[Joint Operation Product] Huawei Cloud KooGallery Joint Operation Product Seller Agreement
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[Joint Operation Product] Huawei Cloud KooGallery Joint Operation Product Seller Agreement
These terms apply to your listing of Products on KooGallery for sale under the Joint Operation Model.
If you are listing and selling Products on KooGallery under our standard platform model, these terms do not apply to you. Please refer instead to the Huawei Cloud KooGallery Partner Product Seller Agreement.
If you are reselling Products as a KooGallery Reseller, this Agreement does not apply to you. Please refer instead to the KooGallery Reseller Cooperation Agreement which is available at: https://www.huaweicloud.com/eu/declaration/kg_reselleragreement.html.
This Huawei Cloud KooGallery Joint Operation Product Seller Agreement (the “Agreement”) contains the terms and conditions that govern your releasing and listing of Products on KooGallery for sale under a joint operation model. This Agreement is entered into by and between Huawei Cloud (“we”, “us”, or “our”) and you individually or the entity you represent as specified in your Huawei Cloud account (“Seller”, “you”, or “your”). If you enter into this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the power and authority to do so and to bind the entity to the terms and conditions of this Agreement. This Agreement takes effect as of the date you accept this Agreement, unless otherwise notified by us (the “Effective Date”). You and Huawei Cloud are each referred to as a “Party” and collectively as “Parties” hereunder. (Capitalized terms not defined herein shall have the meanings set out in Section 19.)
1. Joint Operation Model
1.1 Scope. Subject to the terms of this Agreement, you may release Products on KooGallery to be sold under the Joint Operation Model. A reference to “your Products” in this Agreement refers to Products released by you on KooGallery under the Joint Operation Model.
1.2 Direct Purchase Model and Resale Model. Products may be sold under the Joint Operation Model:
(a) by Huawei Cloud to Purchasers who place Orders on KooGallery directly with Huawei Cloud (“Direct Purchase Model”). All Products once listed on KooGallery shall be available for sale under the Direct Purchase Model. Under the Direct Purchase Model, we will sell your Products to Purchasers. You are responsible for ensuring that Purchasers and their End Users are granted all rights, licenses and authorizations necessary to access and use the Products, and for fulfilling all After-Sales Responsibilities directly to Purchasers in accordance with the Product Supply and Support Terms. Purchasers are liable to us for all fees payable for the Products. Upon receiving payment of the fees from Purchasers, we will remit the agreed fees payable by us to you in relation to the Products, provided that we are not liable to pay you any fees in relation to the Products until we have received payment of the relevant Product fees from Purchasers; or
(b) by Huawei Cloud to Resellers, and by Resellers to Purchasers who place Orders on KooGallery using their Huawei Cloud account that is associated with the Huawei Cloud account of the Reseller (“Resale Model”). Under the Resale Model, we will sell your Products to Resellers, who will resell your Products to Purchasers. You are responsible for ensuring that Purchasers and their End Users are granted all rights, licenses and authorizations necessary to access and use the Products, and for fulfilling all After-Sales Responsibilities directly to Purchasers in accordance with the Product Supply and Support Terms. Resellers are liable to us for all fees payable for the Products. Upon receiving payment of the fees from Resellers, we will remit the agreed fees payable by us to you in relation to the Products, provided that we are not liable to pay you any fees in relation to Products until we have received payment of the relevant Product fees from Resellers. Before your Products can be sold by a Reseller, you must enter into a Reseller Agreement as described in Section 4.4 with such Reseller. Resellers must be valid, ongoing participants in the Huawei Cloud Partner Network (“HCPN”) who have been authorized by Huawei Cloud to resell Products on KooGallery. A reference to “your Reseller” in this Agreement refers to a Reseller with whom you have entered into a Reseller Agreement, thereby authorizing that Reseller to resell your Products on KooGallery.
1.3 Granted Right. By releasing a Product on KooGallery under the Joint Operation Model, you are giving us irrevocable authorization and/or right to sell an unlimited quantity of your Product on the terms of this Agreement to Purchasers or Resellers. You hereby agree that we shall be entitled to promote, sell and provide Operational Services to your Products to Purchasers or Resellers. You further agree and guarantee that we shall be entitled to authorize Resellers and/or other third party to promote or sell your Products. We shall be entitled to cancel our orders for your Products at any time without further liability to you, in the event that the corresponding order of the relevant Purchaser and/or Reseller that purchased the Products from us is cancelled for any reason, the Purchaser and/or Reseller is in breach of their agreements with us, or a circumstance has arisen that entitles us to cancel their order or terminate their agreement with us.
1.4 Operational Services. In connection with the Joint Operation Model, we may provide Operational Services to Purchasers in our sole discretion. You acknowledge and agree that the Operational Services are not intended to benefit you. We and our Affiliates shall be under no duty or obligation to you in relation to the Operational Services.
1.5 No Guarantee. We have no obligation to promote, recommend, market or maximise sales of your Products. We do not guarantee that any Products released on KooGallery will sell, that your Products will achieve any particular sales volume, or that you will generate any particular amount of revenue in releasing Products on KooGallery.
2. Eligibility Requirements
2.1 Your Account. Before releasing and listing your Products on KooGallery under the Joint Operation Model, you must:
(a) create or have an existing valid Huawei Cloud account;
(b) agree to and accept the Huawei Cloud Customer Agreement either by signature or electronically, including, but not limited to, the Privacy Statement, Acceptable Use Policy, and Site Terms published on the Website (collectively referred to as the “Huawei Cloud Customer Agreement”); and
(c) submit an application to Huawei Cloud to be enrolled as a Seller in accordance with the registration process established on KooGallery, using the username that you have registered on the Huawei Cloud Website. When submitting this application, you shall provide all of the required information.
2.2 Identity Verification. You represent, warrant and undertake that: (a) that the information contained in your application to become a Seller and any additional information you submit for this purpose, including (without limitation) information relating to your identity, shall be true, accurate and valid; (b) that you are a real person or legal entity; (c) that you have full power and authority to enter into and perform this Agreement; and (d) once entered into, this Agreement will constitute valid and binding obligations on you and which will be enforceable in accordance with the terms of this Agreement. We shall also be entitled to take further steps as necessary in order to verify the information you provided for the purposes of registration is true, accurate and valid. Without prejudice to our other rights and remedies, in the event that you breach this Section 2.2, we are entitled to suspend or cancel your account and claim against you until such time that any issue has been resolved or verified, which time shall be determined in the sole discretion of Huawei Cloud.
2.3 Huawei Cloud KooGallery Guidelines. We will provide the Huawei Cloud KooGallery Guidelines, together with any other documents we consider relevant, to be followed by you when listing Products and when dealing with other issues related to the Products and use of KooGallery, upon your acceptance of this Agreement (the “Guidelines”). The Guidelines may be updated by us, at our discretion, from time to time. You acknowledge and agree that you will, at all times, comply with such Guidelines.
3. Releasing Products on KooGallery
3.1 Review of Releasing. Prior to submitting and releasing any Products, you shall comply with all applicable requirements for submitting Products on KooGallery as set out in this Agreement and as required by any Applicable Laws, including providing all relevant supporting technical documents. Such supporting technical documents include, but are not limited to, supporting content and SLAs for Products, and perform self-verification and testing of the Product and its features in accordance with the listing standards for releasing Products on the KooGallery. You hereby acknowledge and agree that Huawei Cloud shall be entitled to (but shall not be obliged to) test and review the integrity and security of your Products at any time, and to take all measures as we deem necessary in respect of you and your Products if you fail to pass the Huawei Cloud acceptance test, including but not limited to removing your Products from KooGallery. Any such testing and review of your Products shall not be construed as a promise, representation or warranty by us as to the integrity, security or quality of your Products, nor do we assume any responsibility or liability for the same. You shall be solely responsible and liable to Purchasers, Resellers and/or third parties for, and shall indemnify and hold harmless Huawei Cloud and its Affiliates against any claims, disputes, losses, costs, damages and liabilities arising out of or in connection with your Products, including any loss or damage attributable to a security breach involving your Products or any non-compliance of your Products with agreed standards.
