These terms apply to your use of KooGallery to purchase Products that are provided to you by Third Party Vendors (or their authorized Resellers) under our Joint Operation Model, under which we may also make available certain Operational Services to you.

If you are using KooGallery to purchase Products under our standard platform model, these terms and the Operational Services are not applicable to you. Please refer instead to the Huawei Cloud KooGallery Partner Product User Agreement.

 

This Huawei Cloud KooGallery Joint Operation Product User Agreement (“Agreement”) contains the terms and conditions that govern your use of KooGallery to purchase Products under a Joint Operation Model on KooGallery. This Agreement is entered into by and between Huawei Cloud (“we”, “us” or “our”) and the entity you represent or you individually if you don’t designate an entity in connection with your Huawei Cloud account (“Purchaser”, “you” or “your”). If you enter into this Agreement for a company or other legal entity, you hereby represent and warrant that you have the requisite power and authority to do so and to bind the company or other legal entity to the terms and conditions of this Agreement. This Agreement takes effect as of the date you accept this Agreement, 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 17.)

 

1. Joint Operation Model

1.1 Scope. You may purchase Products:

(a) from Huawei Cloud by placing an Order on KooGallery directly with Huawei Cloud (“Direct Purchase”); or

(b) from a Reseller by placing an Order on KooGallery through a Reseller that is authorized to resell the Products on KooGallery (“Reseller Purchase”).

In relation to any Reseller Purchases made by you, you shall comply with the terms in Section 2, in addition to other applicable terms in this Agreement.

1.2 Your Account and Reseller Credits.

(a) To purchase, access and use the Products, you must create a Huawei Cloud account.

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

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

1.3 Placing an Order.

(a) The following terms in this Section 1.3 are applicable to Direct Purchases only. For any Reseller Purchases that you make, Orders for Products are your Orders which are placed with the Reseller, not us.

(b) Product listings on KooGallery are an invitation to treat and do not constitute an offer by us to sell you any Products. By placing an Order, you make an offer to us to purchase the Products you have selected on the terms of this Agreement. We may or may not accept your offer at our discretion. If we accept your Order, we will notify you of our acceptance. We reserve the right to cancel your Order in accordance with this Agreement and our prevailing policies relating to the use of KooGallery.

(c) Whilst we will make every effort to fulfil your Order, there may be occasions where we are unable to do so, including where the relevant Products are no longer being provided by the relevant Third Party Vendor. In such circumstances we may cancel your Order without further liability or suggest alternative Products that you might wish to purchase. If you accept our suggestions, we may revise your Order to reflect the updated Product purchases as agreed. If you do not accept our suggestions or if we do not suggest any alternative Products, we will cancel your Order.

(d) We shall be entitled to cancel your orders for your Products at any time (including during the Product duration) without further liability to you, in the event that (i) the relevant Third Party Vendor for the Product ceases to provide the Product for any reason whatsoever; (ii) if you purchase the Product through a Reseller, the corresponding order of the or Reseller is cancelled for any reason whatsoever; (iii) the Third Party Vendor and/or Reseller is in breach of their agreements with us; and/or (iv) a circumstance has arisen that entitles us to cancel or terminate our agreements with the Third Party Vendor and/or Reseller.

1.4 Product Supply and Support Terms.

(a) In order to purchase a Product, you must read and accept the Product Supply and Support Terms applicable to the Product which shall constitute a binding agreement between you and the relevant Third Party Vendor upon your acceptance of its terms. The Product Supply and Support Terms set out the terms on which Third Party Vendors will provide you with the Products that you purchase, and the scope of After-Sales Responsibilities that are owed to you by Third Party Vendors. If there is any inconsistency between this Agreement and the Product Supply and Support Terms, the terms of this Agreement shall prevail to the extent of any such inconsistency.

(b) The Product Supply and Support Terms are applicable to both Direct Purchases and Reseller Purchases.

(c) You shall not amend, alter, modify, terminate, assign, novate or transfer the Product Supply and Support Terms or any part thereof without our or Third Party Vendors’ prior consent. 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 Third Party Vendor 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 a legally binding agreement with Third Party Vendor.

(d) You acknowledge and agree that the Product Supply and Support Terms which you accept constitute a binding agreement between you and the relevant Third Party Vendor identified therein. We and our Affiliates are not parties thereto and shall have no liability arising therefrom.

(e) You acknowledge and agree that the Third Party Vendors 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 Third Party Vendors. Huawei Cloud is entitled to suspend or terminate a Third Party Vendor’s right to access or use KooGallery and/or to 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, and we and our Affiliates shall have no liability to you in the event of such suspension or termination.

1.5 Responsibilities for Products.

(a) The Third Party Vendor is solely responsible and liable for any and all After-Sales Responsibilities in accordance with the Product Supply and Support Terms, including without limitation any and all obligations related to Product delivery, provisioning, quality and ongoing support.

(b) In the event that the Products which you have purchased have been removed from KooGallery, the Third Party Vendor is solely responsible and liable for continuing to fulfil the After-Sales Responsibilities until the end date of the purchased Products.

