1.1 Service Provider and the Merchant have entered into a merchant agreement, as amended and supplemented from time to time (the "Main Agreement"). The Main Agreement sets out the terms and conditions governing the provision by Service Provider of, inter alia, its Zapper Mobile Utility to the Merchant, which allows the Merchant's customers to make payments to the Merchant for Products using their smart phones.
1.2 Service Provider has entered into a contractual arrangement with Alipay.com Co Ltd("Alipay" and "Alipay Agreement", respectively) pursuant to which Alipay's payment processing platform and acquiring service ("Alipay Platform") is integrated with the Zapper Mobile Utility ("Integrated Utility") allowing Alipay's users ("Alipay Users") to be able to make payments to the Merchant for Products using the Integrated Utility.
1.3 It is a condition of the Alipay Agreement that any Merchant that wishes to enable the Integrated Utility for the benefit of its customers, must sign up to the additional terms and conditions as set out in this Addendum.
2.1 Unless explicitly provided otherwise in this Addendum, all defined terms herein shall have the same meanings ascribed thereto in the Main Agreement.
2.2 Clauses 1.1, 1.2 and 1.3 above shall be taken into account in the interpretation and construction of this Addendum.
2.3 The headings in this Addendum are for ease of reference only and shall not affect its construction.
2.4 In this Addendum, if the context so requires, references to the singular shall include the plural and vice versa.
3.1 The Parties hereby expressly agree in writing to amend and supplement the Main Agreement, and that the amendments and supplements set out in clause 3 below shall enter into effect as of the date of this Addendum.
3.2 In this Addendum and for the purpose of the amendments and supplements to the Main Agreement made by this Addendum, the following capitalised terms shall have the following meanings:
"Addendum" means this addendum to the Main Agreement to be entered into between the Parties;
"Affiliate" has the meaning as defined in the Main Agreement;
"Alipay" has the meaning as defined in clause 1.2;
"Alipay Agreement" has the meaning as defined in clause 1.2;
"Alipay Platform" has the meaning as defined in clause 1.2;
"Alipay Users" has the meaning as defined in clause 1.2;
"Customer Content" means, in respect of a Merchant;
"Disapproval Notice"has the meaning as defined in clause 3.5;
"Due Diligence Information" has the meaning as defined in clause 3.5;
"Integrated Utility" has the meaning as defined in clause 1.2;
"Intellectual Property Rights" has the meaning as defined in the Main Agreement;
"Main Agreement" has the meaning as defined in clause 1.1;
"Merchant" means a retailer of goods and/or services (including, without limitation, Products) whose application to use the Services has been approved by the Service Provider;
"Merchant Content" has the meaning as defined in the Main Agreement;
"Parties"means the Service Provider and the Merchant as parties to this Addendum, and "Party" means each of such parties, individually;
"Product" means any and all goods, products, services and/or items that Merchant makes available for sale to any person, including Alipay Users, using the Integrated Utility;
"Service Provider" means Wonderwill Limited, a company organised under the laws of Gibraltar with incorporation number 105547 whose registered office is at Portland House, Glacis Road, Gibraltar;
"Transaction" means the sale and purchase transaction of a Product between an Alipay User and Merchant through the Integrated Utility;
"Transaction Evidence" means Product names, prices and relevant proof that the goods or provided services have been properly delivered or rendered with respect to the order of the Transaction, including, without limitation logistics certificate, shipping certificate, receipt, address, name and contact information of the recipient; and
"Zapper Mobile Utility" has the meaning as defined in the Main Agreement.
3.3 As a condition of its use of the Integrated Utility, Merchant hereby agrees to the following Alipay Service Terms and Conditions:
3.3.1 Information Verification. In order for Service Provider to satisfy its obligations to Alipay, Service Provider may reasonably request from the Merchant from time to time certain information relating to the Merchant's use of the Integrated Utility (including transaction information and this Addendum), which Merchant agrees to provide to Service Provider as requested, and consents to Service Provider making such information available to Alipay. Merchant further consents to the right for Alipay to use and present the relevant information to regulatory authorities and cooperative banks for examination and verification as necessary;
3.3.2 AML Requirements. Merchant shall comply with all AML laws and regulations applicable to the Merchant and establish internal AML policy, including but not limited to, KYC procedures. In accordance with its anti-money laundering, anti-fraud, and other compliance policies and practices, Alipay and/or the Service Provider may impose reasonable limitations and controls on an Alipay User's ability to utilise the Integrated Utility. Such limitations may include, but are not limited to, where good cause exists, rejecting payments, or restricting particular individuals from using the Integrated Utility;
3.3.3 Alipay Licence. Merchant hereby acknowledges that Alipay owns all right, title and interest in and to the Alipay Platform, including all related Intellectual Property Rights. Subject to the terms of this Addendum, Alipay and Service Provider will authorise Merchant during the term of this Addendum, and only to the extent strictly necessary, to use Alipay's Intellectual Property Rights solely for the limited purpose of the Merchant's use of the Integrated Utility in accordance with this Addendum. Such authorisation to use Alipay's Intellectual Property Rights granted in favour of the Merchant will be nonexclusive, non-sub-licensable, non-transferrable and royalty-free, and may be modified or revoked by Alipay and Service Provider in writing at any time during the term of this Addendum. Merchant agrees that use of Alipay's Intellectual Property Rights under this Addendum will not confer any proprietary right, and Merchant agrees to take reasonable care to protect Alipay's Intellectual Property Rights from infringement or damage and cease all use of such Intellectual Property Rights immediately upon termination of this Addendum;
