These terms and conditions apply to your use of Huawei Cloud Products and/or Huawei Affiliate Products (as defined below) that you purchase through a Reseller on KooGallery.

If you have purchased Huawei Cloud Products and/or Huawei Affiliate Products directly from us through KooGallery, the below terms and conditions are not applicable, and you should refer instead to the Huawei Cloud KooGallery Huawei Product User Agreement which is available at: https://www.huaweicloud.com/eu/declaration/hpua.html.

This Huawei Cloud KooGallery Huawei Product End User License Agreement (the “Agreement”) contains the terms and conditions that govern the access to and use by you (“End User”, “you” or “your”) or your employees, agents, or contractors, of software, services, content or other products developed by Huawei Cloud and/or Huawei Affiliates (“Huawei Cloud Products” and  “Huawei Affiliate Products” respectively) that are listed on KooGallery and provided to you by a KooGallery Reseller (collectively “Products”, and shall include any Preview Product (as defined below) and any Third Party Content (as defined below)). This Agreement is entered into by and between the Huawei Cloud Contracting Party as defined in Section 15.13 of this Agreement (“Huawei Cloud”, “we”, “us” and “our”) and you (the entity specified in Huawei Cloud account) in connection with your agreement with KooGallery Reseller and the Products.

If you enter into this Agreement for a company or other legal entity, you hereby represent and warrant that you have the requisite power and authority to do so and to bind the company or other legal entity to the terms and conditions of this Agreement. This Agreement takes effect as of the date you accept this Agreement (the “Commencement Date”). You and Huawei Cloud are each referred to as a “Party” and collectively as the “Parties” hereunder.

By using KooGallery, you confirm your agreement to the terms of this Agreement. If you do not agree to the terms of this Agreement, you must not use, and must ensure that no other person (including any persons employed or engaged by you) uses, the Products.

1. Purchase and Use of the Products

1.1 Rights Granted. For the Huawei Cloud Products you purchased and/or subscribed to from the Reseller, we grant to you a limited, non-exclusive, non-transferable, revocable license, without the right to sublicense, to access and use the Products in accordance with the terms and conditions of this Agreement. For the Huawei Affiliate Products you purchased and/or subscribed to from the Reseller, Huawei Affiliates grant to you a limited, non-exclusive, non-transferable, revocable license, without the right to sublicense, to access and use the Products in accordance with the terms and conditions of this Agreement. You shall comply with this Agreement, your agreement with the Reseller and Applicable Laws in connection with your access to and use of the Products and your performance of this Agreement.

1.2 Agreement with Reseller. In order to purchase a Product on KooGallery through a Reseller you must enter into an agreement with the Reseller setting out the relevant terms governing your purchase, use of and access to the Products that you purchase from the Reseller (“Reseller End User Agreement”). The terms of such Reseller End User Agreement must be consistent with these terms and any other agreements entered into between you and us.

You acknowledge and agree that the Reseller End User Agreement is entered into between you and the Reseller, and that Huawei Cloud and its Affiliates are not a party thereto and shall have no liability of any kind arising therefrom. The Reseller is the sole entity liable to you for the quality of Products and related services provided to and used by you. You acknowledge and agree that you bear any risks arising out of transacting with any Reseller and you are exclusively responsible for your performance of the Reseller End User Agreement. Huawei Cloud and its Affiliates shall not be liable to you for Products that are sold to you by Resellers and any other services Resellers provide to you.

You further acknowledge and agree that (a) the Resellers are not agents of Huawei Cloud; (b) the Resellers do not have any power or authority to bind or incur any obligation of any kind on behalf of Huawei Cloud; and (c) that Huawei Cloud shall not be liable for any acts or omissions of the Resellers. Huawei Cloud is entitled to suspend or terminate a Reseller’s right to access or use KooGallery and/or to resell Products on KooGallery in the event of a breach by such Reseller of its agreements with Huawei Cloud, or our terms and conditions or policies, and Huawei Cloud shall have no liability of any kind to you in the event of such suspension or termination, or the exercise of any other rights or remedies in connection with the agreement(s) between Huawei Cloud and the Reseller.