(c) You acknowledge and agree that Huawei Cloud and its Affiliates shall not be liable for any failure or defect in the delivery, provisioning and/or quality of the Products or any other failure to fulfil the After-Sales Responsibilities in relation to the Products. Any such liability shall be wholly borne by the relevant Third Party Vendor in accordance with the Product Supply and Support Terms.

1.6 Product Licenses and Right to Use. For the Products you purchased and/or subscribed to, the Third Party Vendor is solely responsible for granting you all relevant rights, licenses and authorizations (“Licenses”) as are necessary for you and your End Users to access and use the Products. It is your responsibility to check the Product Supply and Support Terms to ensure that you and your End Users obtain all necessary Licenses which are necessary to access and use the Products, prior to your purchase. The Licenses provided to you shall be governed by the terms agreed between you and Third Party Vendor under the Product Support and Supply Terms. Huawei Cloud and its Affiliates shall not have any liability in relation to the Licenses.

1.7 Operational Services. In connection with your use of KooGallery to purchase Products under the Joint Operation Model, Huawei Cloud may provide certain Operational Services. The nature and scope of the Operational Services shall be determined and are subject to change at Huawei Cloud’s discretion from time to time. You acknowledge and agree that you use the Operational Services solely at your own risk. Without limiting the foregoing:

(a) No oral or written information or statements given by Huawei Cloud or its representatives in the course of providing the Operational Services shall be construed as a representation, warranty or endorsement as to the Products. Huawei Cloud and its Affiliates do not assume any responsibility, and shall bear no liability for the accuracy, completeness or reliability of any information provided or statements made in the course of the Operational Services. You shall perform your own research and checks before purchasing any Products, and shall look solely to any terms, representations and warranties given by the applicable Third Party Vendor in relation the Products.

(b) 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”), which are provided by us purely for your convenience and shall not impose any liability on us or our Affiliates in relation to the After-Sales Responsibilities. We may (but are not obliged to) assist you to coordinate with the relevant Third Party Vendor to resolve your Matter, or refer your Matter to be handled by the relevant Third Party Vendor. If you refer your Matter to be handled by a Third Party Vendor, you shall liaise directly with the Third Party Vendor on your Matter. It is the Third Party Vendor’s responsibility to resolve any Matter in accordance with its After-Sales Responsibilities under the Product Supply and Support Terms.

 

2. Specific Additional Terms for Reseller Purchases

2.1 Scope. The terms in this Section 2 apply to you in relation to any Reseller Purchases of Products, in addition to the other terms in this Agreement. The terms in this Section 2 do not apply to Direct Purchases.

2.2 Agreement with Reseller.

(a) In order to purchase Products through a Reseller, you must enter into an agreement with the Reseller setting out relevant terms on which you purchase, use and access the Products that you purchase from the Reseller (“Reseller End User Agreement”). The terms of such Reseller End User Agreement must be in line with and consistent with this Agreement, the relevant Product Supply and Support Terms for Products that you purchase, and other agreements entered into between you and us.

(b) You may purchase additional services or Product features under your agreement with your Reseller beyond the rights provided to you under the Product Supply and Support Terms; provided that your agreement with your Reseller shall not breach your agreements with us, the rights of any third parties or Applicable Laws.

(c) You acknowledge and agree that the Reseller End User Agreements are entered into between you and Resellers. We and our Affiliates are not parties thereto and shall have no liability arising therefrom. Without prejudice to the rights that may be granted to you by the Third Party Vendor under the Product Supply and Support Terms, the Reseller is wholly responsible to you for any and all After-Sales Responsibilities in accordance with their agreement with you, including without limitation any and all obligations related to Product delivery, provisioning, quality and ongoing support. We and our Affiliates are not a party to the agreement between you and the Reseller, and shall have no liability arising therefrom. You are wholly responsible for any risks relating to transacting with Resellers. Huawei Cloud and its Affiliates shall not be liable to you for Products that are sold to you by Resellers and any other services that they provide to you.

(d) You further acknowledge and agree that the Resellers are not agents of Huawei Cloud and do not have any power or authority to bind or incur any obligation on behalf of Huawei Cloud, and that Huawei Cloud shall not be liable for any acts or omissions of the Resellers. Huawei Cloud is entitled to suspend or terminate a Reseller’s right to access or use KooGallery and/or to resell Products on KooGallery in the event of a violation of or in other circumstances as specified in our prevailing terms and conditions or policies, and we and our Affiliates shall have no liability to you in the event of such suspension or termination.

(e) In the event that the Products which you have purchased from a Reseller have been removed from KooGallery, the Reseller is responsible and liable for continuing to fulfil the After-Sales Responsibilities until the end date of the purchased Products.

(f) You acknowledge and agree that Huawei Cloud and its Affiliates shall not be liable for any failure or defect in the delivery, provisioning and/or quality of the Products or any other failure to fulfil the After-Sales Responsibilities in relation to the Products. Any such liability shall be borne by the Third Party Vendor in accordance with the Product Supply and Support Terms and your Reseller in accordance with their agreement with you.

