EARN BY SHARING PROGRAM SERVICE AGREEMENT
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY!
PLEASE PAY ATTENTION TO PROVISIONS THAT EXCLUDE OR LIMIT LIABILITY AND TERMS OF GOVERNING LAW AND JURISDICTION, WHICH MAY APPEAR IN CAPITAL LETTERS.
(JANUARY 26, 2018)
This Earn by Sharing Program Service Agreement (the “Agreement”) together with the Relevant Rules (as defined below) contains the terms and conditions that govern your participation in the Earn by Sharing Program (the “Program”). “Platform” or “our” means Alibaba.com Hong Kong Limited, a company incorporated under the laws of Hong Kong and having its registered address at 26/F, Tower One, Times Square, 1 Matheson Street, Hong Kong. “You”, “your” or “Participant” means the applicant for the Program. Each of Platform and Participant is referred to as a “Party” and collectively as “Parties”.
You acknowledge and hereby represent and warrant that: 1) you have independently evaluated the desirability of participating in the Program and are not relying on any representation, guarantee, or statement other than as expressly set forth in this Agreement; 2) you are an individual user registered on AliExpress.com , and you are not a registered user on Portals.aliexpress.com or an immediate family member of, employees, officers and directors of AliExpress.com; 3) you are lawfully able to enter into contracts. IF YOU ARE UNDER THE AGE OF MAJORITY IN YOUR JURISDICTION, YOU MUST MAKE SURE THAT YOUR PARENT OR GUARDIAN ACCEPTS THIS AGREEMENT ON YOUR BEHALF PRIOR TO YOUR PARTICIPATION IN THE PROGRAM; 4) you are and will remain in compliance with this Agreement.
OTHER USERS NOT QUALIFYING ACCORDING TO THE DESCRIPTIONS ABOVE MAY NOT PARTICIPATE IN THE PROGRAM UNDER THIS AGREEMENT.

1. DEFINITIONS

1.1. “Amended and Restated Relevant Rules” shall have the meaning as it is given to under Clause 2.4.
1.2. “AliExpress Pocket Values” shall have the meaning as it is given under AliExpress Pocket Values Terms and Conditions.
1.3. “Buyer” means a registered user of Platform Site who will make or has made a purchase of Platform Product of the Platform Site.
1.4. “Disqualified Entries” shall have the meaning as it is given to under Clause 7.6.
1.5. “Earnings” shall have the meaning as it is given to under Clause 7.1.
1.6. “Fraud” means any action that intentionally attempts to create sales, leads, installations or click-throughs using robots, frames, iframes, scripts, or manually “refreshing” of pages, for the sole purpose of creating commissions.
1.7. “Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trademarks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
1.8. “Participant Site/Media” means the website or other online media controlled by Participant whereby Participant has the right to place advertisements of Platform Content pursuant to the Service Agreement.
1.9. “Platform” means the application of AliExpress.com, including iOS and android versions.
1.10. “Platform Content” means (i) artworks, graphics, logos, and copies of Platform Product and/or (ii) link, barcode promoting the Platform Product that are generated or made available by Platform to Participant for sharing and advertising. Platform Content excludes any data, images, text, materials or other information or content relating to products offered by any website other than the Platform Site.
1.11. “Platform Portal” means the channel of “Earn by Sharing” where Participant must enroll and use for performing the advertising services and settling the Earnings under this Agreement.
1.12. “Platform Product” means any item that is offered for sale by sellers and listed on the Platform Portal.
1.13. “Platform Site” means the website of the Platform.
1.14. “Qualifying Purchases” means purchases completed by Buyer on the Platform Site directed only from Participants’ advertisement of Platform Content as instructed on the Platform Site. A purchase shall only be deemed to be “completed” by a Buyer if the Buyer has taken the requisite steps required by the Platform Site for acknowledging transaction completion. For the avoidance of doubt, 1) transactions on the Platform Site that are refunded by Buyer shall not be a Qualifying Purchase; 2) transactions made by Participant himself or herself shall not be a Qualifying Purchase; and 3) transactions made by Buyer on or after the fifteenth day after Participant received or shared the Platform Content shall not be a Qualifying Purchase.
1.15. “Relevant Rules” shall have the meaning as it is given to under Clause 2.1.

2. SCOPE OF AGREEMENT

2.1. This Agreement, together with the following rules (the “Relevant Rules”) constitutes the entire agreement between the Parties:
(a) Terms of Use,
(b) Alibaba.com Free Membership Agreement; and
(d) Any and all rules, policies, and terms and conditions as published and amended by the Platform on the Platform Portal from time to time.

