This Huawei Cloud Partner Network Certification Agreement (hereinafter "Agreement") is made by and between the Huawei Cloud Contracting Party as defined in Section 14.3 of this Agreement (hereinafter "Huawei Cloud ", "we”, “us", or "our") and you or the company or other legal entity you represent (hereinafter "you" or "your") regarding your use of the Huawei Cloud Partner Network (the "HCPN") and related websites through which Huawei Cloud may provide you with access to products, documents and information in relation to programs Huawei Cloud offers to its partners. If you enter into this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the requisite 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 on our website and will be binding on you from the said date (“Effective Date”).

You and Huawei Cloud are each referred to as a "Party" and collectively as "Parties" hereunder.

1. General

1.1 Participate in the HCPN. To participate in the HCPN, you shall create an Huawei Cloud account (the “Account ”) through https://www.huaweicloud.com/eu/partners/index.html, complete the application and be bound by the terms and conditions of the applicable at https://www.huaweicloud.com/eu/declaration/sa_cua.html.

1.2 HCPN benefits. The HCPN gives access to (a) our content, information, sales tools, documentation and other resources ("HCPN Resource"); (b) our offers, incentives, and programs ("HCPN Program") and (c) our services, products and technologies (the "Services") for you to deliver great solutions to your customers.

1.3 Promotional communication and processing your information. Huawei Cloud will administer the HCPN and its benefits from time to time and we will send you promotional information in relation to the HCPN, if you give us permission to do so. We will collect, use, disclose, share, process and retain any information, personal or otherwise, that you provide to us in connection with the HCPN according to our Privacy Statement which is available at https://www.huaweicloud.com/eu/declaration/sa_prp.html.

1.4  Additional Terms. This Agreement applies to your HCPN partnership and any HCPN program you may join in future, but it does not authorize you to distribute, resell or use the Services. In order to distribute, resell or use the Services, you shall also participate in the related HCPN Program and comply with the specific terms applicable to such program, in addition to this Agreement. In the event of any conflict between this Agreement and the terms of a certain program, the terms of the certain program shall prevail with respect to such program.

2. Proprietary Rights and Restrictions

2.1  Your Marks. We may disclose your name, website, and other general contact information on our website, which is available at https://www.huaweicloud.com/eu.  You grant us and our Affiliates a non-exclusive, non-transferable, worldwide, royalty-free license to use any tradename, trademark, and other logo or domain name that you provide to us in connection with HCPN or HCPN Program (“Your Marks”).

2.2  Your Material. You may use, reproduce and incorporate into portions of your own materials ("Your Material") HCPN Resources that you have been given access to solely for your business purposes contemplated under the HCPN during the term of this Agreement. If you provide Your Material to us, you grant us and our Affiliates a non-exclusive, worldwide, royalty-free license to reproduce, publish, distribute, modify and translate all or any part of Your Material in connection with the HCPN.

2.3  Huawei Cloud Marks. With our prior written approval only, you may use our trademarks, tradenames, trade dress, designs, slogans and logos ("Huawei Cloud Marks") under a non-exclusive, non-transferable, non-sublicensable, worldwide, royalty-free license solely in connection with the performance under this Agreement.

2.4  Third Party Content.  Your use of content, software, products or services that are provided or supported by third parties ("Third Party Content") and provided to you by us, is on an “as is” basis and without any representations or warranties made by Huawei Cloud. You acknowledge and agree that, if there is any conflict between this Agreement and the terms of a Third Party Content provider, this Agreement shall prevail, and you shall give effect to the terms of this Agreement irrespective of the terms of such Third Party Content provider.

2.5  Necessary Right. You represent and warrant that you are the legal owner of all Intellectual Property Rights in or otherwise have full right and authority to grant us and our Affiliates access, usage rights and the requisite licenses, as set out herein above to Your Marks and Your Material. We will ensure that we have all rights necessary to grant the licenses in respect of the Huawei Cloud Marks to you as set out herein above.

3. Non-disclosure

3.1  Definition of Confidential Information. “Confidential Information” means all information disclosed by a Party ("Disclosing Party") to the other Party ("Receiving Party"), in the course of their dealings relating to this Agreement whether before or after the date of this Agreement, in any medium or format (including written, oral, visual or electronic), whether or not marked or described as "confidential", or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, which relates to the Disclosing Party (or any of its Affiliates), or to the employees, officers, customers or suppliers of the Disclosing Party (or any of its Affiliates). 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.

