These Terms govern your use of Huawei Cloud KooGallery (“KooGallery”) and grant you access to it and the right to purchase Products (as defined in Section 10.5). These Terms are entered into by and between the Huawei Cloud Contracting Party as defined in Section 10.2 of these Terms (“Huawei Cloud”, “we”, “us” and “our”) and the entity you represent or you individually (“You / you / your”). These Terms take effect as of the date you accept these Terms.

1. Products, Prices and Payment

1.1 Scope. You may purchase Products on KooGallery:

(a) directly from Sellers; or

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

If your purchase Products through a Reseller, you must comply with the specific terms in Section 2 applicable to such resale arrangements, in addition to the rest of these Terms as applicable.

1.2 Payment. If you purchase any Products directly from a Seller, you are responsible for paying all applicable fees for such Products directly to the Seller in accordance with the terms of the Third Party End User License Agreement between you and the Seller. Huawei Cloud is not responsible for collecting, processing or transmitting payments or refunds between you and a Seller. You shall solely be responsible to pay the bank charges and related fees incurred during the performance of these Terms.

If you purchase any Products through a Reseller, you must place the order for Products on KooGallery using your Huawei Cloud account which must be connected with that of the Reseller. Huawei Cloud is not responsible for collecting, processing or transmitting payments or refunds between you and a Reseller. You are responsible for paying all applicable fees for such Products directly to the Reseller in accordance with the terms of the Reseller End User Agreement between you and the Reseller.

1.3 Orders. The prices and payment methods under these Terms shall be subject to those specified in the Third Party End User License Agreement between you and the Seller or those specified in the Reseller End User Agreement between you and the Reseller. The pricing of Products listed on KooGallery at any time may be adjusted at Seller’s discretion. For Products that you purchase from Sellers directly, you may view the updated price list at: https://marketplace.huaweicloud.com/intl/list/. If you purchase Products from a Reseller, the Product pricing that is applicable to you will be determined in the Reseller End User Agreement between you and the Reseller .

1.4 Invoicing. When you purchase any Products directly from a Seller, the Seller will issue an invoice for such Products to you if they are required to do so under applicable laws, regulations or other legally binding requirements imposed by a competent authority. When you purchase any Products through a Reseller, the Reseller will issue an invoice for such Products to you if they are required to do so under applicable laws, regulations or other legally binding requirements imposed by a competent authority. We are not responsible for invoicing you for any Products.

1.5 Refunds. The Refunds shall be determined in accordance with the terms of the Third Party End User License Agreement between you and the Seller if you purchase any Products directly from a Seller, or the terms of Reseller End User Agreement between you and the Reseller if you purchase any Products through a Reseller. We are not responsible for processing refunds either between you and the Seller if you purchase Products directly from a Seller or between you and the Reseller if you purchase Products through a Reseller.

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

2. Specific Terms for Purchasing Products through a Reseller

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

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

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

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

3. Use and Support

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

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

3.3 Support of Products. You acknowledge and agree that:

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

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

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

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

4. Data Privacy

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

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

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

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

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

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

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

5. Limitation of Liability

5.1 DIRECT LOSS ONLY. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF REVENUES, PROFITS, OPPORTUNITIES, CUSTOMERS, GOODWILL, REPUTATION, DATA OR DATA USE), EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

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

6. Force Majeure

Neither Party shall be liable for any delay or failure to perform its obligations under these Terms where such delay or failure is caused by a force majeure event(s) beyond its reasonable control. Force Majeure events shall include, but not be limited to, acts of God (including earthquake, storms or other natural disaster), epidemic, pandemic, quarantine, acts of terrorism, war or warlike operations, civil unrest or riot, electrical, internet or telecommunication outage, blockages, sanctions, embargoes, fire, flood, explosion or malicious damage, or failure of plant or equipment, or change of any law, governmental order, rule, regulation, direction or industry standard. Both Parties will use reasonable efforts to mitigate the effect of a force majeure event. If such event however continues for more than 60 (sixty) days, either Party may cancel and end any unperformed services and the affected orders upon written notice. Notwithstanding the above, this section does not excuse your payment obligations hereunder.

7. Governing Law and Venue

7.1 These Terms and any dispute or claim arising out of or in connection with these Terms or their subject matter or formation (including any non-contractual dispute or claim) will be governed by and construed in accordance with the Governing Law, without regard to its conflict of law principles.

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

8. Changes, Modifications and Third Party Beneficiaries

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

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

8.3 Non-assignment. You shall not assign or otherwise transfer all or part of these Terms to any third party, including your Affiliates, without prior written consent from us. We may assign or transfer these Terms 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 these Terms 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 these Terms to any of our Affiliates without your consent.

8.4 Third Party Beneficiaries. Subject to the following sentence in this Section 4, these Terms are intended for the benefit of the Parties hereto and their respective permitted successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other persons. Notwithstanding the foregoing, you acknowledge and agree that each of our Affiliates is an intended third party beneficiary of these Terms and is entitled to enforce any term of these Terms. Notwithstanding the foregoing, the rights of the Parties to rescind or vary these Terms are not subject to the consent of any such Affiliate.

9. Disclaimer

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

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

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

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

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

10. Definitions

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

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

10.2 “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	Sparkoo Technologies South Africa (Pty) LTD.
Chile	Sparkoo Technologies Chile SpA
Peru	Sparkoo Technologies PERU S.A.C.
Brazil	Sparkoo Technologies Do Brasil Ltda.
Mexico	Huawei Technologies De Mexico, S.A. De C.V.
Thailand	Sparkoo Technologies (Thailand) Co., Ltd.
Hong Kong	Sparkoo Technologies Hong Kong Co., Limited
Saudi Arabia	Sparkoo Technologies Arabia Co., Ltd.
Countries other than the above	Sparkoo Technologies Singapore Pte. Ltd.

10.3 “Governing Law” and “Corresponding Court” refers to the following and is dependent on the Huawei Cloud Contracting Party as per Section 10.2 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 Technologies De Mexico, S.A. De C.V.	Laws of Mexican	Mexican Court
Sparkoo Technologies PERU S.A.C.	Laws of Peru	Lima Courts of Justice
Sparkoo Technologies Do Brasil Ltda.	Laws of Brazil	Court of the City of Sao Paulo
Sparkoo Technologies South Africa (Pty) LTD.	Laws of the Republic of South Africa	The Court of South Africa having jurisdiction
Sparkoo Technologies Chile SpA	Laws of Chile	Santiago Courts of Justice
Sparkoo Technologies (Thailand) Co., Ltd.	Laws of Thailand	Thailand Court
Sparkoo Technologies Arabia Co., Ltd.	Laws of  Kingdom of Saudi Arabia	Riyadh, Kingdom of Saudi Arabia Court

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

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

10.6 "Marketplace" or “KooGallery” refers to a neutral e-commerce platform that is established and operated by Huawei Cloud, on which you can transact with Sellers and/or Resellers such as purchasing Products from Sellers and/or Resellers.

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

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

10.9 “Website” refers to the Huawei Cloud Website located at: https://www.huaweicloud.com/intl/en-us/.

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

 

Last Updated: November 3, 2023