1.3 Reseller Responsibilities. You acknowledge and agree that the Reseller is the sole entity liable to you for the quality of Products and related services provided to and used by you, including for upgrades, maintenance, technical support, handling consultations and complaints, after-sales services and/or proposing solutions to resolve any issues relating to the Products. Such matters shall be governed by the terms of the Reseller End User Agreement. We and our Affiliates are not a party to the Reseller End User Agreement, and shall have no liability of any kind arising therefrom.

1.4 Your Account and Credits. To access and use the Products, you must create a Huawei Cloud account and connect your account to a Reseller’s KooGallery account. To create an account, you shall provide truthful and accurate information to Huawei Cloud. If your information changes at any time, the information in your account must be promptly updated to reflect those changes. You are the sole person responsible for (a) maintaining the confidentiality of your account and the security of any passwords, authentication keys or security credentials used for enabling your access to the Products; and (b) any activities that occur under your account, whether they are your activities or otherwise. You shall notify the Reseller or Huawei Cloud immediately about any unauthorized activity on or misuse of your account, or any security incident related to the Products or KooGallery. You acknowledge and agree that we and our Affiliates will not be liable for any unauthorized activity on or misuse of your account, unless such unauthorized activity or misuse is directly caused by our breach of this Agreement and you have notified us of such activity or misuse as soon as you become aware of it.

A Reseller may send you a connection invitation from its account. If you accept this invitation your account will then be connected to the Reseller KooGallery account. Once your account is connected with the Reseller’s KooGallery account, the Reseller may grant you credit up to the amount outlined in the Reseller End User Agreement. You may use such credit to place orders for Products on KooGallery. You may only place orders for Products on KooGallery using such credit where the value of the Products ordered is lesser than or equivalent to your level of credit.

1.5 Orders and Billing. To purchase Products through a Reseller, you shall place the order for the Product on KooGallery using your Huawei Cloud account which shall be connected with the KooGallery account of the Reseller. We shall bill your associated Reseller for orders that you place on KooGallery, you are exclusively liable to the Reseller for the payment for the Product, and your associated Reseller is exclusively liable for providing payment for such orders to us. You shall settle the relevant payments with your Reseller in accordance with the Reseller End User Agreement. The prices of the Products you purchase shall be determined as between you and the Reseller and outlined in the terms of your Reseller End User Agreement. Your Reseller is responsible for issuing any invoices to you.

In the event that the Reseller is in breach of its payment obligations to Huawei Cloud and/or Affiliates , Huawei Cloud reserves the right to suspend or cancel the Reseller’s access to and use of KooGallery the Products and/or Huawei Cloud Services without any liability of any kind to you. You acknowledge and agree that, should such suspension or cancellation affect your ability to access and use the Products that you have purchased, the Reseller shall be exclusively liable and responsible to you for any loss or damages you may incur in connection therewith.

1.6 Acceptable Use Policy and KooGallery Terms. In agreeing to 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.

1.7 Your Content. You shall ensure that Your Content does not breach the terms and conditions of this Agreement, the Reseller End User Agreement and Applicable Laws. You are exclusively liable for the transmission, use, legality, accuracy, integrity and reliability of Your Content. You are the sole person responsible for securing and maintaining any required notice, consent or authorisation related to your provision of and our and our Affiliates’ processing of Your Content as part of the provision of the Products. We and our Affiliates do not assume any obligations and / or liability of any kind in relation to Your Content, unless required to do so by the Applicable Laws.

1.8 Third-Party Content. The Products may include or be provided together with Third-Party Content. The supply of such Third-Party Content to you shall be governed by this Agreement, and if applicable, separate terms and conditions specified in the Product 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. We and our Affiliates make no representation or warranty of any kind in respect of any Third-Party Content and shall bear no liability for any loss, damage, expense or cost of any nature or kind resulting from any Third-Party Content.

1.9 Preview. Preview Products refers to Products or features of Products we and/or our Affiliates make available to you at no charge for trial purposes through KooGallery. Preview Products are provided “as-is” and “as available”, and are excluded from our warranties set forth in this Agreement or the Reseller End User Agreement. Preview Products may not be covered by support, and we and/or our Affiliates shall be entitled in our sole discretion to amend or discontinue a Preview Product at any time and without notice. We and/or our Affiliates are not required to release a Preview Product or make a Preview Product generally or commercially available.

