HUAWEI CLOUD KooGallery Reseller Cooperation Agreement-HUAWEI CLOUD

HUAWEI CLOUD KooGallery Reseller Cooperation Agreement

This Agreement governs HCPN partners’ reselling of products listed on KooGallery.

If you are reselling products listed in the HCPN Solution Provider Program, this Agreement is not applicable. You should refer instead to the Huawei Cloud Solution Provider Cooperation Agreement which is available at https://www.huaweicloud.com/intl/en-us/declaration-sg/spca.html.

This KooGallery Reseller Cooperation Agreement (hereinafter “Agreement”) is made by and between the Huawei Cloud Contracting Party as defined in Section 18.9 of this Agreement (hereinafter “Huawei Cloud”, “we”, “us”, or “our”), and you or the company or other legal entity you represent (hereinafter “KooGallery Reseller”, “Reseller”, “you” or “your”) regarding the reselling by you of software, services, content or other products (collectively “Products”) listed by Sellers on KooGallery. If you enter into this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the requisite power and authority to do so and to bind the entity to the terms and conditions of this Agreement. This Agreement takes effect as of the date you accept this Agreement and will be binding on you from said date (“Effective Date”).

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

1. KooGallery Reseller Program

1.1 Scope. Three type of Products may be resold by Resellers on KooGallery as follows:

(a) Products listed by Third Party Vendors (“Third Party Products”);

(b) Products listed by Huawei Cloud (“Huawei Cloud Products”); and

1.2 Eligibility Requirements. In order to purchase and resell Products as a KooGallery Reseller, you must be accepted by Huawei Cloud as a valid and ongoing participant in the HCPN in accordance with all applicable terms and conditions governing the HCPN, including the Huawei Cloud Partner Network Certification Agreement available at https://www.huaweicloud.com/intl/en-us/declaration-sg/hcpn_ca.html and Huawei Cloud Solution Provider Cooperation Agreement available at https://www.huaweicloud.com/intl/en-us/declaration-sg/spca.html.

You must also be enrolled by Huawei Cloud as a KooGallery Reseller, and you must have a valid Business Partner Account as described in Section 1.4. You must also comply with the following:

(a) You have entered into the Huawei Cloud Partner Network Certification Agreement referred to in this Section 1.2;

(b) You have entered into the Huawei Cloud Solution Provider Cooperation Agreement referred to in this Section 1.2;

(c) You shall have an End User service team covering every target sales country to ensure that End Users in each country have the ability to raise problems or questions to you relating to the Products, which you will respond to and address promptly.

The type(s) of KooGallery Products that you are permitted to resell may be determined in Huawei Cloud’s sole and absolute discretion.

1.3 Direct Resale Only. You are only permitted to resell the Products directly to End Users under this Agreement. If you intend to sell Products through an additional tier or additional multiple tiers of sub-distributors or sub-resellers, you shall obtain our prior written consent. Where we consent to any such arrangement, you shall enter into a binding agreement with such sub-distributors or sub-reseller which provide at least the same level of protection to Huawei Cloud as set out in this Agreement. Such resale arrangement is also subject to additional terms being agreed between you and all other relevant parties, including but not limited to Huawei Cloud and/or Third Party Vendors.

1.4 Business Partner Account. You must access the Products and transact on KooGallery using the account that you created to apply for participation in the HCPN (“Business Partner Account”).

(a) In order to resell Products to an End User, you must connect your Business Partner Account with the relevant End User Account. For this purpose, you may send a connection invitation to an End User from your Business Partner Account. The accounts of the Reseller and the End User will be connected at the time when the End User accepts the invitation.

(b) Your Business Partner Account shall only be connected with End User Accounts. You are not permitted to connect your Business Partner Account with the accounts of other distributors, resellers or intermediaries without our prior written consent.

1.5 End User Account and Credits. End Users may create an End User Account on the Huawei Cloud Website to access, purchase and subscribe to various Products. In order to resell Products on KooGallery to an End User, you must procure the End User to connect its End User Account with your Business Partner Account as described in Section 1.4. After an End User Account is connected to your Business Partner Account, you may grant credit to the End User. The End User may then use its End User Account to place orders for Products listed by Sellers on KooGallery through your Business Partner Account. The End User's consumption of Products cannot exceed the credit granted by you.

1.6 Agreement with End Users. You shall enter into an agreement with each End User for the End User’s purchase, use of and access to the Products that you resell to them (“Reseller End User Agreement”). You shall ensure that the terms and conditions of your Reseller End User Agreements are in line with and consistent with the terms and conditions of this Agreement, and provide at least the same level of protection to Huawei Cloud as set out in this Agreement. You shall also procure your End Users to enter into and accept the terms of:

(a) the Huawei Cloud KooGallery Partner Product User Agreement which is available at https://www.huaweicloud.com/intl/en-us/declaration-sg/ma_mt.html;

(b) to the extent that you resell Third Party Products to such End Users, the terms of end user license agreements published by Third Party Vendors granting End Users such rights and licences as may be necessary for End Users to access and use the Third Party Products and other relevant terms; and/or

(c) to the extent that you resell Huawei Cloud Products or Huawei Affiliate Products to such End Users, the Huawei Cloud KooGallery End User License Agreement which is available at [https://www.huaweicloud.com/intl/en-us/declaration-sg/hprua.html], relevant service-specific terms and conditions, service level agreements, and any other terms and conditions specified by Huawei Cloud from time to time, by procuring End Users to accept the relevant terms made available by Huawei Cloud on KooGallery.

In this Agreement, a reference to “your End User” refers to an End User with whom you have entered into a Reseller End User Agreement and which has associated itself with your Business Partner Account.

You acknowledge and agree that the Reseller End User Agreements are entered into between you and your End Users, and that Huawei Cloud and its Affiliates are not a party thereto and shall have no liability arising therefrom. You are wholly responsible for the quality of Products and related services provided to and used by your End Users as well as any risks relating to transacting with End Users. Your payment obligations shall not be affected by any expenses incurred due to misuse of Products by your End Users. You shall be wholly responsible for any claim or dispute raised by End Users in relation to the Products that you resell to them and any other services that you provide to End Users, 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.