3.2  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 agrees to take appropriate measures to protect the other Party's Confidential Information which shall in no event be less than the degree of care that it uses to protect its own confidential information.

3.3  Permitted Disclosure. The Receiving Party may only disclose the Confidential Information to its employees, officers, agents or subcontractors who have a need to know and who are subject to confidentiality obligation 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 or regulatory requirements.

4. Data Protection

4.1 The Personal Data protection terms applicable to the processing operations performed in relation to this Agreement are set out in the Huawei Cloud Data Processing Terms incorporated by reference herein.

4.2 You shall only obtain the Services through authorized channels (such as through the Huawei Cloud official website). You shall not implant any form of malware, backdoors, Trojan horses, or other viruses into, or forge or tamper with any part of, the Services or Huawei Cloud’s systems and networks

5. Indemnification

5.1 Indemnification by us. If a third party makes a claim against you that the Services provided by us and used by you infringe its Intellectual Property Rights, we will, at our cost, defend you against the claim and indemnify you for the damages, costs and expenses finally awarded against you by a court of competent jurisdiction or agreed to in a written settlement agreement signed by us, provided that you (a) promptly notify us in writing of such claim; (b) give us sole control of the defense and settlement negotiation of the claim; and (c) provide us with all reasonable information, authority and assistance necessary for us to defend against or settle the claim. We may at our sole and absolute discretion (a) modify the Services to be non-infringing while substantially preserving its functionality; and/or (b) obtain a license to allow for continued use; and/or (c) terminate the provision of the Services and refund the fees prepaid for unused Services upon prior written notice. Notwithstanding the foregoing, we will not indemnify you if (a) the claim is caused by the use or combination of the Services or any part thereof with software, hardware and/or content not provided by us; (b) the claim arises from Your Material, Third-Party Content, or your breach of this Agreement; (c) you alter the Services or use it outside the scope of use, the terms of this Agreement, or other applicable terms and conditions governing the use of such Services; or (d) you fail to use the updated version of the Service, or fail to implement the recommendations from us, if the infringement claim could have been avoided by using an unaltered current version or implementing the recommendations we provided.

5.2 Indemnification by you. If a third party makes a claim against us based on the fact that (a) our use of Your Material or Your Marks in accordance with this Agreement or the combination of Your Material with our Services infringes the third party's Intellectual Property Rights, or (b) you have used or are using the Services in an unlawful manner or in violation of this Agreement, you shall, at your cost, defend us against the claim and indemnify us from all the damages, costs and expenses finally awarded against us by a court of competent jurisdiction or agreed to in a written settlement agreement signed by you, provided that we (a) promptly notify you in writing of such claim; (b) give you sole control of the defense and settlement negotiation of the claim; and (c) provide you with all reasonable information, authority and assistance we need to defend against or settle the claim. You will not indemnify us if such claim is caused by our breach of this Agreement. 

5.3 Exclusive Remedy. This Indemnification section provides the Parties’ exclusive remedy for any third party claims for infringement of Intellectual Property Rights. For avoidance of doubt, this Section 5.3 shall not limit or otherwise affect our right to seek indemnification for other claims in accordance with the terms of this Agreement.

6. Limitation of Liab ility

6.1   LIMITATION OF LIABILITIES. NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE EXTENT PERMITTED BY LAW, OUR MAXIMUM AGGREGATE LIABILITY IN RESPECT OF ANY LOSS, DAMAGE, FINES, LIABILITY, CHARGE, PROCEEDING, EXPENSE, OUTGOING OR COST OF ANY NATURE OR KIND, INCURRED BY US OR ANY OF OUR AFFILIATES ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, MISREPRESENTATION (WHETHER TORTIOUS OR STATUTORY), TORT (INCLUDING NEGLIGENCE) AND BREACH OF STATUTORY DUTY OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER FOR THE SERVICES THAT GIVE RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.

6.2   EXCLUSION OF LIABILITIES.  IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT OR CONSEQUENTIAL LOSSES OR DAMAGE, OR ANY LOSS OF REVENUES, PROFITS, OPPORTUNITIES, CUSTOMERS, DAMAGE TO GOODWILL, DAMAGE TO REPUTATION, OR LOSS OR UNAVAILABILITY OF DATA OR DATA USE, ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF OR WAS AWARE OF THE POSSIBILITY THAT SUCH DAMAGE OR LOSS MIGHT BE INCURRED BY THE OTHER PARTY.