 

3. Fees and Payment

3.1 Prices.

(a) For Direct Purchases, you may view the Product prices at product detail page on KooGallery which may be updated from time to time.

(b) For Reseller Purchases, the Product pricing that is applicable to you will be determined as between you and the Reseller in accordance with the terms of your agreement.

3.2 Orders and Payment.

(a) In relation to any Direct Purchases made by you, you shall pay us all applicable fees for Products in accordance with the applicable pricing, accepted currency(ies), payment methods and rules as stated in the applicable Order Form on KooGallery and/or on the Website. We may revise such pricing, accepted currency(ies), payment methods and rules in our sole discretion at any time. Recurring fees will be billed on a monthly basis. These fees are separate and in addition to fees applicable to your use of any other Huawei Cloud Services. You shall solely be responsible to pay the bank charges and related fees incurred during the performance of this Agreement.

(b) In relation to any Reseller Purchases made by you, you must place your Order on KooGallery using your Huawei Cloud account which must be connected with that of the Reseller. We will bill the Reseller for all applicable fees related to Products, and the Reseller shall be responsible for paying us the fees relating to the Order. You are responsible for paying all applicable fees for Products directly to the Reseller in accordance with the terms of your agreement with the Reseller.

(c) All payments to be made by you to us under this Agreement shall be made without any set-off, counterclaim, withholding or deduction, unless specifically required by any Applicable Laws. You are solely responsible for paying any bank charges and related fees incurred in the performance of this Agreement.

3.3 Cancelation

(a) If you are in breach of your payment obligations to us and fail to cure the breach within 30 days of being notified by us of the breach and requesting cure of the same, we may do any or all of the following in our sole discretion: (i) immediately terminate this Agreement and/or any other agreements between the Parties; (ii) take such steps as we deem fit to suspend, cancel or deny you access to your Huawei Cloud account, KooGallery, the Products, Operational Services, and/or Huawei Cloud Services, and we shall not be responsible or liable for any damages, losses, expenses or costs arising thereby (including any resulting data loss). Our rights under this Section shall be without prejudice to any other rights or remedies that we may have under this Agreement, any other agreements and/or Applicable Law. We reserve the right to claim for any overdue payment and any other damages, losses, costs and expenses incurred thereby.

(b) We may suspend and/or cancel a Reseller’s access to and use of KooGallery, the Products and/or Huawei Cloud Services at any time without any liability to you, in the event that the Reseller is in breach of its payment obligations to us. You agree and acknowledge that, should such suspension or cancellation affect your ability to access and use the Products that you have purchased, the Reseller shall be solely liable and responsible to you for any losses or damages which you may suffer in connection therewith.

3.4 Invoicing

(a) We will issue an invoice to you if we are required to do so under Applicable Laws. You hereby agree that such invoicing by us does not and will not obligate us in any way or form in the rendering of After-Sales Responsibilities or any other obligations relating to the Products that are the responsibility of Third Party Vendors, and we do not assume any liabilities and/or responsibilities for the Third Party Vendors’ obligations to you.

(b) In relation to Products that you purchase through a Reseller, we are not responsible for invoicing you for such Products. Your associated Reseller is responsible for issuing any invoices to you.

3.5 Taxes.

3.5.1 The Product Fees are：

i. exclusive of 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.

ii. inclusive of:

 withholding tax, or any similar or analogous tax applicable in a relevant territory if any, which shall be deducted from prices thereto, and any other taxes which should be filed and paid by Third Party Vendor or us in accordance with the relevant laws and regulations.

3.5.2 Each Party shall, as required under applicable laws and regulations as well as the 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.

3.5.3 All payments to be made by you to us under this Agreement shall be made without any set-off, counterclaim, withholding or deduction, be it tax-related or otherwise, unless specifically required by any applicable laws and/or regulations in the territory or under the applicable double tax treaties or arrangements.

3.5.4 In the circumstance that a withholding tax or tax deduction is so required, you shall fulfill the withholding liability and make the payment to us net of the withholding tax or tax deduction, subject to the following requirements under this Section.

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

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

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

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

3.5.6 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”), an equitable adjustment of the Agreement Price shall be made, taking into full account of the Tax Changes, to protect us from the detrimental impact thereof, if any.

For the avoidance of doubt, if you purchase Products from a Reseller, the Taxes Terms that are applicable to you will be determined as between you and the Reseller in accordance with the terms of your agreement.

3.6 Refunds. In the event that you apply for a refund, we will review your refund application according to our prevailing refund policies and processes. If we confirm that your refund application meets the relevant requirements, we will notify you about our decision and process your refund in accordance with our prevailing refund policies and processes.

3.7 Discounts. We may, at our sole discretion, extend discounts to you on Products that you purchase.

 

4. Your Obligations

4.1 Use of Products.

(a) You shall comply with this Agreement, the Product Supply and Support Terms, and Applicable Laws in connection with your access to and use of the Products and your performance of this Agreement, as well as: (i) any agreements between you and the Third Party Vendor in relation to Products under your Direct Purchases; and/or (ii) any agreements between you and your Reseller in relation to Products under your Reseller Purchases.