1.7 Billing of End Users. You are solely responsible for billing to and collecting payments from End Users. Huawei Cloud has no responsibility for collecting, processing or transmitting payments between End Users and you.

1.8 KooGallery Guidelines. You shall comply with the KooGallery Guidelines available at https://support.huaweicloud.com/intl/en-us/rg-marketplace/en-us_reseller_topic_000001.html and any other relevant documents (as may be updated from time to time) that we may publish on the Website or otherwise notify to you to guide your reselling of Products and other issues related thereto.

1.9 Identity Verification. You represent, warrant and undertake that: (a) any information you submit to us for the purpose of applying to become a KooGallery Reseller, 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 of yours enforceable in accordance with their terms. We may require you to provide additional registration information to verify your identity. We are also entitled to take steps to verify whether the information you provide for the purpose of registration is true, accurate and valid. In the event that you breach this Section 1.9, we may suspend or delete your Business Partner Account immediately and without liability to you, and we shall be entitled to claim against you for all losses, damages, costs and expenses suffered by us, without prejudice to any of our other rights and remedies.

1.10 End User Management Tools. To manage End User transactions, you may choose to use tools made available by Huawei Cloud such as customer budget management, customer account freezing, customer resource freezing, customer order placing, and customer service maintenance. The use of such tools is entirely at your risk and you are responsible for any consequences that may arise from the use of such tools including where End Users cannot purchase new resources, cannot use resources, or resources are deleted resulting from the use of these tools. You shall be solely responsible for any losses, damages, liabilities or costs arising from the use of such tools and Huawei Cloud shall not be liable for any claims or disputes between you and End Users caused by incorrect use of these tools.

2. Specific Terms for Resale of Third Party Products

2.1 Resale Rights. In relation to Third Party Products that you resell, you acknowledge and agree that:

(a) you are solely responsible for obtaining from Third Party Vendors, and Third Party Vendors are solely responsible for granting to you, all rights, licences and authorizations necessary to access, use and resell Third Party Products and related content, including the right to sub-license Third Party Products to End Users as necessary to effect the resale of Third Party Products, and for you to be able to provide related services including but not limited to consultancy services, after-sales services and technical support;

(b) where relevant according to the resale arrangement as agreed between you and a Third Party Vendor, you are solely responsible for granting to End Users all rights, licences (including sub-licences) and authorizations necessary to access and use the Third Party Products that you resell.

The foregoing rights, licences and authorizations apply only as between you and Third Party Vendors, and shall not impose any obligations or liability on Huawei Cloud and its Affiliates. Huawei Cloud and its Affiliates have no obligation to procure for you or grant you any such rights, licences and authorizations. Without limiting the foregoing, Huawei Cloud does not make any representation or warranty of any kind, express, implied or statutory, including but not limited to warranties of non-infringement of third party rights, title, merchantability, satisfactory quality and/or fitness for a particular purpose of Third Party Products.

2.2 Resale Agreement with Third Party Vendors. You shall enter into an agreement with each Third Party Vendor whose Products you resell, setting out the relevant terms on which you will access, use and resell such Products, including details on the respective roles and responsibilities of you and the Third Party Vendor for delivery and support to End Users (“Reseller Agreement”). You represent and warrant that the Reseller Agreements entered into by you (a) contain such terms as are necessary to implement the resale of Third Party Products through KooGallery as intended under this Agreement, including the payment to us of fees relating to Third Party Products; (b) do not and will not contain any term that is inconsistent with this Agreement or applicable laws and regulations; and (c) provide at least the same level of protection to Huawei Cloud as set out in this Agreement. You acknowledge and agree that the Reseller Agreements are entered into between you and Third Party Vendors, and that Huawei Cloud is not a party thereto and shall have no liability arising therefrom. 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 Huawei Cloud shall have no liability to you in the event of such suspension or termination. In the event that a Third Party Vendor’s right to sell Products on KooGallery is terminated for any reason, you and the Third Party Vendor shall work together to continue providing services and support to the End Users who have purchased its Products from you, and shall discuss and implement in good faith such transition plans as may be necessary to prevent any disruption to End Users’ ability to access and use the Third Party Products to the great extent possible. You shall be solely responsible for any claim or dispute raised by Third Party Vendors in relation to your reselling of their 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.

2.3 Third Party Vendor Responsibilities. You acknowledge and agree that Third Party Vendors are the providers of Third Party Products, and Third Party Vendors will solely assume any and all responsibility and liability related to Third Party Products. Without limiting the foregoing, Third Party Vendors shall be solely responsible and liable for providing you with the corresponding service support and for providing upgrades, maintenance, and technical support related to the Third Party Products. Third Party Vendors shall be solely responsible and liable for handling your consultations and complaints, and related after-sales services that may be required and shall propose solutions within the period as undertaken by the Third Party Vendors. In the event that the Third Party Products which you have purchased have been removed from KooGallery, Third Party Vendor is solely responsible and liable for continuing to provide service and support to you until the end date of the purchased Third Party Products.

2.4 Orders. The prices and payment methods for Third Party Products shall be as specified in the order on KooGallery, subject to any discounts that may be separately agreed between you and a Third Party Vendor. The pricing of Third Party Products may at any time be adjusted at the Third Party Vendor’s discretion. You may view the updated price list at: https://marketplace.huaweicloud.com/intl/list/.

2.5 Payment. You agree to pay us all applicable fees related to Third Party Products that are ordered through your Business Partner Account. For the purposes of this Agreement, any order for Products submitted by an End User through your Business Partner Account shall be deemed to be an order submitted by you as purchaser of such Products. You shall be solely liable to pay all fees in relation to such order, without regard to the payment (or non-payment) of corresponding fees from End Users to you. These fees are separate and in addition to fees applicable to your use of any other Huawei Cloud Services. You shall be solely responsible to pay bank charges and related fees incurred during the performance of this Agreement.

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

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

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

3. Specific Terms for Resale of Huawei Cloud Products and Huawei Affiliate Products

3.1 Resale Rights. Subject to the terms and conditions of this Agreement, Huawei Cloud grants Reseller a non-exclusive, non-sublicensable, and non-transferable right to resell the Huawei Cloud Products and Huawei Affiliate Products to End Users in the Authorized Sales Territory set out in Section 3.2.