7. Disclaimers

THE INFORMATION PRESENTED ON OR THROUGH THE WEBSITE REGARDING THE HCPN, WHICH INCLUDES BUT IS NOT LIMITED TO THE HCPN PROGRAM AND THIRD PARTY CONTENT, IS SOLELY FOR GENERAL INFORMATION PURPOSES. WE DO NOT WARRANT THE ACCURACY, COMPLETENESS OR USEFULNESS OF SUCH INFORMATION. WE DISCLAIM ALL LIABILITY AND RESPONSIBILITY ARISING FROM ANY RELIANCE PLACED ON SUCH INFORMATION. THIS INFORMATION IS PROVIDED ON AN “AS-IS” BASIS WITHOUT WARRANTIES, GUARANTEES OR REPRESENTATIONS OF ANY KIND.

8. Term, Suspension and Termination

8.1  Term. The term of this Agreement will commence on the Effective Date specified above and remains in force unless terminated in accordance with the terms of this section 8 or as otherwise provided in this Agreement.

8.2  Termination.

(a)  This Agreement will automatically terminate upon any termination of the applicable Customer Agreement.

(b)  Either Party may terminate this Agreement, without cause, by giving 90 days' prior written notice to the other.

(c)  Either Party may terminate this Agreement if the other Party breaches any material term of this Agreement and fails to cure the breach within 30 days from receipt of the notice from the first-mentioned Party identifying such breach and requesting its cure.

8.3  Effect of Termination.

If this Agreement is terminated, you shall immediately cease to use Huawei Cloud Resources and immediately cease to identify yourself as a partner of Huawei Cloud.

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 4, 5, 6, 7, 8, 10, 11, 13, 14 and any provisions of this Agreement which are necessary for the interpretation or enforcement of this Agreement, all of which shall survive such termination; or (c) relieve you of any of your obligations hereunder to pay any fees and charges accrued or payable to us during the term of this Agreement and you shall immediately pay us all such fees upon the effective date of termination.

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 affected orders (if any) by giving written notice to the other Party. This Section 9 does not excuse your payment obligations hereunder if any.

10. Governing Law and Jurisdiction

10.1 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.

10.2 The Parties agree irrevocably that the 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 HCPN. This Agreement supersedes all prior or contemporaneous representations, communications, understandings and agreements between you and us, whether in writing or oral, regarding the HCPN.

12. Modifications

We may modify this Agreement, its terms and conditions, including the documents, URLs and policies referenced herein at any time and at our sole and absolute discretion by posting a revised version on the Huawei Cloud website or by otherwise notifying you. Except as otherwise indicated in the modified Agreement, documents or policies, the modified terms will come into effect upon posting on the Huawei Cloud website. You will review such terms regularly on our website. If you do not agree to any modified terms, you must discontinue or terminate your participation in the HCPN or the applicable HCPN Program. Your continued participation will be deemed to be your acceptance of 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 this Agreement without your consent to our Affiliate(s). 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. Upon the coming into effect of any such assignment, this transferor or assignor is fully released from all and any of its obligations and duties to perform the Agreement and the transferee or assignee will be deemed substituted for us.

13.3 No Third Party Beneficiary. This Agreement is intended for the benefit of the Parties hereto and their respective permitted successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other persons.

13.4 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 Huawei Cloud, the Solution Provider shall promptly provide Huawei Cloud with any reasonable assistance requested to enable Huawei Cloud 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 13.4.

13.5 Notice. We may provide notice to you under this Agreement by posting a notice on the Huawei Cloud website, or by email or text message (including via SMS and other instant messaging platforms). Notices we provide by posting on the Huawei Cloud website will be effective upon posting, and in the case of emails 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.

13.6 No Waivers. Any delay or failure to enforce any provision of this Agreement will not constitute a waiver of such provision or right in any way or form and will not limit the right to enforce such provision at a later time. If a Party waives a breach of any provision of this Agreement, this will not operate as a waiver of a subsequent breach of that provision, or as a waiver of a breach of any other provision. All waivers shall be expressly made in writing to be effective.

13.7 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.

