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Melbourne IT Alibaba Gold Supplier Membership Service
Date: December 2008 This contract between Melbourne IT
Limited (ABN 21 073 716 793) ("Melbourne IT") and you ("the Customer")
relates to the purchase or renewal of an Alibaba Gold Supplier
Membership Service ( the "Service") and contains the following terms
and conditions: BY PURCHASING THE GOLD SUPPLIER MEMBERSHIP
SERVICE FROM MELBOURNE IT, YOU AGREE TO BE BOUND BY THIS AGREEMENT AND
TO THE AGREEMENT WITH THE SERVICE PROVIDER FOR THE SERVICE, ALIBABA.COM
(TOGETHER THE “SERVICE AGREEMENTS”). SO PLEASE READ ALL THE TERMS
CAREFULLY. ANY PERSON OR ENTITY ACTING ON YOUR BEHALF SHALL ALSO BE
BOUND BY THE TERMS OF THE SERVICEAGREEMENTS AND YOU AGREE TO BE
RESPONSIBLE FOR THE ACTIONS OF ANY SUCH PERSON OR ENTITY. 1These
terms and conditions, and the Service Agreement with Alibaba.com
referred to in clause 2 below constitutes the entire agreement between
Melbourne IT and the Customer for the Service, and supersedes all prior
agreements, understandings and representations whether oral or written. 2The
Customer hereby authorises Melbourne IT to attempt to order the Service
from Alibaba.com. In order for Melbourne IT to attempt to order the
Service from Alibaba.com, the Customer must agree to the Alibaba.com
terms and conditions for the Service, which is located at
http://www.melbourneit.com.au/policies/ ("ALIBABA.COM ITP Agreement").
Accordingly, the Customer warrants to Melbourne IT that the Customer
has read and agrees to the terms and conditions of the ALIBABA.COM ITP
Agreement. The Customer further acknowledges and agrees that the
Customer is creating a separate contractual relationship between the
Customer and the ALIBABA.COM, and that the Customer, and not Melbourne
IT, is responsible for all fees, liability, and obligations in
connection with that contractual relationship, unless otherwise
expressly stated to the contrary in this Agreement. 3Melbourne
IT may change the terms and conditions of or both of the Service
Agreements either by obtaining Customer's consent or by giving Customer
notice. The period of notice given by Melbourne IT depends on the
nature of the change. If:
3.1The change will benefit Customer, Melbourne IT may make the
change immediately and are not required to notify Customer prior to the
change:
3.2The change is required by law, a regulatory body or for a
technical reason (including for security), Melbourne IT will give
Customer a reasonable period of notice not exceeding 3 days;
3.3Melbourne IT consider that the change has a significant and
detrimental impact on its customers generally, Melbourne IT will give
Customer at least 30 days notice prior to the change, and
3.4For all other changes, Melbourne IT will also give Customer at least 30 days notice prior to the change. Melbourne IT may give notice of a change by posting a new version of the Service Agreement on its website located at www.melbourneit.com.au/policies. 4The Customer agrees that:
4.1the ALIBABA.COM and Melbourne IT may:
4.1.1capture personally identifiable information as required and
necessary for ALIBABA.COM to provide the Service to the Customer
("Data");
4.1.2place information provided by the Customer in its Service Application;
4.1.3transfer Data to a related company for the processing and provision of the Service
4.2
personally identifiable information obtained from the Customer by Melbourne IT and its related corporations will be:
4.2.1transmitted to the ALIBABA.COM for the ALIBABA.COM's use;
4.2.2used by Melbourne IT for inclusion in registers and databases produced by Melbourne IT or its licensees.
4.3it will obtain the consent of individuals whose personal
information is to be publicly listed by the ALIBABA.COM, or otherwise
provided to the ALIBABA.COM or Melbourne IT, as part of the Service
Application;
4.4it will immediately notify Melbourne IT of any change to its
Service organisation name and acknowledges that the change of
credentials may require the issuance of a new Service and payment of
applicable charges;
4.5it will promptly notify Melbourne IT of any actual or threatened
proceedings brought in respect of the Service whether by or against the
Customer. 5The Customer warrants:
5.1that it will at all times comply with the terms and conditions
of the the Service Agreements, and of each of these terms and
conditions and of the ALIBABA.COM ITP Agreement;
5.2that the details in respect of its Service submitted to
Melbourne IT or ALIBABA.COM by the Customer are true and correct, and
that any future additions or alterations to those details will be true
and correct. 6The Customer indemnifies:
6.1
Melbourne IT against:
6.1.1any claim or demand by ALIBABA.COM to Melbourne IT in connection
with the Service, the Service registration or the ALIBABA.COM
Agreement;
6.1.2any claim or demand by a third party to Melbourne IT in connection with the Customer’s use of the Service
6.1.3any revocation by ALIBABA.COM of the Customer's Service; or
6.1.4
breach by the Customer of ALIBABA.COM Agreement or this Agreement,
6.2Melbourne IT and ALIBABA.COM and each of their related
corporations, directors, officers, employee and agents and holds each
of them harmless from and against all and any and all claims, damages,
liabilities, costs and expenses (including reasonable legal fees and
expenses) arising in connection with this Agreement, the registration
or renewal of any Service or the Customer's use of any Service.