2. Security and Data Privacy

2.1 Our Security. Subject to Sections 1.7, 2.2 and 2.5 of this Agreement, we shall maintain appropriate administrative, physical and technical measures designed to help you protect the security and confidentiality of Your Content stored in the Product and Huawei Cloud environment. We will not access or use Your Content except as necessary to provide the Products and related services, to perform or enforce this Agreement, or to comply with Applicable Laws.  

2.2 Your Security. You shall be liable for any security vulnerabilities and the consequences of such vulnerabilities arising out of or related to Your Content, including but not limited to any viruses, Trojan horses, worms or other harmful code contained in Your Content.

2.3 Data Privacy. You acknowledge that you understand and agree to the Privacy Statement located at: https://www.huaweicloud.com/eu/declaration/sa_prp.html. Please carefully read this Privacy Statement ("Privacy Statement") before you submit your Personal Data to us. 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 Addendum located at: https://www.huaweicloud.com/eu/declaration/sa_dpa.html which are incorporated by reference herein.

2.4 Operational data. All of the rights to the operational data of the Huawei Cloud Services, the Website, KooGallery and related websites belong to Huawei Cloud. Without prior express written permission from Huawei Cloud, you shall not save, use, or authorize others to use any of the operational data generated by the Huawei Cloud Products and the Platform for any purposes. This does not apply to the Personal Data with respect to which the Huawei Cloud Data Processing Addendum located at: https://www.huaweicloud.com/eu/declaration/sa_dpa.html.

2.5 Reseller Privacy Practices and Statements. Resellers are responsible for providing privacy statements to you and informing you of their privacy practices with regard to your data that is collected, processed and disclosed through the provision of their Products and services to you. Our Privacy Statement shall not apply to any Products or services provided to you by Resellers, or to Resellers’ processing of any of your data or information. Resellers shall be exclusively responsible and liable for protecting Personal Data provided by you that they process and any data protection compliance and security obligations related to such processing.

3. Representations

Each Party represents and warrants that it has the legal power and authority to enter into this Agreement.

4. Proprietary Rights and Restrictions

4.1 Your Content. You and/or your licensors shall retain all ownership and Intellectual Property Rights in and to Your Content. You hereby grant us and our Affiliates the right to host, use, process, display and/or disclose Your Content to provide and ensure proper operation of the Products and related services in accordance with this Agreement.

4.2 Product Offerings. We, our Affiliates and/or our licensors reserve all ownership, rights including Intellectual Property Rights, titles and interests in and to the Products and the KooGallery (including any underlying software programs and all of its portions, reproductions and modifications), derivative works thereof, and Intellectual Property Rights or product of any kind developed or delivered by or on behalf of us and/or our Affiliates under this Agreement. Except as expressly provided herein, nothing in this Agreement shall be construed to grant you any rights, titles and interests in and to the Products and KooGallery.

4.3 Restrictions. You shall not, and shall procure that others do not (a) modify, alter or make derivative works of the Products and / or the KooGallery; (b) disassemble, decompile, reverse engineer, reproduce any part of the Products or the KooGallery, or carry out any other action to derive the source code of any software included in the Products or the KooGallery; (c) distribute, resell, sublicense, transfer or assign the Products or the KooGallery, except as otherwise provided in this Agreement or agreed by the Parties in writing; and (d) access the Products or the KooGallery in order to (i) build a competitive product or services; (ii) copy any features, functions or graphics of the Products or the KooGallery; or (iii) perform or disclose any benchmark, security testing or performance testing of the Products or KooGallery.

4.4 Feedback. You grant Huawei Cloud and its Affiliates a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into KooGallery or Products any enhancement requests or feedback provided by you, so long as you are not identified in any way as the source of such feedback. For the avoidance of doubt, Huawei Cloud and its Affiliates shall not be obliged to implement any such enhancement or feedback. You agree to provide any necessary support for the implementation of the aforesaid enhancements or feedback.