3.3.4 Customer Content and Licence.
3.3.5 Publicity. Neither Party will issue any press release or make any public announcement pertaining to this Addendum without the prior written consent of the other Party unless required by applicable laws binding the Party. However, the preceding limitation will not be interpreted to prevent Alipay and Service Provider from making statements about Alipay's and Service Provider's respective aggregate businesses or about the Integrated Utility in general in or outside of the jurisdiction where the Merchant is located.
3.4 As a condition of its use of the Integrated Utility, Merchant hereby agrees to the following Alipay Operating Rules:
3.4.1 Responsibilities of Merchant.
3.4.2 Transaction Evidence. Merchant will promptly provide the Transaction Evidence to the Service Provider, at Service Provider's request. The Transaction Evidence required is subject to the nature of the Products and will be reasonable with respect to its purpose. Merchant consents to the Transaction Evidence being made available by the Service Provider to Alipay.
3.5 As a condition of its use of the Integrated Utility, Merchant hereby agrees that before the Service Provider is able to provide the Integrated Utility to the Merchant, Merchant shall, on request, provide the Service Provider with certain due diligence information specified by the Service Provider pertaining to the Merchant and its business ("Due Diligence Information"). The Merchant agrees that the Service Provider may pass on the Due Diligence Information to Alipay. Further, the Merchant acknowledges and agrees that in Alipay's discretion, Alipay may provide reasonable notice to the Service Provider of its disapproval of any Merchant (a "Disapproval Notice") for any or no reason. The Merchant will then be obliged to prevent any Merchant for which Alipay has provided a Disapproval Notice from using the Integrated Utility.
3.6 This Addendum shall not be deemed to extend to any software or materials of the Service Provider or Alipay other than the Integrated Utility, unless specifically agreed in writing by the Service Provider.
3.7 The Merchant acknowledges that it is licensed to use the Integrated Utility only in accordance with the express terms and conditions of this Addendum and not further or otherwise.
3.8 Either Party may, at any time on a minimum of one (1) month's written notice to the other Party, terminate this Addendum.
3.9 If the Merchant does not comply materially with any of its obligations under this Addendum, such non-compliance will constitute a material breach of this Addendum by the Merchant, and Service Provider shall be entitled to terminate this Addendum forthwith in writing.
3.10 Service Provider may immediately suspend the Merchant's use of the Integrated Utility upon written notice to Merchant if Service Provider reasonably suspects that the Merchant has breached or defaulted under any term or condition of this Addendum.
3.11 If the Merchant refuses to provide the Customer Content to the Service Provider, the Service Provider shall have the right to terminate this Addendum forthwith upon written notice to the Merchant.
3.12 The Merchant agrees that Service Provider may, by way of written notice to the Merchant, immediately terminate or suspend whole or parts of this Addendum if the Alipay Agreement (between Service Provider and Alipay regarding the Integrated Utility) is wholly or partly terminated or suspended. In such situation, Service Provider shall, as far as possible, keep the Merchant informed of the reasons for such termination or suspension and be as transparent as possible. The Merchant acknowledges and agrees that it shall not hold Service Provider liable for any losses, costs or damages suffered or incurred by the Merchant from any actions which Service Provider may take to disrupt, suspend or terminate accessibility to any or all components making up the Integrated Utility or to terminate this Addendum, if Service Provider is legally obliged to do so by virtue of Service Provider's legal obligations to Alipay.
For the avoidance of doubt, it is hereby clarified that this Addendum above shall be incorporated into the Main Agreement and shall constitute an integral part thereof. It is further clarified that the Main Agreement shall be modified only as explicitly specified above and all the other terms and conditions of the Main Agreement shall remain unchanged and in full force and effect. In the event of any inconsistency between the terms of the Main Agreement and the herein Addendum, the terms of the Addendum shall govern and be paramount.
This Addendum together with the Main Agreement constitutes the entire agreement between the Parties with respect to its subject matter and supersedes and extinguishes any prior drafts, agreements, undertakings, representations, warranties and arrangements of any nature and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.