(b) You shall procure that each of your End Users complies with the terms and conditions of this Agreement as if the End User were a party hereto and you shall be responsible for any non-compliance by the End User with the terms and conditions of this Agreement. If you become aware of any violation of this Agreement caused by an End User, you will notify us immediately and take appropriate actions to remedy such violation, including but not limited to suspending or terminating access or use by such End User.

4.2 Identity Verification. You shall provide us and/or our Affiliates with all information and documents as may be required by us and/or our Affiliates for the purposes of verifying your identity and eligibility to purchase, access and use the Products, or as may otherwise be required to comply with our and/our Affiliates’ know-your-customer (“KYC”) obligations under Applicable Laws. Notwithstanding anything else in this Agreement, we and/or our Affiliates shall not be obliged to provide you with the Products or any related services until all KYC obligations under Applicable Laws have been fulfilled. We and/or our Affiliates shall be entitled to refuse or cancel your Order, and/or deny you access to the Products, if we and/or our Affiliates suspect fraud or are unable to verify your identity and/or eligibility in accordance with Applicable Laws. You acknowledge and agree that we and/or our Affiliates may engage a third party service provider to undertake identity and eligibility verification as described in this Section 4.2, and that the information provided by you may be disclosed to such third party service provider for such purposes.

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

4.4 Your Content. You will ensure that Your Content does not violate the terms and conditions of this Agreement and Applicable Laws. You are exclusively responsible and liable for the transmission, use, legality, accuracy, integrity and reliability of Your Content. You are solely responsible for securing and maintaining any required notice, consent or authorization related to your provision of and our processing of Your Content as part of the provision of the Products. We and our Affiliates do not assume any obligations and/or liabilities of any kind in relation to Your Content, unless required to do so by Applicable Laws.

4.5 Third-Party Content. The Products may include or be provided together with Third-Party Content. Third-Party Content may be governed by this Agreement, or if applicable, separate terms and conditions specified in the Product Supply and Support Terms and other documentation as may be notified to you. Third-Party Content is provided on an “as-is” and “as available” basis without any warranties. We and our Affiliates make no representation or warranty of any kind in respect of any Third-Party Content and shall have no liability for any loss, damage, expense or cost of any nature or kind resulting from any Third-Party Content.

4.6 Preview. Preview refers to Products or features of Products we and/or Third Party Vendors make available at no charge for trial purposes. Preview Products are provided “as-is” and “as available”, and excluded from the Product Supply and Support Terms (including any service level agreements) and warranties set forth in this Agreement. Preview Products may not be covered by support, and we and/or Third Party Vendors may change or discontinue a preview at any time and without notice. We and Third Party Vendors are not obligated to release a preview or make a preview generally or commercially available.

4.7 Your Network and Connection. Except as otherwise agreed by the Parties in writing, you shall (a) ensure that your network and systems comply with the relevant specifications (if any) provided by us from time to time; (b) be solely responsible for procuring and maintaining network connections and telecommunication links from your systems to our and any third parties’ data centers as may be required to use the Products; and (c) be solely responsible for all problems, conditions, delays, delivery failures and all other loss, damage, liability, expense or cost of any nature or kind arising from or relating to your network connections or telecommunication links or caused by the Internet.

4.8 Activation of Products. Certain Products that you purchase may need to be activated by us, the Third Party Vendor and/or a third party designated by us or the Third Party Vendor before they can be used by you. If the Product that you have purchased needs to be activated by the Third Party Vendor or a third party, you agree that we may share your information (including personal data) with such Third Party Vendor or third party for this purpose. Product activation shall be deemed to be complete if you are able to perform the following operations: (a) you can view the Products you purchased in the console accessible on the Website; (b) you are able to manage and maintain the Products in accordance with relevant manuals or other documentation provided by us and/or Third Party Vendor; and (c) you can use the methods approved by us and/or Third Party Vendor to query Product-related parameters that are consistent with the specifications and models selected in the Order.

4.9 Unsubscribe Requests. Certain Products and/or other services may include an unsubscribe feature, which you may use to submit a request to unsubscribe from the applicable Products and/or services. Any unsubscribe requests shall be managed in accordance with our prevailing unsubscribe policies and rules published on the Website which is available at: https://support.huaweicloud.com/eu/usermanual-marketplace/en-us_buyer_topic_0000023.html.

4.10 Service Supervision Process. To the extent that Products you purchase involve any offline methods of delivery or provisioning:

(a) you represent and warrant that all information submitted by you during the service supervision process (as further described on the Website) is true, accurate and complete at the time of submission and on a continuing basis. You are wholly responsible, and we shall not be liable for, any delivery or provisioning failures or Product unavailability arising from a breach of the foregoing. You shall indemnify and hold us and our Affiliates harmless from and against any losses, costs, damages and liabilities arising out of or in connection with a breach of your representation and warranty under this Section; and

(b) you acknowledge and agree that once you confirm acceptance by clicking the relevant button on the Website during the service supervision process, delivery of the Product (or part thereof) in respect of which you have confirmed acceptance shall be considered complete, and you will not be able to cancel your Order in respect of such Product (or part thereof).