5. Indemnification

5.1 Indemnification by you. If a third party makes a claim against Huawei Cloud and/or our Affiliates that your use of the Products or KooGallery is illegal or in breach of this Agreement, you shall indemnify and hold harmless Huawei Cloud, its Affiliates and / or Resellers from and against any and all third-party claims, suits, demands, actions, damages, losses, liabilities, costs and expenses (including reasonable attorney’s fees and associated costs) arising out of or in connection with any such claim provided that we and/or our Affiliates (a) promptly notify you in writing of such claim; (b) give you control of the defence and settlement negotiation of such claim; and (c) provide you with any reasonable information, authority and assistance necessary to defend against or settle such claim. We may at our discretion suspend or terminate the provision of the Products, this Agreement and/or the applicable order, without refund of any fees paid should such a claim arise.

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 marked 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 Receiving Party; (b) was in the Receiving Party’s lawful possession prior to the disclosure without breach of confidentiality obligations owed to the disclosing party; (c) is lawfully disclosed to the Receiving 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 Receiving Party. For the purposes of this Section 6, references to “Party”, “Disclosing Party” and “Receiving Party” shall, in relation to us, be interpreted as a reference to Huawei Cloud and our Affiliates, and Huawei Cloud shall be entitled to enforce this Agreement in relation to Confidential Information as if it were the Affiliates referred to, and can recover all losses and damages suffered by its Affiliates as if they were its own.

6.2 Protection of Confidential Information. The Receiving Party agrees to keep the Disclosing Party’s Confidential Information confidential during the Term and for a period of five (5) years thereafter. Neither Party shall disclose the other Party's Confidential Information to any other person or entity 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 which shall in no event, be less than the degree of care that it uses to protect its own Confidential Information. All Confidential Information shall remain the property of the Disclosing Party and the Disclosing Party reserves all rights in its Confidential Information. Nothing in this Agreement or the disclosures envisaged by this Agreement shall (except as expressly agreed otherwise in this Agreement) operate to transfer or operate as a grant of any licences or rights to use any Intellectual Property Rights in the Confidential Information.

6.3 Permitted disclosure. Neither Party may use the other Party’s Confidential Information except in connection with the performance of its obligations under this Agreement or the permitted use of the Services, as applicable, or as may be otherwise permitted under this Agreement or required by Applicable Laws. The Receiving Party may only disclose the Disclosing Party’s Confidential Information to the Receiving Party’s employees, officers, agents, or subcontractors on a need-to-know basis and who are subject to confidentiality obligations no less than the degree of protection as required herein. Huawei Cloud may disclose Confidential Information to its Affiliates that need to know such information for the purposes of this Agreement. The Receiving Party may only use the Disclosing Party’s Confidential Information for the purpose of performing this Agreement, unless otherwise authorized by the Disclosing Party. Notwithstanding anything to the contrary, the Receiving Party may disclose the Disclosing Party’s Confidential Information in a legal proceeding, as required by law, or in order to comply with a legally binding request under Applicable Laws, to the extent required to comply with the applicable binding requirements. In such circumstances (provided that it is practical and legally permissible to do so): (a) the Receiving Party must notify the Disclosing Party in writing as soon as practicable prior to any such disclosure; (b) the Parties must use all reasonable endeavours to consult with each other with a view to agreeing the timing, manner, and extent of the disclosure to the extent legally permissible; and (c) the Receiving Party must in any event use all reasonable endeavours to obtain written confidentiality undertakings in its favour from the third party. If, under Applicable Laws, the Receiving Party is unable to inform the Disclosing Party prior to Confidential Information being disclosed, it shall (provided that it is legally permitted to do so) fully inform the Disclosing Party immediately afterwards in writing of the circumstances of the disclosure and the Confidential Information which has been disclosed.

7. Limitation of Liability

7.1 LIMITATION OF LIABILITIES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, OUR MAXIMUM AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT, IN RESPECT OF ANY LOSS, DAMAGE, FINE, PENALTY, LIABILITY, CHARGE, PROCEEDING, EXPENSE, OUTGOING OR COST OF ANY NATURE OR KIND 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 TO THE RESELLER FOR THE PRODUCTS PURCHASED ON KOOGALLERY GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE ACT GIVING RISE TO THE CLAIM.