3.2 Authorized Sales Territory. The authorized sales territory in respect of the Huawei Cloud Products and Huawei Affiliates Products is worldwide (the “Authorized Sales Territory”).In an emergency situation, we may remove a country, region or territory from the Authorized Sales Territory by giving you written notice, and you shall cease offering or selling the Huawei Cloud Products and Huawei Affiliates Products to End Users in the country, region or territory specified in such notice upon receiving the same. For the purpose of this Agreement, emergency situations may include, but are not limited to, situations: (a) that will impose a security threat to Huawei Cloud, Huawei Affiliates, Reseller or an End User in that region, country or territory; (b) that will or may lead to non-compliance of applicable laws, regulations or legally binding requests issued by governmental, regulatory or other competent authorities by Huawei Cloud, Huawei Affiliates, Reseller or an End User; or (c) that Huawei Cloud otherwise deems to be an emergency situation in its sole discretion.

3.3 Access and Use of Products. In addition to the terms of this Agreement, your access to and use of Huawei Cloud Products and Huawei Affiliate Products will be governed by the terms and conditions of the KooGallery Products User Agreement, which you shall enter into separately and is available at [https://www.huaweicloud.com/intl/en-us/declaration-sg/hpua.html]. In the event of any conflict or inconsistency between this Agreement and the KooGallery Products User Agreement, the terms of this Agreement shall prevail.

3.4 Huawei Cloud and Huawei Affiliate Responsibilities.

(a) The provision and delivery of Huawei Cloud Products to you for resale to End Users will be performed by Huawei Cloud. Huawei Cloud will also perform corresponding service support and upgrades, maintenance, and technical support related to the Huawei Cloud Products, including handling consultations, complaints and after-sales services.

(b) The provision and delivery of Huawei Affiliate Products to you for resale to End Users will be performed by the relevant Huawei Affiliate as specified on Help Center of KooGallery which is available at https://support.huaweicloud.com/intl/en-us/mpintro-marketplace/en-us_topic_0105544151.html. The Huawei Affiliate will also perform corresponding service support and upgrades, maintenance and technical support related to the Huawei Affiliate Products, including handling consultations, complaints and after-sales services.

3.5 Delivery and After-Sales Service. You are responsible for the delivery of and providing after-sales service relating to the Huawei Cloud Products and Huawei Affiliate Products that you resell to your End Users, in accordance with the terms of your Reseller End User Agreement. You are responsible for the quality of such delivery and after-sales service. Huawei Cloud and its Affiliates shall not be responsible or liable for the outcome or quality of such delivery and after-sales service, and makes no representations and warranties as to the same. Huawei Cloud and its Affiliates do not guarantee the satisfaction of End Users. You shall at all times remain fully responsible for your obligations under this Section 3.5 and for any obligations owed to your End Users.

3.6 End User Information. When an End User first uses the Products, and each time if there is any change of the following information relating to End Users, you shall provide the following information relating to End Users to Huawei Cloud: (a) the contact information of the End User, which includes the End User’s name, telephone number, email address and office address, and (b) End User’s account ID related to the Huawei Cloud Products and Huawei Affiliate Products. The information may be used by Huawei Cloud to enforce the Huawei Cloud KooGallery End User License Agreement in the event the End User breaches the terms and conditions therein, to monitor the account or to ensure a smooth transition as described in Section 12.3 (if any). Notwithstanding the foregoing, you shall provide such information relating to End Users as Huawei Cloud may require for the purposes of this Agreement or in order to comply with Huawei Cloud’s and its Affiliates’ legal and regulatory obligations. To the extent you provide us with any Personal Data relating to End Users (including their employees, officers or representatives, as the case may be), you represent and warrant that you have obtained the consent of End Users (including their employees, officers or representatives, as the case may be) to you providing us with their Personal Data for the purposes set out herein.

3.7 Orders. The prices and payment methods for Huawei Cloud Products and Huawei Affiliate Products shall be as specified in the order on KooGallery. The pricing of Huawei Cloud Products and Huawei Affiliate Products may at any time be adjusted at our discretion. You may view the updated price list at: https://marketplace.huaweicloud.com/intl/list/.

3.8 Payment. You agree to pay us all applicable fees related to Huawei Cloud Products and Huawei Affiliate Products that are ordered through your Business Partner Account. For the purposes of this Agreement, any order for Products submitted by an End User through your Business Partner Account shall be deemed to be an order submitted by you as purchaser of such Products. You shall be solely liable to pay all fees in relation to such order, without regard to the payment (or non-payment) of corresponding fees from End Users to you. These fees are separate and in addition to fees applicable to your use of any other Huawei Cloud Services. 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 and/or regulations in the territory or under applicable double arrangements. You shall be solely responsible to pay bank charges and related fees incurred during the performance of this Agreement.

3.9 General. You must not cause or permit others to:

(a) distribute or resell the Huawei Cloud Products and Huawei Affiliate Products in any manner except as expressly provided in this Agreement;

(b) remove or modify any program markings or any notice of Huawei Cloud’s, Huawei Affiliates or their licensors’ proprietary rights;

(c) modify, make derivative works of, disassemble, decompile, reverse engineer, reproduce, distribute, republish or download any part of the Huawei Cloud Products and Huawei Affiliate Products (the foregoing prohibitions include but are not limited to review of data structures or similar materials produced by programs) or access or use the Huawei Cloud Products and Huawei Affiliate Products in order to build or support, and/or assist a third party in building or supporting products or services competitive with Huawei Cloud or Huawei Affiliates;

(d) perform or disclose the results of any benchmark or penetration tests of the Huawei Cloud Products or Huawei Affiliate Products;

(e) perform or disclose any of the following security testing of the Huawei Cloud Products or Huawei Affiliate Products or associated infrastructure: network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing;

(f) make any representations, warranties and other statements on behalf of Huawei Cloud or Huawei Affiliates that are likely to be construed by a reasonable End User as being made on behalf of Huawei Cloud or a Huawei Affiliate, except as expressly authorized or directed in writing by Huawei Cloud or a Huawei Affiliate (as the case may be);

(g) engage in any conduct that may be detrimental to Huawei Cloud, Huawei Affiliates, Huawei Cloud Products or to Huawei Affiliate Products;

(h) enter into any agreement which requires or purports to require Huawei Cloud or Huawei Affiliates to take any actions that are in conflict with the terms of this Agreement; and

(i) provide any information or material to Huawei Cloud, Huawei Affiliates or End Users which is not correct or accurate in all respects.

