This Huawei Cloud KooGallery Seller Agreement (the “Agreement”) contains the terms and conditions that govern your releasing and listing of Products (as defined in Section 18.7) on Huawei Cloud KooGallery. This Agreement is entered into by and between the Huawei Cloud Contracting Party as defined in Section 18.14 of this Agreement (hereinafter referred to as “Huawei Cloud”, “we”, “us”, or “our”) and you or the entity you represent (hereinafter “you”, “your” or “Seller”).

By entering into this Agreement for and 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 company or legal entity to the terms and conditions of this Agreement. This Agreement takes effect as of the date you accept this Agreement (the “Commencement Date”).

You and Huawei Cloud are individually referred to as a “Party” and collectively as the “Parties” in this Agreement.

If you are reselling Products as a Reseller (as defined in Section 18.10), this Agreement does not apply to you. Please refer to the KooGallery Reseller Cooperation Agreement which is available at [https://www.huaweicloud.com/intl/en-us/declaration-sg/reseller.html] instead.

1. Eligibility Requirements and Verification. You must meet the requirements subject to the following terms:

1.1 Your Account. Before applying to become a Seller on KooGallery, you must have a valid Huawei Cloud account and shall agree to and accept, through provision of an electronic notification thereof, the Huawei Cloud Customer Agreement [https://www.huaweicloud.com/intl/en-us/declaration-sg/sa_cua.html] either by signature or electronically, including and any documents incorporated by reference therein, including, but not limited to, the Privacy Statement, Acceptable Use Policy, and Site Terms published on the Website (collectively referred to as the “Huawei Cloud Customer Agreement”). You shall use the username as registered on the Website to submit a registration application in accordance with the Seller registration process. When submitting a registration application, you shall provide all reasonably requested information.

1.2 Identity Verification. You represent, warrant and undertake that: (a) the information contained in your application to become a KooGallery Seller and any additional information you submit for this purpose, including (without limitation) information relating to your identity, shall be true, accurate and complete; (b) you are a natural person or legal entity; (c) 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. Huawei Cloud 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 complete. In the event that you breach this Section 1.2, Huawei Cloud shall be entitled to suspend or cancel your account until such time that any issue in relation thereto has been resolved or verified, which time shall be determined exclusively by Huawei Cloud at its sole discretion.

1.3 Huawei Cloud KooGallery Guidelines. We will provide the Huawei Cloud KooGallery Guidelines [https://support.huaweicloud.com/intl/en-us/mpintro-marketplace/en-us_topic_0105544151.html], together with any other documents we consider relevant, to be complied with by you when listing Products and when dealing with other issues related to Products, upon your acceptance of this Agreement. The Guidelines may be updated by us, at our discretion, from time to time. You acknowledge and agree that you will, at all times, comply with such updated Guidelines.

2. Releasing. You may release your Products on KooGallery subject to the following terms:

2.1 Review of Releasing. Prior to submitting or releasing any Products, you shall comply with all applicable requirements for submitting or releasing Products on KooGallery as set out in this Agreement and as required by any Applicable Law, including providing all relevant supporting technical documents; such supporting technical documents may include but are not limited to, supporting content (such as documents dealing with Products operations and management, services support of Products provided by Sellers and service levels for Products), performing security testing of the Service (so as to ensure that they are free of bugs and function in accordance with specifications) and that the Products features are in accordance with the listing standards and Guidelines for releasing Products on KooGallery. You hereby acknowledge and agree that Huawei Cloud shall be entitled to (but shall not be obliged to) test and review the integrity and security of your Products at any time, and to take all measures as Huawei Cloud deems necessary in respect of your Products if Huawei Cloud considers that the Products fail to comply with this Agreement. If your Products fail to comply with this Agreement then without prejudice to any other right or remedy, Huawei Cloud shall be entitled to take any action it deems necessary, which may include the removal of your Products from KooGallery until Huawei Cloud is satisfied that the Products comply with this Agreement. Any such testing and review of your Products which Huawei Cloud may undertake shall not be construed as a promise, representation or warranty by Huawei Cloud as to the integrity, security or quality of your Products or compliance with this Agreement, nor does Huawei Cloud assume any responsibility or liability as to the integrity, security or quality of your Products. You shall be exclusively responsible and liable to KooGallery End Users, Resellers and/or third parties for, and shall indemnify and hold harmless Huawei Cloud against, any claims, disputes, losses, costs, damages and liabilities suffered or received by Huawei Cloud or any of its Affiliates arising out of or in connection with your Products, including but not limited to any loss or damage attributable to a security breach involving your Products or any non-compliance by your Products with industry standards or this Agreement, and any loss or damage suffered by KooGallery End Users, Resellers and/or third parties. 

2.2 Responsibility for Releasing a Service. The Products released on KooGallery shall not be deemed to be exclusive, and you shall not engage in any vicious, unfair, illegal or anti-competitive practices of any nature with other sellers on KooGallery, including any practice aimed at damaging the property or legitimate interests of any third party. In the event that your Products contain Open-Source Software, or are developed based on or using Open-Source Software, you shall furnish Huawei Cloud with the specific name of the Open-Source Software and the license agreement which you entered into and which applies to such Open-Source Software. You acknowledge, warrant and agree that (i) your use of the Products; and (ii) the KooGallery End Users’ use of such Products; do not breach the relevant Open-Source Software license agreements.

2.3 Costs. In the event that you offer Products on the KooGallery, you shall bear the costs of the Huawei Cloud Services required for image creation as well as the fees for deploying and using Huawei Cloud Services.

2.4 Format. Huawei Cloud provides guidance via KooGallery for releasing Products using different delivery methods on KooGallery. You may select a delivery method based on such guidance, provided always that Huawei Cloud shall be entitled to finally determine the method by which your Products are listed and delivered on KooGallery.