7.2 EXCLUSION OF LIABILITIES. SUBJECT TO SECTION 7.1, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR:

(a) ANY INDIRECT OR CONSEQUENTIAL LOSSES OR DAMAGE; or

(b) ANY LOSS OF REVENUES, PROFITS, BUSINESS, OPPORTUNITIES, CUSTOMERS, DAMAGE TO GOODWILL, ECONOMIC LOSS, REPUTATION, OR LOSS OF DATA OR DATA USE (REGARDLESS OF WHETHER THESE TYPES OF LOSSES OR DAMAGE ARE DIRECT, INDIRECT OR CONSEQUENTIAL),

ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF OR WAS AWARE OF THE POSSIBILITY THAT SUCH DAMAGE OR LOSS MAY BE INCURRED BY THE OTHER PARTY.

8. Disclaimers

8.1 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, WE AND OUR AFFILIATES DO NOT WARRANT THAT THE PRODUCTS, KOOGALLERY OR ASSOCIATED SERVICES WILL BE FREE FROM ALL DEFECTS OR THAT ASSOCIATED SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED OR THAT WE AND / OR OUR AFFILIATES WILL CORRECT ALL DEFECTS OR ERRORS OR PREVENT ALL THIRD PARTY DISRUPTIONS OR UNAUTHORIZED THIRD PARTY ACCESS IN CONNECTION WITH THE PRODUCTS OR THE PRODUCTS WILL OPERATE IN CONJUNCTION WITH YOUR CONTENT OR ANY OTHER HARDWARE, SOFTWARE, SYSTEMS, SERVICES OR DATA NOT PROVIDED BY US AND/OR OUR AFFILIATES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS IN EACH CASE AND EXCEPT AS EXPRESSLY PROVIDED HEREIN, WE AND OUR AFFILIATES EXCLUDE AND SPECIFICALLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, CONDITIONS OR OTHER TERMS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTIES, REPRESENTATIONS, TERMS, CONDITIONS, CONDITIONS REGARDING MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY OR FITNESS FOR A PARTICULAR PURPOSE.

8.2 Non-Warranty. Huawei Cloud does not warrant, represent, undertake or agree that:

(a) the use of KooGallery or any Product by you will meet your requirements nor that any recommendations derived from use of KooGallery will deliver any particular benefits if implemented;

(b) defects in KooGallery or any Product will be corrected; or

(c) the functions of KooGallery or any Product will operate in the combinations which you select for use.

Under no circumstances will Huawei Cloud have any liability for any losses, claims, damages, costs or expenses caused by errors or omissions in any information, instructions or scripts provided by Huawei Cloud or its Affiliates to or on behalf of you in connection with KooGallery or this Agreement, or any actions taken by Huawei Cloud or its Affiliates at your direction in connection with this Agreement.

8.3 Non-Breach. You hereby agree and acknowledge that the following events or actions by Huawei Cloud do not constitute a breach of this Agreement, and Huawei Cloud shall not be liable therefor:

(a) the interruption of services which may occur while Huawei Cloud carries out adjustments to the network or carries out routine or emergency maintenance. You may be unable to access KooGallery during any period in which maintenance is being carried out (whether routine or emergency), though Huawei Cloud will use its reasonable commercial endeavours to keep disruption and unavailability of the KooGallery to a minimum;

(b) without limitation to Section 10 of this Agreement, you acknowledge that Huawei Cloud has no direct control over the availability of bandwidth over the entirety of the internet and that, while Huawei Cloud will use such endeavours as Huawei Cloud deems appropriate to facilitate KooGallery, Huawei Cloud shall not be responsible for delays caused by such unavailability;

(c) the consequences arising out of or in connection with, the malicious activities of hackers, viruses, maintenance or upgrade of telecom facilities or equipment, and the disconnection of the backbone line, in view of the special characteristics of computers and the Internet; and

(d) the unavailability of your services caused by operations and maintenance measures taken by Huawei Cloud, provided that Huawei Cloud provides you with prior written notice regarding data backup, service migration, or service suspension unless such measures are required under Applicable Laws. Such operations and maintenance measures may include troubleshooting, system upgrades, system optimization, and system capacity expansion. In case of an emergency fault, Huawei Cloud is entitled to take the corresponding necessary measures without providing you with any prior notice.

8.4 Exclusions. Except as expressly provided in this Agreement, KooGallery is provided “as is” and to the extent permitted by Applicable Laws, Huawei Cloud disclaims all other conditions, warranties, representations, undertakings and other terms which might have effect between the Parties with respect to KooGallery, or be implied or incorporated into this Agreement, whether by statute, common law, custom or otherwise, including any implied conditions, warranties, undertakings or other terms relating to satisfactory quality, reasonable care and skill, fitness for a particular purpose, ability to achieve a particular result or arising from course of dealing or usage of trade. Huawei Cloud does not warrant anything in relation to systems that do not make up KooGallery or the connection to those systems.

