PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY.
These Terms of Use, including its country-specific addenda (collectively, “this Agreement”) describe the terms and conditions applicable to your access and use of the Alibaba Cloud International Website, currently located at URL: www.alibabacloud.com and the Alibaba Cloud International Marketplace Platform currently located at URL: https://www.alibabacloud.com/marketplace (the “International Marketplace”) (collectively the “Alibaba Cloud Platform”). This document is a legally binding agreement between you as a user of the Alibaba Cloud Platform (referred to as “you” or “your” hereinafter) and the relevant Alibaba Cloud entity listed in Clause 2 below (referred to as “we”, “our” or “Alibaba Cloud” hereinafter). Registered users of the Alibaba Cloud Platform, including you and other registrants, are referred to as “User” hereinafter. By using the Alibaba Cloud Platform, the Platform Services and Product Services (as defined below), you acknowledge and agree that you have read, understood, and agreed to be bound by the Terms (as defined below).
1. Application and Acceptance of the Terms
1.1 Your use of the Alibaba Cloud Platform (the “Platform Services”) and its ancillary products and services (the “Product Services”) (Platform Services and Product Services shall collectively be referred to as “Services” hereinafter) is subject to the terms and conditions contained in this document as well as those provided in the following (collectively, the “Terms”):
(a) Alibaba Cloud Product Terms of Service;
(b) Alibaba Cloud Membership Agreement;
(c) Privacy Policy; and
(d) Any other website or service rules and policies as adopted and published on the Alibaba Cloud Platform from time to time.
1.2 By accessing the Alibaba Cloud Platform or using the Services, you agree to accept and be bound by the Terms. Please do not use the Services if you do not agree to and accept all of the Terms. You acknowledge and agree that Alibaba Cloud may amend any Terms at any time by posting the relevant amended and restated Terms on the Alibaba Cloud Platform. Unless otherwise noted by Alibaba Cloud, material changes to the Terms and any addendum will become effective 15 days after they are posted, except if the changes apply to new Alibaba Cloud Services, new functions or for compliance of applicable law in which case they will be effective immediately or at a date as specified by Alibaba Cloud. By continuing to use the Services, you agree to be bound by the amended and restated Terms.
1.3 You may be required to enter into any separate agreement or agree to any other terms and conditions, whether online or offline, with Alibaba Cloud, its affiliates, or (in respect of the International Marketplace) third parties, for the Services or any other services ancillary to the use of the Alibaba Cloud Platform (“Additional Agreements”). If there is any conflict or inconsistency between the Terms and the Additional Agreements, the Additional Agreements shall take precedence over the Terms only in relation to the portion of the Services governed by the conflicting Additional Agreements.
1.4 Alibaba Cloud shall have the right to assign and/or novate any part of or all of the Terms (including any of our rights, titles, benefits, interests, and obligations and duties in the Terms and this Agreement) to any person or entity (including any affiliates of Alibaba Cloud). Alibaba Cloud may by written notice to you (which may be posted on the Alibaba Cloud Platform) require such novation of the Terms or any part thereof, and you hereby irrevocably agree and consent to any such novation, whereupon Alibaba Cloud shall be released and discharged from all of its obligations under these Terms, as well as all claims, actions and demands arising under these Terms up to the time of such novation.
1.5 You may not assign, in whole or part, any of the Terms (including this Agreement) to any person or entity.
2. Provision of Services
2.1 The Alibaba Cloud legal entity that you are contracting with is Alibaba Cloud (Singapore) Private Limited if you are a resident in, or indicated at the time of registration of your Account (as defined in the Alibaba Cloud Membership Agreement) that, your billing address is an address in any jurisdiction outside of Europe, the United States of America, India or Malaysia. If you are a resident in or have indicated that, at the time of your Account registration, your billing address is an address within the United Kingdom, Switzerland, and other jurisdictions in Europe but outside the European Economic Area, you are contracting with Alibaba.com (Europe) Limited. If you are a resident in or have indicated that, at the time of your Account registration, your billing address is an address within European Economic Area, you are contracting with Alibaba (Netherlands) B.V. If you are a resident in or have indicated that, at the time of your Account registration, your billing address is an address in the United States of America, you are contracting with Alibaba Cloud US LLC. If you are a resident in or have indicated that, at the time of your Account registration, your billing address is an address within India, you are contracting with Alibaba Cloud (India) LLP. If you are a resident in or have indicated that, at the time of your Account registration, your billing address is an address within Malaysia, you are contracting with Alibaba Cloud (Malaysia) Sdn. Bhd.
