V001 September 2022

 

This Huawei Cloud End User License Agreement (the “Agreement”) contains the terms and conditions that govern end user’s (“End User”, “you” or “your”) access and use of Huawei Cloud Services provided to you by an authorized Solution Provider. This Agreement is entered into by and between the Huawei Cloud Contracting Party as defined in Section 14.2 of this Agreement (“Huawei Cloud”, “we”, “us” and “our”) and the entity you represent or you individually if you don’t designate an entity in connection with your agreement with the Solution Provider and the Services. If you enter into this Agreement for a company or other legal entity, you represent and warrant that you have the power and authority to do so and to bind the entity to the terms and conditions of this Agreement. You also represent to us that you act in your professional capacity and not as a consumer. This Agreement takes effect as of the date you accept this Agreement. You and Huawei Cloud are each referred to as a “Party” and collectively as “Parties” hereunder.

 

1. Use of the Services

1. 1 Rights Granted. For the Services you subscribed from the Solution Provider, we grant you a non-exclusive, non-transferrable, non-sub-licensable and limited right to access and use the Services in accordance with the terms and conditions of this Agreement. You shall comply with this Agreement, your agreement with the Solution Provider and applicable laws and regulations in connection with your access to and use of the Services. Unless otherwise specified in this Agreement, your use of any Services is governed by your agreement with the Solution Provider.

1.2 Your Account. You need to create a Huawei Cloud account (the “Account”) and connect it to a Solution Provider’s Account to access and use the Services. To create an Account, please use our Website at https://reg.eu.huaweicloud.com/registerui/eu/register.html. When creating the Account, you shall provide truthful and accurate information. If your information changes at any time, please update such information in your Account to reflect those changes. You are responsible for (a) maintaining the confidentiality of your Account, and (b) all activities that occur under your Account. You will notify the Solution Provider or us immediately about any unauthorized access to or misuse of your Account or any security incident related to the Services. You acknowledge and agree that we will not be responsible for any unauthorized use or misuse of your Account, unless such is directly caused by our violation of the Agreement hereunder.

1.3 Acceptable Use Policy. Other than the terms and conditions of this Agreement, you agree to comply with the Acceptable Use Policy, which is incorporated into the terms of this Agreement by reference. You may review the current version of the Acceptable Use Policy at: https://www.huaweicloud.com/eu/declaration/sa_nisr.html.

1.4 Your Content. You will ensure that Your Content does not violate the terms and conditions of this Agreement and applicable laws and regulations. You are solely responsible for the legality, accuracy, integrity and reliability of Your Content. You are solely responsible for securing and maintaining any required notice, consent or authorization related to your provision of and our processing of Your Content as part of the provision of the Services. We will not assume any obligations and liabilities in relation to Your Content, unless otherwise required by the governing law.

1.5 Third-Party Content. The Services may include or be provided together with Third-Party Content. Third-Party Content may be governed by this Agreement, or if applicable, separate terms and conditions specified in the Services Terms and other documentation as may be notified to you. Third-Party Content is provided on an “as-is” and “as available” basis without any warranty.

1.6 Preview. Preview refers to Services or features of Services we make available at no charge for trial purposes. Preview Services are provided “as-is” and “as available”, and excluded from warranties set forth in this Agreement. Preview Services may not be covered by support, and we may change or discontinue a preview at any time and without notice. We are not obligated to release a preview or make a preview generally or commercially available.

2. Security and Data Privacy

2.1 Our Security Obligations. Without prejudice to Section 1.4 and Section 2.2 of this Agreement, we will maintain appropriate administrative, physical and technical measures designed to help you protect the security and confidentiality of Your Content stored in the Services environment. We will not access or use Your Content except as necessary to provide the Services, which may include investigating security incidents or violation of the Agreement, or to comply with applicable laws and regulatory requirements.   

2.2 Your Security Obligations. Without prejudice to Section 2.1 above, you are responsible for any security vulnerabilities and the consequences of such vulnerabilities arising out of or related to Your Content, and the way you use the Account and the Services, including but not limited to any viruses, Trojan horses, worms or other harmful programming routines contained in Your Content or provided to the Services through your Account.