3.2 Responsibility for Releasing a Product. The Products released on KooGallery shall not be exclusive, and you shall not engage in any vicious, unfair, illegal or anti-competitive practices of any nature with other Sellers on KooGallery. To the extent that your Products contain Open-Source Software, or are developed based on Open-Source Software, you represent, warrant and undertake that (i) the listing and sale of your Products on KooGallery; and (ii) the access and use of such Products by Purchasers and their End Users, do not and will not breach the relevant Open-Source Software license policies and agreements. You shall furnish us with the specific name of the Open-Source Software and the type of the license agreement you used.
3.3 Costs. In relation to your Products which are listed on KooGallery, you shall bear the costs of the Huawei Cloud Services required for image creation as well as any other fees which may be incurred in order to deploy and use Huawei Cloud Services to offer those Services and to perform this Agreement.
3.4 Formats. Huawei Cloud provides guidance for releasing Products in different formats on KooGallery. You may select the relevant format for your Product based on such guidance and options provided on KooGallery; provided that Huawei Cloud shall be entitled in its sole discretion to determine the format of your Products as listed on KooGallery.
3.5 Other Rights. You hereby grant Huawei Cloud a non-exclusive, worldwide, transferable, sub-licensable and royalty-free license to use and display your trademark and logo (“Seller Logo”) on KooGallery and in other publicity materials during the term of this Agreement. You represent and warrant that you are the legal owner of or otherwise have full right and authority to license the Seller Logo and your Products as contemplated in this Agreement. For the avoidance of doubt, no fees will be payable to you in connection with your obligations in this Section 3.5, including the grant of the license herein.
4. Your Obligations and Warranties
4.1 Product License.
(a) You acknowledge and agree that you shall grant and are exclusively responsible for granting all necessary rights, licenses (including sub-licenses) and authorizations to enable Purchasers and their End Users to access and use your Products, whether they purchase your Products from us or Resellers. Without limiting the foregoing, you shall ensure that the Product Supply and Support Terms referred to in Section 4.3 include terms granting such rights, licenses (including sub-licenses) and authorizations sufficient to enable Purchasers and their End Users to use your Products without infringing any Intellectual Property Rights. Huawei Cloud and its Affiliates shall have no liability in relation to such rights, licenses and authorizations.
(b) In relation to Products sold under the Resale Model, you are exclusively responsible for granting all necessary rights, licenses (including sub-licenses) and authorizations to enable Resellers to: (i) access, use and resell your Products and related content; (ii) sub-license your Products to Purchasers and their End Users as necessary to effect the resale of your Products; and (iii) provide related services including but not limited to consultancy services, after-sales services and technical support. Huawei Cloud and its Affiliates shall have no liability in relation to such rights, licenses and authorization. For the avoidance of doubt, this paragraph shall be without prejudice to your obligations under Section 4.1(a).
(c) Notwithstanding anything else in this Agreement, you shall grant and hereby grant Huawei Cloud and its Affiliates a non-exclusive, irrevocable, worldwide, sub-licensable and royalty-free license during the term of this Agreement to: (i) access, use, and make reasonable copies of your Products for the purposes of this Agreement, including to demonstrate, promote, market, advertise, sell and/or resell the Products to Purchasers and Resellers; and (ii) grant sub-licenses to Purchasers, End Users and Resellers as contemplated under Section 4.1(a)-(b) above if we deem necessary or desirable in our sole and absolute discretion to enable Resellers and Purchasers (and their End Users) to resell, access and/or use (as applicable) the Products that they have purchased. For the avoidance of doubt, nothing in this paragraph shall impose any obligations on us, or relieve you of your obligations to grant the rights to Purchasers, End Users and Resellers as contemplated under Section 4.1(a)-(b).
(d) The authorized sales territory for all Products under this Agreement shall be worldwide, unless otherwise specified by us. You shall grant all rights, licenses and authorizations under this Agreement in relation to your Products on a worldwide basis.
(e) You represent, warrant and undertake on the Effective Date and on a continuing basis through the term of this Agreement that: (i) you own all Intellectual Property Rights to your Products or otherwise have full right and authority to grant the rights, licenses and authorizations contemplated in this Agreement; and (ii) the sale, resale, use and marketing of your Products in accordance with this Agreement does not and will not infringe the Intellectual Property Rights of any other person.
(f) You shall execute all documents (including legally binding agreements) and do all acts as are necessary to give effect to the grant of rights, licenses and authorisations contemplated under this Section 4.1.
4.2 Responsibilities for Products.
(a) You shall be exclusively responsible and liable to Purchasers for any and all After-Sales Responsibilities in relation to your Products, including without limitation, any and all obligations related to Product delivery, provisioning, quality and ongoing support for the entire duration of the purchased Product.
(b) You acknowledge and agree that, in connection with the Operational Services, we may undertake certain customer service-related functions including handling tickets, receiving queries, complaints, feedback or other matters from Purchasers and/or Resellers (collectively “Matters”). The provision of Operational Services by us shall not affect your obligation to fulfill the After-Sales Responsibilities and/or to perform the Product Supply and Support Terms. If we inform you of any Matter which is raised to us by a Purchaser and/or Reseller, you shall provide us with all assistance reasonably necessary to resolve the Matter to the satisfaction of the Purchaser and/or Reseller. We may also refer any Matter to you, and you shall thereafter be exclusively responsible for resolving the Matter with the Purchaser.
4.3 Product Supply and Support Terms.
(a) Upon releasing any Product on KooGallery under the Joint Operation Model, you shall submit to Huawei Cloud a set of Product Supply and Support Terms to be published on KooGallery, expressly setting out: (i) the After-Sales Responsibilities which you will fulfil in relation to your Products, including relevant support services, service levels, and delivery standards and conditions; (ii) the rights, licenses and authorizations granted to Purchasers and their End Users as contemplated under Section 4.1; and (iii) any other matters that Huawei Cloud may specify to be included.
(b) The Product Supply and Support Terms shall be applicable to your Products, whether they are sold under the Direct Purchase Model or the Resale Model.
(c) You acknowledge and agree that the Product Supply and Support Terms shall constitute a legally binding agreement between you and Purchasers, when Purchasers agree to the terms thereof during the order process for your Products on KooGallery (under both the Direct Purchase Model and Resale Model). Huawei Cloud and its Affiliates shall not be liable for any failure or defect in Product delivery, provisioning and/or quality or any other failure to fulfil the After-Sales Responsibilities in relation to the Products. Any such liability shall be wholly borne by you in accordance with the Product Supply and Support Terms.
(d) You shall not amend, alter, modify, terminate, assign, novate or transfer the Product Supply and Support Terms or any part thereof without our prior consent.
(e) The Product Supply and Support Terms shall be in the form prescribed by Huawei Cloud and made available on the Website or otherwise notified to you. You shall insert relevant Product-specific terms in the form prescribed by Huawei Cloud, before submitting the finalised Product Supply and Support Terms to us for upload on KooGallery. We reserve the right in our sole discretion to reject your Product Supply and Support Terms for publication on KooGallery, and to refuse to list your Products on KooGallery. You are responsible for ascertaining your rights and obligations under the Product Supply and Support Terms, and to obtain independent professional advice if necessary. We do not assume any responsibility to you for the liability that you may have under the Product Supply and Support Terms.
(f) We may update the standard form of the Product Supply and Support Terms from time to time in our sole discretion. If we notify you of such updates, you shall make such modifications to your Product Supply and Support Terms as necessary for them to be in the updated form. You shall submit the modified terms to be uploaded on KooGallery within 30 days from the time that we first notify you of the updates. Our uploading of the modified Product Supply and Support Terms on KooGallery shall not affect any previous agreements that you have entered into with Purchasers. However, if we inform you that we have made changes to the KooGallery platform or this Agreement, you shall execute such documents and agreements with Purchasers as may be reasonably necessary to give effect to any consequential amendments that are required to be made to the Product Supply and Support Terms that you have entered into as legally binding agreements with Purchasers.
(g) You and Purchasers 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. Huawei Cloud shall not be liable for any of your acts or omissions or that of Purchasers and/or their End Users. We shall be entitled to suspend or terminate your access to and use of KooGallery and/or your ability to list, release and sell Products on KooGallery in the event of a violation of or in other circumstances as specified in our prevailing terms and conditions or policies. In the event of such suspension or termination, Huawei Cloud and its Affiliates shall have no liability to you whatsoever.
