maintain its registration, with the AliExpress Platform as a seller, and (except where Section 1.3 applies) comply with the Platform Agreements;
c) with respect to the Marketing Services:
(1) provide such information necessary for Alibaba to provide the Marketing Services;
(2) grant, or procure the granting of, authorizations and/or licenses with respect to the use of trademarks, service marks, trade names or any other intellectual property rights of the Partner or any of its Affiliates for the purpose of providing the Marketing Services; and
(3) conduct any joint promotion campaigns or activities in respect of the Listed Products with Alibaba, the details of which shall be mutually determined by the Parties;
d) maintain at its own cost all governmental, regulatory or other licenses, consents and approvals necessary under any applicable laws, 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, for the performance of its obligations under this Agreement (including any third party consent and/or approvals required from each of the relevant Prepaid Product Providers in respect of the selling of the Listed Products on the AliExpress Platform and/or for the performance of this Agreement); and
e) in urgent cases and subject to Partner’s prior written instruction or confirmation (eg by email), authorize Alibaba to make adjustments to the Listed Products pricing and other characteristics (without prejudice to Alibaba’s right to correct Listed Product category, rate of commission or other incorrect details to adjust according to this Agreement in case that the Partner has improperly listed such product).
iii. Process. Without limitation to the foregoing, the Parties agree that, unless otherwise amended by way of variation to this Agreement in writing by the Parties and to the extent Technical Means are used for purposes of selling the relevant Listed Products, the roles of the Partner and Alibaba (including such Affiliates of Alibaba as set out in paragraph 1(i) of this Schedule 1) in relation to the sale of Listed Products by the Partner on AliExpress Platform shall be as follows:
a) when a End-User purchases a Listed Product of a Prepaid Product Provider on the AliExpress Platform (the “Purchase”), the Partner shall be informed via the API connection or such other Technical Means (where applicable) of the Partner of the Purchase (the “Notification”);
b) upon receiving the Notification, the Partner shall, through technical means established between itself and the relevant Prepaid Product Provider, send a transaction request to the Prepaid Product Provider in respect of the Purchase. The Partner shall promptly inform Alibaba of whether the transaction request was successful within thirty (30) seconds of receiving the Notification via the API connection or such other Technical Means (where applicable) of the Partner.
c) If Partner informs Alibaba that the transaction request was successful, Alibaba shall pay to the Partner in the Partner Account in accordance with the payment terms set out in paragraph 2 of Schedule 1.
d) If Partner informs Alibaba that the transaction was unsuccessful, Alibaba shall refund to the End-User the value of the Purchase. For the avoidance of doubt, Partner shall not be entitled to any payment in respect of the Purchase, and Alibaba shall not be entitled to any Commission (as defined below) if the transaction request was unsuccessful.
e) Reconciliation process: the Partner shall have access to the relevant transaction records through the AliExpress seller backend (the “Records”), in the format as agreed in writing between the Parties, containing all Listed Products sold via the AliExpress Platform.
The Partner will compare the Records with all the successful transactions contained in its own systems and will send the result of the analysis to Alibaba. In case of discrepancy, the Parties, acting reasonably, shall work together to resolve such discrepancy and agree on the appropriate adjustments, based on the data provided by the relevant Prepaid Product Providers. The data supplied by Alibaba shall be the data of record if the Parties cannot resolve any discrepancy.
iv. Notification due to interruptions.
(a) The Partner shall provide Alibaba with at least five (5) business days’ prior written notice if the Partner’s System shall be unavailable and/or interrupted due to any system updates or maintenance operations, such written notice shall state a reasonable period for the Partner’s System to be restored from such interruption and/or unavailability.
(b) In the event of any unexpected interruption and/or unavailability to the Partner’s System (the “Interruption Event”), the Partner shall promptly, but in not event later than one (1) hour from the occurrence of the Interruption Event, provide written notice to Alibaba, such written notice shall state a reasonable period for the Partner’s System to be restored from such interruption and/or unavailability.
The Partner shall use its best efforts to restore the Partner's System within the period stated in the written notice.
2. PAYMENT TERMS
i. In this paragraph the following terms shall have the following meanings.
“Commission” means the rate of commission payable to Alibaba for the successful transactions as set out in the AliExpress Platform Rules for EU/EEA Sellers, unless otherwise agreed in writing by the Parties.
“Gross Income” means the total value of the successful transactions (including VAT).
“Partner Account” means the account assigned to the Partner in Alipay’s system. Only the Partner shall be entitled to withdraw money from this account.
“Records” means the records that Alibaba shall make available to the Partner in the AliExpress seller backend which includes details of the successful transactions corresponding to each transfer made by Alibaba from their system to the Partner Account from time to time.
ii. Payment of the Gross Income from Alibaba to the Partner:
The Gross Income (less the Commission) will be credited by Alibaba in the Partner Account once the relevant settlement of transactions has elapsed, in accordance with the relevant Platform Rules. Alibaba entitles the Partner to withdraw from the Partner Account the Gross Income (less the Commission) at its own convenience and at its own expenses.
iii. Payment of the Commission and invoicing:
The Commission shall be automatically deducted by Alibaba from the Partner Account.
The Partner may request and download the Commission invoice from the AliExpress seller backend (in principle, on a monthly basis).
The invoicing periods may be amended further to agreement between the Parties.
iv. Errors and Fraudulent Purchases:
Notwithstanding any of the foregoing, if the Partner had, pursuant to paragraph 1(iii)(c) of Schedule 1, informed Alibaba that any transaction was successful and conciliated by both Parties but:
(a) Alibaba and/or the Partner was subsequently informed (whether by the End-User or the Prepaid Product Provider) that the Listed Product associated to such transaction was defective (the “Error”), the Parties agree to work together to verify and resolve the Error, and if necessary, Alibaba shall refund to such End-User the value of the transaction, and the Partner shall not be entitled to any payment in respect of this transaction. If Alibaba has already paid such amount to the Partner, the Partner shall pay back such amount to Alibaba in Alibaba's virtual account, and if the relevant Commission has been already paid to Alibaba, Alibaba shall pay such relevant Commission back to the Partner; and/or
(b) Alibaba receives a chargeback report from a bank in relation to a payment for a successful transaction being fraudulent, Alibaba shall refund the money paid by for the successful transaction to the End-User. Alibaba shall not be entitled to chargeback such amount from the Partner unless such chargeback cause is attributable to Partner (and/or the ultimate Prepaid Product Provider). Service Provider shall support, and/or shall cause the relevant ultimate Prepaid Product Provider to support, the efforts to appeal and/or challenge such chargeback. In case Alibaba needs to pay back such chargeback-related amount due to Service Provider (and/or Prepaid Product Provider) lack of cooperation, Alibaba shall be entitled to deduct the relevant amount from Partner Account.