8.5 Your Personal Data Protection. To the extent permitted by Applicable Laws we do not provide any guarantees or warranties regarding the safety of Personal Data provided by you to, and processed by, Resellers. Resellers shall be exclusively responsible and liable for meeting any obligations under Applicable Laws with respect to Personal Data that they collect and process.

8.6 Platform Problem. We do not provide any guarantee or warranty that KooGallery will be free of any technical faults, interruptions and/or network problems, nor do we provide any guarantees or warranties that any such technical faults, interruptions and/or network problems will be rectified within a particular time period.

8.7 Separated Liability. You acknowledge and agree that each Reseller and Huawei Cloud is an independent contracting party. In any event and notwithstanding anything to the contrary in this Agreement Huawei Cloud shall not assume joint liability in any way or form with any Reseller or with you.

9. Term, Suspension and Termination

9.1 Term. The term of this Agreement will commence on the Commencement Date and will continue until terminated in accordance with its terms and conditions (the “Term”).

9.2 Suspension. Huawei Cloud may suspend your right of access or use of any of the Products and / or of KooGallery if:

(a) it is reasonably required in order to prevent unauthorized access to Your Content, any Product or KooGallery;

(b) your access to and use of the KooGallery and / or Products breaches the Acceptable Use Policy, this Agreement and/or any Applicable Laws;

(c) you have failed to comply with your payment obligations under this Agreement or to a Reseller;

(d) your access to and / or your use of the KooGallery and / or Products may pose a security risk to the KooGallery, any Products, Huawei Cloud, its Affiliates or third parties;

(e) your access to and / or your use of the KooGallery and / or Products may adversely impact the functionality, availability or operation of the KooGallery and / or Products;

(f) it is required under Applicable Laws or a competent authority;

(g) your access to and / or use of the KooGallery and / or Products may subject Huawei Cloud, our Affiliates or subcontractors to potential liabilities or regulatory compliance risks;

(h) you, Sellers and/or Resellers infringe upon a third party’s Intellectual Property Rights or if Huawei Cloud deems that such action may infringe upon a third party’s Intellectual Property Rights;

(i) we believe that any of your activities connected with this Agreement are fraudulent or illegal; or

(j) to the extent permitted under Applicable Laws, you have ceased to operate in the ordinary course, the entity has been dissolved or you have entered, have been placed or have applied for voluntary or compulsory liquidation (whether provisional or final).

9.3 Effect of Suspension. If Huawei Cloud exercises any rights pursuant to Clause 9.2, such actions shall not waive or excuse any payment obligations which you may have for Product fees which are charged, including during the suspension period. No refund or service credits will be provided to you in the event of any suspension. Huawei Cloud shall reinstate your access to the Products and / or KooGallery once it has been established that the cause of the suspension has been remedied or ceases to exist.

9.4 Huawei Termination Rights. Huawei Cloud may immediately terminate this Agreement on giving notice to you, without incurring any liability to you and without prejudice to its other rights and remedies at any time, if any event described in Section 9.2 (a) to (j) occurs or persists (including during any suspension).

9.5 Termination. Without prejudice to any other right or remedy available to it, either Party may terminate this Agreement with immediate effect by giving written notice if: the other Party commits a material breach of any term of this Agreement and such breach is incapable of remedy; or, if such breach is capable of remedy, fails to remedy that breach within 30 days of receiving notice of such breach; or, to the extent permitted under Applicable Law, where either Party has ceased to operate in the ordinary course, is unable to pay its debts as they fall due, has been dissolved or has entered, has been placed or has applied for voluntary or compulsory liquidation, dissolution, or similar proceedings.

9.6 Consequences of Suspension or Termination: Upon termination for any reason we may terminate access to and / or delete your Content immediately. You acknowledge and agree that we are also entitled to immediately terminate access to the Products, and/or this Agreement if any scenario described in Section 9.2 (a) to (j) occurs, and Your Content may be deleted immediately.