2.5 Direct to End User Sale and Resale Models. Your Products may be sold:

(a) by you directly to End Users who place orders with you through the KooGallery using their own Huawei Cloud account (“Direct Model”). All Products once released on KooGallery shall be available for sale under the Direct Model. Under the Direct Model, End Users are liable to you for all fees and charges payable for your Products; or

(b) to Resellers who resell your Products to End Users (“Resale Model”). You must also have entered into a Reseller Agreement as described in Section 3.3 with a Reseller before it may resell your Products. Such Resellers must be valid, ongoing participants in the Huawei Cloud Partner Network (“HCPN”) who have been authorized by Huawei Cloud to resell Products on KooGallery. A reference to “your Reseller” in this Agreement refers to a Reseller with whom you have entered into a Reseller Agreement, authorizing that Reseller to resell your Products on KooGallery. End Users will associate themselves with a Reseller’s Huawei Cloud account and submit orders for your Products through such Reseller’s Huawei Cloud account to you. Under the Resale Model, Resellers are liable to you for all fees and charges payable for your Products. You must ensure that delivery and operations & maintenance services are provided to End Users, including where necessary entering into such agreements and arrangements with Resellers for the provision of such Products.

2.6 Other Rights. You hereby grant Huawei Cloud a non-exclusive, worldwide, transferable, sub-licensable, irrevocable and royalty-free license to display your trademarks and logos (the "Service Provider Logo") on KooGallery during the Term. You represent and warrant that you are the legal owner of or otherwise have full right and authority to license the use of the Products Provider Logo and your Products as contemplated in this Agreement. For the avoidance of any doubt, no fees shall be payable by Huawei Cloud to you in connection with your obligations under this Section 2.6, including the grant of the license herein.

3. Your Obligations and Warranties

3.1 Service License. You represent and warrant that your Products are entitled to be used, sold, resold and marketed worldwide. You acknowledge and agree that you shall grant and are solely responsible for granting:

(a) all necessary rights and licenses to End Users to access and use your Products and related content, or for authorizing End Users to access and use your Products and related content through other means. Such rights, licenses and authorization apply only as between you and End Users, and shall not impose any obligations or liabilities on Huawei Cloud and its Affiliates; and

(b) all necessary rights and licenses to Resellers to access, use and resell your Products and related content, or for authorizing Resellers to access, use and resell your Products and related content through other means, including the right for Resellers to sub-license your Products to End Users as necessary to effect the resale of your Products, and for Resellers to be able to provide related services including but not limited to consultancy services, after-sales services and technical support. Such rights, licenses and authorization apply only as between you on the one hand and Resellers or End Users on the other hand, and shall not impose any obligations or liabilities on Huawei Cloud and its Affiliates.

3.2 End User License Agreement and Privacy Statement. When releasing Products on KooGallery, you shall make available: (a) the terms of your end user license agreement to KooGallery End Users (“Seller’s End User License Agreement”) to expressly define and elaborate on the support services, SLA, delivery standard and conditions, to grant the rights and licenses mentioned in Section 3.1 as necessary, and such other matters as Huawei Cloud may determine from time to time; and (b) a privacy statement to KooGallery End Users setting out how you collect, use, disclose, process and protect data obtained from KooGallery End Users. The Seller’s End User License Agreement shall be a binding contract entered into between you and End Users when they accept its terms during the order process. You shall provide your Products only after obtaining the relevant KooGallery End Users’ acceptance of your Seller’s End User License Agreement, your privacy statement and such other consents as are required under Applicable Laws. The privacy statement you provide to KooGallery End Users shall include information about what kind of data (including Personal Data) you will collect and how you will use and/or disclose such data, and any other information required by Applicable Laws. You represent and warrant that: (a) the Seller’s End User License Agreements entered into by you do not and will not contain any term that is inconsistent with this Agreement or Applicable Laws; and (b) your Products are compliant with and will comply with all Applicable Laws. You shall be solely responsible for any claim or dispute raised by KooGallery End Users in relation to your Products, and you shall indemnify and hold Huawei Cloud and its Affiliates harmless from and against any losses, costs, damages and liabilities arising out of or in connection with the same.

3.3 Reseller Agreement. Before selling your Products under the Resale Model, you shall enter into a resale agreement with each of your Resellers setting out the relevant terms on which the Reseller will access, use and resell your Products, including details on the respective roles and responsibilities of you and your Reseller for delivery and support to End Users (“Reseller Agreement”). You represent and warrant that the Reseller Agreements entered into by you do not and will not contain any term that is inconsistent with this Agreement or Applicable Laws, and 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 your Resellers, and that Huawei Cloud is not a party thereto and shall have no liability arising therefrom. You further acknowledge and agree that the Resellers are not agents of Huawei Cloud and do not have any power or authority to bind or incur any obligation on behalf of Huawei Cloud, and that Huawei Cloud shall not be liable for any acts or omissions of the Resellers. Huawei Cloud is entitled to suspend or terminate a Reseller’s right to access or use the KooGallery and/or to resell Products in the event of a violation of our prevailing terms and conditions or policies, or in other circumstances as specified in our prevailing terms and conditions or policies, and Huawei Cloud shall have no liability to you in the event of such suspension or termination. In the event that your Reseller’s right to resell Products is terminated for any reason, you and your Reseller shall work together to continue providing services and support to the End Users who have purchased your Products, and shall discuss and implement in good faith such transition plans as may be necessary to facilitate the smooth transition of such End Users to you or another Reseller. You shall be solely responsible for any claim or dispute raised by your Resellers in relation to your Products, and you shall indemnify and hold Huawei Cloud and its Affiliates harmless from and against any losses, costs, damages and liabilities arising out of or in connection with the same.