2.2. The Relevant Rules shall be an integral part of this Agreement and shall have the same force and effect as this Agreement.
2.3. Participant agrees to abide by the terms and conditions set forth in this Agreement and all Relevant Rules when participating in the Program.
2.4. Platform 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 Participant. All Amended and Restated Relevant Rules shall become effective immediately upon its publication on the Platform Portal or Platform Site. Participant’s logging-in to the Platform Portal and/or continuance of the participation in the Program after the publication of the Amended and Restated Relevant Rules shall be deemed as consent on the part of Participant to accept and be bound by the Amended and Restated Relevant Rules.
2.5. In the event that Participant does not agree to any of the Amended and Restated Relevant Rules, Participant shall terminate this Agreement in accordance with the terms and conditions set forth in Clause 13 of this Agreement.

3. DESCRIPTION AND GENERAL TERMS OF THE PROGRAM

3.1 The Program is intended to provide Participant with the opportunity to share and/or advertise pre-approved Platform Content by sharing it to a Buyer or posting it on Participant Site/Media in accordance with instructions given on the Platform Site. Platform will make available to Participant the Platform Content to be shared and/or advertised by Participant pursuant to the Program. Platform will pay Participant the corresponding advertisement fees for Qualifying Purchases made by a Buyer in accordance with Clause 7 of this Agreement.
3.2 Under the Program, Participant may only share and/or advertise the pre-approved Platform Content, and shall not intentionally or unilaterally misrepresent, alter or misstate the Platform Content. Participant may not authorize or assign his or her rights under this Agreement to any third party to share and/or advertise the Platform Content.

4. ENROLLMENT

4.1. Participant’s enrollment into the Program is subject to, in addition to the execution of this Agreement, the fulfillment of all of the following requirements by Participant:
(a) having agreed to and accepted the Alibaba.com Free Membership Agreement online;

(b) having completed the account registration procedures on the Platform or Platform Site;

(c) having agreed to be abound by:

(i) Terms of Use of Platform Portal;

(ii) AliExpress Advertising Rules and Policies; and

(iii) any and all rules, policies, and terms and conditions as published and amended by Platform on the Platform Portal from time to time.

4.2 Platform reserves the right to reject Participant’s application for participation in the Program if Platform determines that, in its sole and absolute discretion, Participant is unsuitable for participation in the Program.5. REPORTING AND TRACKING

5.1 Platform will make available to Participant on the Platform Portal: 1) reports summarizing Participant’s performance in the Program and 2) records relating to the Qualifying Purchases.
5.2 Participant agrees that all performance of Participant’s advertisement of Platform Content on the Participant Sites/Media will be recorded and tracked by the tracking system and technology used by Platform. The records tracked and stored by Platform’s tracking system shall serve as the basis for calculating the sum of advertising fees or commissions payable to Participant under the Program.
5.3 Participant shall not employ any method to directly or indirectly interfere, disrupt or disable Platform’s tracking system.

6. PARTICIPANT’S RESPONSIBILITIES
6.1. Participant shall not use any means or technology to conduct activity which involves Fraud (actual or purported). Platform shall have the right to determine and declare, in its sole and absolute discretion, such Fraud activities to be invalid and Platform shall not be charged for such Fraud activities.
6.2. Participant shall be responsible for his or her Participant Site/Media and ensure that:
6.2.1. the technical operation of the Participant Site/Media is secure;
6.2.2. the content/information displayed on the Participate Site/Media, regardless of whether Platform Content is included, is:
1) in compliance with the terms of this Agreement as well as the Relevant Rules;
2) in compliance with any applicable laws and regulations, including but not limited to laws and regulations that governing the sending of unsolicited electronic commercial messages;
3) not infringing any legitimate rights, including but not limited to Intellectual Property Rights, of any third party,
4) not containing either discriminatory, defamatory, profane, obscure content, or any adult, age-restricted content.

6.3. Platform shall not be liable for any matters that arise out of Participant’s breach of this Agreement, especially Clauses 3.2, 5.3, 6.1, 6.2 and shall be entitled to seek indemnification from Participant in accordance with Clause 11 of this Agreement.
6.4. Participant shall be responsible for all activities on his or her account with the Platform Portal and for loss, theft or unauthorized disclosure of its password. Participant shall provide prompt notification to Platform of any known or suspected unauthorized use of his or her account or breach of the security of its account on the Platform Portal.