2.2 You must register as a member on the Alibaba Cloud Platform in order to access and use the Product Services.
2.3 Alibaba Cloud has the right to restrict, suspend or terminate your access to or use of the Alibaba Cloud Platform or certain Services (or any features within the Services) if in Alibaba Cloud’s sole and absolute opinion, you are in breach of the Terms.
2.4 The Services (or any features within any Service) may vary for different regions and countries. No warranty or representation is given that a particular Service or feature or function thereof or the same type and extent of the Service or features and functions thereof will be available in all countries and regions or for all users. Alibaba Cloud may in its sole discretion limit, deny or create different level of access to and use of any Services (or any features comprised therein) with respect to different users.
2.5 Some products, services, promotions, campaigns, service level agreements, guarantees, and/or other forms of offerings may only apply to selected customers in particular locations (including as may be described in the regional pages of the Alibaba Cloud Platform) (the “Regional Offerings”). These Regional Offerings may be offered or provided by entities other than Alibaba Cloud. These Regional Offerings and the terms related thereto may not apply to you and/or the main Alibaba Cloud Platform. Unless otherwise specified, these Regional Offerings are not offered or provided by Alibaba Cloud and Alibaba Cloud is not liable for any matters related to the Regional Offerings. Likewise, the Products, services, promotions, campaigns, service level agreements, guarantees, and/or other forms of offerings of the Alibaba Cloud Platform (the “Alibaba Cloud Offerings”) may not apply to customers eligible for Regional Offerings and the offering entities of the Regional Offerings shall not be liable for these offerings unless otherwise specified. You are responsible for reviewing the terms and conditions for each Regional Offering and Alibaba Cloud Offering carefully before agreeing to participate, purchase, or use any of the Regional Offerings or Alibaba Cloud Offerings as the terms and conditions for each offering may differ. You agree that you shall be bound by our determination as to whether a particular product, service, promotion, campaign, service level agreement, guarantee, and/or other forms of offering constitutes a Regional Offering and/or an Alibaba Cloud Offering and the relevant terms applicable thereto. If you do not agree to the applicable terms and conditions, you shall cease your participation in, use, or purchase of the relevant offerings.
3. Use of the Alibaba Cloud Platform or Services
3.1 As a condition of your access to and use of the Services, you agree that you will comply with any and all applicable laws and regulations, and will not engage in fraudulent or deceptive practices, when using the Services.
3.2 With respect to content made available via the Services, you agree that you will not:
(a) copy, reproduce, download, re-publish, sell, distribute or resell any Services or any information, text, images, graphics, video clips, sound, directories, files, databases or listings, etc made available via the Services (the “Content”);
(b) without limiting the generality of the foregoing, copy, reproduce, download, compile or otherwise use any Content for the purposes of operating a business that competes with Alibaba Cloud, or otherwise commercially exploit the Content. Systematic retrieval of Content from the Services to create or compile, directly or indirectly, a collection, compilation, database or directory (whether through robots, spiders, automatic devices or manual processes) without written permission from Alibaba Cloud is prohibited; or
(c) upload, post, make available, use, encourage, promote, facilitate the use or submission or copy, reproduce, download or compile any Content or materials
(i) that are defamatory, obscene, abusive, invasive of privacy, or offensive, including but not limited to content related to child pornography, bestiality, other types of illegal sexual content, and etc.;
(ii) obtained from or via the Services for any purpose not expressly permitted in the Terms or the Additional Agreements; or
(iii) that infringe or misappropriate the Intellectual Property Rights (as hereinafter defined) or proprietary rights of Alibaba Cloud or others in connection with your use of the Services.
3.3 You agree that you will not:
(a) undertake any action to undermine the integrity of the computer or communication systems, network, software application, or networks and computing devices used in connection with the Services and/or any other User (each a “System”) nor to gain unauthorized access to any System;
(b) monitor data or traffic on any System without the express permission of Alibaba Cloud;
(c) probe, test, or scan the vulnerability of any System or to breach any security or authentication measures used in connection thereto;
(d) falsify your original, including the forging of TCP-IP packer headers, e-mail headers, or any part of any message describing its origin or route; or
(e) otherwise do any act or thing which, in the sole opinion of Alibaba Cloud, may undermine the security of any System.