4. Payment, Taxes and Records

4.1 Overdue Payment. If you are in breach of your payment obligations to Huawei Cloud and fail to cure the breach within 14 days of being notified by Huawei Cloud of the breach and requesting cure of the same, Huawei Cloud may immediately terminate this Agreement and/or any other agreements between the Parties, without prejudice to any other rights or remedies that Huawei Cloud may have under this Agreement, any other agreements and/or applicable law. Huawei Cloud may in its sole discretion remove Your Content stored in Huawei Cloud’s systems and networks. Huawei Cloud reserves the right to claim for any overdue payment and any other damages, losses, costs and expenses incurred thereby. If Huawei Cloud in its sole discretion is of the belief that you are at risk of default, Huawei Cloud reserves the right to notify End Users of the same by email or through other forms of notification.

4.2 Taxes. Fees for Products are exclusive of withholding tax, value-added 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. 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 purchase of the Products as if no Taxes had been required. Any additional Tax, penalty, or interest arising from your delay or omission in complying with the above-mentioned Tax responsibilities shall be borne by you.

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

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

4.3 Records. You shall maintain accurate and complete books and records of your operations under this Agreement. Huawei Cloud and/or its authorized representative shall have the right to inspect such books and records to verify your compliance with this Agreement. Such right of inspection is subject to Huawei Cloud giving seventy-two (72) hours prior written notice to you. The inspection shall be conducted during your normal business hours and in such manner as not unreasonably to interfere with normal business activities.

5. KooGallery Platform

5.1 Platform and Operational Support. We rely 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. We are entitled to in our sole discretion: (a) operate and maintain the KooGallery platform; and (b) review the Products that are offered on KooGallery, as well as any changes to them. Without limiting the foregoing, Huawei Cloud is entitled to review and verify all of the Products released on KooGallery from time to time and decide, at our sole discretion, whether to discontinue them.

5.2 Upgrades and Changes. Huawei Cloud may upgrade the KooGallery platform as we deem necessary, or move the aforesaid platform to a different equipment center, as determined in our sole discretion. The upgraded KooGallery shall be compatible with the existing functions to the extent possible.

5.3 Suggestions Provided by You. You hereby irrevocably transfer all title, rights to and interests in suggestions provided by you to Huawei Cloud, and agree to provide necessary support for the arrangement and improvement of the aforesaid suggestions.

5.4 Limited Monitoring. You understand that the KooGallery platform services are provided by Huawei Cloud, and agree that Huawei Cloud may take the limited and necessary technical means to perform limited and necessary monitoring of the KooGallery running status. This monitoring is implemented only on data from the Website and KooGallery, without involving the content and data of End Users. In the event that you violate this Agreement or any Products listed on KooGallery are defective, Huawei Cloud is entitled to stop the sale of or otherwise discontinue such Products, or to remove the Products from KooGallery.

6. Intellectual Property

6.1 Intellectual Property Rights. You acknowledge and agree that:

(a) Huawei Cloud and/or its licensors retain all ownership, Intellectual Property Rights, title and interest in and to the Huawei Cloud Products (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 Huawei Cloud under this Agreement;

(b) the Huawei Affiliates and/or their licensors retain all ownership, Intellectual Property Rights, title and interest in and to the Huawei Affiliate Products (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 the Huawei Affiliates under this Agreement; and

(c) except as expressly provided in this Agreement, nothing in this Agreement shall be construed to grant any rights, title and/or interest to you including in relation to the Huawei Cloud Products, Huawei Affiliate Products and Third Party Products.

6.2 Huawei Marks. You acknowledge that Huawei Cloud’s and the Huawei Affiliates’ trademarks, trade names, trade dress, designs, slogans and logos utilized worldwide in connection with the Huawei Cloud Products, the Huawei Affiliate Products, KooGallery and the Huawei Cloud Website (“Huawei Marks”) are the property of Huawei Cloud and/or its Affiliates. Subject to the terms and conditions of this Agreement, Huawei Cloud grants you a limited, personal, non-exclusive, non-transferable, non-sub-licensable, revocable, royalty-free license to use and reproduce the Huawei Marks during the Term of this Agreement solely in connection with the performance of your obligations under this Agreement, or as Huawei Cloud may expressly authorize in writing from time to time.

6.3 Reseller Marks. Huawei Cloud acknowledges that your trademarks, trade names, trade dress, designs, slogans and logos utilized worldwide in connection with your product or service (“Reseller Marks”) are the property of you and/or your Affiliates. Subject to the terms and conditions of this Agreement, you grant Huawei Cloud and its Affiliates a non-exclusive, non-transferable, non-sub-licensable, royalty-free license to use and reproduce the Reseller Marks during the Term of this Agreement solely in connection with the performance of Huawei Cloud’s obligations under this Agreement, or as you may expressly authorize in writing from time to time.

6.4 Comply with Trademark Guidelines. You will comply with all marks rules, branding guidelines and other rules and procedures issued by Huawei Cloud from time to time in relation to your use and reproduction of the Huawei Marks. Any violation of this Section 6.4 will constitute an infringement of Huawei Cloud’s rights and a material breach of this Agreement. Huawei Cloud’s Trademark Guidelines are available at https://www.huaweicloud.com/intl/en-us/declaration/hcpn_tg.html.

6.5 Advertising. In the event that you intend to advertise or promote the Products, you shall ensure that all promotional and marketing materials comply with the Huawei Cloud Advertising Guidelines (which are available at https://www.huaweicloud.com/intl/en-us/declaration/hcpn_ads.html). Huawei Cloud reserves the right to require you to submit your advertising or promotional materials relating to the Marketing Services to Huawei Cloud for review prior to their publication, and in such event you shall not publish such advertising or promotional materials until Huawei Cloud gives its express written consent.