(h) You shall ensure that your Product Supply and Support terms do not contain any term that is inconsistent with this Agreement or Applicable Laws. You shall also ensure that your Product Supply and Support Terms provide at least the same level of protection to Huawei Cloud and its Affiliates as set out in this Agreement. You shall be exclusively responsible and liable for any claim or dispute raised by Purchasers in relation to your Products.
4.4 Reseller Agreement.
(a) Prior to selling any of your Products under the Resale Model, you shall enter into a valid agreement with each of the Resellers. Such agreement shall include the terms on which the Reseller will access, use and resell your Products, including details on the respective roles and responsibilities of you and your Reseller for After-Sales Responsibilities including Product delivery, ensuring Product quality and providing support to End Users (“Reseller Agreement”).
(b) You represent, warrant and undertake that: (i) any Reseller Agreements which you enter into do not and will not contain any term that is inconsistent with this Agreement, Product Supply and Support terms or Applicable Laws; and (ii) any Reseller Agreement which you enter into do and shall provide at least the same level of protection to Huawei Cloud as set out in this Agreement.
(c) You acknowledge and agree that the Reseller Agreements are entered into exclusively between you and the Resellers, and that Huawei Cloud and its Affiliates are not a party thereto and shall have no liability arising therefrom. 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.
(d) Huawei Cloud is entitled to suspend or terminate a Reseller’s right to access or use the KooGallery and/or to resell Products 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. In the event that your Reseller’s right to resell Products is terminated for any reason, you and your Reseller shall work together to continue providing the Products and related services and support to the Purchasers who have purchased your Products, and shall discuss and implement in good faith such transition plans as may be necessary to facilitate the smooth transition of such Purchasers to you or another Reseller. You shall be solely responsible for any claim or dispute raised by your Resellers in relation to your Products, and you shall indemnify and hold Huawei Cloud and its Affiliates harmless from and against any losses, costs, damages and liabilities arising out of or in connection with the same.
4.5 Privacy Statement. You shall upload and make available a privacy statement to be published on KooGallery informing Purchasers and their End Users how you collect, use, disclose, process and protect data obtained from them in relation to your Products. The privacy statement you provide shall include information about what kind of data you will collect and how you will use and/or disclose such data, and any other information required by Applicable Laws.
4.6 Provision of Products. You shall provide the Products to Purchasers and/or Resellers upon receipt of and in accordance with the terms of a valid order.
4.7 Products and Technical Support. You are responsible for: (a) providing Products that are independently developed by you or which are legally obtained from the relevant rights holders; (b) releasing Products on KooGallery and managing them in accordance with all applicable terms, requirements and policies of KooGallery; and (c) fulfilling the After-Sales Responsibilities to Purchasers and Resellers in relation to your Products including all obligations relating to delivery, technical support and ensuring quality of your Products.
4.8 Delisting of Products. If you wish to cease offering and/or discontinue any of your Products that are listed on KooGallery, you shall notify Huawei Cloud in advance, by using such means and processes as are available on KooGallery. During the period after you notify Huawei Cloud, your Products will continue to be available for sale, and for any orders submitted during this period you shall continue to fulfill the After-Sales Responsibilities to Purchasers in accordance with the Product Supply and Support Terms, until we confirm that your Products have been delisted and are no longer offered for sale on KooGallery. In the event that your Products are no longer sold, you shall continue to fulfill all After-Sales Responsibilities to Purchasers and/or Resellers who have purchased your Products.
You are solely responsible for providing after-sales service and support to Purchasers and/or Resellers who have purchased your Products, including undertaking maintenance, providing upgrades, and technical support. You are solely liable for all problems, losses, compensation, and related liabilities incurred from incorrect upgrades or maintenance.
4.9 Regular Technical Support.You shall provide off-site technical support services for at least five (5) days per week and eight (8) hours per day, as well as online support and support through telephone or email In addition, you shall also provide a support hotline or other relevant contact information. You shall make this information available on the relevant Products website or on KooGallery. You shall also designate specific support service staff for Purchasers and/or Resellers.
4.10 Timely Response. You shall respond promptly to Purchasers’ and Resellers’ questions or complaints in connection with your Products or their agreements with you. You shall also be responsible for providing any related after-sales services for any problems with the Services within forty-eight (48) hours upon receiving such questions or complaints. You shall propose viable solutions within the timeframe you have guaranteed to Purchasers and Resellers.
4.11 Troubleshooting. In the event that your Products cannot be used and your Products fail to run in a proper manner, you shall provide Purchasers and Resellers with a solution or workaround without undue delay and no later than twenty-four (24) hours after being informed of the issue. In the event that Purchasers or Resellers are unable to or have difficulty using the Products due to any degraded performance, you shall provide Purchasers or Resellers (as the case may be) with a solution or workaround within forty-eight (48) hours.
4.12 Disputes with Purchasers and Resellers. You shall be exclusively liable for any claims, disputes, penalties, lawsuits, or other matters in connection with the Products or other services you provide, and you shall indemnify and hold Huawei Cloud and its Affiliates harmless from and against any losses, costs, damages and liabilities arising out of or in connection with any such claims, disputes, penalties, or lawsuits.
4.13 Compliance. You undertake to ensure that the Products and related services and content which you provide shall at all times:
(a) comply with all Applicable Laws;
(b) comply with this Agreement, and other relevant agreements which are incorporated herein, including the terms of service related to Huawei Cloud Services, Huawei Cloud Customer Agreement, Huawei Cloud KooGallery Guidelines, and other policies provided via the Huawei Cloud Website and KooGallery such as the Acceptable Use Policy;
(c) not infringe upon any third party’s Intellectual Property Rights. Huawei Cloud shall be entitled to remove your Products from KooGallery if we receive any notice from a third party claiming that your Products infringe upon a third party’s rights; and
(d) not contain any illegal content. Huawei Cloud shall be entitled to remove your Products from KooGallery if we receive any notice from a third party that your Products contain, or are suspected of containing, illegal content. Huawei Cloud shall also be entitled to remove your Products from KooGallery if we suspect any illegal content.
You shall obtain and maintain in force all governmental and regulatory licences, approvals and consents (collectively “Regulatory Approvals”) necessary to enable you to supply the Products and to perform your obligations under this Agreement in compliance with Applicable Laws. You shall procure and obtain for Huawei Cloud and its Affiliates such Regulatory Approvals as may be necessary to enable Huawei Cloud and its Affiliates to sell your Products and to enter into and give effect to the transactions contemplated in this Agreement.
4.14 Security. You shall properly configure, use, and ensure the security of your Products at all times. You shall also properly protect and back up your Products, including but not limited to using encryption technologies to prevent unauthorized access to your Products and archiving your Products. You represent and warrant on an ongoing basis that your Products do not contain any malicious computer programs or viruses or contain any security issues. You shall also ensure that you do not interfere with or attempt to interfere with KooGallery, other applications which you may have access to, or any part or function of other Huawei Cloud applications.
4.15 Operational Data. All rights, title and interest to the operational data of Huawei Cloud Services, KooGallery, and related websites belong to Huawei Cloud. Without obtaining express prior 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 Services and KooGallery for any purposes other than as set out in this Agreement.
5. Huawei Cloud KooGallery Platform
5.1 Platform and Operational Support. Huawei Cloud relies on the Huawei Cloud Website and KooGallery to provide you with platform and operational support, including operations management, platform maintenance, electronic transactions, and settlement services in connection with the Huawei Cloud Website and KooGallery.
5.2 Huawei Cloud Website and KooGallery Operations Huawei Cloud shall be entitled to in our sole discretion:
(a) operate and maintain the KooGallery platform; and
(b) review the Products that are offered by you on the KooGallery, as well as any changes which may be made to them. Without any limitation to the foregoing, Huawei Cloud shall be entitled in its sole discretion to review and verify all Products released on KooGallery by you from time to time and shall be entitled to discontinue such Products.
5.3 Upgrades and Changes. At its sole discretion, Huawei Cloud shall be entitled to upgrade the KooGallery platform when necessary, or move the aforesaid KooGallery to a different equipment centre or location. Huawei Cloud shall use reasonable commercial endeavours to ensure that any upgrades or changes made to KooGallery shall be compatible with the existing functions of KooGallery, to the extent possible.