3.4 You agree that you will not:
(a) conduct any monitoring or crawling of any System;
(b) engage in any denial of service (DoS) attacks, distributed denial of service (DDoS) attacks, or any other forms of network attacks;
(c) engage in any behavior that may interfere with the proper functioning of any System; including mail/news-bombing, broadcast attacks, flooding, and any other relevant network interference techniques;
(d) operate any network services, such as open proxies, open mail relays, open recursive domain name servers, and etc; or
(e) otherwise do any act or thing which, in the sole opinion of Alibaba Cloud, constitutes network abuse of any System.
3.5 You agree that you will not distribute, send, or facilitate the sending or any unsolicited electronic commercial messages, or engage in any form of spamming activities that are in breach of the laws and regulations of any relevant jurisdiction or otherwise do any act or thing which, in the sole opinion of Alibaba Cloud, constitutes promotion and marketing message abuse.
3.6 You acknowledge and agree that by disclosing and/or submitting any information to us, you warrant that you have the full power, legal capacity and authority to disclose and/or submit such information, and that the use of such information in accordance with these Terms of Use shall not expose us to any claim, liability, or prosecution.
3.7 In addition to the matters set out in the Privacy Policy in relation to personal data, you agree as follows in relation to any data or information (other than personal data) that you provide to us for processing, storage, hosting or any other purposes in connection with your purchase and use of our Services (“Information”).
(a) Except as provided below, Information that you provide to us will be transferred to, stored and processed in the country in which we, our affiliates, or our sub-contractors maintain facilities for the Services. This may be in a different jurisdiction from where you are located, and accordingly, such Information may need to be transferred to an overseas jurisdiction.
(b) You acknowledge and agree that any such overseas transfer or processing of such Information is necessary to process and administer your customer account and to provide the Services and you consent to the same. You further agree and consent to Alibaba Cloud processing such Information on your behalf pursuant to these Terms of Use and/or the Alibaba Cloud Membership Agreement and you appoint us to perform any such transfer of such Information to any such country and to store and process such Information to provide our Services.
(c) You acknowledge and agree that Information related to your payment instruments (such as credit cards), including Information about your payment instrument organisation, the last few digits of your payment instrument number, the security code, and the expiration date of your payment instrument will be transferred to, stored and processed by our third party payment service provider directly in order for them to process your payment transactions and we will generally not store any such Information.
(d) With respect to any other Information that you provide to us or collected by us, including Information provided at registration, Information we record pertaining to your activities, and Information provided voluntarily by you, you acknowledge and agree that we may in our commercial discretion store and/or transfer such Information to any of our affiliates, including those located in other countries.
(e) We will not disclose such Information outside of us, our affiliates or our third party service providers unless: i) you request us to do so; ii) your end user has provided consent for us to do so; iii) as provided in these Terms of Use or in accordance with your agreement(s) with us, or iv) as required by and to comply with applicable law, legal process or lawful government requests, or in respect of any claims or potential claims brought against us or our shareholders, subsidiaries or affiliates.
3.8 You also acknowledge and agree that information you provide for Alibaba Cloud forums, such as our discussion forums and responses to frequently asked questions shall comply with these Terms.
3.9 You agree and acknowledge that we have the sole discretion to designate from time to time the domain names or URLs through which you may permitted access to the Services and/or the Alibaba Cloud Platform. You shall be solely responsible for implementing any changes necessary from time to time for your systems to interface with the same at your sole cost and expose.
4. Breaches by Users
Alibaba Cloud shall have the right at its sole and absolute discretion to remove, modify or reject any content that you submit to, post or display on the Alibaba Cloud Platform which in our sole opinion is unlawful, violates the Terms, or could subject Alibaba Cloud or our affiliates to liability. Alibaba Cloud shall have the right to take any enforcement actions as it deems appropriate at Alibaba Cloud’s sole discretion, including but not limited to giving a written warning to you, removing any user content submitted or published by you to the Alibaba Cloud Platform or to the relevant features/functions of the Services, recovering damages or other monetary compensation from you, suspending or terminating your membership account with Alibaba Cloud, or suspending your subscription of any Service. Alibaba Cloud shall also have the right to restrict, refuse or ban you from any and all future use of any other Services provided by Alibaba Cloud.
