Huawei Cloud KooGallery Partner Product User Agreement

This Huawei Cloud KooGallery Partner Product User Agreement (the “Agreement”) governs your use of the Huawei Cloud KooGallery platform (the “KooGallery”) and grants you access to KooGallery and the right to purchase Products (as defined in Section 11.8). This Agreement is entered into by and between the Huawei Cloud Contracting Party as defined in Section 11.5 of this Agreement (“Huawei Cloud”, “we”, “us” and “our”), and you the entity associated with the Huawei Cloud account (hereinafter “You”, “you”, or “your”).

If you, agree, accept (through provision of an electronic notification thereof) and enter into this Agreement for a company or other legal entity by signature or electronically, 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 individually referred to as a “Party” and collectively as the “Parties” in this Product User Agreement.

1. Products, Prices and Payment

1.1 Scope. You may purchase Products on KooGallery:

(a) directly from Sellers; or

(b) through Resellers who are authorized by the Sellers to resell their Products on KooGallery.

If your purchase Products through a Reseller, you shall comply with the specific terms in Section 2 which are applicable to such resale arrangements, in addition to the rest of this Agreement.

1.2 Payment. Sellers appoint us as their payment processing agent for the purpose of receiving payments for Products on their behalf (as well as for payment related purposes such as online payment disputes, refunds, chargebacks and cancellations). If you purchase any Products directly from a Seller, you shall pay us all applicable purchase fees and any other fees related to the Products. These fees are separate and in addition to fees applicable to your use of any other Huawei Cloud Services. You shall solely be responsible to pay the bank charges and related fees incurred during the performance of these Terms. Your payment of the purchase fees and related fees is deemed receipt of payment by Sellers from you for the Products and will satisfy the payment obligations owed to Sellers by you in the amount of the applicable payment by you.

If you purchase any Products through a Reseller, you must place the order for Products on KooGallery using your Huawei Cloud account which must be connected with that of the Reseller. We will bill the Reseller for the order, and the Reseller shall be responsible for paying us the fees relating to the order. You are responsible for paying all applicable fees for such Products directly to the Reseller in accordance with the terms of your agreement with the Reseller.

If you are in breach of your payment obligations to Huawei Cloud and fail to cure the breach within 30 days of being notified by Huawei Cloud of the breach and requesting cure of the same, Huawei Cloud may in its sole discretion do any or all of the following: (a) immediately terminate this Agreement and/or any other agreements between the Parties; (b) suspend or cancel your Huawei Cloud account and your access to and use of KooGallery, the Products and Huawei Cloud Services. Huawei Cloud’s rights under this Section shall be without prejudice to any other rights or remedies that Huawei Cloud may have under this Agreement, any other agreements and/or applicable law. Huawei Cloud reserves the right to claim for any overdue payment and any other damages, losses, costs and expenses incurred thereby.

For Products that you purchase through a Reseller, 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 to you, in the event that the Reseller is in breach of its payment obligations to Huawei Cloud. You agree and acknowledge that, should such suspension or cancellation affect your ability to access and use the Products that you have purchased, the Reseller shall be solely liable and responsible to you for any losses or damages which you may suffer in connection therewith.

1.3 Orders. The prices and payment methods under these Terms shall be subject to those specified in the order on KooGallery. The pricing of Products listed on KooGallery at any time may be adjusted at Seller’s discretion. For Products that you purchase from Sellers directly, you may view the updated price list at: https://marketplace.eu.huaweicloud.com/list. If you purchase Products from a Reseller, the Product pricing that is applicable to you will be determined as between you and the Reseller in accordance with the terms of your agreement.

1.4 Invoicing. We will issue an invoice to you if we are required to do so under Applicable Laws, regulations or other legally binding requirements imposed by a competent authority. You agree that such invoicing by us does not and will not obligate us in any way or form in the rendering of Products that you purchase from Sellers and you agree that we will not assume any liabilities and/or responsibilities for the Products provided by Sellers. Any liability or responsibility related to Products is solely assumed by the Sellers.