5.4 Feedback.You shall grant and hereby grant Huawei Cloud and its Affiliates a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into KooGallery 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.
5.5 Monitoring. You acknowledge that KooGallery platform services are provided by Huawei Cloud and agree that Huawei Cloud may undertake the necessary technical means to perform any necessary monitoring of KooGallery running status which may be required. This monitoring is implemented only on data from the Website and KooGallery and without involving Purchasers and/or End Users of your Products. You hereby agree that if you breach this Agreement or if the Products are deemed to be defective, Huawei Cloud is entitled to cease or otherwise discontinue the sale of your Products, or to remove your Products from KooGallery, at any time, in addition to the other rights and remedies available to it.
6. Settlement and Payment
6.1 Fee.
(a) We will pay you the applicable fees in relation to your Products that we sell, in accordance with such sharing ratios or rates as may be separately agreed between the Parties, subject to the terms of this Agreement. We shall not be obligated or liable to pay you any fees in relation your Products, until we have received full payment of the relevant fees due to us from the relevant Purchaser or Reseller that purchased the Product from us.
(b) You shall ensure that all fees and charges payable by Purchasers and/or Resellers for Products and associated services are billed and collected through us. You shall not offer or establish any alternative means of payment or attempt to bill Purchasers and/or Resellers directly for Products or any associated services. You shall not agree or enter into any terms between (i) you on the one hand, and (ii) Purchasers or Resellers on the other hand, which are inconsistent with this Agreement.
(c) We will process all relevant payments received by us in relation to the Products at the beginning of each month. We may withhold, deduct, or set off any amounts payable by you to us or our Affiliates against any amounts that are due to you. We may also withhold for investigation or refuse to process any amount related to any transactions relating to your Products that we suspect is fraudulent, unlawful, or otherwise violates the terms of this Agreement or Applicable Laws.
6.2 Billing and Invoicing. We will generate and issue a statement to you at the beginning of each month showing all payments that are due to you in respect of transactions that meet the following conditions in full: (1) we have received the full amounts from Purchasers and/or Resellers payable in respect of your Products; (2) you have fully completed the delivery of Products to Purchasers and/or Resellers, and you have fulfilled any other After-Sales Responsibilities where applicable; and (3) the order status of the relevant Products must be shown as “Completed” on our KooGallery’s platform system.
After receiving such statement, you shall verify the amounts stated therein and confirm to us that they are correct. After we receive your confirmation of such statement, we will notify you to issue an invoice to us. You shall not issue your invoice to us until you receive our notification to do so. You shall issue invoices to us in accordance with the remittance amounts shown on the relevant statements. After we receive your invoice and confirm the amounts thereon, we will process the remittances to you in accordance with our prevailing payment procedures. Without limiting the generality of this Agreement,, the terms stated in this Agreement shall exclusively govern billing and payment matters between us, and we do not at any time accept any terms and conditions of yours relating to billing or payment (whether stated on your invoice or otherwise).
6.3 Taxes.
6.3.1 Each Party shall, as required under Applicable Laws as well as applicable double Tax treaties or arrangements, file and pay all Taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) respectively that are imposed on that Party upon or with respect to the transactions and payments contemplated under this Agreement.
6.3.2 Fees for Products are:
(a) exclusive of value added tax (VAT), sales tax, goods and service tax (GST) or any similar or analogous turnover 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. For such fees, we shall fulfill any Tax compliance obligation required under Applicable Laws and regulations or under the application of double Tax treaties or arrangements and we shall issue a compliant invoice to Purchasers and/or Resellers if legally required to do so; and
(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 you or us in accordance with the relevant laws and regulations.
In the circumstance that a withholding tax or tax deduction is so required to be applied by Purchasers and/or Resellers under operation of local law or regulations, it is the Purchasers’ and/or Resellers’ responsibility to withhold or deduct, file and pay such tax to competent tax authority in accordance with relevant tax laws and regulations.
6.3.3 We will remit to you the amounts that we receive from Purchasers and/or Resellers in relation to your Products, after deducting the relevant portion of Product Fees collected which are due to us under this Agreement along with relevant Tax payment certificates that have been provided by Purchasers and/or Resellers.
The amount to be remitted (i.e. fees collected from Purchasers and/or Resellers, net of WHT, VAT and any other taxes due on the supply to the Purchasers and/or Resellers) by us to you is inclusive of:
(a) Value Added Tax, sales tax or analogous tax; and
(b) withholding tax, or any similar or analogous tax applicable in a relevant territory if any, which shall be deducted by us thereto, and
(c) any other taxes which should be filed and paid by you or any other taxes such as Digital Service Tax which imposed on you however should be filed and paid by us which shall be deducted by us thereto in accordance with the relevant laws and regulations.
6.3.4 For detailed information relating to our settlement policies and procedures, please refer to: https://support.huaweicloud.com/eu/sp-marketplace/eu_sp_topic_000046.html.
6.3.5 If a withholding tax or Tax deduction is identified in a subsequent Tax audit, investigation or inquiry raised against us, 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.
6.3.6 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 responsible and 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.
6.3.7 If, subsequent to the entering into, during the course of the performance 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 and/or that we may deduct from the amounts to be remitted to you, such that there would be no financial detriment to us arising from the Tax Changes.
6.3.8 If required under Applicable Laws in a relevant territory, we may report or provide information relating to you to a competent authority in accordance with such requirements.
6.4 Refund. If a Purchaser and/or Reseller applies for a refund and it is confirmed by Huawei Cloud that the application meets the refund requirements, Huawei Cloud will send a refund notification to the Purchaser and/or Reseller (as the case may be) After you have refunded to us, we will refund to the Purchaser and/or Reseller.
6.5 Risk of Fraud or Loss. You shall bear the risk of fraud or loss, including the risk of chargebacks or credit card fraud, associated with your Products. If a chargeback is made against us or we confirm a payment in connection with a fraudulent transaction, you will promptly reimburse us for the total amount of any applicable payment previously paid to you, as well as all credit card, bank or other payment processing, re-presentment and/or penalty charges related to the original transaction.
6.6 Credit Policy. By releasing your Products on KooGallery, you agree that your Products may be sold on credit (including on a subscription basis payable in arrears) at your sole risk, in accordance with such terms as may be set out in Huawei Cloud’s Credit Policy, as updated from time to time at our sole direction. You agree to comply with the terms of Huawei Cloud’s Credit Policy. The fees for your Products which are sold on credit will be collected from Purchasers in the following month or otherwise as stipulated in Huawei Cloud’s Credit Policy. In the event that a Purchaser fails to make payment after purchasing your Products on credit, any losses, costs and liabilities arising therefrom shall be borne entirely by you. Huawei Cloud shall not be liable to pay you for any Products in relation to which a Purchaser or Reseller fails to make payment.
7. Non-disclosure
7.1 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, in the course of their dealings relating to this Agreement whether before or after the date of this Agreement, in any medium or format (including written, oral, visual, or electronic), whether or not marked or described as "confidential", or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. 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 7, references to “Party”, “Disclosing Party” and “Receiving Party” shall, in relation to us, be interpreted as a reference to us and our Affiliates.
7.2 Protection of Confidential Information. The Receiving Party agrees to keep the Disclosing Party’s Confidential Information confidential during the term of this Agreement and for a period of five (5) years thereafter. The Receiving Party shall not disclose the Disclosing Party's Confidential Information to any other person or entity except with the prior written consent of the Disclosing Party or in accordance with this Section 7. The Receiving Party agrees to take appropriate measures to protect the Disclosing 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.