4.11 Indemnity. 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; and/or (b) any inaccuracy in your representations or breach of your warranties in this Agreement.

 

5. Security and Data Privacy

5.1 Roles of Parties.

(a) You acknowledge and agree that, in providing the Products to you and your End Users, fulfilling the After-Sales Responsibilities and performing its obligations under the Product Supply and Support Terms, a Third Party Vendor Processes Personal Data on its own behalf and for purposes that it determines in the capacity of a Data Controller, in accordance with its own privacy policies.

(b) Huawei Cloud and its Affiliates do not determine the purposes for which Personal Data is processed by Third Party Vendors and Resellers. Third Party Vendors and Resellers do not process Personal Data on behalf of Huawei Cloud and its Affiliates in connection with this Agreement and the Products.

(c) It is your responsibility to check the applicable privacy policies of Third Party Vendors and Resellers, before purchasing any Products.

(d) Each Party shall ensure that it complies at all times with the requirements of Applicable Laws regulating the Processing of Personal Data.

5.2 Huawei Cloud Privacy Statement. We will Process Personal Data in accordance with the Huawei Cloud Privacy Statement in relation to our performance of this Agreement, which is available at: https://www.huaweicloud.com/eu/declaration/sa_prp.html. The Personal Data protection terms applicable to the processing operations performed in relation to this Agreement are set out in the Data Processing Addendum incorporated by reference herein. Without prejudice to any other consents that Huawei Cloud may have obtained, you agree that we may Process Personal Data that you provide to us in accordance with this Agreement and the Privacy Statement. If you provide us with any Personal Data relating to a third party (e.g. information relating to your End Users), by submitting such information to us, you represent and warrant to us that you have notified such third party of the terms of this Agreement and the Privacy Statement, and that such third party has consented to you disclosing his/her Personal Data to us for the Processing of their Personal Data by us as described in this Agreement and the Privacy Statement. You shall indemnify, defend and hold Huawei Cloud and its 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 Purchaser’s representation and warranty under this Section.

5.3 Third Party Vendor and Reseller Privacy Statements. In relation to Products that you purchase, access and/or use, the relevant Third Party Vendors and/or Reseller may need to Process Personal Data provided by you for the purpose of providing you with access to the Products and/or fulfilling the After-Sales Responsibilities. You acknowledge and agree that: (a) we may disclose any Personal Data that you provide to us with Third Party Vendors and/or Resellers for this purpose; and (b) the Processing of Personal Data by each Third Party Vendor and Reseller will be undertaken on its own behalf, pursuant to its privacy policies and/or other relevant terms relating to data processing in its agreements with you. It is your responsibility to check the applicable privacy policies and other relevant terms of each Third Party Vendor and Reseller. The Huawei Cloud Privacy Statement does not apply to the processing of personal data by Third Party Vendors and/or Resellers.

5.4 Our Security. Subject to Sections 4.4, 5.3 and 5.5 of this Agreement, we will maintain appropriate administrative, physical and technical measures designed to help you protect the security and confidentiality of Your Content stored in the Huawei Cloud environment. We will not access or use Your Content except as necessary to perform this Agreement, to provide you with services, or to comply with Applicable Laws or a binding order of a court or government, regulatory or other competent authority.

5.5 Your Security. You are responsible for any security vulnerabilities and the consequences of such vulnerabilities arising out of or related to Your Content, including but not limited to any viruses, Trojan horses, worms or other harmful programming routines contained in Your Content.

5.6 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.

 

6. Proprietary Rights and Restrictions

6.1 Your Content. You and/or your licensors retain all ownership and Intellectual Property Rights in and to Your Content. You hereby grant us, our Affiliates, Third Party Vendors and Resellers the right to host, process, display, disclose and/or transmit Your Content to operate and provide the Products and other services in accordance with this Agreement.

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

6.3 Restrictions. Except with our express written authorization, you shall not and, and shall procure that your End Users do not: (a) modify, alter or make derivative works of the Products and/or KooGallery; (b) disassemble, decompile, reverse engineer, reproduce any part of the Products or KooGallery, or carry out any other action to derive the source code of any software included in the Products and/or KooGallery; (c) distribute, resell, sublicense, transfer or assign the Products or KooGallery; and (d) access the Products or KooGallery in order to (i) build a competitive product or services; (ii) copy any features, functions or graphics of the Products or KooGallery; or (iii) perform or disclose any benchmark, security testing or performance testing of the Products or KooGallery.

6.4 Feedback and Suggestions. If any feedback, suggestions, requests, or recommendations are provided by you or any End User to us in connection with the Products or KooGallery (“Customer Suggestion”), you acknowledge and agree that we are entitled to use the Customer Suggestions without restrictions of any kind, including but not limited to any right to use and incorporate the Customer Suggestion into the Products and/or KooGallery to develop new features or enhance the performance, functionalities or security of the Products and/or KooGallery, and we and/or our Affiliates retain all ownership, Intellectual Property Rights, titles and interests thereof.