10. 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 sixty (60) days, either Party may cancel orders placed for Products which have not yet been delivered and ongoing Product orders where service has been interrupted upon written notice.

11. Governing Law and Jurisdiction

This Agreement and any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including any dispute or claim relating to non-contractual obligations) will be governed by and construed in accordance with the Governing Law, without regard to its conflict of law principles. The Parties agree irrevocably to submit any dispute arising out of or in connection with this Agreement to the exclusive jurisdiction of the Corresponding Court (including any dispute or claim relating to non-contractual obligations).

12. Entire Agreement

This Agreement incorporates the documents and policies expressly referenced herein (including reference to information contained in a URL or referenced policy and the applicable order), except for the Reseller End User Agreement, and constitutes the entire agreement between the Parties regarding the Products and Third-Party Content. This Agreement supersedes all prior or contemporaneous representations, communications, understandings and agreements between you and Huawei Cloud, whether in written or oral form, regarding the Products and Third-Party Content. It is expressly agreed by the Parties that the terms of this Agreement and the applicable order will supersede any other terms and conditions that are not set out in this Agreement, including any terms you may provide us with in a request for bid/proposal/information, purchase order, receipt, order acceptance, confirmation, correspondence or other document.

13. Modifications and Additions to the Agreement

Huawei Cloud may modify this Agreement, including the documents and policies referenced herein, at its discretion by posting a revised version on the Website. Except as otherwise indicated in the modified Agreement, documents, or policies, the modified terms will come into effect once notification has been provided to you and posted on the Website. Your continuous use of the Products and /or any of KooGallery after the coming into effect of such modification will be deemed acceptance by you of the modified terms.

Huawei Cloud is also entitled to, in its sole discretion, make changes to or discontinue KooGallery or make changes to or remove any or all functionality of KooGallery from time to time. Huawei Cloud may notify you of same by posting an announcement on the Website or otherwise notifying you of material changes to or the discontinuation of KooGallery.

14. Miscellaneous

14.1 Relationship. Each Party is an independent contractor for the purposes of this Agreement. This Agreement does not create any partnership, joint venture, agency or employment relationship between the Parties of any nature. Neither Party is entitled to make any representation or enter into any contract or commitment on behalf of the other.

14.2 Non- Assignment. You shall not assign, charge, sub-contract, deal in any manner with all or any of your rights or obligations under this Agreement or transfer all or part of this Agreement to any third party, including your affiliates, without prior written consent from Huawei Cloud. Huawei Cloud may, at any time, transfer, assign, charge, sub-contract, deal in any manner with all or any of its rights or obligations under this Agreement or transfer any rights or obligations under this Agreement without your consent to any of its Affiliates. Huawei Cloud will notify you, by posting an announcement on our Website and informing you of such announcement or through other means which shall be communicated to you, prior to the effective date of such transfer or assignment. You shall enter into any further agreements reasonably required by Huawei Cloud to give effect to any of the above.

14.3 Third Party Beneficiaries. 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. Notwithstanding the foregoing, you acknowledge and agree that certain provisions in this Agreement have been included to protect our Affiliates and Huawei Cloud shall be entitled to recover all losses, costs, expenses or damages of any of our Affiliates in connection with this Agreement as if those losses, costs, expenses or damages were those of Huawei Cloud. The rights of the Parties to rescind or vary these Terms are not subject to the consent of any such Affiliate.

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

14.5 Export. In connection with this Agreement, both Parties shall comply with the applicable export and sanction laws and regulations of the United Nations, China, the United States, the European Union and any other applicable export and sanction laws. You hereby represent and warrant that you are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the United Nations Security Council, the United States Government, the European Union or any of the member states of the European Union. You shall be exclusively responsible for compliance with Applicable Laws related to your subscription to, access and use of the Products, including but not limited to Your Content you upload, process and/or provide.

14..6 Notices. Huawei Cloud may provide notice under this Agreement by posting a notice on the Website, by email or text message (including via SMS and other instant messaging platforms). Notices which Huawei Cloud may provide by posting on the Website will be effective upon notification to you in line with the terms of this Agreement. Notices shall be deemed given, received and effective as of the time transmitted by electronic mail and text messages, or if that time does not fall on a business day in the country of the recipient, as of the beginning of the first business day following the time transmitted. You shall ensure that your email address and phone number associated with your Huawei Cloud account are up to date at all times.