7.3 Permitted Disclosure. The Receiving Party may not use the Disclosing Party’s Confidential Information except in connection with the performance of its obligations under this Agreement, or otherwise for the purposes of this Agreement or as required by Applicable Laws. The Receiving Party may only disclose Confidential Information to its employees, officers, agents, or subcontractors (and in the case of Huawei Cloud, its Affiliates) who have a need-to-know and who are subject to confidentiality obligations no less than the degree of protection as required herein. Each Party may only use the other Party’s Confidential Information for the purpose of performing this Agreement, unless otherwise authorized by the other Party. Notwithstanding anything to the contrary, each Party may disclose the other Party’s Confidential Information in a legal proceeding, as required by Applicable Laws 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 lawful to do so): (a) the Receiving Party must notify the Disclosing Party in writing as soon as practicable before the disclosure; (b) the Parties must use all reasonable endeavors to consult with each other with a view to agreeing the timing, manner, and extent of the disclosure; and (c) the Receiving Party must in any event use all reasonable endeavors to obtain written confidentiality undertakings in its favor from the third party. If the Receiving Party is unable to inform the Disclosing Party before Confidential Information is disclosed, it must (provided that it is lawful 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.
8. Intellectual Property Rights
8.1 Rights Granted to Us. You represent and warrant that your Products, and any commercial software you provide do not infringe on any third party's Intellectual Property Rights in any form, including but not limited to patent rights, copyrights, exclusive rights to use trademarks, trade secret rights, and the rights to the designs of integrated circuit layouts. You hereby grant Huawei Cloud and our Affiliates a royalty-free, worldwide, irrevocable, non-exclusive, transferable, perpetual and sub-licensable license to use, show and perform security checks on the Products. You represent and warrant that you are the owner of all Intellectual Property Rights in the Products or otherwise have full right and authority to grant such license to Huawei Cloud and our Affiliates.
8.2 Authorization to Releasing Products. You agree that Huawei Cloud and its Affiliates have the right to release the Products and any related information on our websites, publicity materials, or other cooperative promotional channels in the name of Huawei Cloud. The scope of this authorization includes but is not limited to:
(a) listing Products on the Internet to make it available to Purchasers and Resellers;
(b) presenting, using, duplicating, disseminating, or selling Products according to this Agreement; and
(c) other rights that shall be granted to achieve the aforesaid sales and promotional objectives, such as the right to use auxiliary information related to the Products, including company, application, and Product information submitted to Huawei Cloud by you.
8.3 Trademarks. Except as otherwise agreed upon in this Agreement, without one Party's prior written consent, the other Party shall not present, use, or allow any third Party to present or use the aforementioned Party's and its Affiliates’ trade names, service marks, brands, or trademarks. Notwithstanding the foregoing, Huawei Cloud may use your trade names, service marks, brands, and trademarks for the purposes of promoting, marketing and selling the Products including using the same in promotional and advertising materials. The Parties acknowledge and agree that each Party's (or its Affiliate’s) trade name, service mark, brand, and trademark are the proprietary assets of that Party (or its Affiliate)
8.4 Intellectual Property Rights Confidentiality. Without limiting the generality of Section 7 and notwithstanding anything to the contrary in this Agreement, both Parties shall keep confidential： any and all technical secrets, know-how and business secrets which may be obtained from the other Party other during the performance and conclusion of this Agreement. Both Parties shall comply with all relevant competition laws, and laws and regulations on Intellectual Property Rights and all other relevant laws and regulations during the term of this Agreement and thereafter. Without obtaining the prior written consent of the other Party, neither Party shall disclose, transfer, license others to use, exchange, donate, share such secrets with any other individual or organization in any manner, or improperly use such trade secrets. If a Party commits a breach of this clause and such breach causes loss to the other Party, it shall be liable for such breach in accordance with all Applicable Laws.
8.5 Original Ownerships. Except as otherwise provided under this Agreement, the listing of the Products on the KooGallery shall not be construed as a change, transfer or grant of ownership of any Intellectual Property Rights in the Products. You acknowledge and agree that Huawei Cloud, its licensors or its Affiliates own all Intellectual Property Rights in KooGallery, information, software and service description. Except as expressly stated herein, this Agreement shall not grant you with any rights to, or in, any Intellectual Property Rights in respect of KooGallery.
8.6 Accountability. If a third party alleges or complains to Huawei Cloud, our Affiliates, or Purchasers that the Products submitted by you in accordance with this Agreement and/or your content and related services infringe on the Intellectual Property Rights infringement of such Intellectual Property Rights, you shall be exclusively liable for any compensation payable for the infringement of these intellectual property rights. You shall indemnify and hold harmless Huawei Cloud, our Affiliates, Resellers and/or Purchasers from and against any and all third-party claims, suits, demands, actions, damages, losses, liabilities, costs and expenses (including attorney’s fees and costs) arising out of any infringement of third party Intellectual Property Rights or proprietary information by the Products and/or your content and related services. We are entitled to remove your Products from the KooGallery or take any measures we deem necessary if we receive a third party’s notice alleging that you are infringing a third party’s intellectual property rights. Without prejudice to the foregoing, if you become, or, in the opinion of Huawei Cloud, may become the subject of a claim because the Products provided by you in accordance with this Agreement and/or your content and related services are suspected of infringing on any patent rights or copyrights, business secrets, or other intellectual property or proprietary rights of a third party, you shall, in a timely manner, carry out the following:
(a) obtain or acquire for Huawei Cloud, our Affiliates, Resellers and/or Purchasers the right to use such Products without causing any infringement or subjecting us, our Affiliates, Resellers and/or Purchasers to any indemnification liabilities arising from the use of the aforementioned Products;
(b) modify your Products and/or content and related services to cease any such infringement to the satisfaction of Huawei Cloud, and ensure that they become non-infringing and/or that they are replaced with non-infringing substitutes by replacing the aforesaid Products with Products and/or content that comply with the requirements of this Agreement; and
(c) indemnify Huawei Cloud for any expenses, losses or damages incurred by Huawei Cloud, its Affiliates, Resellers and/or Purchasers as a result.
9. Security and Data Privacy
9.1 Your Security. You are exclusively responsible for any security vulnerabilities and the consequences of such vulnerabilities arising out of or related to your Products, including but not limited to any viruses, Trojan horses, worms, or other harmful programming routines contained in your Products.
9.2 Data Privacy. You represent, warrant and undertake that all Personal Data you collect from Purchasers, End Users and/or Resellers will be collected, used, disclosed, transferred and/or otherwise processed (collectively “process”, “processed” or “processing”) in compliance with all Applicable Laws relating to Personal Data and privacy. You acknowledge and agree that, in providing the Products and fulfilling the After-Sales Responsibilities, any processing of Personal Data relating to Purchasers, End Users and/or Resellers that you undertake is done on behalf of and for your purposes, and that you do not process such Personal Data on behalf of or for the purposes of Huawei Cloud and its Affiliates. We are not responsible for giving you instructions on or determining the purposes for which you process Personal Data. You shall ensure that you obtain consent from Purchasers, End Users and/or Resellers and/or otherwise take all actions necessary to ensure that you process their Personal Data in compliance with Applicable Laws. You acknowledge and agree that you will be solely responsible for any loss and liability if you violate such Applicable Laws.
You understand and agree to the Privacy Statement as we may update it from time to time. Please carefully read this 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 Data Processing Addendum: https://www.huaweicloud.com/eu/declaration/sa_dpa.html incorporated by reference herein.
9.3 Limitations on Use of Data. You shall not illegally obtain or use any data (including but not limited to Purchaser, End User and/or Reseller information, Personal Data, Purchaser and Reseller transaction information, and operational data for your Products) that is obtained through the KooGallery platform’s technical interfaces or public channels under this Agreement for any purposes beyond those set forth in this Agreement.
9.4 Data Protection Assessments and Other Measures. Without prejudice to any of your other obligations under this Agreement, you shall perform all assessments required to ensure that you process Personal Data in compliance with Applicable Laws, including security assessments, transfer impact assessments, data protection impact assessments, and shall take all other measures required to ensure that any transfers of data you undertake comply with Applicable Laws. For avoidance of doubt, to the extent that Applicable Laws may impose any additional requirements or requirements that are more stringent than those set out herein, you shall comply with the provisions of Applicable Laws.