13.8 Further Assurance. Each Party must at its own cost and expense execute, or use all reasonable endeavors to ensure the execution of, whatever further documents or deeds the other Party reasonably requires from time to time for the purpose of giving that other Party the full benefit of the provisions of this Agreement.

13.9 Rights and Remedies. The rights, powers and remedies provided in this Agreement are (except as expressly provided) cumulative and not exclusive of any rights, powers and remedies provided by applicable laws or regulations or otherwise.

13.10 Cost. Each party must (except as expressly provided) bear its own costs and expenses in connection with the preparation, negotiation, and entering into of this Agreement.

13.11 Code of Conduct and Ethics

You certify that you have reviewed and will comply with Huawei Cloud’s Code of Conduct and Ethics, which is available at: https://www.huaweicloud.com/eu/declaration/hcpn_coc.html. You further acknowledge that Huawei Cloud does not condone and prohibits bribery in any form and you will comply with the Anti-Corruption Policy for Huawei Cloud Partners，which is available at https://www.huaweicloud.com/eu/partners/anti_corruption_policy/index.html. Huawei Cloud may immediately terminate this Agreement and all other agreements between you and Huawei Cloud if this Section 13.11 or any of the policies or standards referred to herein are breached. In case of any violation of the policies or standards referred to herein, Huawei Cloud shall have the right to publish or inform its end users of the violation, including in the list of restricted cooperation; and Huawei Cloud may without prejudice to the foregoing terminate the cooperation, cancel any incentives, rights and interests made available to you under this Agreement, and/or terminate your HCPN partnership with immediate effect.

13.12 Right to Audit. Huawei Cloud or Huawei Cloud’s authorized representative may, on giving five (5) Business Days’ prior written notice, audit your records, documents and locations as reasonably necessary for the specific purpose of ascertaining your compliance with this Agreement and/or other agreements entered into by and between you and Huawei Cloud, including but not limited to auditing purchase and sales history of our Services, your qualification as a Huawei Cloud partner, and orders and/or agreements between you and your end users. Such audit shall be carried out during your normal business hours. Any information provided during any such audit shall be subject to the confidentiality provisions of this Agreement. You agree to fully cooperate with Huawei Cloud’s audit and provide all reasonable assistance and access to information as may be required for the purposes of the audit. Any such audit shall not unreasonably interfere with your normal business operations.

Without prejudice to Huawei Cloud’s other rights or remedies under this Agreement or applicable law, if the audit reveals any failure by you to comply with your obligations under this Agreement and/or other agreements entered into between you and Huawei Cloud, you must promptly (and in any event within 30 days of first being informed of such failure) and at your own cost rectify such failure. If you fail to rectify such failure within 30 days of first being informed of such failure, Huawei Cloud shall be entitled to terminate this Agreement and/or any other agreements entered into between you and Huawei Cloud and claim against you, without prejudice to any other rights or remedies that Huawei Cloud may have under this Agreement or applicable law.

The Parties shall bear their own costs incurred in respect of compliance with their obligations under this Section 13.12. For the purposes of this Section 13.12, a “Business Day” means a day (other than a Saturday or Sunday) on which banks are open for general business in Ireland.

13.13 Information Accuracy. Any or all information provided to Huawei Cloud by or on behalf of you is and will be correct, accurate and complete in all respects.

14. Definition

14.1 "Affiliate" in relation to a Party means any person which directly or indirectly controls, is controlled by, or under common control with that Party. For purposes of the foregoing, "control" shall mean the possession of power to direct or cause the direction of the management and policies of a person, whether through the ownership of equity or voting power, by contract or otherwise.

14.2 "Intellectual Property Rights" means (i) patents, inventions, designs, copyright and related rights, database rights, trademarks, service marks and trade names (whether registered or unregistered), and rights to apply for registration; (ii) proprietary rights in domain names; (iii) knowhow and confidential information; (iv) applications, extensions and renewals in relation to any of these rights; and (v) all other rights of a similar nature or having an equivalent effect which currently exist anywhere in the world.

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

14.4 “Governing Law” and “Corresponding Court” refers to the Irish law and the courts of Ireland.

14.5. “Huawei Cloud Data Processing Terms” refers to the terms and conditions located at: https://www.huaweicloud.com/eu/declaration/sa_dpt.html, which is incorporated into this Agreement by reference, as may be updated from time to time.

 

Updated: September 16, 2022