For the avoidance of doubt, in relation to Products that you purchase through a Reseller, we are not responsible for invoicing you for such Products. You will be invoiced by the Reseller for such Products.

1.5 Taxes.

Fees for Products are

a. exclusive of VAT, sales tax, goods and services tax (GST) or any similar or analogous Tax applicable in a relevant territory if any, which shall be charged in addition thereto in accordance with the relevant laws and regulations in force at the time of making the relevant taxable supply.

b. inclusive of withholding tax, or any similar or analogous tax applicable in a relevant territory if any, which shall be deducted from Fees thereto, and any other taxes such as Digital Service Tax which should be filed and paid by Seller and us in accordance with the relevant laws and regulations.

All payments to be made by you to us under this Agreement shall be made without any set-off, counterclaim, withholding or deduction, be it tax-related or otherwise, unless specifically required by any applicable laws and/or regulations in the territory or under the applicable double tax treaties or arrangements. In the circumstance that a withholding tax or tax deduction is so required, you shall fulfill the withholding liability and make the payment to us net of the withholding tax or tax deduction, subject to the following requirements under this Section.

i. Where preferential tax treatment is applicable under a double tax treaty or arrangement, or the prevailing domestic tax laws/regulations, only the tax amount under such preferential tax treatment should be withheld by you. You shall apply to tax authorities for such preferential tax treatment with reasonable efforts. We will provide appropriate assistance during the application. To the extent that the tax authorities do not grant such preferential tax treatment, you shall provide appropriate evidence to us to support the application of the standard tax treatment.

ii. Where there are Taxes to be withheld, you shall provide us with the formal tax clearance/payment certificates or other equivalent legal documents issued by the tax authority within 60 days after the completion of such withholding activity. You shall be responsible for obtaining such tax clearance certificate or equivalent legal document from the tax authority, and deliver it to us properly in good condition (i.e. not broken, stained or blurred that might affect our use) with reasonable effort. In case that a tax authority does not provide a formal tax clearance, payment certificate or equivalent legal documents, we will mutually agree what other alternative evidence can be provided. In case that such tax clearance certificate or equivalent legal document could not be provided to us due to your negligence or non-compliance, you shall indemnify us for any losses, damage, expense or cost caused thereby.

iii. If you pay the charge to us net of the withholding tax or tax deduction, and a subsequent tax audit, investigation or inquiry identifies that a filing, withholding or deduction should have been made for/from the charge, you shall be liable to bear and pay amounts due under such a filing, deduction and any surcharges and penalties due thereon to the relevant authority.

If we incur any additional Taxes, costs or liabilities as a consequence of your delay or omission of the above mentioned Tax responsibilities or due to the provision of false or incomplete information by you which is necessary for us to determine and meet our above mentioned Tax responsibilities arising from our supplies of services to you (including but not limited to information relevant to the determination of your country of Tax residency), you shall be solely and exclusively liable to bear such costs related to Taxes not withheld, deducted, or reported, along with any interest, penalties and other charges associated therewith which are to be settled with the relevant governmental or Tax authorities.

If, subsequent to the entering into, during the course of, or retrospectively applicable to these Terms, any rates of existing Taxes are increased or decreased, a new Tax is levied, an existing Tax is abolished, or any change in the interpretation or application of any Tax is adopted (collectively referred as “Tax Changes”), we reserve the right to adjust the amounts payable by you to us, taking into account the Tax Changes, such that there would be no financial detriment to us arising from the Tax Changes.

For the avoidance of doubt, the Tax terms in Section1.5 of this Agreement only applies to you when you directly purchase Products from Sellers. If you purchase Products from a Reseller, the Taxes that are applicable to you will be determined as between you and the Reseller in accordance with the terms of your agreement.