10. Disclaimer
10.1 Actions Undertaken or Events Initiated by Huawei Cloud. You hereby agree and acknowledge that the following actions undertaken or events initiated by Huawei Cloud do not constitute a breach of this Agreement, and that Huawei Cloud is not liable therefor:
(a) the interruption of services, KooGallery, or the Products, which may occur while Huawei Cloud carries out adjustments to the network, there is a drop in the rate of access to your Products due to any form of Internet access blocking, or Huawei Cloud carries out routine or emergency maintenance in respect of KooGallery. You may be unable to access KooGallery during any period in which routine or emergency maintenance is being carried out, though Huawei Cloud will use its reasonable commercial endeavours to keep disruption to and unavailability of KooGallery to a minimum;
(b) 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;
(d) the unavailability of your Products 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 Law. 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; and
(e) 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.
10.2 Reservation of Rights. Huawei Cloud reserves the right to, at our sole discretion, change, upgrade, modify, and transfer the KooGallery, your Products, Huawei Cloud Services, and related functions and application software at any time. Huawei Cloud further reserves the right to develop new modules, functions, software, and services. Unless otherwise specified by Huawei Cloud, the aforesaid new modules, functions, software, and services are provided in accordance with this Agreement.
10.3 Data Transmission. You agree that Huawei Cloud shall not be responsible for any delays, inaccuracies, errors, or omissions that may occur during data transmission when you, Purchasers, Resellers or other third parties use the Huawei Cloud Services or KooGallery, Huawei Cloud shall not be liable for any damage caused in relation to any delay, inaccuracies, errors or omissions which may occur and are beyond its control..
10.4 Third-Party Services. Third-party services, including but not limited to products or services provided by third parties and third-party applications on the Website, may be provided directly to you by other natural persons, legal persons or organizations. Any such third-party services shall be subject to separate terms and conditions and subject to separate charges . Huawei Cloud is not obligated to test or screen third-party services. You hereby agree and acknowledge that any use of third-party services shall be at your own risk.
10.5 Government Authority Requirements. During the term of this Agreement, if a court, governmental, regulatory or other competent authority issues an injunction or a binding order, notice or directive of similar effect with regard to your Products, or otherwise prohibits Purchasers or Resellers from purchasing your Products, Huawei Cloud shall notify you as early as possible, where permitted under relevant laws and requirements administered by the relevant governmental, regulatory or other competent authorities. In such circumstances, Huawei Cloud shall not be liable for breach of this Agreement.
10.6 Necessary Conditions. If your Products are unable to be provided, are unable to be provided in time, or if quality defects exist in your Products because you or a Purchaser or Reseller has failed to provide the necessary conditions for provisioning your Products, Huawei Cloud shall not be deemed to be responsible or held liable for any such failure.
10.7 Exceptions in Your Products. If the stability of any network or system (whether of as a result of Huawei Cloud or any other person) is affected due to exceptions in your Products, which may include but not limited to bulk sending junk emails, a source of malicious attack, which may lead to a network security problem and which may further affect other users of KooGallery or Huawei Cloud Services, Huawei Cloud shall be entitled to suspend the use of your Products.
10.8 Disputes arising from Your Products. Huawei Cloud shall not be responsible or liable for the After-Sales Responsibilities or any issues relating thereto, including those related to the operating system or the layer above the operating system attached to your Products, which are caused by you, your Products, or related services provided by you to Purchasers or Resellers through the KooGallery. Huawei Cloud shall not be responsible for any direct or indirect losses and liabilities arising from the aforesaid problems and disputes.
10.9 Legal Liabilities between You and Purchasers. Huawei Cloud shall not be liable for any direct or indirect losses, damages, costs or other liabilities between you and Purchasers and/or Resellers.
10.10 Collection of Personal Data. In the event that you do not comply with Applicable Laws relating to data protection or privacy, and where required inform or obtain the consent of Purchasers, End Users and/or Resellers to the collection, use and/or disclosure of their personal data, you shall assume all liabilities arising therefrom and indemnify, hold harmless and defend Huawei Cloud and its Affiliates from and against any and all losses, damages, liabilities, costs, penalties, expenses (including attorney’s fees and costs), third-party claims, suits, demands and actions, arising out of or in connection with your breach of this Section 10.10.
11. Force Majeure
Except for your payment obligations under this Agreement, neither Party shall be liable for any delay or failure to perform this Agreement which may be caused by a force majeure event beyond either Party’s reasonable control, including acts of God (including earthquakes, storms or other natural disasters), 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 shall have the right to cancel any unperformed services and any affected orders upon written notice to the other.
12. Indemnification
12.1 Rights Without Prejudice. The rights of Huawei Cloud under this Section 12 are without prejudice to any other rights or remedies that it may have by reason of this Agreement or as otherwise provided by Applicable Laws..
12.2 Continue to Support. In the event that this Agreement is terminated due to your breach of this Agreement, you shall thereafter continue to fulfill the After-Sales Responsibilities and provide all relevant services and support to Purchasers and/or Resellers to enable to them to continue using and accessing your Products that they have purchased. If you fail to fulfill the After-Sales Responsibilities or provide relevant services and support in a timely manner, Huawei Cloud is entitled to take any remedial measures that we deem necessary, and you shall compensate Huawei Cloud for all costs, expenses and losses (if any) incurred therefrom. Without prejudice to the foregoing, you shall indemnify and hold Huawei Cloud and our Affiliates harmless from and against any and all losses, damages, liabilities, costs, penalties, expenses (including attorney’s fees and costs), third-party claims, suits, demands and actions, arising out of or in connection with a breach of your obligations under this Section 12.2.
12.3 Indemnification by You. If a third party makes a claim against us or our Affiliates that your Products infringe the third party’s Intellectually Property Rights, you will, at your cost, defend Huawei Cloud and its Affiliates against the claim and indemnify us and our Affiliates from the damages, costs and expenses finally awarded by a competent court to the third party claiming infringement or the settlement agreed to by you. You shall be exclusively liable for and indemnify and hold Huawei Cloud and our Affiliates harmless from any losses to a third party caused by you or arising from your Products, and you shall compensate Huawei Cloud and our Affiliates for losses (if any) incurred therefrom. Any dispute, controversy, loss, infringement, and liability for breach of agreement between you and Purchasers or between you and Resellers shall be resolved between yourselves, and Huawei Cloud and our Affiliates shall not be liable for any losses caused to the parties of transactions on the KooGallery platform. You shall be solely liable for and indemnify and hold Huawei Cloud and our Affiliates harmless from any losses or demands for payment of any Taxes imposed in connection with your Products, and for any fines, penalties, or similar charges imposed as a result of your failure to collect, remit, or report any Taxes in connection with any Products.
12.4 Other Losses. Without prejudice to any other rights and remedies, you shall indemnify, defend and hold harmless Huawei Cloud and its Affiliates from and against any and all losses, damages, liabilities, costs, penalties, fines, expenses (including attorney’s fees and costs), claims, suits, demands and actions (collectively “Losses”) arising out of or in connection with: (a) a breach of your obligations under this Agreement; (b) any inaccuracy in your representations or breach of your warranties in this Agreement; (c) your Products, including any failure or defect relating to the delivery, provisioning and/or quality of your Products, whether they are sold to Purchasers by us or Resellers; (d) the After-Sales Responsibilities, including any failure or alleged failure by you to fulfill any part thereof; (e) the Product Supply and Support Terms including any breach of your obligations thereunder; (f) any Losses relating to a failure to obtain the Regulatory Approvals referred to in Section 4.13; (g) any Matter referred to in Section 4.2; and/or (h) any Personal Data that you, your Affiliates and/or subcontractors process in connection with the Products; in each case including but not limited to: fines paid by Huawei Cloud, expenses to repair damaged equipment, data and system recovery expenses, compensation payments, settlement fees, attorney fees, legal costs paid by Huawei Cloud to third parties, travel expenses, transportation fees, and accommodation fees. Additionally, Huawei Cloud shall be entitled to deduct such amounts in relation to the foregoing from any amounts which may be payable to you, and in the event that we do so you shall remain liable for the remaining amounts (if any) and shall promptly arrange payment.
12.5 No Liability. Under no circumstances will Huawei Cloud or its Affiliates have any liability for any losses, claims, damages, costs, penalties, fines, claims, suits, demands, actions or expenses caused by errors or omissions in any information, instructions or scripts provided by Huawei Cloud or its Affiliates by or on behalf of you in connection with KooGallery, or any actions or omissions taken by Huawei Cloud or its Affiliates at your direction.