MELBOURNE IT'S OBLIGATION TO SUBMIT REGISTRATION OR RENEWAL OF THE SERVICE AND OTHER OBLIGATIONS
7The parties agree that the Customer's application for
the registration or renewal (as the case may be) of the Service will
not be submitted by Melbourne IT to a ALIBABA.COM until Melbourne IT
receives all applicable charges in respect of that Service from the
Customer and, in the case of a renewal, the Customer agrees to the
terms and conditions of the then prevailing ALIBABA.COM Agreement. 8The
Customer agrees that failure to pay any charge for its Service when due
(as evidenced for example by, without limitation, the Customer's credit
card company notifying Melbourne IT of the Customer disputing the
payment of, or refusing to pay such charge, or where the Customer's
credit card payment has been declined or reversed) will entitle
Melbourne IT to withhold an application for the registration or renewal
of the Service to a ALIBABA.COM until such payment is received from the
Customer. If payment is not received within 4 business days after an
email notice has been sent to the Customer, Melbourne IT may reject the
Service application. 9Customer acknowledges that its use
of Melbourne IT's Service listing service (if applicable) does not
oblige Melbourne IT to notify Customer of the expiration of any Service
registrations. Customer agrees that so long as it utilises the Service,
Melbourne IT may contact Customer to provide marketing material in
respect of Melbourne IT's services from time to time.
REGISTRATION AND PROCESSING OF SERVICE
10The Customer agrees that the Service will be processed
by the ALIBABA.COM on a first come, first served basis. The Customer
agrees that Melbourne IT does not guarantee that any Service applied
for by Melbourne IT on behalf of the Customer will be successfully
processed by the ALIBABA.COM. The Customer acknowledges that the
Customer’s application is subject to Alibaba.com’s authentication and
verification procedures and shall not take effect or be approved if
these procedures are not successfully completed to Alibaba.com’s
satisfaction. 11The Customer may renew its Service on
the Customer's payment of the applicable renewal charge and other
applicable charges prior to the expiry of the Service and subject to
the terms of this Agreement, and, to the Customer agreeing to the then
prevailing ALIBABA.COM Agreement (including, without limitation,
successful completion of the authentication procedure). 12The Customer acknowledges that:
12.1
it is the Customer's responsibility to ensure that the Service is renewed; and
12.2
the Customer releases, indemnifies and holds Melbourne IT
harmless against any claim for damage or loss arising from any failure
of the Customer's Service to be renewed by the Customer. 13In
the event that an Order is rejected by Alibaba.com is rejected for any
reason, the charges paid by the Customer to Melbourne IT less any
applicable cancellation costs charged by Alibaba.com in accordance with
its then current refund policy, and any administrative charges levied
by Melbourne IT, may be refunded to the Customer.
LICENSEE'S CANCELLATION OF SERVICE
14The Customer may cancel or revoke its Service at any
time (including if Customer is upgrading or changing to a different
Service) in accordance with the ALIBABA.COM Agreement. In addition to
any other obligations of the Customer under this Agreement, the
Customer agrees to immediately notify Melbourne IT of any request by
the Customer to ALIBABA.COM to cancel, revoke, change or upgrade its
Service by submitting the request via the MyAccount console. 15If
the Customer is permitted to cancel, revoke, change or upgrade its
Service as specified in clause 14, Melbourne IT shall not be obliged to
refund to the Customer any unexpired portions of the charge for the
registration of the Service. 16The parties agree that
upon the cancellation (or revocation) of the Service by the Customer
pursuant to clause 14, this Agreement shall automatically terminate.
SUSPENSION OR TERMINATION OR EXPIRY OF AGREEMENT
17The Customer further acknowledges and agrees that the
Service may be revoked by Melbourne IT where Melbourne IT reasonably
considers that the Customer has breached any term or condition of the
ALIBABA.COM Agreement, or, where Melbourne IT is directed to do so by a
ALIBABA.COM. If Melbourne IT revokes the Service of the Customer this
Agreement shall automatically terminate. 18The parties
agree that this Agreement will terminate where the Customer's Service
expires and is not renewed by the Customer prior to the revocation of
the Service. 19If this Agreement is terminated under
either clauses 17 or 18, Melbourne IT shall not be required to provide
any refund any charge paid by the Customer to Melbourne IT under this
Agreement in connection with such termination.
LIABILITY
20The parties agree that notwithstanding any other
provision of this Agreement and to the fullest extent permitted by law,
neither Melbourne IT nor a ALIBABA.COM nor the respective officers,
employees, agents, sub-contractors or related corporations of Melbourne
IT or a ALIBABA.COM will be liable for direct, consequential or
indirect loss or damages of any kind (including, without limitation,
loss of profit, loss or corruption of data, business interruption or
indirect costs) regardless of the legal basis on which such loss or
damage arises or is incurred. 21Except as expressly
provided to the contrary in this Agreement, all warranties and
representations whether express, implied, statutory or otherwise,
relating in any way to the subject matter of this Agreement, are
excluded. If any legislation implies in this Agreement a term or
warranty, the Customer agrees that Melbourne IT's liability under this
Agreement for a breach of that term or warranty is limited to, in the
sole discretion of Melbourne IT, the re-supply of the goods or services
again, or the payment of the cost of having the goods repaired or
replaced, or the services supplied again. 22The parties agree that clauses 6, 12, 20 and 21 survive the expiry or termination of this Agreement.
GENERAL
23If any clause of these terms and conditions is held to
be invalid or unenforceable in whole or part, the invalid or
unenforceable wording shall be deemed to be omitted. 24Any
notice to be given under the contract is deemed to be served if
delivered by hand or sent by pre-paid post, by fax or e-mail, to the
party to whom it is given at its last known postal or e-mail address or
fax number. 25The contract is governed by the law of
Victoria, Australia, and the Customer and Melbourne IT submit to the
non-exclusive jurisdiction of the Victorian courts. 26The parties agree that Melbourne IT may assign this Agreement to a third party on prior written notice to the Customer. 27The
failure of a party at any time to insist on strict performance of any
provision of this Agreement is not a waiver of its right at any later
time to insist on strict performance of that or any other provision of
this Agreement.
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