3.4 Provision of Products. You shall immediately provide all Products on KooGallery to your KooGallery End Users and/or Resellers when we collect your transaction fees from KooGallery End Users and/or Resellers on your behalf.  

3.5 Technical Support. You are responsible for: (a) providing Products that are independently developed based on the Huawei Cloud Services or which are legally obtained from the relevant rights holders; (b) releasing Products on KooGallery and managing them in accordance with the terms and conditions of KooGallery; and (c) providing Products and related pre-sales consultation and technical support services to KooGallery End Users and/or Resellers.

3.6  Discontinuation or Cessation of Products. You are entitled to cease selling or discontinue the Products provided according to your business needs, provided that the obligations assumed are fulfilled. In the event that the Products are no longer sold, you shall continue to provide support services to KooGallery End Users and/or Resellers who have purchased the Products, to the extent required under your agreements with them, and as required by Applicable Laws.

3.7  Free Products. If you provide Products free of charge on KooGallery, you shall be exclusively responsible for KooGallery End Users and/or Resellers of such Products. This may include but is not limited to, providing applications, after-sales support, security safeguards, and “Frequently Asked Questions” on the Website. You are exclusively responsible for providing all service support for your Products to KooGallery End Users and/or Resellers as required. You shall exclusively assume all liabilities related to such support. Huawei Cloud shall not be responsible or liable for providing any service support or services other than in respect of the Huawei Cloud Services to you, KooGallery End Users and Resellers to the extent described in the Huawei Cloud Customer Agreement.

3.8 Post Sale Services. You are exclusively responsible for providing service support for KooGallery End Users and/or Resellers who have respectively purchased or resold your Products. You are required to regularly upgrade and maintain your Products. You are also required to provide corresponding technical support, and to exclusively assume any problems, losses, compensation, and related liabilities which may be incurred from any incorrect upgrades or maintenance.

3.9 Regular Technical Support. You shall provide off-site technical support services for at least 5 days x 8 hours per week, including but not limited to online support and support through telephone or email, in case of your Products are independently developed by you and not containing Open-Source Software. In addition, you shall also provide a Services hotline or other contact information, and designate staff to provide support services to End Users and/or Resellers.

3.10 Timely Response. You are responsible for responding to End Users' and Resellers’ questions and complaints and for providing related after-sales services for any problems with your Products within 2 working days upon receiving such questions or complaints. You shall propose solutions within the time you have guaranteed to your End Users and Resellers.

3.11 Troubleshooting. In the event that your Products cannot be used and your Products fail to run properly, you shall provide KooGallery End Users with a solution or workaround within 1 working days. In the event that it is difficult for End Users to use your Products due to degraded performance, you shall provide KooGallery End Users with a solution or workaround within 2 working days.

3.12 Disputes with End Users and Resellers. You shall be solely liable for any claims, disputes, penalties, lawsuits, or other matters in connection with the applications or services you provide, and you shall indemnify and hold Huawei Cloud and its Affiliates harmless from and against any losses, costs, damages and liabilities arising out of or in connection with the same.

3.13 Compliance. You acknowledge and agree that the Products which you provide shall at all times: (a) comply with all Applicable Laws; (b) comply with this Agreement, and other relevant agreements which are incorporated herein, including the terms of service related to Huawei Cloud services, Huawei Cloud Customer Agreement, Huawei Cloud KooGallery Guidelines, and other policies provided via the Website and KooGallery such as the Acceptable Use Policy. In the event that there are any discrepancies or inconsistencies between the aforementioned documents, this Agreement shall take precedence; (c) Not infringe upon any third party’s Intellectual Property Rights. Huawei Cloud shall be entitled to remove your Products from KooGallery if it receives any notice from a third party claiming that your Products infringe upon a third party’s rights; and (d) Not contain any illegal content. Huawei Cloud shall be entitled to remove your Products from KooGallery if it receives any notice from a third party that your Products contain, or are suspected of containing, illegal content. Huawei Cloud shall also be entitled to remove your Products from KooGallery if it suspects any illegal content.

3.14 Security. You shall properly configure, use and ensure the security of your Products at all times. You shall also properly protect and back up your Products, including but not limited to, using encryption technologies to prevent unauthorized access to your Products and archiving your Products in line with your documented data retention policy. You represent and warrant on an ongoing basis that your Products do not contain any malicious computer programs or viruses or contain any security issues. You also represent and warrant that you will not interfere with or attempt to interfere with KooGallery, other applications which you may have access to, or any part or function of other Huawei Cloud applications.

3.15 Operational Data and Data Protection. All rights to the operational data of the Huawei Cloud Services, KooGallery, and related websites belong to Huawei Cloud. Without obtaining express prior written permission from Huawei Cloud, you shall not save, use, or authorize others to use any of the operational data generated by the Huawei Cloud Services and KooGallery for any purposes other than as set out in this Agreement. You represent and warrant that all Personal Data you collect from KooGallery End Users and Resellers will be collected, used, disclosed and/or otherwise processed in compliance with all applicable data protection laws and applicable privacy laws and regulations.

3.16 Limitations on Use of Data. You shall not be permitted to use any data (including but not limited to information relating to KooGallery End Users and Resellers, Personal Data, transaction information relating to KooGallery End Users and Resellers, and operational data for your Products) that is illegally obtained or obtained through the KooGallery 's technical interfaces or public channels under this Agreement for any purposes beyond those set forth in this Agreement.

In the event that your application servers are deployed outside of Singapore and that important data or personal data needs to be transferred, you shall perform security assessments in accordance with the methods formulated by all Applicable Laws. In the event that the Applicable Laws have other provisions, those provisions shall prevail.

4. Huawei Cloud KooGallery Platform

4.1 Platform and Operational Support. Huawei Cloud relies on the Website and KooGallery to provide you with operational support, including operations management, maintenance, electronic transactions, and settlement services in connection with the Website and KooGallery.