13. Limitations of Liabilities
13.1 NO LIMITATION. NOTHING IN THIS AGREEMENT WILL OPERATE SO AS TO EXCLUDE OR LIMIT THE LIABILITY OF EITHER PARTY TO THE OTHER FOR FRAUD, DEATH, OR PERSONAL INJURY ARISING OUT OF NEGLIGENCE OR ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW. THE LIMITATONS OF LIABILITES IN THIS SECTION 13 SHALL NOT APPLY TO SELLER’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT.
13.2 LIMITATION OF LIABILITIES. SUBJECT TO SECTION 13.1, OUR MAXIMUM AGGREGATE LIABILITY TOGETHER WITH THAT OF OUR AFFILIATES IN RESPECT OF ANY LOSS, DAMAGE, FINES, PENALTY, LIABILITY, CHARGE, PROCEEDING, EXPENSE, OUTGOING, OR COST OF ANY NATURE OR KIND INCURRED BY US OR ANY OF OUR AFFILIATES ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, MISREPRESENTATION (WHETHER TORTIOUS OR STATUTORY), TORT (INCLUDING NEGLIGENCE), AND BREACH OF STATUTORY DUTY OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY US IN RELATION TO YOUR PRODUCTS UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
13.3 EXCLUSION OF LIABILITIES. SUBJECT TO SECTION 13.1, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE TO THE OTHER PARTY FOR:
(f) ANY INDIRECT OR CONSEQUENTIAL LOSSES OR DAMAGE; OR
(g) ANY LOSS OF REVENUES, PROFITS, OPPORTUNITIES, CUSTOMERS, DAMAGE TO GOODWILL, REPUTATION, OR LOSS OF DATA OR DATA USE,
ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF OR WERE AWARE OF THE POSSIBILITY THAT SUCH DAMAGE OR LOSS MIGHT BE INCURRED BY THE OTHER PARTY.
14. Term, Suspension, and Termination
14.1 Term. The term of this Agreement will commerce on the date you accept this Agreement and remains in force unless terminated hereunder.
14.2 Suspension. We may suspend your right to access or use the KooGallery if: (a) it is reasonably needed to prevent unauthorized access to your Products; (b) your, your Purchaser’s or your Reseller’s access and use of the KooGallery is in violation of the Acceptable Use Policy, this Agreement and/or Applicable Laws; (c) you are in breach of your payment obligations; (d) your, your Purchaser’s or your Reseller’s access and use of the KooGallery may pose a security risk to KooGallery, us or third parties; (e) your, your Purchaser’s or your Reseller’s access and use of the KooGallery may adversely impact the functionality, availability, or operation of the KooGallery; (f) it is required under Applicable Laws, or by a governmental, regulatory or other competent authority; (g) your, your Purchaser’s or your Reseller’s access and use of KooGallery may subject us, our Affiliates or subcontractors to liabilities or regulatory compliance risks; (h) you may infringe a third party’s intellectual property rights; or (i) to the extent permitted under Applicable Laws, you have ceased to operate in the ordinary course, or are in bankruptcy, insolvency, liquidation, dissolution, or similar proceedings. You acknowledge and agree that you will not be entitled for any refund or services credit for such suspension.
14.3 Termination. Without affecting 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 which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days upon receipt of notice from such Party identifying such breach and requesting its cure; or to the extent permitted under Applicable Law, either Party has ceased to operate in the ordinary course, or is in bankruptcy, insolvency, liquidation, dissolution, or similar proceedings.
14.4 Consequences of Termination. If this Agreement is terminated for any reason, without prejudice to any other right or remedy that Huawei Cloud may have, you agree that:
(h) all licences granted under this Agreement shall immediately terminate and you shall immediately cease using all resources provided by Huawei Cloud, save that any licences granted by you to Huawei Cloud under this Agreement which are stated to be granted on a perpetual and irrevocable basis shall survive the termination of this Agreement for any reason and shall continue in full force and effect;
(i) you shall not be entitled to identify yourself as a Seller of Huawei Cloud;
(j) you shall pay all sums and amounts payable to Huawei Cloud or any other third party under the terms of this Agreement or contemplated by this Agreement;
(k) each Party shall return or destroy, and in each case, make no further use of any equipment, property, materials and other items (and all copies of them), belonging to the other Party, including the other Party’s Confidential Information (except Huawei Cloud may retain reasonable records of yours and your use of KooGallery and shall be entitled to retain your Confidential Information for the purposes of internal audit, litigation and/or compliance with Applicable Law);
(l) any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages or indemnification in respect of any breach of this Agreement which existed at or before the date of termination shall not be affected or prejudiced; and
(m) termination of this Agreement shall not affect the continued operation of Sections 7, 8, 9, 10, 12, 13, 14.4, 16, 17, 18, 19 and 20, your indemnification obligations under this Agreement, and any provisions of this Agreement which are deemed necessary for the interpretation or enforcement of this Agreement, all of which shall survive such termination.
15. Modifications and Additions to the Agreement
We may modify this Agreement, including the documents and policies referenced herein, at any time at our discretion by posting a revised version on the Website or by otherwise notifying you. Except as otherwise expressly indicated in the modified Agreement, documents, or policies, the modified terms will come into effect upon posting or notification. You will 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 to the modified terms.
16. Governing Laws and Venue
16.1 This Agreement and any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including any non-contractual dispute or claim) will be governed by and construed in accordance with the Governing Law, without regard to its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods is expressly and entirely excluded.
16.2 The Parties irrevocably submit to the exclusive jurisdiction of the Corresponding Court to settle any dispute or claim arising out of or in connection with this Agreement (including any dispute or claim relating to non-contractual obligations).
17. Entire Agreement
17.1 This Agreement incorporates the documents and policies referenced herein (including reference to information contained in a URL or referenced policy), and is the entire Agreement between you and us regarding the subject matter herein. This Agreement replaces, extinguishes, and supersedes all prior or contemporaneous representations, communications, understandings, undertakings and agreements (including any collateral contracts of any nature) between you and us, whether in written or oral form, regarding its subject matter. It is expressly agreed by the Parties that the terms of this Agreement will supersede any terms and conditions that are different or are not set out in this Agreement, including any terms in your request for bid/proposal/information, purchase order, receipt, acceptance, confirmation, correspondence or other document.
17.2 Each party acknowledges that in entering into this Agreement it has not relied upon any oral or written statements, collateral or other warranties, assurances, undertakings, misrepresentations, or representations that were made by or on behalf of the other Party in relation to the subject matter of this Agreement at any time before the taking effect of this Agreement (together, "Pre-Contractual Statements"), other than those that are set out expressly in this Agreement.
17.3 Each Party hereby waives all rights and remedies which might otherwise be available to it in relation to such Pre-Contractual Statements but for Section 17.2.
17.4 Nothing in this Section 17 will exclude or restrict the liability of either Party arising out of its pre-contract fraudulent misrepresentation or fraudulent concealment.
18. Miscellaneous
18.1 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.
18.2 Use of Affiliates. Huawei Cloud shall have the right to exercise its rights and perform its obligations under this Agreement either itself or through any of its Affiliates. Huawei Cloud’s Affiliates shall have the benefit of all rights of Huawei Cloud under this Agreement; provided, however, that Huawei Cloud will remain responsible hereunder for the acts and omission of its Affiliates.
18.3 Third Party Beneficiary.
(a) Subject to Section 18.3(b), 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.
(b) You acknowledge and agree that each of our Affiliates is an intended third party beneficiary of this Agreement and is entitled to enforce any term of this Agreement. Notwithstanding the foregoing, the rights of the Parties to rescind or vary this Agreement are not subject to the consent of any such Affiliate.
18.4 Notice. We may provide notice to you under this Agreement by posting a notice on the Website, or by email or text message (including via SMS and other instant messaging platforms). Notices we provide by posting on the Website will be effective upon posting, and by email and text messages upon sending out (irrespective of whether and when you receive or read it). You shall be responsible for ensuring that your email address and phone number on your Huawei Cloud account are up to date at all times.
18.5 Export. In connection with this Agreement, both Parties shall comply with the applicable export and sanction laws and regulations of United Nations, China, the United States and other countries and regions. You represent and warrant that you and/or your Purchasers 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 our services, including but not limited to Products that you upload, process, provide, and/or make available to your Purchasers.