5. Limitation of Liability
5.1 To the maximum extent permitted under applicable law, the Services are provided “as is”, “as available” and “with all faults”, and Alibaba Cloud hereby expressly disclaims any and all warranties, express or implied, including but not limited to, any warranties of condition, quality, durability, performance, accuracy, reliability, merchantability or fitness for a particular purpose, and non-infringement, or as to the Services being uninterrupted, error free, free of harmful components, secure, or not otherwise causing damage or loss of functionality or data. To the maximum extent permitted under applicable law, Alibaba Cloud makes no representations or warranties on the validity, accuracy, correctness, reliability, quality, stability, completeness or currency of any information provided on or through the Services; Alibaba Cloud does not represent or warrant that the manufacture, importation, export, distribution, offer, display, purchase, sale and/or use of products or services offered or displayed via the Services does not violate any third party rights; and Alibaba Cloud makes no representations or warranties of any kind concerning any product or service offered or displayed on the via the Services. Any material downloaded or otherwise obtained through the Services is done at your sole discretion and risk and you are solely responsible for any damage to the System or loss of data that may result from the download of any such material. No advice or information, whether oral or written, obtained by you from Alibaba Cloud or through or from the Services shall create any warranty not expressly stated herein. Save only for any warranties, representations, conditions and undertakings by Alibaba Cloud expressly set forth in this Agreement, Alibaba Cloud hereby excludes all other warranties, representations, conditions and undertakings, express or implied, to the maximum extent permitted under applicable law.
5.2 You hereby agree to indemnify and hold Alibaba Cloud, its respective affiliates, directors, officers and employees harmless from and against any and all losses, claims, liabilities which may arise from your use of the Services (including but not limited to the display of your information on the Alibaba Cloud Platform, the submission of unlawful materials to the Alibaba Cloud Platform or the relevant ancillary features of any Services, and etc.) or from your breach of any of the Terms. You hereby further agree to indemnify and hold Alibaba Cloud, its affiliates, directors, officers and employees harmless, from and against any and all losses, damages, claims, liabilities (including legal costs on a full indemnity basis) which may arise, directly or indirectly, as a result of any claims asserted by any third party claimants or other third parties relating to products displayed on the Alibaba Cloud Platform. You hereby further agree that Alibaba Cloud is not responsible and shall have no liability to you, for any material posted or submitted by others, including defamatory, offensive or illicit material and that the risk of damages from such material rests entirely with you. Alibaba Cloud reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you shall cooperate with Alibaba Cloud in asserting any available defenses and indemnify and hold Alibaba Cloud harmless against the reasonable legal fees incurred by Alibaba Cloud in that regard. To the maximum extent permitted under applicable law, Alibaba Cloud shall not be liable for any special, direct, indirect, punitive, incidental or consequential damages or any damages whatsoever (including but not limited to damages for loss of profits or savings, business interruption, loss of information), whether in contract, negligence, tort, equity or otherwise or any other damages resulting from any of the following:
(a) your use or inability to use the Services; any defect in goods, samples, data, information or services purchased or obtained from you or any other third party through the Services;
(b) your violation of any third party rights, or claims against you by any party that they are entitled to defense or indemnification in relation to assertions of rights, demands or claims by any third party claimants;
(c) unauthorized access by third parties to your data or private information;
(d) your statements or conducts; or
(e) any matters relating to Services however arising, including negligence.
Notwithstanding any of the foregoing provisions, unless otherwise provided in the terms and conditions or service level agreements of the relevant Services, the aggregate liability of Alibaba Cloud, and their respective employees, agents, affiliates, representatives or anyone acting on their behalf with respect to you for any and all claims arising from or in connection with the Services or any use or inability to use the same during any calendar year shall be limited to, in aggregate, the greater of (a) the amount of fees you have paid to Alibaba Cloud or its affiliates for the Services during the calendar year; (b) USD100; or (c) the amount prescribed by the terms of relevant service level agreements in connection with your use of specific Services. The preceding sentence shall not preclude the requirement by you to prove actual damages. All claims against Alibaba Cloud in respect of any of the matters referenced in this Clause 5.2 must be filed within one (1) year from the date the cause of action arose.
5.3 The limitations and exclusions of liability to you under the Terms shall apply to the maximum extent permitted by law and shall apply whether or not Alibaba Cloud has been advised of or should have been aware of the possibility of any such losses arising.
