All Products
Search
Document Center

Professional Service Agreement

Last Updated: Jun 19, 2018

This Professional Service Agreement (the “Agreement”) is entered into by and between:

  1. Alibaba Cloud (Singapore) Private Limited, a company incorporated under the laws of Singapore and having its registered office at 1 Raffles Place, #59-00 One Raffles Place, Singapore 048616 (“Alibaba Cloud”); and
  2. [FULL LEGAL NAME OF CUSTOMER], a company incorporated under the laws of [Country] and having its registered office at [Address] (“Customer”).

Each of Alibaba Cloud and Customer are each referred to herein individually as a “Party” and collectively as the “Parties”. 

In consideration of the mutual covenants set forth herein, the Parties hereby agree as follows:

  1. SCOPE OF AGREEMENT
    • Scope of Agreement. Customer may purchase the provision of services by Alibaba Cloud from time to time during the Term, pursuant to a duly executed Statement of Work (“SOW”). Each SOW shall reference this Agreement and form an integral part of this Agreement. This Agreement, including any SOW executed between the Parties, constitutes the entire agreement between the Parties in relation to the provision of services (as described in the SOW) (“Services”).
    • In the event of any inconsistency or conflict between the main body of this Agreement and the SOW, the SOW shall prevail to the extent of such inconsistency or conflict.
  2. SERVICES
    • Provision of Services. In consideration of the Fees (as hereinafter defined) and other covenants set forth herein, Alibaba Cloud shall provide to Customer the Services in accordance with the requirements and timelines set out in the SOW.
    • Change Control. Any changes to the Services or specifications thereto (and any consequential increases or decreases of the Fees in connection therewith) shall be mutually agreed between the Parties in the SOW.
    • Excluded Work Scope. Alibaba Cloud shall not be responsible for any scope of work except as specified in an SOW.
  3. FEES AND PAYMENT
    • The total fees for the Services (“Fees”) shall be as detailed in the applicable SOW.
    • The Fees shall be payable in accordance with the payment schedule set out in the SOW. In accordance with the payment schedule set out in the SOW, Alibaba Cloud shall issue an invoice to Customer, setting out the amount due and payable. Customer shall pay the amount set forth in the invoice in full to Alibaba Cloud within thirty (30) days from the date of invoice.
    • If the Customer fails to make any payment due to Alibaba Cloud under this Agreement by the due date for payment, then, without limiting Alibaba Cloud’s remedies under Clause 12, the Customer shall pay interest on the overdue amount at the rate of [insert]% per annum above [insert bank]’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

(a) Unless otherwise agreed in writing between the Parties, all amounts required to be paid hereunder do not include any taxes, duties or other assessments levied or based upon such amounts.  If Customer is or may be required under any law or regulation of any governmental entity or authority, domestic or foreign, to withhold or deduct any withholding tax from an amount due to Alibaba Cloud pursuant to this Agreement, the amount payable to Alibaba Cloud shall be increased to the extent necessary to ensure that after making such deduction or withholding, Alibaba Cloud receives and retains a net sum equal to the sum it would have received but for such deduction or withholding. Customer shall promptly deliver to Alibaba Cloud all receipts and/or certificates or other proof evidencing the amounts (if any) paid in respect of any such deduction or withholding.

(b) Each Party shall be responsible for the direct tax liability imposed on its own net income.  Customer shall be responsible for the payment of all other taxes including the local levies imposed by any relevant government authority in connection with the provision of the Services under this Agreement. 

  • Unless otherwise agreed, all payments to be made by Customer hereunder shall be denominated and made in [US Dollars]. 
  • Bank Charges. Each Party shall be responsible for its own bank charges. 