2.3 Data Privacy. We will process personal data that you provided to us or that we collected as a data controller (as well as data of any person you permit to access and use the Services and/or Your Content) in the context of concluding the Agreement and providing the Services, in accordance with the Privacy Statement applicable to the Services subscribed to and other relevant activities. We may process certain data in the data center region where you use the Services and in regions where we maintain our operational, support and investigation systems and personnel. We will process Your Content in accordance with the Huawei Cloud Data Processing Addendum applicable to the Services subscribed and other relevant activities. The Huawei Cloud Data Processing Addendum is available at: https://www.huaweicloud.com/eu/declaration/sa_dpa.html.

3. Representations and Disclaimers

3.1 Representations. Each Party represents that it has validly entered into this Agreement and it has the legal power and authority to do so.

3.2 DISCLAIMERS. WE DO NOT WARRANT THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED OR THAT WE WILL CORRECT ALL DEFECTS OR PREVENT THIRD PARTY DISRUPTIONS OR UNAUTHORIZED THIRD PARTY ACCESS. TO THE EXTENT PERMITTED BY LAW AND EXCEPT AS EXPRESSLY PROVIDED HEREIN, WE EXCLUDE AND SPECIFICALLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, TERMS, CONDITIONS OR OTHER COMMITMENTS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES, REPRESENTATIONS, TERMS, CONDITIONS OR OTHER COMMITMENTS OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.

4. Proprietary Rights and Restrictions

4.1 Your Content. You and/or your licensors retain all ownership and intellectual property rights in and to Your Content. You grant us the right to host, use, process, display and/or transmit Your Content to provide and ensure proper operation of the Services in accordance with this Agreement.

4.2 Services Offerings. We and/or our licensors reserve all rights, titles and interests in and to the Services, derivative works thereof, and anything developed or delivered by or on behalf of us under this Agreement.

4.3 Restrictions. You may not, and may not cause or permit others to (a) modify, alter or make derivative works of the Services; (b) disassemble, decompile, reverse engineer, reproduce any part of the Services, or apply any other procedure to derive the source code of any software included in the Services; and (c) distribute, resell, sublicense, transfer or assign the Services.

4.4 Feedback and Suggestions. If you provide any feedback and/or suggestions to us or our affiliates, we and our affiliates are entitled to use the feedback and suggestions without restrictions, including but not limited to use and incorporate into our Services to develop new features or enhance the performance, functionalities or security of the Services, and we retain all ownership, intellectual property rights, titles and interests thereof.

5. Indemnification

5.1 Indemnification by you. If a third party makes a claim against us that (a) Your Content or our use of Your Content in accordance with this Agreement or the combination of Your Content with our Services infringes the third party’s intellectual property rights, or (b) your use of the Services is unlawful or in violation of this Agreement, you will, at your cost, defend us against the claim and indemnify us from the damages, costs and expenses finally awarded by the court to the third party claiming infringement or the settlement agreed to by you, provided that we (a) promptly notify you in writing of such claim; (b) give you control of the defense and settlement negotiation of the claim; and (c) provide you with all reasonable information, authority and assistance that are necessary to defend against or settle the claim.

5.2 Exclusive Remedy. To the extent permitted under applicable law, this Indemnification section provides the Parties’ exclusive remedy for any third party infringement claims.

6. Non-disclosure

6.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information shall not include information that: (a) is or becomes generally known to the public through no act or omission of the other Party; (b) was in the other Party’s lawful possession prior to the disclosure without breach of confidentiality obligations owed to the disclosing party; (c) is lawfully disclosed to the other Party free of any obligation of confidence by a third party which itself was not under any obligation of confidence in relation to that information; or (d) is independently developed by the other Party.