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”), in the course of their dealings relating to this Agreement whether before or after the date of this Agreement, in any medium or format (including written, oral, visual or electronic), whether or not marked or described as “confidential”, or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, which relates to the Disclosing Party (or any of its Affiliates), or to the employees, officers, customers or suppliers of the Disclosing Party (or any of its Affiliates). Confidential Information shall not include information that: (a) is or becomes generally known to the public through no act or omission of the other Party; (b) was in the other Party’s lawful possession prior to the disclosure without breach of confidentiality obligations owed to the Disclosing Party; (c) is lawfully disclosed to the other Party free of any obligation of confidence by a third party which itself was not under any obligation of confidence in relation to that information; or (d) is independently developed by the other Party.

7.2 Protection of Confidential Information. Each Party agrees to keep the other Party’s Confidential Information in confidence during the term of this Agreement and for a period of five years thereafter. Each Party agrees to take appropriate measures to protect the other Party’s Confidential Information which shall in no event be less than the degree of care that it uses to protect its own confidential information.

7.3 Permitted Disclosure.The Receiving Party may only disclose the Confidential Information to its employees, officers, agents or subcontractors who have a need to know and who are subject to confidentiality obligation no less stringent than the degree of protection as required herein. Huawei Cloud may disclose Confidential Information to its Affiliates that need to know such information for the purposes of this Agreement. 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 law, or in order to comply with a legally binding request issued by a governmental, regulatory, law enforcement or other competent authority, to the extent required to comply with the applicable binding requirements.

7.4 No Confidentiality Breach. You shall ensure that you do not disclose any information to Huawei Cloud or its Affiliates that is obtained through the breach of a duty or obligation of confidentiality owed to a third party, and that any information disclosed by you to Huawei Cloud or its Affiliates is not subject to a confidentiality obligation prohibiting its disclosure to Huawei Cloud or its Affiliates.

8. Data Protection

8.1 No Tampering. You shall only obtain the Products through authorized channels (such as through the Huawei Cloud Website). You shall not implant any form of malware, backdoors, Trojan horses, or other viruses into, or forge or tamper with any part of, the Products or Huawei’s systems and networks.

8.2 Policies and Procedures. You shall establish cybersecurity and data protection and privacy protection policies and/or procedures sufficient to ensure compliance with: (a) Applicable Data Protection Law and applicable cybersecurity laws and regulations; and (b) Huawei’s cybersecurity and data protection and privacy policies and procedures as issued and updated from time to time. You shall promptly notify Huawei of any End User complaints.

8.3 Processing and Transfer by Reseller. To the extent that you process and/or transfer data (including Personal Data) for the purpose of providing services to End Users (including but not limited to accessing the End User’s network, transferring End User’s data out of the End User's network and out of the host country), you shall ensure that: (a) you provide all necessary notices and obtain all necessary consents and authorizations as may be required under Applicable Data Protection Law; and (b) all of your activities fall within the scope of such consents and authorizations as required under Applicable Data Protection Law.

8.4 Processing and Transfer by Huawei. To the extent that Huawei processes and/or transfers data (including Personal Data) at your request (including but not limited to accessing the End User’s network, transferring End User’s data out of the End User’s network and out of the host country), you consent to and authorize Huawei to perform such data processing and/or transfer. Without limiting the foregoing, you represent, warrant and undertake that, at the time of each such transfer and throughout the duration that Huawei processes such data, you have provided all necessary notifications and obtained all necessary consents, licenses and authorizations for such processing and/or transfer of data by Huawei as required by Applicable Data Protection Law and End User Agreements. Such notifications and consents shall be provided and obtained by you at your sole expense.

8.5 Sharing of Data by Reseller. To the extent that you share the Personal Data of your customers, employees and agents with Huawei for the purposes of participating in Huawei’s training, examination, certification, sales activities, incentive application or any other purpose, you represent, warrant and undertake that, at the time of each such sharing of Personal Data and throughout the duration that Huawei uses and/or processes such Personal Data: (a) the sharing of Personal Data with Huawei complies with Applicable Data Protection Law and your privacy policy/statement (including but not limited to the requirements regarding notification and/or obtaining consent); (b) you have all necessary rights, consents, authorizations and permissions to share such Personal Data with Huawei; (c) you have provided all necessary notifications and obtained all necessary consents, licenses and authorizations for the use and processing of Personal Data by Huawei for the above-mentioned purposes in accordance with Applicable Data Protection Law; and (d) you are in compliance with Huawei’s privacy standards, policies, and statements. Without limiting the foregoing, you consent to and authorize Huawei to use such Personal Data for the above-mentioned purposes. You shall not collect, use or disclose any Personal Data of the Parties’ customers, employees and agents in any manner that would result in Huawei violating Applicable Data Protection Law or our Privacy Statement (including but not limited to the requirements regarding notification and/or obtaining consent).

8.6 Huawei Data. To the extent that you obtain and process Personal Data from Huawei during joint marketing or other business dealings with Huawei, you represent, warrant and undertake that, at the time of obtaining and throughout the duration that you process such Personal Data: (a) you collect, use and disclose Personal Data in compliance with Applicable Data Protection Law in all respects, including but not limited to providing relevant privacy statements and notifications, obtaining all necessary consent, and entering into relevant data protection agreements with Huawei; and (b) if you transfer the data to a third party for processing, you shall provide details of the data processing to Huawei and obtain Huawei’s authorization in advance.

8.7 Self-Managed System. If you establish a self-managed user system outside of the Huawei Cloud account system, you shall collect relevant information required for establishing an account from users through your own means and at your own risk. You are prohibited from directly or indirectly obtaining relevant End User information from the Huawei Cloud account system, and shall not violate applicable laws and regulations. You shall take reasonable security measures to ensure the security of End User information. You shall indemnify, defend and hold harmless Huawei Cloud, its Affiliates, and their respective directors, officers, servants and agents (the “Indemnitees”) against all or any liabilities, claims, demands, penalties, fines, expenses (including legal costs calculated on a full indemnity basis) and all other professional costs and expenses suffered or incurred by the Indemnitees arising out of or in connection with any breach of your obligations in this Section 8.7.