  1. INTELLECTUAL PROPERTY RIGHTS

    • Save as expressly provided herein, nothing in this Agreement shall constitute a transfer, assignment or disposal of Intellectual Property Rights of either Party (including any Intellectual Property Rights in pre-existing materials of either Party, which shall belong to such Party and/or its licensors).
    • Customer acknowledges that all Intellectual Property Rights in the Services (including the Services licensed to Customer), as well as any other materials licensed or provided to Customer by or on behalf of Alibaba Cloud under this Agreement (including any derivatives, improvements or enhancements developed thereto, whether pursuant to this Agreement or otherwise) shall vest in Alibaba Cloud and be owned by Alibaba Cloud (and/or its licensors, as the case may be) (together, the “Alibaba Cloud IPRs”), and Customer shall have no rights in or to the Alibaba Cloud IPRs other than the right to use them in accordance with the terms of this Agreement. For the avoidance of doubt, Customer may not create or develop any derivative works, improvements or enhancements based on the Alibaba Cloud IPRs.
    • Alibaba Cloud (and/or its licensors, as the case may be) is and shall remain the sole owner of the Alibaba Cloud IPRs and Customer will not take any action or knowingly permit any action to be taken inconsistent with the foregoing. It is understood and agreed that Customer shall not acquire, and shall not claim, any right, title, or interest in and to the Alibaba Cloud IPRs, adverse to Alibaba Cloud and/or its licensors by virtue of a licence granted to Customer. All use of the Alibaba Cloud IPRs (including any goodwill or improved reputation with respect thereto) shall at all times inure to the sole benefit of Alibaba Cloud (and/or its licensors, as the case may be).
    • To the extent that if notwithstanding the foregoing, any part of the Alibaba Cloud IPRs shall at any time accrue to Customer by operation of law or otherwise, and whether vested, future and/or contingent, Customer agrees to irrevocably transfer and automatically assign and hereby does irrevocably transfer and assign such Alibaba Cloud IPRs to Alibaba Cloud, effective as of the date of creation. Customer will assist Alibaba Cloud in every reasonable way, at its own expense, to obtain, secure, perfect, maintain, defend and enforce for Alibaba Cloud’s benefit all Alibaba Cloud IPRs.
    • Obligation to Notify. Customer shall immediately notify Alibaba Cloud in writing giving full particulars if any of the following matters come to its attention:

      • any actual, suspected or threatened infringement of Alibaba Cloud IPRs;
      • any actual or threatened claim that the Alibaba Cloud IPRs are invalid;
      • any claim made or threatened that use of any of the Alibaba Cloud IPR infringes the rights of any third party; or
      • any other form of attack, charge or claim to which the Alibaba Cloud IPRs may be subject.
    • Control of Proceedings. In respect of any of the matters listed in Clause 4.5:

      • Alibaba Cloud shall, in its absolute discretion, decide what action (if any) to take;
      • Alibaba Cloud shall have exclusive control over, and conduct of, all claims and proceedings;
      • Customer shall not make any admissions other than to Alibaba Cloud and shall provide Alibaba Cloud with all assistance that it may reasonably require in the conduct of any claims or proceedings; and
      • Alibaba Cloud shall bear the cost of any proceedings and shall be entitled to retain all sums recovered in any action for its own account.
    • In the event that the Services comprise the provision of third party software to Customer, Alibaba Cloud shall provide such third party software to the Customer under the standard licence terms provided by the relevant third parties, copies of which shall be made available to Customer from time to time, and the Customer agrees to be bound to the relevant third parties by such licence terms.
    • For the purposes of this Agreement, “Intellectual Property Rights” shall mean:

      • all rights, title and interest in and to all intellectual property rights, including any and all copyrights, moral rights, 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;
      • all rights under licences, consents, orders, statutes or otherwise in relation to any of the rights referenced in sub-paragraph (a) above;
      • 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;
      • all rights to income, royalties, damages, claims and payments now or hereafter due or payable with respect thereto; and
      • all rights at law or in equity to sue for past or future infringements of any of the foregoing rights.

  1. CONFIDENTIALITY

    • 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; and/or (iii) information relating to the disclosing party’s business, including marketing and promotional plans or other products or materials of the disclosing party, research information and analysis, trade secrets, business development and marketing strategies, sales data, organisational arrangements, business plans, contracts with other persons, client lists, financial data, information comprised in or relating to the financial position and assets or liabilities of the disclosing party. Without limiting the foregoing, Confidential Information shall include the terms and conditions of this Agreement (including any SOW).
    • Confidentiality Undertaking. 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 on a need-to-know basis for the performance of this Agreement.
    • The confidentiality obligations in the foregoing clause do not apply in the following circumstances:

      • the information is in or becomes part of the public domain, other than through a breach of this Agreement or an obligation of confidence owed to the disclosing Party;
      • the information was known to the receiving Party at the time of disclosure, unless such knowledge arose through the breach of an obligation of confidence;
      • the receiving Party can prove by contemporaneous written documentation that the information was independently acquired or developed without breaching any of the obligations set out in this Agreement; or
      • the information is required to be disclosed by law or by request of any government or regulatory authority.
    • Upon termination of the Agreement, each Party shall, upon the other Party’s instructions, return to the other Party or destroy, the Confidential Information and any copies thereof.
    • No Party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
    • This Clause 5 shall survive the expiry, suspension or termination of this Agreement for any reason whatsoever.
  2. REPRESENTATIONS AND WARRANTIES OF THE PARTIES

    • Each Party represents and warrants to the other Party that:

      • 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; and
      • it shall comply with all applicable laws and regulations and maintain any permits, licenses and approvals required to perform its obligations hereunder.
    • Alibaba Cloud represents and warrants to Customer that:

      • the Services will be provided with reasonable care and skill; and
      • the Services shall comply with all applicable laws and regulatory requirements and shall be free of viruses.
    • In relation to hardware comprising the Services (as may be applicable), Alibaba’s sole responsibility and liability is limited to providing hardware and supply lists for the Services (such hardware to be procured by the Customer), and Customer shall obtain any applicable warranties for such hardware directly from the relevant vendors of such hardware. Alibaba Cloud expressly disclaims any warranties or responsibilities in connection with such hardware.
    • Customer represents and warrants to Alibaba Cloud that:

      • it shall comply, and shall require its end-users to comply with the terms and conditions herein regarding the use of the Services;
      • it shall ensure that the Services are used only for its internal business purposes and/or the purposes expressly contemplated under this Agreement, and shall not use the same for any other purpose without the permission of Alibaba Cloud; and
      • it shall ensure that its end users clearly understand that Alibaba Cloud shall not be responsible to such end users for the performance of the Services and/or any products or services offered by Customer using the Services.

  1. ANTI-BRIBERY

    • Each Party shall:

      • comply with all applicable laws, regulations, codes, and sanctions relating to anti-bribery and anti-corruption;
      • have and shall maintain in place throughout the term of this Agreement adequate anti-bribery policies and procedures and will enforce them where appropriate; and
      • promptly report to the other Party any request or demand for any undue financial or other advantage of any kind received in connection with the performance of this Agreement.
    • Material Breach. Breach of this Clause 7 shall be deemed a material breach.
  2. DATA PROTECTION

    • Each Party shall comply with comply with applicable data protection laws (including the applicable requirements of the Singapore Personal Data Protection Act (Act 26 of 2012) (“PDPA”)) in respect of the collection, use, disclosure, processing and/or other handling of any personal data in the performance of its obligations under this Agreement.
    • Customer represents, warrants and undertakes that, in relation to any personal data which may be disclosed by Customer to Alibaba Cloud from time to time in the course of the performance of its obligations, Customer shall obtain and has obtained all necessary consents from the individuals to whom the personal data relate for the disclosure of their personal data to Alibaba Cloud, for Alibaba Cloud’s collection, use, disclosure, processing and/or other handling for the purposes of the Parties’ performance of their obligations hereunder, and that the same do not exceed any consents provided by any individual in connection therewith to whom the personal data relates nor have any such consents been withdrawn, unless otherwise permitted under applicable law, and that it has informed such individuals of the foregoing purposes.
    • Customer agrees and acknowledges that Alibaba Cloud is processing personal data for and on behalf of Customer as a data processor (or data intermediary in the context of the PDPA) in providing Services under this Agreement and that Customer remains responsible for complying with applicable data protection laws, requirements and obligations in relation to such personal data.
  3. INDEMNITY

Customer covenants and undertakes to indemnify, defend and hold harmless Alibaba Cloud and its affiliates and their successors and assigns, and their respective directors, officers, and employees from and against any losses, claims, demands, actions, damages, penalties and costs or expenses (including, without limitation, reasonable attorneys’ fees and legal costs) (“Loss”) resulting from:

  • any breach by Customer of any of its representations, warranties and undertakings under this Agreement;
  • use of the Services other than in accordance with this Agreement; and/or
  • infringement of Alibaba Cloud’s or its licensor’s Intellectual Property Rights.

  1. LIMITATION OF LIABILITY

    • Except as expressly provided in this Agreement and to the maximum extent permitted by law, Alibaba Cloud makes no warranty, express or implied, with respect to the Services in relation to its merchantability, quality and fitness for any particular purpose, and/or the quality or availability of the Services (including warranties that the Services are uninterrupted, error free, free of harmful components, secure, or not otherwise causing damage or loss of functionality or data).

Alibaba Cloud does not warrant or guarantee that it will be able to rectify all defects and/or deficiencies in the Services. Alibaba Cloud shall have no liability for any damage caused by errors or omissions in any information or instructions provided to Alibaba Cloud by the Customer in connection with the Services.

Customer is solely responsible for backup and management of any data stored or processed via the Services (as may be applicable). Unless otherwise specified, the Services do not include any business continuity plan (BCP) or disaster recovery plan (DRP).

  • Exclusive Remedies. Notwithstanding any other terms of this Agreement to the contrary, Customer acknowledges and agrees that the remedies provided in the terms and conditions set forth in the relevant service level agreements applicable to the Services (if applicable), shall be the sole and exclusive remedies for Customer in relation to any breach of the relevant service levels under this Agreement, and that the sole and exclusive remedies for Customer in relation to any breach of the warranties in Clause 6.2 shall be the correction of relevant defects and/or deficiencies by Alibaba Cloud within a reasonable time from notification by the Customer of the defects and/or deficiencies that constitute such breach. 
  • Limitation of Liability. Notwithstanding any other provisions of this Agreement, to the maximum extent permitted by law, and save as expressly stated in this Agreement, in no event shall either Party or its officers, directors, employees, or agents be liable to the other Party under any contract, tort (including negligence), strict liability or any other legal or equitable theory for any indirect, special, incidental, consequential, or exemplary damages, or loss of profits or data, even if such Party has been advised of the likelihood of such damages occurring. The total liability of Alibaba Cloud arising out of or relating to this Agreement, whether in contract, tort (including negligence) or otherwise, shall in no circumstances exceed the [Fees].