6.2 Protection of Confidential Information. Each Party agrees to keep the other Party’s Confidential Information in confidence during the term of this Agreement and for a period of five years thereafter. Each Party shall not disclose the other Party's Confidential Information to any person except with the prior written consent of the other Party or in accordance with this Section 6. Each Party agrees to take appropriate measures to protect the other Party’s Confidential Information but in no event less than the degree of care that it uses to protect its own confidential information. The Receiving Party may only disclose the Confidential Information to its employees, officers, agents or subcontractor who have a need to know and who are subject to confidentiality obligations no less stringent than the degree of protection as required herein.  Each Party may only use the other Party’s Confidential Information for the purpose of performing this Agreement, unless otherwise authorized by the other Party. Notwithstanding anything to the contrary, each Party may disclose the other Party’s Confidential Information in a legal proceeding, or as required by law and regulatory requirements.

7. Limitation of Liability

7.1 LIMITATION OF LIABILITES. TO THE EXTENT PERMITTED BY LAW, OUR MAXIMUM AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT TOGETHER WITH OUR AFFILIATES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU TO THE SOLUTION PROVIDER FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.

7.2 EXCLUSION OF LIABILITIES. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF REVENUES, PROFITS, OPPORTUNITIES, CUSTOMERS, GOODWILL, REPUTATION, DATA OR DATA USE), EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8. Term, Suspension and Termination

8.1 Term. The term of this Agreement will commence on the date you accept this Agreement and remains in force unless terminated hereunder.

8.2 Suspension. We may suspend your right to access or use the Services if: (a) it is reasonably needed to prevent unauthorized access to Your Content; (b) your access and use of the Services is in violation of the Acceptable Use Policy, this Agreement and/or applicable laws and regulations; (c) you are in breach of your payment obligations to Solution Provider; (d) your access and use of the Services may pose a  security risk to the Services, us or third parties; (e) your access and use of the Services may adversely impact the functionality, availability or operation of the Services; (f) it is required under applicable laws and regulations, or by a governmental, regulatory or other competent authority; (g) your access and use of the Services may subject us, our affiliates or subcontractors to liabilities or regulatory compliance risks; (h) you may infringe a third party’s intellectual property rights; or (i) to the extent permitted under applicable law, you have ceased to operate in the ordinary course, or are in bankruptcy, insolvency, liquidation, dissolution or similar proceedings. We will notify you if we become aware of or reasonably suspect any of the above and therefore decide to suspend your right to access or use the Services. At our sole discretion, the suspension may be effective immediately, or after a notice period set by us, if you do not cure the violation before any such notice period comes to an end. You acknowledge and agree that (a) suspension does not excuse your payment obligation to the Solution Provider for the services fees charged during or for the suspension period; and (b) you will not be entitled for any refund or services credit for such suspension.

8.3 Termination

8.3.1 Either Party may terminate this Agreement if the other Party materially breaches this Agreement and fails to cure the breach within 30 days upon receipt of notice from the first-mentioned Party identifying such breach and requesting its cure.

8.3.2 You acknowledge and agree that we also have the right to terminate the Services or any part thereof, or this Agreement if any scenario described in Section 8.2 (a) to (i) occurs, and Your Content stored in the Services environment may be deleted immediately.

8.4 Consequences of termination

8.4.1 Termination of this Agreement shall not (a) affect the accrued rights and obligations of the Parties as at the date of termination; (b) affect the continued operation of Sections 3, 4, 5, 6, 7, 8, 9 and 10, 11, 12, 13, 14 and any provisions of this Agreement which are necessary for the interpretation or enforcement of this Agreement.

8.4.2 Except as provided at section 8.3.2, upon termination, during the extended and/or retention period as detailed in our website, you may retrieve Your Content.

9. Force Majeure

Neither Party shall be liable for any delay or failure to perform this Agreement caused by acts, events, omissions or accidents beyond its reasonable control, including but not limited to acts of God (including earthquake, storms or other natural disaster), epidemic, pandemic, quarantine, acts of terrorism, war or warlike operations, civil unrest or riot, electrical, internet or telecommunication outage, blockages, sanctions, embargoes, fire, flood, explosion or malicious damage, or failure of plant or equipment, or change of any law, governmental order, rule, regulation, direction or industry standard. Both Parties will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 60 days, either Party may cancel unperformed Services and the affected orders upon written notice. This section does not excuse your payment obligations hereunder.