6.5 Indemnification. If a third party makes a claim against us and/or our Affiliates that (a) Your Content or our use of Your Content in accordance with this Agreement or the combination of Your Content with the Products and/or KooGallery infringes the third party’s Intellectual Property Rights, or (b) you have used or are using the Products and/or KooGallery in an unlawful or infringing manner or in violation of this Agreement, you will, at your cost, indemnify, defend and hold harmless us and/or our Affiliates against any and all damages, losses, liabilities, costs and expenses (including reasonable attorney’s fees and associated costs) arising out of or in connection with any such claim, provided that we and/or our Affiliates (x) promptly notify you in writing of such claim; (y) give you control of the defense and settlement negotiation of the claim; and (z) provide you with reasonable information, authority and assistance that are necessary to defend against or settle the claim. We may at our discretion take such steps as we deem fit to suspend, terminate or deny your access to the Products, this Agreement and/or the applicable Order, without refund of any fees paid. You will not indemnify us and/or our Affiliates if such claim is caused directly by our breach of this Agreement.

6.6 Without prejudice to anything else in this Agreement, if Your Content is, or in Huawei Cloud’s opinion is likely to be, subject to an infringement claim or otherwise infringing any third party Intellectual Property Rights, you shall at your cost and expense either:

(a) procure for Huawei Cloud and its Affiliates the right to use Your Content without infringing any Intellectual Property Rights and without subjecting Huawei Cloud and its Affiliates to any liability arising out of the use of Your Content; or

(b) modify Your Content so that it becomes non-infringing, provide that Your Content as modified fulfils substantially the same function and purpose as the pre-modified content.

 

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, that is marked as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information shall not include information that: (a) is or becomes generally known to the public through no act or omission of the Receiving Party; (b) was in the Receiving Party’s lawful possession prior to the disclosure without breach of confidentiality obligations owed to the disclosing party; (c) is lawfully disclosed to the Receiving Party free of any obligation of confidence by a third party which itself was not under any obligation of confidence in relation to that information; or (d) is independently developed by the Receiving Party. For the purposes of this Section 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 in confidence 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. Representations and Warranties

8.1 Mutual Representations. Each Party represents and warrants that it has full legal power and authority to enter into this Agreement and has taken all steps necessary to validly enter into this Agreement.

8.2 Your Representations and Warranties. You represent, warrant and undertake that (a) you do and shall comply with all Applicable Laws with respect to your activities under this Agreement; (b) you do and shall comply with the Acceptable Use Policy in connection with your use of the Products and KooGallery; and (c) your use of the Products and KooGallery do not and shall not infringe the Intellectual Property Rights or any other rights of any third party.

 

9. Disclaimers

9.1 After-Sales Responsibilities. The After-Sales Responsibilities are the sole responsibility of the relevant Third Party Vendor or Reseller (as the case may be) of each Product. We and our Affiliates are not responsible for, and make no representations or warranties (express or implied) as to, the After-Sales Responsibilities.

9.2 Non-Warranty. We and our Affiliates do not warrant, represent, undertake or agree that:

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

(b) KooGallery will be free of any technical faults, interruptions and/or network problems, or that such technical faults, interruptions and/or network problems will be rectified within any timeframe;

(c) the Products, Operational Services and After-Sales Responsibilities will be performed error-free or uninterrupted;

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

(e) the functions of KooGallery or any Product will operate in the manner configured by you;

(f) third party disruptions or unauthorized third party access in connection with the Products or KooGallery will be prevented; and

(g) the Products will operate in conjunction with Your Content or any other hardware, software, systems, services or data not provided by us and/or our Affiliates.

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

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

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

(b) you acknowledge that Huawei Cloud has no direct control over the availability of bandwidth over the entirety of the Internet and that, while Huawei Cloud will use such endeavours as Huawei Cloud deems appropriate to facilitate KooGallery, Huawei Cloud shall not be responsible for delays caused by such unavailability;

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

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

9.4 Third-Party Content. We and our Affiliates are not responsible for: (a) any issues relating to the Products caused by Your Content or Third-Party Content or products and/or services not provided by us; and (b) any problems caused by misuse or modification of the Products, or use of the Products in violation of the terms and conditions of this Agreement or Applicable Laws.

9.5 Previews. Preview Products and trial Products are provided “as-is” and “as available”, without warranties of any kind.

9.6 Exclusions. Except as expressly provided in this Agreement, KooGallery is provided “as is”. To the extent permitted by Applicable Laws and except as expressly provided herein, Huawei Cloud and its Affiliates exclude and disclaim all conditions, warranties, representations, undertakings and other terms, whether express or implied or incorporated into this Agreement by statute, common law, custom or otherwise, including any implied conditions, warranties, undertakings or other terms relating to merchantability, satisfactory quality, non-infringement, reasonable care and skill, fitness for a particular purpose, ability to achieve a particular result or arising from a course of dealing or usage of trade. Huawei Cloud and its Affiliates do not make any representations and warranties in relation to systems that do not make up the KooGallery or connections to such systems.