4.2. Huawei Cloud Website and KooGallery Operations. Huawei Cloud shall be entitled in its sole discretion to: (a) operate and maintain Huawei Cloud Website and KooGallery at all times; and (b) review the Products that are offered by you on KooGallery, as well as any changes which may be made to them. Without prejudice to the foregoing, Huawei Cloud shall be entitled in its sole discretion to review and verify all Products released on KooGallery by you from time to time and shall be entitled to discontinue such Products.

4.3 Upgrades and Changes. At its sole discretion, Huawei Cloud shall be entitled to upgrade or amend KooGallery when necessary, or move the aforesaid KooGallery to a different equipment center or location. Huawei Cloud shall use reasonable commercial endeavours to ensure that any upgrades or changes made to KooGallery shall be compatible with the existing functions of KooGallery, to the extent possible.

4.4. Routine and emergency maintenance. You acknowledge that Huawei Cloud may from time to time carry out routine and emergency maintenance of KooGallery. You may be unable to access KooGallery during any period in which routine or emergency maintenance is being carried out, though Huawei Cloud shall use its reasonable commercial endeavours to keep disruption to and unavailability of the KooGallery to a minimum.

4.5. Feedback. Huawei Cloud and its Affiliates shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into KooGallery any enhancement requests or feedback provided by you, so long as you are not identified in any way as the source of such feedback. For the avoidance of doubt, Huawei Cloud and its Affiliates shall not be obliged to implement any such enhancement or feedback. You agree to provide any necessary support for the implementation of the aforesaid enhancements or feedback.

4.6 Limited Monitoring. You acknowledge that KooGallery services are provided by Huawei Cloud and agree that Huawei Cloud may undertake the necessary technical means to perform any necessary monitoring of KooGallery’s operational status which may be required. This monitoring is implemented only based on data from the Website and KooGallery and without involving KooGallery End Users of your Products. You hereby agree that if you breach this Agreement or if the Products are deemed to be defective, Huawei Cloud is entitled to cease or otherwise discontinue the sale of your Products, or to remove your Products from KooGallery, at any time, in addition and without prejudice to the other rights and remedies available to it under law or in equity.

5. Settlement and Payment

5.1 Platform Fees. We are entitled to collect fees from you including but not limited to platform service fees. We will charge platform service fees based on a flexible ratio as may be separately agreed between the Parties. Please find more information on range of flexible ratio chargeable for each Service on the Website at [https://support.huaweicloud.com/intl/en-us/sp-marketplace/en-us_sp_topic_0000052.html].

5.2 Collection and Remittance.

If we are legally obligated by applicable laws, regulations or a competent authority, we will collect Taxes, and we will provide End Users and/or Resellers with a compliant Tax invoice.

You shall ensure that all fees and charges payable by End Users and/or Resellers for your Products are billed and collected through us. You shall not offer or establish any alternative means of payment or attempt to bill End Users and/or Resellers directly for such Products, except that that you may issue such tax invoices as may be required to comply with Applicable Laws. You shall ensure that any terms (including terms relating to payment and Taxes) agreed and entered into between (i) you on the one hand, and (ii) End Users or Resellers on the other hand, are consistent with this Agreement and the KooGallery Partner Products User Agreement.

We are appointed by you as your payment processing agent and will process and collect all fees (payments and refunds for transactions) related to sales of your Products on your behalf. Subject to such deductions that we are entitled to make under the terms of this Agreement, in relation to:

(a) sales under the Direct Model, we will collect all fees from your End Users on your behalf and then remit such fees to you; and

(b) sales under the Resale Model, we will collect all fees from your Resellers on your behalf and then remit such fees to you.

At the beginning of each month, we will process all previous payments received that we have collected until the end of the previous month. We do not guarantee payment on behalf of any End User or Reseller who owes you any fees or charges. We will deduct the platform fees due to us from each payment related to your Products. We may also withhold, deduct, or set off any amounts payable by you to us or our Affiliates against any amounts that we collect on your behalf. We may withhold for investigation or refuse to process any amount related to any of your transactions that we suspect is fraudulent, unlawful, or otherwise violates the terms of this Agreement or Applicable Laws.

5.3 Billing and Invoicing.

We will generate and issue a statement to you at the beginning of each month showing all payments that we have collected on your behalf and which are unremitted up to the end of the previous month in respect of transactions that meet the following conditions in full: (1) we have received the full amounts from the KooGallery End Users and/or Resellers payable in respect of your Products; (2) you have fully completed the delivery of Products to KooGallery End Users and/or Resellers; and (3) the order status of the relevant Products must be shown as “Services Completed” on our KooGallery’s platform system.

After receiving such statement, you shall verify the amounts stated therein and confirm to us that they are correct. After we receive your confirmation of such statement, we will notify you to issue an invoice to us. You shall not issue your invoice to us until you receive our notification to do so. You shall issue invoices to us in accordance with the remittance amounts shown on the relevant statements. After we receive your invoice and confirm the amounts thereon, we will process the remittances to you in accordance with our prevailing payment procedures. Without limiting the generality of Section 16, the terms stated in this Agreement shall exclusively govern billing and payment matters between us, and we do not at any time accept any terms and conditions of yours relating to billing or payment (whether stated on your invoice or otherwise).

5.4 Taxes.

5.4.1 Each Party shall, as required under Applicable Laws as well as applicable double Tax treaties or arrangements, file and pay all Taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) respectively that are imposed on that Party upon or with respect to the transactions and payments contemplated under this Agreement.