6. Force Majeure
Unless otherwise provided in the terms and conditions of the relevant Services, under no circumstances shall Alibaba Cloud be held liable for any delay or failure or disruption of the content or the Services resulting directly or indirectly from acts of nature, forces or causes beyond our reasonable control, including without limitation, Internet failures, computer, computer viruses, cyber-attacks, 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.
7. Notice and Procedure for Making Claims of Copyright Infringement
7.1 If you believe that your work has been copied in a way that constitutes copyright infringement, you may provide written notice to Alibaba Cloud Singapore with full details as prescribed in PART IXA to the Singapore Copyright Act, Cap 63, to be submitted to Alibaba Cloud Singapore’s designated representative, as follows:
Legal Counsel
c/o 26/F, Tower One, Times Square
1 Matheson Street, Causeway Bay
Hong Kong
Tel: +852 2215 5100
Fax: +852 2215 5340
7.2 Alibaba Cloud Singapore will only process notices in the English language that comply with the Singapore Copyright Act, other applicable laws and this Terms of Use. Any notices that do not comply with the above will be rejected.
7.3 Upon receipt of a compliant notice of infringement, Alibaba Cloud Singapore will duly consider all infringement notices in the above manner and may take further steps depending on the nature of the alleged infringement described in the notice, which may include the matters described in the Singapore Copyright Act as applicable to network service providers. You agree that you shall not take any legal action or exercise any legal remedy you may have against us in respect of any infringing material, unless you have first given us the infringement notice and sufficient opportunity to remove the infringing material, and thereafter we refuse or fail to remove the infringing material within a reasonable time. Where we remove the infringing material in response to your infringement notice, you agree not to exercise and you hereby waive, any right of action against us under applicable law which you may have in respect of any infringing material appearing on our Services prior to such removal by us.
8. Intellectual Property Rights
8.1 Alibaba Cloud is the sole owner or lawful licensee of all the rights and interests in the Alibaba Cloud Platform and Alibaba Cloud Platform’s Content. All title, ownership and Intellectual Property Rights in the Alibaba Cloud Platform shall remain with Alibaba Cloud, its affiliates or licensors of Alibaba Cloud’s content, as the case may be. All rights not otherwise claimed under the Terms or by Alibaba Cloud are hereby reserved. “ALIBABA”, “ALICLOUD”, ‘ALIYUN”, “ALIEXPRESS”, “ALIMAMA”, “TAOBAO”, “TMALL” and related icons and logos are registered trade marks or trade marks or service marks of Alibaba Group Holding Limited in various jurisdictions and are protected under applicable copyright, trade mark and other proprietary rights laws. The unauthorized copying, modification, use or publication of these marks is strictly prohibited.
8.2 “Intellectual Property Rights” shall mean:
(a) all rights, title and interest in and to all intellectual property rights, including any and all copyrights, patents, trade marks, service marks, logos, get-up, trade names, internet domain names, rights in designs, rights in computer software, database rights, semi-conductor topography rights, utility models and rights in know-how, in each case whether registrable or not, and including any applications for registration, and all rights or forms of protection having equivalent or similar effect anywhere in the world, and across all platforms and mediums whether now known or in the future invented;
(b) all rights under licences, consents, orders, statutes or otherwise in relation to any of the rights referenced in sub-paragraph (a) above;
(c) all rights of the same or similar effect or nature as or to those in sub-paragraphs (a) and (b) which now or in the future may subsist;
(d) all rights to income, royalties, damages, claims and payments now or hereafter due or payable with respect thereto; and
(e) all rights at law or in equity to sue for past or future infringements of any of the foregoing rights.
9. General
9.1 The Terms constitute the entire agreement between you and Alibaba Cloud with respect to and governs the use of the Services, superseding any prior written or oral agreements in relation to the same subject matter herein.
9.2 You and Alibaba Cloud are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
9.3 If any term herein is adjudicated by a court or tribunal of competent jurisdiction to be void or unenforceable, the validity or enforceability of the remainder of the terms herein shall remain in full force and effect.
9.4 Alibaba Cloud’s failure to enforce any right or failure to act with respect to any breach by a Member under this Agreement will not waive that right nor waive Alibaba Cloud’s right to act with respect with subsequent or similar breaches.
9.5 You shall not delegate, assign, sub-license or sub-contract any of the rights and/or obligations under this Agreement to any third party without our prior written consent.