1.6 Refunds. In the event that you apply for a refund and we confirm that the application meets the refund requirements provided by Seller, we will send a refund notification to you and the Seller. After we receive final confirmation from Seller that the refund has been approved by Seller, and after we actually receive the refunded amount from the Seller, we will refund to you the relevant amount for the Products in question, strictly in accordance with the refund process of Huawei Cloud.

For the avoidance of doubt, for Products that you purchase through a Reseller, we are not responsible for processing refunds between you and the Reseller. Any requests for refunds shall be made to your Reseller.

1.7 Cancelation. You further agree that we will be entitled to suspend or cancel your access to Products and/or KooGallery in the event of you being unable to make on-time and full payment(s) for the Products you are purchasing. Such cancelation or suspension may result in your data loss, and we shall not be responsible or liable for any damages, losses, expenses or costs arising from such suspension or cancelation (including any resulting data loss).

2. Specific Terms for Purchasing Products through a Reseller

2.1 Agreement with Reseller. In order to purchase Products on KooGallery through a Reseller, you must enter into an agreement with the Reseller setting out relevant terms for 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 in line with and consistent with these Terms and other agreements entered into between you and us.

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

You further acknowledge and agree that the Resellers are not agents of Huawei Cloud and do not have any power or authority to bind or incur any obligation on behalf of Huawei Cloud, and 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 violation of or in other circumstances as specified in our prevailing terms and conditions or policies, and Huawei Cloud shall have no liability to you in the event of such suspension or termination.

2.2 Your Account and Credits. To access and use the Products that you purchase through a Reseller, you must connect your Huawei Cloud account to the Reseller’s Huawei Cloud account. A Reseller may send you a connection invitation from its account, and your accounts will be connected when you accept the invitation. Once your account is connected with the Reseller’s account, the Reseller may grant you credit of such amount in accordance with the agreement between you and the Reseller. You may use such credit to place orders for Products on KooGallery. Your consumption of Products cannot exceed the credit granted to you by the Reseller.

3. Use and Support

3.1 End User License Agreement. Unless otherwise specified in these Terms, your use of Products is governed by the Third Party End User License Agreement between you and the Seller, the terms of which are to be made available by the relevant Seller.

3.2 Use of Products. If you can perform the following operations after logging in to KooGallery, it is deemed that Products can be used by you: a) on the Console page, you can view the Products; b) you can manage and maintain Products in accordance with relevant guides provided by Seller; and c) you can use the methods recognized by Seller to query the related parameters that are consistent with the selected specifications and models in the order.

3.3 Support of Products. You acknowledge and agree that:

(a) in relation to Products that you purchase directly from Sellers, the Sellers are the providers of Products, and they will solely assume any and all responsibility and liability related to the Products. The Seller shall be solely responsible and liable for providing you with the corresponding service support and for providing upgrades, maintenance, and technical support related to the Products. The Seller shall be solely responsible and liable for handling your consultations and complaints, and related after-sales services that may be required and shall propose solutions within the period as undertaken by the Seller. In the event that the Products which you have purchased have been removed from KooGallery, the Seller is solely responsible and liable for continuing to provide the Products and support for you until the end date of the purchased Products. We provide support for online payment disputes, refunds, chargebacks and cancellations to you in our role as payment processing agent of Sellers; and

(b) in relation to any Products that you purchase through a Reseller, the Reseller will solely assume and all responsibility and liability related to the Products, subject to the terms of your agreement with the Reseller. The Reseller shall be solely responsible and liable for providing you with the corresponding service support and for providing upgrades, maintenance, and technical support related to the Products. The Reseller shall be solely responsible and liable for handling your consultations and complaints, and related after-sales services that may be required and shall propose solutions within the period as undertaken by the Reseller. In the event that any Products which you have purchased through the Reseller have been removed from KooGallery, the Reseller is solely responsible and liable for continuing to provide service and support for you until the end date of the purchased Products.