5.4.2 Fees for Products rendered by you are:

(a) exclusive of value added tax (VAT), sales tax, goods and service tax (GST) or any similar or analogous turnover tax applicable in a relevant territory if any, which shall be charged in addition thereto in accordance with the relevant laws and regulations in force at the time of making the relevant taxable supply. For such fees, we shall fulfill any Tax compliance obligation required under Applicable Laws or under the application of double Tax treaties or arrangements and we shall issue a compliant invoice to End Users and/or Resellers if legally required to do so; and

(b) exclusive of withholding tax, or any similar or analogous Tax applicable in a relevant territory, if any. In the event that a withholding tax or tax deduction is so required to be applied by End Users and/or Resellers under operation of local laws or regulations, it is the End Users’ and/or Resellers’ responsibility to file and pay such Taxes to the competent Tax authority in accordance with relevant Tax laws and regulations, and to make payments of such additional amounts as may be necessary to ensure that we actually receive payment of the full amount chargeable for the Products as if no Taxes had been required.

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

5.4.3 We will remit to you the amounts that we receive from End Users and/or Resellers in relation to your Products, after deducting the platform fees due to us  with relevant Tax payment certificates may be provided by End Users and/or Resellers.

The amount to be remitted (i.e. fees collected from Customers and/or Resellers, net of WHT, VAT and any other taxes due on the supply to the Customers and/or Resellers and our platform fee) by us to you is inclusive of:

Value Added Tax, sales tax or analogous tax; and

withholding tax, or any similar or analogous tax applicable in a relevant territory if any, which shall be deducted by us thereto, and

any other taxes which should be filed and paid by you or any other taxes such as Digital Service Tax which imposed on you however should be filed and paid by us which shall be deducted by us thereto in accordance with the relevant laws and regulations.

For detailed information relating to settlement, please refer to: https://support.huaweicloud.com/intl/en-us/sp-marketplace/en-us_sp_topic_0000042.html

5.4.4 The platform service fees to be retained by us are:

(1) inclusive of (a) withholding tax or any similar or analogous Tax applicable in a relevant territory if any, which may be due in accordance with the relevant laws and regulations; and (b) any other Taxes which are required to be filed and paid by us in accordance with relevant laws and regulations.

(2) exclusive of Value Added Tax, sales tax or analogous tax in relevant territories.

5.4.5 In the event that you are required under Applicable Laws or applicable double Tax treaties or arrangements to withhold or deduct any Taxes from amounts due or payable to us, you shall act reasonably in order to fulfil the applicable requirements in a timely manner as required by applicable laws and regulation.

5.4.6 Where preferential Tax treatment is applicable under a double Tax treaty or arrangement, or under applicable Tax laws and regulations, only the Taxable amount under such preferential Tax treatment shall be withheld by you. You shall apply to Tax authorities for such preferential Tax treatment using commercially reasonable efforts. We will provide appropriate assistance for the purposes of such application. To the extent that the Tax authorities do not grant such preferential Tax treatment, you shall provide evidence satisfactory to us to support the application of the standard Tax treatment.

5.4.7 Where there are Taxes to be withheld, you shall provide us with the formal Tax clearance or payment certificates or other equivalent legal documents issued by the Tax authority within 60 days after the fulfilment of relevant withholding obligations. You shall be responsible for obtaining such Tax clearance certificate or equivalent legal document from the Tax authority, and delivering it to us in a reasonably usable condition (which includes ensuring that it is not damaged, torn, stained or illegible). In the event that a Tax authority does not provide a formal Tax clearance, payment certificate or equivalent legal documents, the Parties shall cooperate in good faith to identify and mutually agree on alternative forms of evidence to be provided.

5.4.8 If a withholding tax or tax deduction is identified in a subsequent Tax audit, investigation or inquiry raised against us or End Users, 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.

5.4.9 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.

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

5.4.11 If required under Applicable Laws in a relevant territory, we may report or provide information relating to you to a competent authority in accordance with such requirements.

5.5 Refund. In the event that a KooGallery End User and/or Reseller applies for a refund and we confirm that the application meets the refund requirements, we will send a refund notification to the KooGallery End User and/or Reseller (as the case may be). After you have refunded to us, we will refund to the KooGallery End User and/or Reseller.

5.6 Risk of Fraud or Loss. We will bear the risk of fraud or loss arising from the sale of services or licenses provided by Huawei Cloud. You shall bear the risk of fraud or loss, including the risk of chargebacks or credit card fraud, associated with services or licenses offered and provided by you through KooGallery. If a chargeback is made against us or we confirm a payment in connection with a fraudulent transaction, you will promptly reimburse us for the total amount of any applicable payment previously paid to you, as well as all credit card, bank or other payment processing, re-presentment and/or penalty charges related to the original transaction.

5.7 Credit Policy. You may at your own risk allow End Users to purchase your Products on credit. When you release Products on KooGallery, you can choose to activate such option by selecting the relevant button on the platform interface. The fees for your Products will be collected from End Users in the following month. In the event that an End User fails to make payment after purchasing your Products on credit, any losses, costs and liabilities arising therefrom shall be borne entirely by you. Huawei Cloud shall not have any liability in connection with such failure by an End User to make payment.

6. Non-disclosure

6.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, in the course of their dealings relating to this Agreement whether before or after the date of this Agreement, in any medium or format (including written, oral, visual, or electronic), whether or not marked or described as "confidential", or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, 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 Receiving Party; (b) was in the Receiving Party’s lawful possession prior to the disclosure without breach of confidentiality obligations owed to the Disclosing Party; (c) is lawfully disclosed to the Receiving Party free of any obligation of confidence by a third party which itself was not under any obligation of confidence in relation to that information; or (d) is independently developed by the Receiving Party.

6.2 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. The Receiving Party shall not disclose the Disclosing Party's Confidential Information to any person except with the prior written consent of the Disclosing Party or in accordance with this Section 6. Each Party agrees to take appropriate measures to protect the other Party’s Confidential Information but in no event be less than the degree of care that it uses to protect its own confidential information.