  1. TERM AND TERMINATION

    • This Agreement shall be effective from the date both Parties have executed this Agreement and shall remain valid until terminated by either Party pursuant to this Clause 11 (the “Term”).
    • Termination for Cause. Either Party may terminate this Agreement with immediate effect on written notice to the other Party if:

      • the other Party commits a material breach of this Agreement and fails to remedy the breach (if remediable) within thirty (30) days of receiving written notice to that effect specifying the breach and requiring it to be remedied;
      • the other Party ceases to conduct its business operations;
      • the other Party is unable to pay its debts due and payable; or
      • the other Party enters into a composition with its creditors or goes into liquidation, or is dissolved, or adjudged insolvent or is otherwise rendered incapable of performing its obligations under this Agreement.
    • Alibaba Cloud may terminate this Agreement with immediate effect on written notice to the Customer if, in the sole opinion of Alibaba Cloud, Customer or its end users (as applicable) has engaged in any of the following:

      • infringement of Alibaba Cloud’s or its licensor’s Intellectual Property Rights;
      • failed to make payment of any amounts due to Alibaba Cloud by the due date for payment for more than [insert] days;
      • used the Services in a way that poses a security risk to Alibaba Cloud and/or any third party; or
      • used the Services in a way that subjects, or will subject, Alibaba Cloud or its affiliates, to liability.
    • Expiry and Termination of SOW. Each SOW expires automatically upon:

      • fulfillment of the last milestone as stated in such SOW; or
      • the termination of the SOW in accordance with the terms of such SOW.

All obligations of the Parties under an SOW shall be extinguished upon termination of such SOW, unless otherwise agreed in writing between the Parties.

  • Effect of Termination. Upon termination of this Agreement for any reason, all rights and liabilities of the Parties shall cease and determine and all SOWs in effect shall immediately be terminated, save in respect of any antecedent breaches and the following:

    • all amounts paid by Customer to Alibaba Cloud shall be non-refundable;
    • all amounts due and owing by Customer to Alibaba Cloud shall continue to be due and owing;
    • Customer shall immediately cease use of the Services; and
    • such termination shall be without prejudice to any rights or remedies of the Parties which have accrued prior to such termination.

  1. GENERAL

    • Assignment and Novation. Save and except that Alibaba Cloud may at its sole and absolute discretion novate, assign or otherwise transfer this Agreement and its obligations thereunder at any time to any of its affiliated entities by giving written notice to the Customer, neither Party shall assign or transfer this Agreement or any rights and obligations hereunder, in whole or in part, to any third party, without the other Party’s prior written consent.
    • No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
    • Force Majeure. Neither Party will be liable for any breach, or delay in performance, of its obligations under this Agreement if, and to the extent that the breach or delay is directly caused by fire, flood, earthquake or act of God; act of government, war, riot, civil disorder, act of terrorism or revolution; strikes, lock-outs or labor disputes; or other cause similar to the above beyond its reasonable control (a “Force Majeure Event”). The Party delayed or unable to perform will give prompt written notice, including the length of the expected delay, to the other Party. If a Force Majeure Event occurs, then the Parties will promptly mutually review the expected delay and the delayed Party or Parties will take reasonable measures to minimize any disruption. If the Force Majeure Event continues for thirty (30) consecutive days, then either Party may terminate this Agreement upon written notice to the other Party.
    • 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 P
    • Third Party Rights. No person other than a Party to this Agreement shall have any rights to enforce any term of this Agreement.
    • Governing Law. This Agreement will be governed by and construed in accordance with the laws of Singapore, 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 mutual negotiation, such dispute, controversy, difference or claim arising out of or relating to this Agreement, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (“SIAC”) under the Arbitration Rules of SIAC in force when the Notice of Arbitration is submitted. The seat of arbitration shall be Singapore. The number of arbitrators shall be one. The arbitration proceedings shall be conducted in English.
    • Counterparts. This Agreement may be executed by the Parties in counterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same instrument. Signatures executing this Agreement may be delivered by facsimile transmission or in an emailed PDF file or by other reliable means.

- The remainder of this page is intentionally left blank -

IN WITNESS WHEREOF, the Parties below have caused this Agreement to be executed by their duly authorized representatives.