7. FEES AND OFFERS

7.1. As consideration for qualifying sharing and/or advertisement by Participant under this Agreement, Participant shall be entitled to a certain pre-approved percentage (“Commission Rate”) of the contract value of each Qualifying Purchase (“Earnings”) in the form of incentives as may be announced by the Platform Site from time to time. Details of the Commission Rate and Earnings applicable to a Participant for each Platform Product shall be such commission terms published on each page of Platform Product under Platform Portal at the time of sharing and/or advertisement. However Earnings for any one qualifying sharing or advertisement of a Platform Product may not exceed fifty US dollars (US $50). For instance, for sharing a Platform Product at a price of US $500, the Commission Rate of which is 20%, You may receive US $50 as Your Earnings if the sharing brings a Qualifying purchase.
7.2. Platform shall settle the Earnings on a monthly basis for Qualifying Purchases in a given month, which Participant may use to redeem AliExpress Pocket Values in accordance with the terms of use. The data and records of Platform’s tracking system shall be final and conclusive for the purposes of calculating and determining the Earnings.
7.3. Accrued Earnings will be shown on Participant’s Account on Platform Portal as “Earnings in Progress”, but such amount shall only be regarded as an estimate which is subject to adjustment due to any breach by Participant of the Agreement or Relevant Rules, chargeback by Platform in accordance with this Agreement, and/or any addition or deletion of Qualifying Purchases for the month as corrected by Platform’s tracking system and technology.
7.4. Platform reserves the right to update the Commission Rate and/or commission terms from time to time without notification to You. Your continued participation/sharing/advertisement via Platform Portal after publication of the Amended and Restated Terms shall be deemed as your acceptance of the amended and restated terms. In the event of dispute concerning the amount of Earnings payable to a Participant, the records of the Platform shall always be conclusive, final and binding.
7.5. Settled Earnings may be used to redeem/purchase AliExpress Pocket Values, provided Your AliExpress Pocket Value balance is not and will not be more more than 700 (seven hundred) USD at any given time. Further use of AliExpress Pocket Values is strictly subject to AliExpress Pocket Terms & Conditions. For avoidance of misunderstanding, the minimum denominations of AliExpress Pocket Values is 1 (one) USD, therefore, You may not redeem/exercise AliExpress Pocket Values when your Earnings is lower than 1 (one) USD.
7.6. Platform shall have the right to chargeback any Fraud, invalid Qualifying Purchases (“Disqualified Entries”) in accordance with Section Clause 5 and Clause 6 of this Agreement, regardless if the Earnings for such Disqualified Entries is settled or not. Platform shall be entitled to either (i) set off the amount of the Earnings for such Disqualified Entries against the amount of the Earnings payable to Participant for the month following the detection of the Disqualified Entries; (ii) request Participant to return the amount of the Earnings for such Disqualified Entries (even following the termination of this Agreement); or (iii) deduct the amount of the Fees for such Disqualified Entries from the balance on Participant’s account on the Platform Portal.
7.7. Participant shall bear all the applicable taxes, costs and expenses (including but not limited to any handling fees charged by banks and any technical service fees charged by Platform) in connection with the payment of the Fees by Platform to Participant. The amount of such technical service fees as published on the Platform Portal from time to time shall apply.

8. INTELLECTUAL PROPERTY

8.1. Except as expressly agreed to in writing by the Parties, Platform and Alibaba Group Holding Limited will own all right, title and interest in and to all copyrights, inventions, improvements, products, services, technology, information and materials, work product or derivatives of any kind that Participant may independently create, develop or prepare during the Term, including all worldwide Intellectual Property Rights and proprietary rights therein, including without limitation, the entire content of texts, software, audios, pictures, videos, graphics, logos, layouts, designs, advertisements and promotional materials produced for the purpose of fulfilling Participant’s obligations under this Agreement.
8.2. Save as provided in this Agreement, Participant agrees not to transfer, copy, modify, alter, adapt or create derivative works based on the materials approved by Platform and Alibaba Group Holding Limited without obtaining their respective written consents.
8.3. Participant is not allowed to use, apply for registration, or register such items identical with or similar to any trademarks, registered or unregistered, trade names, logos and domain names of Platform, its affiliates or the Platform Site, including Alibaba.com, AliExpress.com and Taobao.com.
8.4. Participant shall not copy or modify any icons, buttons, banners, graphics files, or Platform Content that Platform has made available unless otherwise agreed by Platform in writing.
8.5. Except as expressly agreed to in writing by the Parties, nothing in this Agreement will be deemed to grant or assign to the 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 Rights or proprietary rights.9. CONFIDENTIALITY

9.1 “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 the terms and conditions of this Agreement (including the Schedule) as the Confidential Information of both Parties.
9.2 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.

10. REPRESENTATIONS AND WARRANTIES

10.1 Each Party represents and warrants that:
(a) It will make no false or misleading representations, warranties or guarantees with respect to the other Party and all material aspects of the other Party’s business including but not limited to its products and services.

(b) It has the authority and capacity to enter into this Agreement and it is not subject to any restrictive covenant or other legal obligation which prohibits it from performing its obligations hereunder.