18.6 Relationship. Each Party is an independent contractor. 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 representations or enter into any contract or commitment on behalf of the other.
18.7 Full Understanding. You acknowledge and agree that you have carefully read and fully understood this Agreement, have requested and obtained full explanations from Huawei Cloud for any terms in respect of which you have doubts, and are willing to formally enter the service application procedure and agree to be bound by all of the terms and conditions herein.
18.8 No Waivers. Any failure or delay 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.
18.9 Severability. If any term of this Agreement is found to be invalid, illegal or unenforceable, the remaining terms of this Agreement shall be unaffected thereby and will remain valid and enforceable, and 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.
18.10 Further Assurance. Each Party must at its own cost and expense execute, or use all reasonable endeavors to ensure the execution of, whatever further documents or deeds the other Party reasonably requires from time to time for the purpose of giving that other Party the full benefit of the provisions of this Agreement.
18.11 Rights and Remedies. The rights, powers, and remedies provided in this Agreement are (except as expressly provided) cumulative and not exclusive of any rights, powers and remedies provided by Applicable Laws.
18.12 Cost. Each party must (except as expressly provided) bear its own costs and expenses in connection with the preparation, negotiation, and entering into of this Agreement.
19. Definitions
19.1 “Acceptable Use Policy” means the policy located at: https://www.huaweicloud.com/eu/declaration/sa_nisr.html, which is incorporated into this Agreement by reference, as may be updated from time to time.
19.2 “After Sales Responsibilities” means any and all responsibilities, obligations and liabilities related to the following: (a) providing, delivering, provisioning and operating the Products, including ensuring that Products are available and can be accessed by Purchasers (and their End Users) throughout the relevant subscription period; (b) Product quality, uptime, and service levels; (c) technical support and maintenance; (d) after-sales support services including the provision of installation assistance and consultation on the Products; (e) responding to question and complaints; (f) assistance to diagnose, propose solutions to and correct problems and other issues relating to the Products; (g) providing upgrades, fixes, patches, updates and new releases; and (h) any other similar matters.
19.3“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.
19.4 “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. References to laws, statutes or statutory provisions shall be construed as references to those laws, statutes or statutory provisions as replaced, amended, modified, or re-enacted from time to time, and shall include all subordinate legislation made under those statutes.
19.5 “End User” means a person who is permitted by a Purchaser to access and use the Products that they have purchased, in accordance with the relevant rights, licenses and authorizations that have been granted to the Purchaser.
19.6 “Governing Law” and “Corresponding Court” refer to Irish law and courts of Ireland.
19.7 “Huawei Cloud” or “Huawei Cloud Contracting Party” means the Sparkoo Technologies Ireland Co., Limited
19.8 “Huawei Cloud KooGallery Guidelines” or “Guidelines” means a series of guidelines that maintain order in the KooGallery and guide the KooGallery Seller and/or Sellers. Huawei Cloud is entitled to update the Guidelines from time to time and may publish them on the Website.
19.9 “Huawei Cloud KooGallery” or “KooGallery” means the e-commerce platform established and operated by Huawei Cloud located at: https://marketplace.eu.huaweicloud.com/, on which you can promote and sell Products.
19.10 “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, trade marks 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.
19.11 “Joint Operation Model” means a business model under which eligible Sellers may list and release Products on KooGallery, to be sold by Huawei Cloud to Purchasers and Resellers (who may resell the Products to Purchasers), and under which Huawei Cloud may also provide Operational Services to Purchasers.
19.12 “Joint Operation Products” means Products listed and released by Sellers on KooGallery under the Joint Operation Model.
19.13 "Open-Source Software" means any software whose source or object code is made available with an Open-Source Software License.
19.14 "Open-Source Software License" means any license that: (a) requires a licensor to permit reverse-engineering of the licensed software or other software incorporated into, derived from, or distributed with such licensed software; or (b) requires the licensed software or other software incorporated into, derived from, or distributed with such licensed software to be distributed in source code form or free of charge. Open-Source Software Licenses include but are not limited to: (i) GNU General Public License (GPL) or Lesser/Library GPL (LGPL); (ii) The Artistic License (e.g., PERL); (iii) the Mozilla Public License; (iv) the Netscape Public License; (v) the Sun Community Source License (SCSL); (vi) the Sun Industry Standards Source License (SISL); (vii) the Apache Server license; (viii) QT Free Edition License; and (ix) IBM Public License.
19.15 “Operational Services” means services provided by Huawei Cloud to Purchasers which are ancillary to the sale of Products under the Joint Operation Model, where the scope and nature of the services are determined and may be modified from time to time by Huawei Cloud in its discretion, and which may include but are not limited to the following features: unified payment, pre-sales consultation, coordinating with Sellers on orders, assisting Purchasers and Resellers to manage orders, assistance to develop or optimise delivery plans, Q&A, expert evaluation, customer service hotline, and service ticket handling.
19.16 “Order” means the relevant order form or other order document on KooGallery that specifies Purchaser’s purchase and/or subscription of the Products, including details such as pricing, other associated services (if any) and related information.
19.17 “Personal Data” means any information relating to an identified or identifiable natural person, directly or indirectly, including information that can identify an individual when taken in combination with other information to which an entity has or is likely to have access.
19.18 “Product Supply and Support Terms” means, in relation to each Product, the relevant terms describing the rights granted by you to Purchaser (and their End Users) to use and access the Product, After-Sales Responsibilities, including service level agreements or other terms relating to Product delivery, service levels, technical support, specific terms for individual Products and/or Product warranties (depending on the type of Product), which shall constitute a binding agreement between you and the Purchaser. The Product Supply and Support Terms shall be in the form prescribed by Huawei Cloud and notified to you.
19.19 “Products” means the software, images, products and services (which are independently developed by you or legally provided by you under licenses and authorizations granted 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.
19.20 “Purchaser” means any person who has purchased, ordered and/or subscribed to Product, either under the Direct Purchase Model or under the Reseller Model, but excluding Huawei Cloud and Resellers.
19.21 “Seller” means you as a means the developer or legal provider of Products listed on KooGallery for sale under the Joint Operation Model.
19.22 “Site Terms” refers to the terms governing access to and use of the Website, available at: https://www.huaweicloud.com/eu/declaration/sa_st.html.
19.23 “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.
19.24“Website” means the Huawei Cloud website located at:【https://www.huaweicloud.com/eu/】.
19.25“your Products” means the Products that you list and release on KooGallery, which are sold or to be sold by us to Purchasers under a joint operation model.
19.26 In this Agreement, unless the context otherwise requires, the terms “solely responsible” and “exclusively responsible” and their grammatical variations have the same meaning and are interchangeable.
19.27 In this Agreement，words importing the singular shall include the plural and vice versa; words importing a gender shall include all other genders; references to any person shall include any individual, firm, body corporate or unincorporate (wherever established or incorporated).
20. Country Specific terms
The country-specific terms below will replace or be added to the above equivalent terms in this Agreement.
|
Country/Region where the Customers are registered |
Section # |
Terms and Conditions |
|
Serbia |
Section 6.3.2 |
The above Section 6.3.2 will be replaced by the following term. 6.3.2. Fees for Products are: (a) exclusive of value added tax (VAT), sales tax, goods and service tax (GST) or any similar or analogous turnover 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. For such fees, we shall fulfill any Tax compliance obligation required under applicable laws and regulations or under the application of double Tax treaties or arrangements and we shall issue a compliant invoice to Purchasers and/or Resellers if legally required to do so; and (b) exclusive of withholding tax, or any similar or analogous Tax applicable in a relevant territory, if any. In the event that a withholding tax or tax deduction is so required to be applied by Purchasers and/or Resellers under operation of local laws or regulations, it is the Purchasers’ and/or Resellers’ responsibility to file and pay such Taxes to the competent Tax authority in accordance with relevant Tax laws and regulations, and to make payments of such additional amounts as may be necessary to ensure that we actually receive payment of the full amount chargeable for the Products as if no Taxes had been required. |
Updated: July 23, 2024
You can see what is updated in [Joint Operation Product] Huawei Cloud KooGallery Joint Operation Product Seller Agreement History Version.