You shall appropriately configure and use all Products and take security measures to protect and back up Your Content, including but not limited to encrypting Your Content to prevent it from unauthorized access and archiving Your Content.

3.4 Suspension. We may suspend your right to access or use KooGallery if requested to do so by Sellers, Resellers or on our own accord and discretion if: (a) your access and use of KooGallery is in violation of the Acceptable Use Policy, these Terms and/or any Applicable Laws and/or regulations; (b) you are in breach of your payment obligations; (c) your access and use of KooGallery may pose a security risk to KooGallery, us, our Affiliates or third parties; (d) your access and use of KooGallery may adversely impact the functionality, availability or operation of KooGallery; (e) it is required under any applicable law and/or regulations or by a governmental, regulatory or other competent authority; (f) your access and use of KooGallery may subject us, our Affiliates or subcontractors to liabilities or regulatory compliance risks; (g) you, Sellers and/or Resellers infringe or threaten to infringe or in our reasonable opinion may possibly infringe a third party’s intellectual property rights; or (h) to the extent permitted under applicable law, you have ceased to operate in the ordinary course, dissolved or you have resolved to enter or are placed under or applied for voluntary or compulsory liquidation (whether provisional or final) or upon you entering into business rescue proceedings or the like. You acknowledge and agree that (a) suspension does not excuse or waive your payment obligation(s) for the Product purchase and related fees charged during or for the suspension period; and (b) you will not be entitled to any refund or service credits due to such suspension.

4. Data Privacy

4.1 Data Disclosed. If you access or purchase Products, you agree that we and/or our Affiliates may collect, use and disclose your registration information and other details, including personal data, as may be necessary to effect the transaction, including:

(a) exchanging your information with Sellers where you access or purchase Products; and

(b) exchanging your information with Resellers where you purchase Products through Resellers.

You represent and warrant that, for any personal data you provide to us relating to a third party (including but not limited to information of your employees and/or representatives), you have notified such third party that you are providing their personal data to us and such third party has consented to our collection, use and disclosure of their personal data for the purposes of this Agreement.

Without limiting the foregoing, you agree that we may collect, use and disclose personal data in accordance with the terms of our Privacy Statement which is available at https://www.huaweicloud.com/eu/declaration/sa_prp.html, as amended from time to time.

4.2 Seller and Reseller Privacy Practices and Statements. Sellers and Resellers are responsible for providing privacy statements to you and informing you of their privacy practices with regard to your data that is collected, used and disclosed through their Products and services that they provide to you. Our Privacy Statement will not apply to any Products or services provided to you by Sellers and/or Resellers, or to Sellers’ and Resellers’ use of any of your data or information.

4,3 Your Data Protection. Sellers and Resellers shall be solely responsible and liable for protecting your personal data that they handle and other data protection and security obligations.

5. Limitation of Liability

5.1 DIRECT LOSS ONLY. 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.

5.2 PLATFORM LIABILITIES. HUAWEI CLOUD ONLY PROVIDES KOOGALLERY AS A SALES PLATFORM UNDER THESE TERMS. TO THE EXTENT PERMITTED BY LAW, HUAWEI CLOUD AND ITS AFFILIATES DO NOT PROVIDE ANY EXPRESS OR IMPLIED WARRANTY IN RELATION TO ANY PRODUCTS ON KOOGALLERY, AND ALL WARRANTIES RELATING TO ANY PRODUCTS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE ARE DISCLAIMED. TO THE EXTENT PERMITTED BY LAW, HUAWEI CLOUD AND ITS AFFILIATES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL, AND DERIVATIVE LOSSES (INCLUDING BUSINESS LOSS, REVENUE LOSS, PROFIT LOSS, LOSS OF DATA OR DATA USE, OR LOSS OF ANY OTHER ECONOMIC BENEFITS) IN CONNECTION WITH OR ARISING FROM THESE TERMS. UNDER THESE TERMS, HUAWEI CLOUD AND ITS AFFILIATES SHALL NOT ASSUME ANY LIABILITIES ON BEHALF OF SELLERS AND RESELLERS IN RELATION TO THE PRODUCTS AND/OR SERVICES THAT THEY PROVIDE TO YOU. SELLERS AND/OR RESELLERS SHALL BE SOLELY AND FULLY LIABLE TO YOU FOR ANY LOSSES OR DAMAGES YOU MAY SUFFER ARISING FROM YOUR USE OF THE PRODUCTS AND/OR SERVICES THAT THEY PROVIDE TO YOU.