10. GOVERNING LAW AND VENUE

This Agreement and any issues, disputes or claims arising out of or in connection with this Agreement or its subject matter or formation (whether contractual or non-contractual in nature such as claims in tort, from breach of statute or regulation or otherwise) shall be governed by and construed in accordance with the laws of Ireland.

The Parties agree irrevocably that courts of Ireland shall have exclusive jurisdiction to settle any issues, claims, disputes or matters arising out of, relating to, or in connection with this Agreement (whether contractual or non-contractual).

11. Entire Agreement

This Agreement incorporates the documents and policies referenced herein (including reference to information contained in a URL or referenced policy), and is the entire agreement between you and us regarding the Services. This Agreement supersedes all prior or contemporaneous representations, communications, understandings and agreements between you and us, whether in written or oral form, regarding the Services. It is expressly agreed by the Parties that the terms of this Agreement will supersede any terms and conditions that are different or are not set out in this Agreement, including any terms in your request for bid/proposal/information, purchase order, receipt, acceptance, confirmation, correspondence or other document.

12.  Modifications to the Agreement

We may modify this Agreement, including the documents and policies referenced herein, at any time at our discretion by posting a revised version on the Website or by otherwise notifying you. Except as otherwise indicated in the modified Agreement, documents or polices, the modified terms will come into effect upon posting or as otherwise notified by us. You will review such terms regularly on the Website. Your continuous use of the Services after the coming into effect of such modification will be deemed as your acceptance to the modified terms.

13. Miscellaneous

13.1 Relationship. Each Party is an independent contractor. This Agreement does not create any partnership, joint venture, agency or employment relationship between the Parties.

13.2 Non-assignment. You will not assign or otherwise transfer all or part of this Agreement to any third party, including your affiliates, without prior written consent from us. We may assign or transfer any rights or obligations under this Agreement without your consent to our affiliate. We will notify you, by posting an announcement on our website or through other means, prior to the effective date of such transfer or assignment.

13.3 No Third Party Beneficiary. No third party beneficiary relationships are created by or under this Agreement. Unless otherwise expressly provided in this Agreement, a  person who is not a Party to this Agreement may not enforce any of its provisions hereunder.

13.4 Services Monitoring. In order to (a) operate and provide the Services, (b) detect and address threats to the functionality, security, integrity and availabilities of the Services, (c) support your services requests, and (d) detect illegal activities or breach of the Acceptable Use Policy and this Agreement, we may continuously monitor the Services and your use thereof.

13.5 Export. Each of the Parties shall each comply with all applicable international and national laws and regulations in their performance of their obligations and the exercise of rights pursuant to this Agreement, including (but not limited to) all import and export control laws, customs, embargos and sanction regimes of the United Nations, China, United States, and other jurisdictions. You represent and warrant that neither you and/or your End Users are subject to sanctions or otherwise designated on any list of prohibited or restricted persons, including (but not limited) to the lists maintained by the United Nations Security Council, the United States Government, the European Union, or any of its Member States. Solution Provider shall be exclusively responsible for compliance with applicable laws, regulations or legally binding requests issued by governmental, regulatory, or other competent authorities, related to your performance of this Agreement or your subscription, access and use of the Services, including (but not limited) to Your Content you upload, process, provide and/or make available to your End Users. If requested by us, you shall promptly provide us with any reasonable assistance requested to enable us to perform any activity required by any competent government or agency in any relevant jurisdiction for the purpose of compliance with any laws and regulations described in this clause 13.5.

13.6 Financial Compliance. You hereby represent, warrant and undertake that 1) neither you nor (if any) any of your subsidiaries, directors, shareholders, officers, affiliates, agents or employees is a Restricted Party; 2) any fund or payment made to us at any time shall not, directly or indirectly, derive from or relate to or involve a  Restricted Party, money-laundering, terrorist-financing or any other transaction, activity or business that would be in violation of applicable laws and regulations and all or any part of the proceeds or funds you acquire at any time pursuant to this Agreement shall not be, directly or indirectly, used or contributed to, or otherwise made available to fund, support or facilitate any illicit and unlawful transaction, activity or business, including but not limited to those that would reasonably be expected to result in a Party being in breach of any applicable Sanctions or prohibited by applicable Sanctions; 3) you agree to immediately indemnify us on demand against any liability or damage, including but not limited to any losses, fines, penalties, costs, expenses, attorney fees, or damages. that we may incur or suffer in connection with your failure to comply with any representation, warranty and undertaking in Clause 13.6.