8.8 Processing of Personal Data on Huawei’s Behalf. Without limiting the foregoing, to the extent that your processes any Personal Data on behalf of Huawei in connection with this Agreement and/or the Products, you shall:

(a) process Personal Data only on written instructions given by or on behalf of Huawei, which may be specific instructions or instructions of a general nature as set out in this Agreement, or as otherwise notified by Huawei to you from time to time;

(b) protect Personal Data by making reasonable security arrangements to prevent unauthorized access, collection, use, disclosure, copying, modification, disposal (or similar risks);

(c) in the event of a Security Incident: (i) take action immediately, at Reseller’s own expense, to investigate the Security Incident, to identify, prevent and mitigate the effects of the Security Incident, and to remedy the Security Incident; (ii) notify Huawei immediately and in any case within twenty-four (24) hours on becoming aware of the Security Incident and provide Huawei with such details of the Security Incident as Huawei may reasonably require; and (iii) not release or publish any filing, communication, notice, press release or report concerning the Security Incident without Huawei’s prior written approval (except where required to do so by Applicable Data Protection Law);

(d) promptly provide such assistance as Huawei may reasonably require in order for Huawei to deal with any request with which Huawei is required to comply pursuant to Applicable Data Protection Law: (i) for access to and correction of Personal Data; or (ii) from a regulator, law enforcement agency or other competent authority;

(e) notify Huawei immediately of: (i) any request for disclosure of Personal Data by any governmental, regulatory or other competent authority, unless prohibited by law; and (ii) any request received directly from or on behalf of an individual without responding to that request, unless you have been authorized in writing by Huawei to do so;

(f) not give access to or transfer any Personal Data to any third party (including any Affiliates, group companies or contractors) without the prior written consent of Huawei. Where Huawei does consent to you giving access to or transferring Personal Data to a third party, you shall ensure that such third party complies with this Section 8.8;

(g) upon termination of this Agreement, or otherwise upon Huawei’s written request, cease to retain the Personal Data that you no longer require under this Agreement and, at Huawei’s option, either return the Personal Data to Huawei or destroy or delete the Personal Data; and

(h) ensure that you have at all times complied with and shall continue to comply with the requirements of Applicable Data Protection Law.

8.9 Authorizations and Instructions etc. For the purposes of this Section 8, any authorization, instruction, request, consent, approval or notification that you obtain from a Huawei Affiliate shall be deemed to have been given by that Huawei Affiliate only and not by or on behalf of Huawei Cloud, unless Huawei Cloud expressly notifies you in writing that the Huawei Affiliate is authorized to act on behalf of Huawei Cloud in respect of giving such authorization, instruction, request, consent, approval or notification.

9. Disclaimer

9.1 Actions Undertaken or Events Initiated by Huawei Cloud. You acknowledge and agree 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 while Huawei Cloud adjusts and maintains the network, or a drop in the rate of access to KooGallery due to any form of Internet access blocking.

(b) The consequences arising from (but not limited to) the malicious activities of hackers, viruses, maintenance or upgrading of telecom facilities or equipment, and the disconnection of the backbone line, in view of the special characteristics of computers and the Internet.

(c) The unavailability of Products caused by operations and maintenance measures of Huawei Cloud, provided that Huawei Cloud gives prior notice to you with regard to data backup, service migration, or service suspension. Such operations and maintenance measures include but are not limited to troubleshooting, system upgrading, system optimization, and system capacity expansion. In the case of an emergency fault, Huawei Cloud is entitled to take the corresponding measures without any prior notice.

9.2 Rights Reserved. Huawei Cloud reserves the right to, at our sole discretion, change, upgrade, modify, and transfer KooGallery, the Products, Huawei Cloud Website and services provided thereon, 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.

9.3 Data Transmission. You agree that Huawei Cloud and its Affiliates shall not be responsible for any delays, inaccuracies, errors, or omissions that occur during data transmission when you, End Users, Sellers or other third parties use the Huawei Cloud Services, nor for any damage caused thereby.

9.4 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 in accordance with separate terms and conditions and subject to separate charges. Huawei Cloud is not obligated to test or screen third-party services. You shall use third-party services at your own risk.

9.5 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 the Products, or otherwise prohibits End Users from purchasing Products from you, 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 and its Affiliates shall not be liable for breach of this Agreement.

9.6 Providing the Necessary Conditions. In the event that Products which you resell cannot be provided or cannot be provided in time, or if quality defects exist in Products which you resell because you, a Third party Vendor or an End User has failed to provide the necessary conditions for provisioning the Products, Huawei Cloud and its Affiliates shall not be responsible or liable.

9.7 Exceptions in Your Resold Products. If the stability of any network or system (whether of ours or any other person) is affected due to exceptions in Products that you resell, including but not limited to the sending of a large number of junk emails or becoming the source of a malicious attack, which may lead to a severe network security problem and further affect other users of KooGallery or services provided by Huawei Cloud and its Affiliates, Huawei Cloud is entitled to suspend the Products that you resell.

9.8 Problems and Disputes from Third Party Products. Huawei Cloud and its Affiliates shall not be responsible for after-sales services that arise from any problems, including those related to the operating system or the layer above the operating system attached to the Products you resell, which are caused by you, Third Party Vendors, Third Party Products, or services provided by you to End Users through KooGallery. Huawei Cloud and its Affiliates shall not be responsible for any direct or indirect losses and liabilities arising from the aforesaid problems and disputes.

9.9 Legal Liabilities between You, End Users and Third Party Vendors. Huawei Cloud and its Affiliates shall not be liable for any direct or indirect losses, damages, costs or other liabilities between you and End Users, or between you and Third Party Vendors.

9.10 Personal Information Collection. In the event that you do not inform or obtain the consent of End Users to the collection, use and/or disclosure of their Personal Data, you shall assume all liabilities arising therefrom and compensate Huawei Cloud and its Affiliates for all losses.

10. Indemnification

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

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

10.3 Exclusive Remedy. This Indemnification section provides the Parties’ exclusive remedy for any third party claims for infringement of Intellectual Property Rights, including your remedies as against the Huawei Affiliates. For avoidance of doubt, this Section 10.3 shall not limit or otherwise affect our right to seek indemnification for other claims in accordance with the terms of this Agreement.