5.3 ENTIRE LIABILITY. This Clause 5 sets out the entire liability of each Party to the other Party arising under or in connection with this Agreement or the performance, non-performance or partial performance of any obligations imposed upon that Party in this Agreement in each case whether arising in law, equity or otherwise and whether direct, indirect, consequential, special productive, exemplary or otherwise.

5.4 EXCLUSION. Nothing in this Agreement shall exclude or restrict either Party's liability in respect of:

5.4.1 death or personal injury resulting from that Party's negligence;

5.4.2 fraud or fraudulent misrepresentation;

5.4.3 any claim made under an indemnity granted in this Agreement; or

5.4.4 any other liability that cannot be lawfully limited or excluded.

5.5 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 UNDER THIS AGREEMENT FOR THE SERVICES PURCHASED ON KOOGALLERY GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE ACT GIVING RISE TO THE CLAIM.

6. Force Majeure

Neither Party shall be liable for any delay or failure to perform its obligations under these Terms where such delay or failure is caused by a force majeure event(s) beyond its reasonable control. Force Majeure events shall include, but not be 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 however continues for more than 60 (sixty) days, either Party may cancel and end any unperformed services and the affected orders upon written notice. Notwithstanding the above, this section does not excuse your payment obligations hereunder.

7. Term, Suspension and Termination

7.1 Initial Term and Renewal. The Term will commence on the Commencement Date. Unless terminated earlier in accordance with its terms, this Agreement shall continue in force for the duration of 12 months (the “Initial Term”) and unless terminated in accordance with this Agreement shall automatically extend for a period of twelve (12) months upon the expiry of the Initial Term and on each subsequent anniversary of such expiry (each such extension, a “Renewal Period”) unless either Party gives at least thirty (30) days’ written notice to the other before the end of the Initial Term (or Renewal Period, as applicable), in which case this Agreement shall terminate on the last day of the Initial Term (or Renewal Period, as applicable).

7.2 Term. The term of this Agreement will commence on the Commencement Date and remains in force unless terminated hereunder. The Initial Term together with any subsequent Renewal Periods shall constitute the “Term”.

7.3 Suspension. We may take such steps as we deem fit in our sole discretion to suspend your use of and access to the Products and/or KooGallery if:

7.3.1 it is reasonably necessary to do so to prevent unauthorized access to Your Content, any Product or KooGallery;

7.3.2 we are of the reasonable opinion that your and/or your End User’s access and use of the Products and/or KooGallery: (i) is in violation of the Acceptable Use Policy, this Agreement and/or Applicable Laws; (ii) may pose a security risk to the Products, KooGallery, us, our Affiliates or third parties; (iii) may adversely impact the functionality, availability or operation of the Products and/or KooGallery; or (iv) may subject us, our Affiliates, our subcontractors, Sellers or Resellers to liabilities or regulatory compliance risks;

7.3.3 you fail to comply with your payment obligations under this Agreement;

7.3.4 it is necessary to do so in order to comply with Applicable Laws or other binding order of a competent authority;

7.3.5 you and/or your End Users are found or held to infringe, or Huawei Cloud is of the opinion that you and/or your End Users are likely to infringe, a third party’s Intellectual Property Rights;

7.3.6 we reasonably believe that you are engaged in fraudulent or illegal activities; or

7.3.7 to the extent permitted under Applicable Laws, you have ceased to operate in the ordinary course, have been dissolved, are in bankruptcy, insolvency, liquidation, dissolution or similar proceedings, or have entered, been placed in or applied for voluntary or compulsory liquidation, administration, juridical management, dissolution, or similar proceedings.