 

10. Limitation of Liability

10.1 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 10 SHALL NOT APPLY TO YOUR INDEMNIFICAITON OBLIGATIONS UNDER THIS AGREEMENT.

10.2 LIMITATION OF LIABILITIES. SUBJECT TO SECTION 10.1, OUR MAXIMUM AGGREGATE LIABILITY TOGETHER WITH THAT OF OUR AFFILIATES IN RESPECT OF ANY LOSS, DAMAGE, FINE, PENALTY, LIABILITY, CHARGE, PROCEEDING, EXPENSE, OUTGOING OR COST OF ANY NATURE OR KIND ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, MISREPRESENTATION (WHETHER TORTIOUS OR STATUTORY), TORT (INCLUDING NEGLIGENCE) AND BREACH OF STATUTORY DUTY OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU UNDER THIS AGREEMENT FOR THE PRODUCTS OR SERVICES IN RESPECT OF WHICH SUCH LIABILITY AROSE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.

10.3 EXCLUSION OF LIABILITIES. SUBJECT TO SECTION 10.1, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE TO THE OTHER PARTY FOR:

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

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

ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY 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.

 

11. Term, Suspension and Termination

11.1 Term. The term of this Agreement will commence on the Effective Date and remains in force unless terminated hereunder.

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

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

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

(c) you fail to comply with your payment obligations under this Agreement;

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

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

(f) we reasonably believe that you are engaged in fraudulent or illegal activities; or

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

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

 

11.4 Termination

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

(b) You acknowledge and agree that we are also entitled to immediately terminate your use of and access to the Products, the relevant Order and/or this Agreement if any scenario described in Section 11.2 (a) to (g) occurs, and Your Content may be deleted immediately.

11.5 Consequences of Termination.

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

(b) Termination of this Agreement shall not (a) affect the accrued rights and obligations of the Parties as at the date of termination; (b) affect the continued operation of Sections 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 and any other provisions of this Agreement which are necessary for the interpretation or enforcement of this Agreement, all of which shall survive such termination; or (c) relieve you of any of your obligations hereunder to pay any fees and charges under Section 4 accrued or payable to us during the term of this Agreement (including any fees incurred during any suspension period) and you shall immediately pay us all such fees upon the effective date of termination.

(c) Except as provided at Section 11.3(b), upon termination of this Agreement, during the extended and/or retention period as detailed in our Website, you may retrieve Your Content.

 

12. Force Majeure

Neither Party shall be liable for any delay or failure to perform this Agreement caused by acts, events, omissions or accidents beyond its reasonable control, including but not limited to acts of God (including earthquake, storms or other natural disaster), epidemic, pandemic, quarantine, acts of terrorism, war or warlike operations, civil unrest or riot, electrical, Internet or telecommunication outage, blockages, sanctions, embargoes, fire, flood, explosion or malicious damage, or failure of plant or equipment, or change of any law, governmental order, rule, regulation, direction or industry standard (each a “Force Majeure Event”). Both Parties will use reasonable efforts to mitigate the effects of a Force Majeure Event. If the effects of a Force Majeure Event continue for more than 60 days, either Party may cancel undelivered Products and/or affected Orders upon written notice. This Section does not excuse your payment obligations hereunder.

 

13. Governing Law and Jurisdiction

13.1 This Agreement and any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including any dispute or claim relating to non-contractual obligations) will be governed by and construed in accordance with the Governing Law, without regard to its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods is expressly and entirely excluded.

13.2 The Parties agree irrevocably to 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).

 

14. Entire Agreement

14.1 This Agreement incorporates the documents and policies referenced herein (including reference to information contained in a URL or referenced policy or other terms), and is the entire Agreement between you and us regarding the Products. 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 the Products. It is expressly agreed by the Parties that the terms of this Agreement (including the applicable Order Form submitted to and accepted by us) 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.

14.2 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, unless otherwise explicitly provided in this Agreement.

 

15. Changes and Modifications

15.1 Changes. We and/or Third Party Vendors may change or discontinue Products or change or remove functionality of the Products from time to time at our and/or Third Party Vendors’ discretion. We will notify you by posting an announcement on our Website, or through other means, of material changes to or discontinuation of the Products to which you have subscribed. You acknowledge and agree that the Product Supply and Support Terms may be updated from time to time.

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

 

16. Miscellaneous

16.1 Relationship

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

(b) You acknowledge and agree that, notwithstanding anything else in this Agreement: (a) Huawei Cloud and Third Party Vendors are independent contracting parties; (b) Huawei Cloud and Resellers are independent contracting parties; (b) Third Party Vendors and Resellers are not agents of Huawei Cloud and do not have any power or authority to bind or incur any obligation on behalf of Huawei Cloud; (c) Huawei Cloud shall not be liable for any acts or omissions of Third Party Vendors or Resellers; and (d) Huawei Cloud shall not be jointly liable in any way or form with Third Party Vendors or Resellers for their obligations.

16.2 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.

16.3 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.