6.3 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 obligations no less than the degree of protection as required herein. The Receiving Party may only use the Disclosing Party’s Confidential Information for the purpose of performing this Agreement, unless otherwise authorized by the Disclosing Party. Notwithstanding anything to the contrary, the Receiving Party Party may disclose the Disclosing 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. In such circumstances (provided that it is practical and lawful to do so): (a) the Receiving Party must notify the Disclosing Party in writing as soon as practicable before the disclosure; (b) the Parties must use all reasonable endeavors to consult with each other with a view to agreeing the timing, manner, and extent of the disclosure; and (c) the Receiving Party must in any event use all reasonable endeavors to obtain written confidentiality undertakings in its favor from the third party. If the Receiving Party is unable to inform the Disclosing Party before Confidential Information is disclosed, it must (provided that it is lawful to do so) fully inform the Disclosing Party immediately afterwards in writing of the circumstances of the disclosure and the Confidential Information which has been disclosed.

7. Intellectual Property Rights

7.1 Rights Granted to Us. You represent and warrant that your Products, and any commercial software you provide do not infringe on any third party's Intellectual Property Rights in any form, including any patent rights, copyrights, exclusive rights to use trademarks, trade secrets, and the rights to the designs of integrated circuit layouts. You hereby grant Huawei Cloud and its Affiliates a royalty-free, worldwide, irrevocable, non-exclusive, transferable, perpetual and sub-licensable license to use, show and perform security checks on the Products or for the purposes of carrying out marketing activities (where applicable and whether offline or online). You represent and warrant that you are the owner of all Intellectual Property Rights in the Products or otherwise have full right and authority to grant such license to Huawei Cloud and its Affiliates.

7.2 Authorization to Releasing Products. You agree that Huawei Cloud and its Affiliates have the right to release the Products and any related information on its websites, through publicity materials, or other promotional channels in the name of Huawei Cloud. The scope of this authorization includes, but is not limited to: (a) listing Products on the Internet to make it available to KooGallery End Users and Resellers; (b) presenting, using, duplicating, disseminating, or selling Products according to this Agreement; and (c) other rights that shall be granted to achieve the aforesaid sales and promotional objectives, such as the right to use auxiliary information related to the Products. This may include company, application, and Products information submitted to Huawei Cloud by you.

7.3 Trademarks. Except as otherwise agreed in this Agreement, neither Party shall, without the other Party's prior written consent, present, use, or allow any third arty to present or use the other Party's and its Affiliates’ trade names, service marks, brands, or trademarks or any other Intellectual Property Rights. The Parties acknowledge and agree that each Party's (or its Affiliate’s) trade name, service mark, brand, and trademark are the proprietary assets of that Party (or its Affiliate) and nothing in this Agreement shall transfer any right, title or interest in any such intellectual property.

7.4 Intellectual Property Rights Confidentiality. Without limiting the generality of Section 6 and notwithstanding anything to the contrary in this Agreement, each Party shall keep the following information confidential: any and all technical secrets, know-how and business secrets which may be obtained from the other Party during the performance and conclusion of this Agreement. Both Party’s shall be obligated to comply with all relevant competition laws, and laws and regulations on Intellectual Property Rights and all other relevant laws and regulations during the Term and thereafter. Without obtaining the prior written consent of the other Party, neither Party shall disclose, transfer, license others to use, exchange, donate and/or share such secrets with any other individual or organization in any manner, or improperly use such secrets.

7.5 Original Ownerships. Except as otherwise provided under this Agreement, the listing of the Products on KooGallery shall not be construed as a change, transfer or grant of ownership of any Intellectual Property Rights in the Products. You acknowledge and agree that Huawei Cloud, its licensors or its Affiliates own all Intellectual Property Rights in KooGallery. Except as expressly stated herein, this Agreement shall not grant you with any rights to, or in, any Intellectual Property Rights in respect of KooGallery.

7.6 Accountability. If a third party submits a complaint to Huawei Cloud, its Affiliates, or KooGallery End Users that the Products submitted or released by you in accordance with this Agreement and/or your content and related services infringe upon the Intellectual Property Rights or proprietary information of a third party, you shall be exclusively liable for infringement of such Intellectual Property Rights. You shall indemnify and hold harmless Huawei Cloud, its Affiliates, Resellers and/or KooGallery End Users from and against any and all third-party claims, suits, demands, actions, damages, losses, liabilities, costs and expenses (including reasonable attorney’s fees and associated costs) arising out of or in connection with any infringement of a third-party’s Intellectual Property Rights or proprietary information by the Products and/or your content and related services. Huawei Cloud shall be entitled to remove your Products from KooGallery and take any measures deemed necessary if Huawei Cloud receives notice from a third party alleging that you are infringing upon a third party’s Intellectual Property Rights. Without prejudice to the foregoing, if you become the subject of a claim, or if Huawei Cloud is of the opinion that you may be the subject of a claim as a result of the Products provided by you, your content and/or related services and are suspected of infringing upon any patent rights or copyrights, business secrets, or other intellectual property or proprietary rights of a third party, you shall, in a timely manner, carry out the following:

(a) obtain or acquire on behalf of Huawei Cloud, its Affiliates, Resellers and/or KooGallery End Users the right to use such Products without any infringement or without subjecting Huawei Cloud, its Affiliates, Resellers and/or KooGallery End Users to any indemnification liabilities arising out of the use of the Products; and

(b) modify your Products and/or content and related services to cease any such infringement to the satisfaction of Huawei Cloud, and ensure that that they become non-infringing and/or that they are replaced with non-infringing substitutes by replacing the aforesaid Products with services and/or content that comply with the requirements of this Agreement; and

(c) indemnify Huawei Cloud for any expenses, losses or damages incurred by Huawei Cloud, its Affiliates, Resellers and/or KooGallery End Users as a result.