You acknowledge and agree that: (i) suspension shall not relieve you of your obligation to pay any fees before and during the period of suspension; and (ii) you shall not be entitled to any refund or reduction in fees as a result of such suspension.

7.4 Termination.

7.4.1 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: (i) 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 (ii) to the extent permitted under Applicable Law, the other Party has ceased to operate in the ordinary course, is unable to pay its debts as they fall due, has been dissolved, is in bankruptcy, insolvency, liquidation, dissolution or similar proceedings, or has entered, been placed in or applied for voluntary or compulsory liquidation, administration, judicial management, dissolution, or similar proceedings.

7.4.2 You acknowledge and agree that we are also entitled to immediately terminate your use of and access to the Products, the relevant Order and/or this Agreement if any scenario described in Section 7.3.1 to 7.3.7 occurs, and Your Content may be deleted immediately.

7.5 Consequences of Termination.

7.5.1 Upon termination of this Agreement, you rights and the rights of your End Users to access and use any Products that you have purchased on an ongoing subscription basis shall immediately cease.

7.5.2 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 2,3,4,5,6,8,9,10,11 and 12 and any other 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 under Section 1 accrued or payable to us during the term of this Agreement (including any fees incurred during any suspension period) and you shall immediately pay us all such fees upon the effective date of termination.

7.5.3 Except as provided at Section 7.4, upon termination of this Agreement, during the extended and/or retention period as detailed in our Website, you may retrieve Your Content.

8. Governing Law and Venue

8.1 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.

8.2 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).

9. Changes, Modifications and Third Party Beneficiaries

9.1 Changes. We may change or discontinue KooGallery or change or remove any or all functionality of KooGallery from time to time and at our sole and absolute discretion. We will notify you of the same by posting an announcement on our website or otherwise notifying you of material changes to or the discontinuation of KooGallery.

9.2 Modifications. We may modify these Terms, including the documents and policies referenced herein, at any time and at our sole and absolute discretion by posting a revised version on the Website or by otherwise notifying you. Except as is otherwise indicated in the modified Terms, documents or polices, the modified Terms will come into effect upon posting or notification. You undertake to review such Terms regularly on the Website. Your continuous use of KooGallery after the coming into effect of such modification will be deemed as your acceptance of and agreement to be bound by the modified Terms.

9.3 Non-assignment. You shall not assign, charge, sub-contract, or 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 the prior written consent from Huawei Cloud. Huawei Cloud may, at any time, assign, charge, sub-contract, or 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 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.

9.4 Third Party Beneficiaries. Subject to the following sentence in this Section 8.4, these Terms are 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 each of our Affiliates is an intended third party beneficiary of these Terms and is entitled to enforce any term of these Terms. Notwithstanding the foregoing, the rights of the Parties to rescind or vary these Terms are not subject to the consent of any such Affiliate.

10. Disclaimer

10.1 Relationship

10.1.1 Each Party is an independent contractor. This Agreement does not create any partnership, joint venture, agency or employment relationship between you and Huawei Cloud.

10.1.2 You acknowledge and agree that, notwithstanding anything else in this Agreement: (a) Huawei Cloud and you are independent contracting parties; (b) Huawei Cloud and Resellers are independent contracting parties; (b) Sellers and Resellers are not agents of Huawei Cloud and do not have any power or authority to bind or incur any obligation on behalf of Huawei Cloud; (c) Huawei Cloud shall not be liable for any acts or omissions of Sellers or Resellers; (d) Huawei Cloud shall not be jointly liable in any way or form with Sellers or Resellers for their obligations; and (e) Huawei Cloud acts as “payment processing agent” on behalf of the sellers, which has the same meaning as set out in Article 3(b) of in the Second Payment Services Directive (2015/2366/EC) (“PSD2”)