16.4 Third Party Beneficiaries.

(a) Subject to Section 16.4(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.

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

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

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

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

Sanctions mean economic sanctions laws, regulations or restrictive measures imposed, administered or enforced from time to time by (i) the United Nations; (ii) the European Union; (iii) United States Treasury Department's Office of Foreign Assets Control (“OFAC”), US Department of State; (iv) HM Treasury of the United Kingdom; and (v) other competent governmental authorities and institutions (collectively, the “Sanctions Authorities”); and

Sanctions List means the “Specially Designated Nationals and Blocked Persons” list maintained by OFAC, the Consolidated List of Financial Sanctions Targets maintained by HM Treasury of the United Kingdom, or any similar list maintained by, or public announcement of Sanctions designation made by, any of the Sanctions Authorities.

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

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

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

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

 

17. Definitions

17.1“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.

17.2 “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 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.

17.3 “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.

17.4“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.

17.5“Data Controller” means an entity that, alone or jointly with others, determines the purposes and means of the Processing of Personal Data.

17.6“Data Processor” means an entity that Processes Personal Data on behalf of and for the purposes of a Data Controller.

17.7“Direct Purchase” has the meaning given in Section 1.1(a).

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

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

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

17.11“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.

17.12“Joint Operation Model” means a business model under which eligible Third Party Vendors 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.

17.13“KooGallery” means the KooGallery e-commerce platform that is established and operated by Huawei Cloud, on which you can purchase Products.

17.14“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 Third Party Vendors 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.

17.15“Order” means the order you place with us either online or offline for the Products.

17.16“Order Form” means the relevant order form you submit to us online or offline in respect of an Order.

17.17“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.

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

17.19“Process” means, in relation to Personal Data, the carrying out of any operation or set of operations in relation to the Personal Data, and includes any of the following: (i) collection; (ii) use; (iii) disclosure; (iv) recording, (v) holding, (vi) organisation, adaptation or alteration, (vii) retrieval, (viii) combination, (ix) transmission, or (x) erasure or destruction.

17.20“Products” or “Joint Operation Products” means the software, images, products and services (which are independently developed by Third Party Vendors or legally provided by Third Party Vendors 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., which are sold by Huawei Cloud or a Reseller under the Joint Operation Model on KooGallery.

17.21“Reseller” means a participant of the Huawei Cloud Partner Network that is authorized to resell Products on KooGallery.

17.22“Reseller Purchase” has the meaning given in Section 1.1(b).

17.23“Third Party Vendor” a vendor of Products which are listed for sale on KooGallery under the joint operation model as described under the terms of this Agreement.

17.24“Product Supply and Support Terms” means, in relation to each Product, the relevant terms describing the rights granted to you 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), as may be updated from time to time, which shall constitute a binding agreement between you and the relevant Third Party Vendor. The relevant terms that apply to each Product can be accessed by visiting the relevant Product details page on KooGallery.

17.25“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.

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

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

17.28“Website” or “Site” means the Huawei Cloud Website located at: https://www.huaweicloud.com/eu/.

17.29 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.

17.30 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).

 

18. Country Specific Terms

The country-specific terms below will replace the above equivalent terms in this Agreement. 

Country/Region where you are registered	Section   #	Terms and Conditions
Serbia	Section 3.5	3.5.1 The Product Fees are exclusive of withholding tax, VAT, sales tax, goods and services tax (GST) or any similar or analogous tax applicable in a relevant territory if any, which shall be charged in addition thereto in accordance with the relevant laws and regulations in force at the time of making the relevant taxable supply. 3.5.2 Each Party is responsible, as required under applicable laws and regulations as well as applicable double tax treaties or arrangements, for filing and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that Party upon or with respect to the transactions and payments contemplated under this Agreement. If any other taxes (including but not limited to withholding tax) are required by law to be levied on any payment, you shall make payments of such additional amounts as may be necessary to ensure that we actually receive payment of the full amount chargeable for your use of the Products as if no taxes had been required. Any additional tax, penalty, or interest arising from your delay or omission in complying with the above mentioned tax responsibilities shall be borne by you. 3.5.3 If we incur any additional Taxes, costs or liabilities as a consequence of your delay or omission of the above mentioned tax responsibilities or due to the provision of false or incomplete information by you which is necessary for us to determine and meet our above mentioned tax responsibilities arising from our supplies of services to you (including but not limited to information relevant to the determination of your country of tax residency), you shall be solely and exclusively liable to bear such costs related to Taxes not withheld, deducted, or reported, along with any interest, penalties and other charges associated therewith which are to be settled with the relevant governmental or tax authorities. 3.5.4 If, subsequent to the entering into, during the course of, or retrospectively applicable to this Agreement, any rates of existing Taxes are increased or decreased, a new Tax is levied, an existing Tax is abolished, or any change in the interpretation or application of any Tax is adopted (collectively referred as “Tax Changes”), we reserve the right to adjust the amounts payable by you to us, taking into account the Tax Changes, such that there would be no financial detriment to us arising from the Tax Changes.

 

 

Updated: November 24, 2023