8. Security and Data Privacy

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

8.2 End User Data Privacy. You acknowledge and agree that you will comply with all Applicable Laws regarding personal privacy and data protection, including but not limited to your collection, use, disclosure, transfer and/or other processing of data (including Personal Data) of KooGallery End Users and Resellers. You acknowledge and agree that you will be exclusively responsible for any loss and liability if you breach such laws and regulations, and will indemnify and hold Huawei Cloud and its Affiliates harmless from and against any losses, costs, damages, penalties and liabilities arising out of or in connection with such breach.

9. Disclaimer

9.1 Actions Undertaken or Events Initiated by Huawei Cloud. You confirm 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 your Products 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 your 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 the KooGallery, your Products, Huawei Cloud Services, and related functions and application software at any time. Huawei Cloud further reserves the right to develop new modules, functions, software, and services. Unless otherwise specified by Huawei Cloud, the aforesaid new modules, functions, software, and services are provided in accordance with this Agreement.

9.3 Data Transmission. You agree that Huawei Cloud shall not be responsible for any delays, inaccuracies, errors, or omissions that occur during data transmission when you, KooGallery End Users, Resellers 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 your Products, or otherwise prohibits KooGallery End Users or Resellers from purchasing your Products, Huawei Cloud shall notify you as early as possible, where permitted under relevant laws and requirements administered by the relevant court, governmental, regulatory or other competent authorities. In such circumstances, Huawei Cloud shall not be liable for breach of this Agreement.

9.6 Providing the Necessary Conditions. In the event that your Products cannot be provided or cannot be provided in time, or if quality defects exist in your Products because you or a KooGallery End User or Reseller has failed to provide the necessary conditions for provisioning your Products, Huawei Cloud shall not be responsible or liable.

9.7 Exceptions in Your Products. If the stability of any network or system (whether of ours or any other person) is affected due to exceptions in your Products, 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 the KooGallery or Huawei Cloud Services, Huawei Cloud is entitled to suspend the use of your Products.

9.8 Problems and Disputes from Your Products. Huawei Cloud 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 your Products, which are caused by you, your Products, or related services provided by you to KooGallery End Users or Resellers through the KooGallery. Huawei Cloud shall not be responsible for any direct or indirect losses and liabilities arising from the aforesaid problems and disputes.

9.9 Legal Liabilities between You and KooGallery End Users. Huawei Cloud shall not be liable for any direct or indirect losses, damages, costs or other liabilities between you and KooGallery End Users and/or Resellers.

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

10. Force Majeure

Neither Party shall be liable for any delay or failure to perform this Agreement caused by force majeure event beyond 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 unperformed services and the affected orders upon written notice. This Section 10 does not excuse your payment obligations hereunder.

11. Indemnification

11.1 Rights Without Prejudice. The rights of Huawei Cloud under this Section 11 are without prejudice to any other rights or remedies that we may have by reason of this Agreement or as otherwise provided by law on in equity.

11.2 Continue to Support. In the event that this Agreement is terminated due to your breach of this Agreement, you shall thereafter continue to provide services and support to the KooGallery End Users and/or Resellers who have purchased your Products. If you fail to provide such support in a timely manner, Huawei Cloud is entitled to take any remedial measures that we deem necessary, and you shall indemnify Huawei Cloud for all costs, expenses and losses (if any) incurred therefrom.

11.3 Indemnification by You. If a third party makes a claim against us or our Affiliates that your Products infringe the third party’s intellectually property rights, you will, at your cost, defend us against the claim and indemnify us and our Affiliates against the damages, costs and expenses finally awarded by a competent court or tribunal to the third party claiming infringement or the settlement agreed to by us. You shall be solely liable for and indemnify and hold Huawei Cloud and our Affiliates harmless against any losses to a third party caused by you or arising from your Products, and you shall indemnify Huawei Cloud and our Affiliates for losses (if any) incurred therefrom. Any dispute, controversy, loss, infringement, and liability for breach of agreement between you and KooGallery End Users or between you and Resellers shall be resolved between yourselves, and Huawei Cloud and our Affiliates shall not be liable for any losses caused to the parties of transactions on the KooGallery platform. You shall be solely liable for and indemnify and hold Huawei Cloud and our Affiliates harmless from any losses or demands for payment of any taxes imposed in connection with your Products, and for any fines, penalties, or similar charges imposed as a result of your failure to collect, remit, or report any taxes in connection with any Products.

11.4 Other Losses. You shall indemnify Huawei Cloud for other losses due to your behavior, including but not limited to fines paid by Huawei Cloud, expenses to repair damaged equipment, data and system recovery expenses, and compensation payments, settlement fees, attorney fees, and legal costs paid by Huawei Cloud to third Parties, as well as travel expenses, transportation fees, and accommodation fees incurred therefrom. Additionally, Huawei Cloud is entitled to set off any sums to be indemnified by you under this Agreement against any amounts payable to you.

12. Limitations of Liabilities

12.1 NO LIMITATION. NOTHING IN THIS AGREEMENT WILL OPERATE SO AS TO EXCLUDE OR LIMIT THE LIABILITY OF EITHER PARTY TO THE OTHER FOR FRAUD, DEATH, OR PERSONAL INJURY ARISING OUT OF NEGLIGENCE OR ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW.

12.2 IMITATION OF LIABILITIES. SUBJECT TO SECTION 12.1, OUR MAXIMUM AGGREGATE LIABILITY IN RESPECT OF ANY LOSS, DAMAGE, FINES, LIABILITY, CHARGE, PROCEEDING, EXPENSE, OUTGOING, INDEMNITY 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 KOOGALLERY PLATFORM SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.