10.2 Non-breach. You agree that the following events or actions implemented by Huawei Cloud does not and will not constitute a breach of these Terms: (a) interruptions to Products or other services made available on KooGallery due to network adjustment and maintenance by Seller and/or Huawei Cloud or slow access to the Products due to Internet congestion; (b) taking into account the special characteristics of computers and the Internet, events arising from hackers' attacks, viruses, or maintenance or upgrading of telecom facilities or equipment and / or the disconnection of the backbone line; (c) unavailability of Products or Your Content caused by operations and maintenance implemented by Seller and/or Huawei Cloud, provided that Seller and/or Huawei Cloud gives prior notice to You with regard to data backup, service migration, or service suspension. Such operations and maintenance include, but are not limited to, troubleshooting, system upgrades, system optimization, and system capacity expansion.

10.3 Advertising and Intellectual Property Right. You agree that Sellers are solely responsible and liable for any advertising and intellectual property rights related to their Products.

10.4 Your Personal Data Protection. We do not guarantee or warrant the safety of your personal data collected and processed by Sellers and Resellers. Sellers and Resellers are solely responsible and liable for meeting all obligations under applicable data protection laws and regulations with respect to personal data that they collect and process.

10.5 Platform Problem. We do not guarantee or warrant that KooGallery will be free of any technical faults, interruptions and/or network problems, nor do we guarantee or warrant that any such technical faults, interruptions and/or network problems will be rectified within any timeframe.

10.6 Separated Liability. Notwithstanding anything else herein contained, each Seller, Reseller, and Huawei Cloud shall be individually liable for their respective breaches of these Terms based on their failures and actions. You agree and understand that each Seller, Reseller and Huawei Cloud is an independent contracting party. In any event and notwithstanding anything else herein contained Huawei Cloud will not assume joint liability in any way or form with Sellers and/or Resellers.

10.7 Products Monitoring. In order to (a) provide you with services under this Agreement, (b) detect and address threats to the functionality, security, integrity and availabilities of the Products, (c) support your service requests, and (d) detect illegal activities or breach of the Acceptable Use Policy, this Agreement and Applicable Laws, we and/or our Affiliates may continuously monitor the Products, KooGallery and your use thereof.

10.8 Export. In connection with this Agreement, both Parties shall comply with the applicable export and sanction laws and regulations of United Nations, China, United States, the European Union and other countries. You hereby represent and warrant that you and your End Users 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 its member states. You shall be solely responsible for compliance with Applicable Laws related to your subscription, access and use of the Products, including but not limited to Your Content you upload, process, provide and/or make available to your End Users.

10.9 Financial Compliance. You hereby represent, warrant and undertake that: (a) neither you nor (if any) any of your subsidiaries, directors, shareholders, officers, Affiliates, agents or employees is a Restricted Party; (b) 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 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; (c) immediately indemnify us and/or our Affiliates on demand against any liability or damage, including but not limited to any losses, fines, penalties, costs, expenses, and/or attorney fees that we and/or our Affiliates may incur or suffer in connection with your failure to comply with such representation, warranty and undertaking. In this Section:

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 mean economic sanctions 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”), US Department of State; (iv) HM Treasury of the United Kingdom; and (v) other competent governmental authorities and institutions (collectively, the “Sanctions Authorities”); and

Sanctions List means 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.

10.10 Notice. We may provide notice to you under this Agreement by posting a notice on the Website, by email, or by text message (including via SMS and other instant messaging platforms). Notices we provide by posting on the Website will be effective upon posting, and in the case of email and text messages upon sending out (irrespective of whether and when you receive or read it). You shall be responsible for ensuring that your email address and phone number on your Huawei Cloud account are up to date at all times.

10.11 Customer Reference. You acknowledge and agree that we and/or our Affiliates may refer to you as our customer in our sales and marketing materials and activities. We and/or our Affiliates may use your logo for such purpose.