9.6 Unless a right or remedy of you or Alibaba Cloud is expressed to be an exclusive right or remedy, the exercise of it by either party is without prejudice to either party’s other rights and remedies at law and/or in equity.
9.7 You shall do and execute or procure to be done and executed all such further acts, deeds, things and documents as may be necessary to give effect to the terms of this Agreement.
9.8 Save for Alibaba Cloud and its affiliates, a person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act (Cap. 53 B) (Rev Ed 2002) to enforce any term of this Agreement.
10. Governing Law and Dispute Resolution
The Terms shall be governed by the laws of Singapore without regard to its conflict of law provisions. The parties to the Terms hereby submit to the exclusive jurisdiction of the courts of Singapore.
Europe (outside EEA) Addendum to Alibaba Cloud Terms of Use
Terms applicable to users contracting with Alibaba.com (Europe) Limited; this Addendum does not apply to users contracting with Alibaba Cloud (Singapore) Private Limited, Alibaba (Netherlands) B.V., Alibaba Cloud (India) LLP, Alibaba Cloud (Malaysia) Sdn. Bhd or Alibaba Cloud US LLC. In addition to, or in place of, the relevant terms of the Product Terms of Service above, the following additional terms (the “Addendum”) are applicable in respect of any customer: (a) who purchases and/or uses any products or services offered or made available through the Alibaba Cloud Platform; and (b) who is contracting with Alibaba.com (Europe) Limited for such products or services. The Addendum forms part of the Product Terms of Service above and any definitions used in the Product Terms of Service shall have the same meaning in this Addendum. Notwithstanding anything else in the Product Terms of Service, if there is any conflict or inconsistency between this Addendum and any terms in the Product Terms of Service, this Addendum shall prevail only to the extent of the conflict or inconsistency.
For the purposes of Clause 2.1, the applicable Alibaba Cloud contracting entity is Alibaba.com (Europe) Limited, a company registered in England with company number 06721521 and with its registered office at 8th floor, Millbank Tower, 21-24 Millbank, London SW1P 4QP. Except in Clause 7, any reference to Alibaba Cloud in these Terms of Use shall be a reference to Alibaba.com (Europe) Limited. For the purposes of these Terms of Use, notices for Alibaba Cloud shall be sent to the address set out in this Addendum, except for notices pursuant to Clause 7, which shall be sent to the address set out in Clause 7.1.
The references in Clause 7.1 of these Terms of Use to the Singapore Copyright Act, Cap 63 shall be replaced by the British Copyright, Designs and Patents Act 1988, as amended from time to time.
The reference in Clause 9.8 of these Terms of Use to the Contracts (Rights of Third Parties) Act (Cap. 53 B) (Rev Ed 2002) shall be replaced by the English Contracts (Rights of Third Parties) Act 1999.
Clause 10 shall be replaced by the following: These Terms of Use and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. Each party to these Terms of Use irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Terms of Use or their subject matter or formation (including non-contractual disputes or claims).
Australia Addendum to Alibaba Cloud Terms of Use
Terms applicable only to users who are located in Australia and contracting with Alibaba Cloud (Singapore) Private Limited. This Addendum does not apply to users contracting with Alibaba.com (Europe) Limited, Alibaba (Netherlands) B.V., Alibaba Cloud (India) LLP, Alibaba Cloud (Malaysia) Sdn. Bhd or Alibaba Cloud US LLC, or to users who contract with Alibaba Cloud (Singapore) Private Limited but are not located in Australia.
In addition to, or in place of, the relevant terms of the Terms of Use above, the following additional terms (the “Addendum”) are applicable in respect of any customer: (a) who accesses and/or uses the Alibaba Cloud Platform from Australia; and (b) who contracts with Alibaba Cloud (Singapore) Private Limited for such access and/or use. The Addendum forms part of the Terms of Use above and any definitions used in the Terms of Use shall have the same meaning in this Addendum. Notwithstanding anything else in the Terms of Use, if there is any conflict or inconsistency between the Addendum and any terms in the Terms, the Addendum shall prevail only to the extent of the conflict or inconsistency.
1. Clause 5 shall be replaced by the following:
1.1 Exclusions of liability. With the exception of Consumer Guarantees, Alibaba Cloud excludes: (a) any term, condition or warranty that may otherwise be implied into this agreement; (b) any liability for loss or damage incurred as a result of or in connection with the negligence of Alibaba Cloud; and (c) any liability for Consequential Loss.