In this Agreement:

Restricted Party means a person that is (a) listed on, or owned or controlled by a person listed on, or acting on behalf of a person listed on, any Sanctions List; (b) located in, permanent resident of, or incorporated under the laws of a country or territory that is the target of country-wide or territory-wide Sanctions; or (c) otherwise a target of Sanctions being a person with whom a US person or other national of a Sanctions Authority would be prohibited by law from engaging in trade, business or other activities;

Sanctions means embargo and economic sanctions, international  laws, regulations or restrictive measures imposed, administered or enforced from time to time by (i) the United Nations; (ii) the European Union; (iii) United States Treasury Department's Office of Foreign Assets Control (“OFAC”), or the US Department of State; (iv) HM Treasury of the United Kingdom; and (v) other competent governmental institutions in any jurisdiction; to the extent that they apply to a Party’s activities under this Agreement; (collectively, the “Sanctions Authorities”);

Sanctions List means the ‘Financial Sanctions’ list published by the EU Commission, the Sanctions Committees list published by the United Nations, the "Specially Designated Nationals and Blocked Persons" list maintained by OFAC, the Consolidated List of Financial Sanctions Targets maintained by HM Treasury of the United Kingdom, or any similar list maintained by, or public announcement of Sanctions designation made by, any of the Sanctions Authorities.

13.7 Notice. We may provide notice to you under this Agreement by posting a notice on the Website, or by email or text message (including via SMS and other instant messaging platforms). Notices we provide by posting on the Website will be effective upon posting, and by email and text messages upon sending out (irrespective of whether and when you receive or read it). You shall be responsible to keep your email address or phone number updated. Here you will find information on how to contact us https://console.eu.huaweicloud.com/ticket/?region=eu-west-101#/ticketindex/createIndex.

13.8 No Waivers. Any delay or failure to enforce any provision of this Agreement will not constitute a waiver of such provision and will not limit the right to enforce such provision at a later time. All waivers shall be expressly made in writing to be effective.

13.9 Severability. If any term of this Agreement is found to be invalid, illegal or unenforceable, the remaining terms of this Agreement shall be unaffected thereby and will remain valid and enforceable. The invalid, illegal or unenforceable term shall be modified so as to give effect to the original intent of the Parties as closely as possible.

14. Agreement Definitions

14.1 “Acceptable Use Policy” refers to the policy located at: https://www.huaweicloud.com/eu/declaration/sa_nisr.html, which is incorporated into this Agreement by reference, as may be updated from time to time.

14.2 “Huawei Cloud Contracting Party” refers to Sparkoo Technologies Ireland Co., Limited.

14.3 “Privacy Statement” refers to Privacy Statement located at: https://www.huaweicloud.com/eu/declaration/sa_prp.html, which is incorporated into this Agreement by reference, as may be updated from time to time.

14.4 “Services” or “Huawei Cloud Services” refers to the services made available by us or our affiliates.

14.5 “Services Terms” refers to the services terms located at: https://www.huaweicloud.com/eu/declaration/sa_cua.html, which is incorporated into this Agreement by reference, as may be updated from time to time.

14.6 “Third-Party Content”  refers to any third party software, data, interfaces or other products installed, used or downloaded by you in connection with the Services.

14.7 “Your Content” refers to all data (including personal data), software, device, text, images, video, audio, photographs, third-party applications, information, and materials, in any format, provided or made available by you that is transferred to, stored in, or processed on the Services. Our materials, data and information will not fall within the definition of Your Content.

14.8 “Website” refers to the Huawei Cloud Website located at: https://www.huaweicloud.com/eu.