10.12 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. 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.

10.13 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.

11. Definitions

Unless otherwise specified, the capitalized terms used in these Terms will have the same meaning as defined in the Huawei Cloud Customer Agreement.

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

11.2 “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.

11.3 “Applicable Laws” means legislation, regulations, codes of practice, guidelines and any other binding requirements issued by a governmental or regulatory agency or other competent authority.

11.4 “End User” means any person you permit to access and use the Products and/or Your Content.

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

11.6 "Seller" refers to third parties that list Products for sale on KooGallery.

11.7 "Products" refers to the software, images, products and services (which are independently developed by Sellers or legally provided by Sellers authorized by the relevant rights holders) traded on KooGallery, including but not limited to the following product and service categories: basic operating environments, databases and caches, network security, business management, e-commerce, storage and backup, business intelligence, information security, industrial software, data migration, troubleshooting, security, etc. These Products are solely provided and supported by Sellers.

11.8 "Marketplace"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.

11.9 “Reseller” means a participant of the Huawei Cloud Partner Network that is authorized by Sellers to resell Products to End Users on KooGallery.

11.10 “Third Party End User License Agreement” refers to an agreement between the Seller and you governing your use of the Products provided by the Seller and other related issues.

11.11 “Taxes” means all taxes, including but not limited to income tax, withholding tax, wealth tax, capital gain tax, value added tax, goods and services tax, service tax, sales tax, surcharge, duties, levies and other similar charges, however designated, which are imposed by law on an entity as a result of the existence or performance of this Agreement.

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

11.13 “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 by or in the Products or KooGallery. Our materials, data and information will not fall within the definition of Your Content.

12. Country Specific Term

The country-specific terms below will replace the above equivalent terms in these Terms.

Country/Region where you are registered

Section #

Terms and Conditions

Serbia

Section 1.5

1.5 Taxes.

Fees for Products rendered by the Seller are

a) exclusive of withholding tax, VAT, sales tax, goods and services tax (GST) or any similar or analogous Tax applicable in a relevant territory if any, which shall be charged in addition thereto in accordance with the relevant laws and regulations in force at the time of making the relevant taxable supply.

b) inclusive of any other taxes such as Digital Service Tax which should be filed and paid by Seller and us in accordance with the relevant laws and regulations

Each Party is responsible, as required under Applicable Laws and regulations as well as applicable double tax treaties or arrangements, for filing and paying all Taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that Party upon or with respect to the transactions and payments contemplated under these Terms. If any other Taxes (including but not limited to withholding tax) are required by law to be levied on any payment, you shall make payments of such additional amounts as may be necessary to ensure that we actually receive payment of the full amount chargeable for your use of the Products as if no Taxes had been required. Any additional Tax, penalty, or interest arising from your delay or omission in complying with the above mentioned Tax responsibilities shall be borne by you.

If we incur any additional Taxes, costs or liabilities as a consequence of your delay or omission of the above mentioned tax responsibilities or due to the provision of false or incomplete information by you which is necessary for us to determine and meet our above mentioned tax responsibilities arising from our supplies of services to you (including but not limited to information relevant to the determination of your country of tax residency), you shall be solely and exclusively liable to bear such costs related to Taxes not withheld, deducted, or reported, along with any interest, penalties and other charges associated therewith which are to be settled with the relevant governmental or tax authorities.

If, subsequent to the entering into, during the course of, or retrospectively applicable to this Agreement, any rates of existing Taxes are increased or decreased, a new Tax is levied, an existing Tax is abolished, or any change in the interpretation or application of any Tax is adopted (collectively referred as “Tax Changes”), we reserve the right to adjust the amounts payable by you to us, taking into account the Tax Changes, such that there would be no financial detriment to us arising from the Tax Changes.

Last Updated: July 27, 2024

Legal Clauses

Huawei Cloud KooGallery Partner Product User Agreement Print