(c) It shall perform its obligations under this Agreement in a timely and efficient manner and with reasonable care and skill.

(d) It will comply with all applicable laws and regulations and will maintain any permits, licenses and approvals required to perform its obligations hereunder.

10.2 Participant further represents, warrants and/or covenants that:
(a) All information provided to Platform during its registration process on the Platform Portal is true, complete and accurate.

(b) Participant has obtained all necessary approvals, authorizations, permits and licenses to operate, and to publish any and all content on, the Participate Site/Media.

(c) Any promotional content that Participant has created based on the Platform Content provided by Platform does not and will not infringe any third party’s Intellectual Property Rights.


11. INDEMNITY

Each Party covenants and undertakes to indemnify, defend and hold harmless the other Party from and against any losses, claims, demands, actions, damages, penalties and costs or expenses (“Loss”) resulting from any breach by the indemnifying Party of any of its representations, warranties and covenants under the Agreement or in the Insertion Order(s), provided that in no event shall an indemnifying Party, its successor or permitted assigns be liable to the Party being indemnified for any consequential, exemplary, punitive, reliance or special damages or loss of profits in connection with any Loss.

12. LIMITATION OF LIABILITIES

12.1 ANY OBLIGATION OR LIABILITY OF PLATFORM UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL OF THE PAYMENTS PLATFORM PAID TO PARTICIPANT 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 PLATFORM PURSUANT, OR IN ANY WAY RELATED, TO THIS AGREEMENT MORE THAN ONE YEAR AFTER THE TERMINATION OF THIS AGREEMENT. PARTICIPANT AGREE THAT PLATFORM SHALL NOT BE LIABLE TO PARTICIPANT, 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 ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM. PARTICIPANT WARRANTS THAT NO PROMOTIONAL METHOD USED BY PARTICIPANT WILL RENDER PLATFORM LIABLE TO ANY PROCEEDINGS WHATSOEVER.
12.2 TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, PLATFORM DISCLAIMS ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO (A) MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, (B) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS, (C) THAT PLATFORM's SECURITY METHODS WILL BE SUFFICIENT, (D) REGARDING CORRECTNESS, ACCURACY OR RELIABILITY, OR (D) AGAINST INTERFERENCE WITH ENJOYMENT OF PARTICIPANT’S INFORMATION OR WEBSITE. THOUGH PLATFORM MAY REVIEW AFFILIATE'S BEHAVIOR AS PART OF ITS NETWORK QUALITY EFFORTS, PLATFORM MAY NOT BE HELD LIABLE FOR AN AFFILIATE’S BREACH OF THIS AGREEMENT, THE CODE OF CONDUCT OR THE PROGRAM TERMS. ALL INFORMATION AND COMPUTER PROGRAMS PROVIDED TO PARTICIPANT 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 PARTICIPANT. PLATFORM 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. PLATFORM MAKES NO REPRESENTATION OR GUARANTEE WITH RESPECT TO THE AVAILABILITY OR UPTIME OF THE NETWORK, THE TRACKING FUNCTIONALITY, OR ANY PARTICIPATING SITE AND CONTENT. PLATFORM MAY CONDUCT MAINTENANCE ON ANY OF THE FOREGOING AT ANY TIME WITH OR WITHOUT NOTICE TO PARTICIPANT.

13. TERM AND TERMINATION

13.1 This Agreement shall be effective once the Participant shared and/or advertised the Platform Content for the first time via the Platform Site after this Agreement is agreed by Participant, and shall remain unless it is terminated in accordance with the terms of this Agreement (the “Term”).
13.3 If not otherwise agreed in this Agreement, Platform may terminate this Agreement with immediate effect if:
(a) Participant commits a material breach of this Agreement and fails to remedy the breach (if remediable) within fourteen (14) days of receiving written notice to that effect specifying the breach and requiring it to be remedied; or

(b) Participant is unable to pay its debts due and payable.


14. GENERAL

14.1. Assignment. Platform shall have the right to assign this Agreement (including all of its rights, titles, benefits, interests, and obligations and duties in this Agreement) to any of its affiliates. The Participant may not assign, in whole or part, this Agreement to any person or entity.
14.2. Severance. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be deleted and the remaining provisions shall remain valid and be enforced.
14.3. 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.
14.4. No Waiver. Any failure by Platform and our affiliates to exercise any of our rights under this Agreement shall not constitute a waiver of such right or a waiver with respect to subsequent or similar breach. A waiver shall be effective only if made in writing.
14.5. Headings. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
14.6. Governing Law. This Agreement will be governed by and construed in accordance with the laws of Hong Kong, without regard to or application of conflicts of law rules or principles. 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 exclusive jurisdiction of the courts of Hong Kong.