11. Limitation of Liability

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

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

12. Term, Termination and Transition

12.1 Term. The term of this Agreement shall commence on the Effective Date and expire one (1) year thereafter (“Term”). The Term of this Agreement shall renew automatically for consecutive one (1) year periods, unless either Party gives the other Party thirty (30) days’ written notice prior to the expiry of the initial or any subsequent one (1) year Term stating that it does not wish to renew the Agreement.

12.2 Termination

(a) Either Party may terminate this Agreement by giving 90 days’ prior written notice to the other.

(b) Either Party may terminate this Agreement if the other Party:

(i) fails to perform or observe any of its material obligations hereunder and such failure is not cured within 30 days after written notice thereof is given to the defaulting Party identifying such failure and requesting that the failure be cured; or

(ii) to the extent permitted by applicable law, files a petition of bankruptcy or insolvency, or makes a general assignment for the benefit of creditors, or any involuntary bankruptcy, receivership or similar proceeding is filed against such Party that is not dismissed within 60 days of commencement.

(i) affect the accrued rights and obligations of the Parties as at the date of termination;

(ii) affect the continued operation of any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement or is necessary for the interpretation or enforcement of this Agreement, including your indemnity obligations under this Agreement and Sections 2.5, 3.8, 4, 6 to 11, 12.2(c), and 14 to 18, all of which shall survive such termination; or

(iii) relieve you of any of your obligations hereunder to pay any fees and charges accrued or payable to us during the Term of this Agreement and you shall immediately pay us all such fees upon the effective date of termination.

12.3 Transition

(a) At least 30 days prior to the termination of this Agreement, the Parties shall commence discussions in good faith to develop a transition plan to facilitate the smooth transition and migration of End Users from you to us or another Reseller.

(b) You shall no later than 30 days prior to the termination of this Agreement: (a) provide us with the name and contact information (including email address and telephone number) of each End User in order to allow us to contact End Users to help ensure the transition and (b) provide affected End Users advance notice of termination of this Agreement. To the extent you provide us with any Personal Data relating to End Users (including their employees, officers or representatives, as the case may be), you represent and warrant that you have obtained the consent of End Users (including their employees, officers or representatives, as the case may be) to you providing us with their Personal Data for the purposes set out herein.

13. Force Majeure

Neither Party shall be liable for any delay or failure to perform this Agreement caused by acts, events, omissions or accidents beyond its reasonable control, including but not limited to acts of God (including earthquake, storms or other natural disaster), epidemic, pandemic, quarantine, acts of terrorism, war or warlike operations, civil unrest or riot, electrical, internet or telecommunication outage, blockages, sanctions, embargoes, fire, flood, explosion or malicious damage, or failure of plant or equipment, or change of any law, governmental order, rule, regulation, direction or industry standard. Both Parties will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 60 days, either Party may cancel undelivered Products, unperformed services and/or affected orders (if any) by giving written notice to the other Party. This Section 13 does not excuse your payment obligations hereunder if any.

14. Governing Law and Jurisdiction

14.1 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.

14.2 The Parties agree irrevocably to submit any dispute arising out of or in connection with this Agreement to the exclusive jurisdiction of the Corresponding Court (including any dispute or claim relating to non-contractual obligations).

15. Entire Agreement

15.1 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 its subject matter (including the resale of Huawei Cloud Products and Huawei Affiliate Products). This Agreement supersedes all prior or contemporaneous representations, communications, understandings and agreements between you and us, whether in written or oral, regarding its subject matter (including the resale of Huawei Cloud Products and Huawei Affiliate Products).

15.2 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.

15.3 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 15.2.

15.4 Nothing in this Section 15 will exclude or restrict the liability of either Party arising out of its pre-contract fraudulent misrepresentation or fraudulent concealment.

16. Modifications

We may modify this Agreement, its terms and conditions, including the documents, URLs and policies referenced herein at any time and at our sole and absolute discretion by posting a revised version on the Huawei Cloud Website or by otherwise notifying you. Except as otherwise indicated in the modified Agreement, documents or policies, the modified terms will come into effect upon posting on the Huawei Cloud Website. You will review such terms regularly on the Huawei Cloud Website. By continuing to access, use or resell KooGallery and/or the Products, you agree to be bound by the modified terms.

17. Miscellaneous

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

17.2 Non-assignment. You shall not assign or otherwise transfer all or part of this Agreement to any third party, including your Affiliates, without prior written consent from us. We may assign or transfer this Agreement without your consent to our Affiliates. We will notify you, by posting an announcement on the Website or through other means, prior to the effective date of such transfer or assignment. Upon the coming into effect of any such transfer or assignment, we shall be fully released from all and any of its obligations and duties to perform the Agreement and the transferee or assignee will be deemed substituted for us. Without limiting the foregoing, we may assign and/or delegate our rights and obligations under this Agreement to any of our Affiliates without your consent.

17.3 No Third Party Beneficiary

(a) Subject to Section 17.3(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 the Huawei 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 Huawei Affiliate.

17.4 Export. In connection with this Agreement, both Parties shall comply with the applicable export and sanction laws and regulations of United Nations, China, Unites States and other countries. You represent and warrant that you and/or 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 related to your access, use and resale of the Products, including but not limited to Your Content that you upload, process, provide and/or make available to your End Users.

17.5 Notice. We may provide notice to you under this Agreement by posting a notice on the Huawei Cloud Website, or by email or text message (including via SMS and other instant messaging platforms). Notices we provide by posting on the Huawei Cloud Website will be effective upon posting, and in the case of emails and text messages upon sending out (irrespective of whether and when you receive or read it). You shall be responsible to keep your email address or phone number updated.

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

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

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

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

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

18. Definitions

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

18.2 “Applicable Data Protection Law” means any statutes, regulations, orders, regulatory requirements, by laws, ordinances, rules, subordinate legislation and other similar legal instruments in force from time to time relating to data protection, data security, privacy, and/or the collection, use, disclosure and/or processing of Personal Data, including but not limited to the Singapore Personal Data Protection Act 2012.

18.3 “Business Partner Account” has the meaning given in Section 1.4.

18.4 “Confidential Information” has the meaning given in Section 7.1.