1.2 General limitations of liability.
(a) Alibaba Cloud and you agree that, other than a claim pursuant to a Consumer Guarantee: Alibaba’s liability for Claims shall be limited to the greater of: (i) the amount of fees you have paid to Alibaba Cloud or its affiliates for the Services during the calendar year before the Claim was made; (ii) USD100; or (iii) the amount prescribed by the terms of relevant service level agreements in connection with your use of specific Services. All claims against Alibaba Cloud in respect of any of the matters referenced in this Clause 5.2 must be filed within one(1) year from the date of the Claim.
(b) You hereby agree to indemnify and hold Alibaba Cloud, its respective affiliates, directors, officers and employees harmless from and against any and all losses, claims, liabilities which may arise from your use of the Services (including but not limited to the display of your information on the Alibaba Cloud Platform, the submission of unlawful materials to the Alibaba Cloud Platform or the relevant ancillary features of any Services, and etc.) or from your breach of any of the Terms. You hereby further agree to indemnify and hold Alibaba Cloud, its affiliates, directors, officers and employees harmless, from and against any and all losses, damages, claims, liabilities (including legal costs on a full indemnity basis) which may arise, directly or indirectly, as a result of any claims asserted by any third party claimants or other third parties relating to products displayed on the Alibaba Cloud Platform. You hereby further agree that Alibaba Cloud is not responsible and shall have no liability to you, for any material posted or submitted by others, including defamatory, offensive or illicit material and that the risk of damages from such material rests entirely with you. Alibaba Cloud reserves the right to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, in which event you shall cooperate with Alibaba Cloud in asserting any available defences and indemnify and hold Alibaba Cloud harmless against the reasonable legal fees incurred by Alibaba Cloud in that regard. To the maximum extent permitted under applicable law, Alibaba Cloud shall not be liable for any special, direct, indirect, punitive, incidental or consequential damages or any damages whatsoever (including but not limited to damages for loss of profits or savings, business interruption, loss of information), whether in contract, negligence, tort, equity or otherwise or any other damages resulting from any of the following: (i) your use or inability to use the Services; any defect in goods, samples, data, information or services purchased or obtained from you or any other third party through the Services; (ii) your violation of any third party rights, or claims against you by any party that they are entitled to defense or indemnification in relation to assertions of rights, demands or claims by any third party claimants; (iii) unauthorized access by third parties to your data or private information; (iv) your statements or conducts; or (v) any matters relating to Services however arising, including negligence.
1.3 Liability for Consumer Guarantees. Subject to Clause 5.4, the liability of Alibaba Cloud in respect of any breach of or failure to comply with any Consumer Guarantee is limited to the following: In the case of goods, to: (i) the replacement of the goods or the supply of equivalent goods; (ii) the repair of the goods; (ii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or (iv) the payment of the cost of having the goods repaired. In the case of services, to: (i) the supplying of the services again; or (ii) the payment of the cost of having the services supplied again.
1.4 Exception to limitation. The liability of Alibaba Cloud in respect of a breach of or a failure to comply with a Consumer Guarantee will not be limited in the way set out in Clause 5.3 if: the goods or services supplied are goods or services ‘of a kind ordinarily acquired for personal, domestic or household use or consumption’, as that expression is used in section 64A of the Australian Consumer Law; it is not ‘fair or reasonable’ for Alibaba Cloud to rely on such limitation in accordance with section 64A(3) of the Australian Consumer Law; or the relevant Consumer Guarantee is a guarantee pursuant to sections 51, 52 or 53 of the Australian Consumer Law.
1.5 The limitations and exclusions of liability to you under the Terms shall apply to the maximum extent permitted by law and shall apply whether or not Alibaba Cloud has been advised of or should have been aware of the possibility of any such losses arising.
1.6 For the purposes of this Addendum: “Australian Consumer Law” shall mean schedule 2 of the Competition and Consumer Act 2010 (Cth) and any equivalent state or territory legislation. “Claim” shall mean any claim, liability, cost, expense, loss or damage suffered or incurred by you, however arising (including, without limitation, from or by the negligence of the Alibaba Cloud) in connection with this agreement. “Consumer Guarantee” shall mean a right or guarantee you may have under the Australian Consumer Law or other rights in relation to the supply of goods or services (such as terms implied into a contract) that cannot lawfully be excluded.