14.7 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 date. Any waivers shall be expressly made in writing to be effective.

14.8 Severability. If any term of this Agreement is found to be invalid, illegal or unenforceable, the remaining terms of this Agreement shall be unaffected and shall 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.

14.9 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 Section14.9.

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 (a) the United Nations; (b) the European Union; (c) United States Treasury Department's Office of Foreign Assets Control (“OFAC”), or the US Department of State; (d) HM Treasury of the United Kingdom; and (e) 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.

15. Definitions

Capitalised terms used in this Agreement shall have the meanings first stated in this Section or those given in the Section of the Agreement where they are first used.

15.1 “Agreement” has the meaning given in the preamble.

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

15.3 “Affiliate”in relation to a Party means any person which directly or indirectly controls, is controlled by, or is 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.

15.4 “Applicable Laws” refers to legislation, regulations, codes of practice, guidance and other requirements of any relevant governmental or regulatory agency or other relevant body.

15.5 “Commencement Date” has the meaning given in the preamble.

15.6 “Confidential Information” has the meaning given in Section 6.1.

15.7 “Disclosing Party” has the meaning given in Section 6.1.

15.8 “End User” has the meaning given in the preamble.

15.9 “Governing Law” and “Corresponding Court” refer to Irish law and courts of Ireland.

15.10 “Huawei” means Huawei Cloud and its Affiliates.

15.11“Huawei Affiliates” or “Affiliates” means Affiliates of Huawei Cloud. For the purposes of this definition, “Huawei Affiliates” or “Affiliates” excludes the Huawei Cloud Contracting Party and its Affiliates that collectively constitute the cloud computing business unit of Huawei. In case of any doubt as to whether an Affiliate of Huawei Cloud is part of the cloud computing business unit of Huawei, a written statement issued by Huawei Cloud confirming the status of such Affiliate shall be conclusive evidence and binding for all purposes whatsoever.

15.12 “Huawei Affiliate Products” has the meaning given in the preamble.

15.13 “Huawei Cloud” or “Huawei Cloud Contracting Party” means Sparkoo Technologies Ireland Co., Limited.

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

15.15 “Huawei Cloud Products” has the meaning given in the preamble.

15.16 “Intellectual Property Rights” means any and all intellectual property or other similar proprietary rights throughout the world, including patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, business names and domain names, right in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, right to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

15.17 “KooGallery Reseller” or “Reseller” means a participant of the Huawei Cloud Partner Network that is authorized by Huawei Cloud to resell Products to End Users, including to you, on KooGallery.

15.18 “Party” and “Parties” shall have the meaning given in the Preamble.

15.19 “Personal Data” means any information relating to identified or identifiable natural person, directly or indirectly, including information that can identify an individual when taken in combination with other information to which a Party has or is likely to have access.

15.20 "Platform" or “KooGallery” refers to a neutral e-commerce platform that is established and operated by Huawei Cloud, on which you can transact with Sellers and/or Resellers such as purchasing Products from Sellers and/or Resellers located at: https://marketplace.eu.huaweicloud.com/.

15.21 “Preview Products” has the meaning given in Section 1.9.

15.22 “Privacy Statement”, as referred to in Section 2.3, refers to Huawei Cloud’s Privacy Statement located at: https://www.huaweicloud.com/eu/declaration/sa_prp.html, as may be updated from time to time which is incorporated into this Agreement by reference.

15.23 “Products” has the meaning given in the preamble.

15.24 “Product Terms” refers to the specific terms for individual Products located at the Product page on KooGallery which shall constitute a binding agreement between you and Huawei Cloud or the relevant Huawei Affiliate (as the case may be), as may be updated from time to time. If you wish to review the Product Terms, we advise you to check the Product page on KooGallery so that you review the latest version. In relation to Huawei Cloud Products, the Product Terms are incorporated into this Agreement by reference.

15.25 “Receiving Party” has the meaning given in Section 6.1.

15.26 “Reseller End User Agreement” has the meaning given in Section 1.2.

15.27 “Term” has the meaning given in Section 9.1.

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

15.29 “Your Content” refers to any 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 by or in the Products. Our materials, data and information will not fall within the definition of Your Content.

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

 

Last updated: 30^th September, 2023