18.5 “End User Account” means an account created by an End User on the Huawei Cloud Website to access, and purchase Products.

18.6 “HCPN” or “Huawei Cloud Partner Network” means the Huawei Cloud partner network administered by Huawei Cloud.

18.7 “Huawei” means Huawei Cloud and its Affiliates.

18.8 “Huawei Affiliate Products” has the meaning given in Section 1.1(c).

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

18.10 “Huawei Cloud” or “Huawei Cloud Contracting Party” refers to the following (for purposes of clarity, the Huawei Cloud Contracting Party will be the Huawei Cloud entity associated with the country or region in which you are registered as per the below table):

The country/region in which you are registered	Huawei Cloud Contracting Party
South Africa	Huawei Services (Hong Kong) Co., Limited
Chile	Huawei Services (Hong Kong) Co., Limited
Peru	SPARKOO TECHNOLOGIES PERU S.A.C.
Brazil	HUAWEI DO BRASIL TELECOMUNICACOES LTDA.
Mexico	Huawei Services (Hong Kong) Co., Limited
Thailand	Huawei Services (Hong Kong) Co., Limited
Hong Kong	Sparkoo Technologies Hong Kong Co., Limited
Countries other than the above	Sparkoo Technologies Singapore Pte. Ltd.

18.11 “Huawei Cloud Products” has the meaning given in Section 1.1(b).

18.12 “Huawei Cloud Website” or “Website” means the Huawei Cloud website located at https://www.huaweicloud.com/intl/en-us/.

18.13“Governing Law” and “Corresponding Court” refers to the following and is dependent on the Huawei Cloud Contracting Party as defined in Section 18.10 above.

Huawei Cloud Contracting Party	Governing Law	Corresponding Court
Sparkoo Technologies Hong Kong Co., Limited	Laws of Hong Kong	Hong Kong Court
Sparkoo Technologies Singapore Pte. Ltd.	Laws of Singapore	Singapore Court
Huawei Services (Hong Kong) Co., Limited	Laws of Hong Kong	Hong Kong Court
SPARKOO TECHNOLOGIES PERU S.A.C.	Laws of Peru	Lima Courts of Justice
HUAWEI DO BRASIL TELECOMUNICACOES LTDA.	Laws of Brazil	Court of the City of Sao Paulo

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

18.15 “KooGallery”, “Huawei Cloud Marketplace”, or “Marketplace” means the e-commerce platform that is established and operated by Huawei Cloud located at https://marketplace.huaweicloud.com/intl/, on which Sellers can list and End Users can purchase Products.

18.16 “KooGallery End User” or “End User” means an individual or entity that purchases Products through your Business Partner Account and who has entered into a contract with you for the purchase of such Products.

18.17 “KooGallery Guidelines” or “Guidelines” means the guidelines published by Huawei Cloud to ensure the orderly operation of KooGallery and guide the Reseller. Huawei Cloud is entitled to update the Guidelines from time to time by publishing each latest version on the Website which shall be deemed to take effect from the time of such publication.“KooGallery Reseller” or “Reseller” means you as a participant of the HCPN that is permitted to resell Products to End Users on KooGallery.

18.18 “Reseller End User Agreement” has the meaning given in Section 1.6.

18.19 “Seller” means (i) a Third-Party Vendor; (ii) the Huawei Cloud Contracting Entity in its capacity as a supplier that lists Products for sale on KooGallery; or (iii) a Huawei Affiliate that lists Products for sale on Huawei Cloud Marketplace. For the avoidance of doubt, the term “Seller” does not include KooGallery Resellers.

18.20 “Personal Data”means any information relating to an identifiable natural person, such as name, address, e-mail address or telephone number, including information that can identify an individual when taken in combination with other information to which a Party has or is likely to have access

18.21 “Privacy Statement” means the privacy statement located at https://www.huaweicloud.com/intl/en-us/declaration-sg/sa_prp_intl.html, as may be updated from time to time, which is incorporated into this Agreement by reference.

18.22 “Security Incident”means, in relation to Personal Data, any suspected or actual: (a) unauthorized access, collection, use, disclosure, copying, modification or disposal of such data; or (b) loss of any storage medium or device on which such data is stored in circumstances where the unauthorized access, collection, use, disclosure, copying, modification or disposal of such data is likely to occur.

18.23 “Taxes” refers to 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.

18.24 “Term” has the meaning given in Section 12.1.

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

18.26 “Third Party Products” has the meaning given in Section 1.1(a).

18.27 “Third Party Vendors” or “Vendors” means non-Huawei third parties that list Third Party Products for sale on KooGallery.

19. Country Specific Terms

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

Country where you are registered

Section #

Terms and Conditions

Malaysia、Pakistan

Section 4.2

4.2 Taxes.

4.2.1 Fees for Products 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 Fees thereto, and

any other taxes which should be filed and paid by Seller in accordance with the relevant laws and regulations.

4.2.2 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.

4.2.3 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.

4.2.4 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.

4.2.5 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.

4.2.6 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.

4.2.7 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.

4.2.8 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.

4.2.9 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.

Kenya

Section 4.2

4.2 Taxes.

4.2.1 Fees for Products are：

ii. 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 which should be filed and paid by Seller in accordance with the relevant laws and regulations.

4.2.10 If we involve Digital Service Tax liability in Kenya, below term shall be added into Section 4.2.1:

Fees for Products are inclusive of Digital Service Tax, which shall be filed and paid by Seller to the tax authority in accordance with the relevant laws and regulations of Kenya.

Note: If you are registered in the countries listed in Section 18.10 for which the Huawei Cloud Contracting Party is neither Sparkoo Technologies Singapore Pte. Ltd. nor Huawei Services (Hong Kong) Co., Limited, the specific term of Malaysia regulating withholding tax as aforementioned in Section 19 shall replace the equivalent term in Section 4.2 in this agreement.

Last Updated: November 7th, 2022

法的条項

HUAWEI CLOUD KooGallery Reseller Cooperation Agreement 印刷

HUAWEI CLOUD KooGallery Reseller Cooperation Agreement

HUAWEI CLOUD KooGallery Reseller Cooperation Agreement

印刷