12.3 EXCLUSION OF LIABILITIES. SUBJECT TO SECTIONS 12.1 AND 12.2, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE TO THE OTHER PARTY FOR:

(a) INDIRECT OR CONSEQUENTIAL LOSSES OR DAMAGE; or

(b) ANY LOSS OF REVENUES, PROFITS, OPPORTUNITIES, CUSTOMERS, DAMAGE TO GOODWILL, REPUTATION, OR LOSS OF DATA OR DATA USE,

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

13. Term, Suspension, and Termination

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

13.2 Term. The Initial Term together with any subsequent Renewal Periods shall constitute the “Term”.

13.3 Suspension. We may suspend your right to access or use the KooGallery if: (a) it is reasonably needed to prevent unauthorized access to your Products; (b) your, your KooGallery End User’s or your Reseller’s access and use of the KooGallery is in violation of the Acceptable Use Policy, this Agreement and/or Applicable Laws; (c) you are in breach of your payment obligations; (d) your, your KooGallery End User’s or your Reseller’s access and use of the  KooGallery may pose a security risk to KooGallery, us or third parties; (e) your, your KooGallery End User’s or your Reseller’s access and use of the KooGallery may adversely impact the functionality, availability, or operation of the KooGallery; (f) it is required under Applicable Laws, or by a governmental, regulatory or other competent authority; (g) your, your KooGallery End User’s or your Reseller’s access and use of KooGallery may subject us, our Affiliates or subcontractors to liabilities or regulatory compliance risks; (h) you may infringe a third party’s intellectual property rights; or (i) to the extent permitted under Applicable Laws, you have ceased to operate in the ordinary course, or are in bankruptcy, insolvency, liquidation, dissolution, or similar proceedings. You acknowledge and agree that (a) suspension does not excuse your payment obligation for the platform services fees charged during or for the suspension period; and (b) you will not be entitled to any refund or services credit for such suspension.  

13.4 Termination. Either Party may terminate this Agreement if the other Party materially breaches this Agreement and fails to cure the breach within 30 days upon receipt of notice from the first-mentioned Party identifying such breach and requesting its cure.

13.5 Consequences of termination or expiry. If this Agreement is terminated or has expired, you shall immediately cease to use all resources provided by Huawei Cloud and immediately cease to identify yourself as a Seller of Huawei Cloud. Termination or expiry of this Agreement shall not: (a) affect the accrued rights and obligations of the parties as at the date of termination or expiration; (b) affect the continued operation of Sections 3, 4, 6 (as appropriate), 7, 8, 9, 11, 12, 13.4, 13.5, 14, 15, 16 and 17 and any provisions of this Agreement which are necessary for the interpretation or enforcement of this Agreement, all of which shall survive such termination or expiration; or (c) relieve you of any of your obligations hereunder to pay any fees and charges under Section 5 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 or expiration.

14. Modifications and Additions to the Agreement

Huawei Cloud may modify this Agreement (including any of the documents and policies referenced herein) at any time at our sole discretion by posting a revised version on the Website which can be located here [https://www.huaweicloud.com/intl/en-us/declaration-sg/seller.html]. Except as otherwise expressly indicated in the modified Agreement, the modified terms will come into effect once notification has been provided to you by email and/or posted on the Website. Your continuous use of KooGallery after the coming into effect of any modifications to this Agreement will be deemed to be your acceptance of the modified terms. You shall be exclusively responsible to check the Agreement on the Website regularly for modifications to this Agreement.

15. Governing Laws and Venue

15.1 This Agreement and any dispute or claim which may arise out of or in connection with this Agreement or its subject matter or formation (including any non-contractual dispute or claim) will be governed by and construed in accordance with the Governing Law, without regard to its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

15.2 The Parties irrevocably submit any dispute or claim which may arise 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).

16. Entire Agreement

16.1 This Agreement incorporates the documents and policies referenced herein (including reference to information contained in a URL or referenced policy), and is the entire Agreement between you and us regarding the subject matter herein. This Agreement replaces, extinguishes, and supersedes all prior or contemporaneous representations, communications, understandings, undertakings and agreements (including any collateral contracts of any nature) between you and us, whether in written or oral form, regarding its subject matter. It is expressly agreed by the Parties that the terms of this Agreement will supersede any terms and conditions that are different or are not set out in this Agreement, including any terms in your request for bid/proposal/information, purchase order, receipt, acceptance, confirmation, correspondence or other document.

16.2 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.

16.3 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 16.2.

16.4 Nothing in this Section 16 will exclude or restrict the liability of either Party arising out of its pre-contract fraudulent misrepresentation or fraudulent concealment.

17. Miscellaneous

17.1 Non-assignment. You will not assign, charge, sub-contract, deal in any manner with all or any of your rights or obligations under this Agreement or transfer all or part of this Agreement to any third party, including your Affiliates, without the prior written consent from Huawei Cloud. Huawei Cloud may, at any time, assign, charge, sub-contract, deal in any manner with all or any of its rights or obligations under this Agreement or transfer any rights or obligations under this Agreement without your consent to its Affiliates. Huawei Cloud will notify you, by posting an announcement on our Website and informing you of such announcement or through other means which shall be communicated to you, prior to the effective date of such transfer, assignment, charge, subcontract or dealing. You shall enter into any further agreements reasonably required by Huawei Cloud to give effect to any of the above.

17.2 No Third Party Beneficiary. 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. Notwithstanding the foregoing, you acknowledge and agree that certain provisions in this Agreement have been included to protect our Affiliates and Huawei Cloud shall be entitled to recover all losses of any of our Affiliates in connection with this Agreement as if those losses were those of Huawei Cloud. The rights of the Parties to rescind or vary the terms of this Agreement are not subject to the consent of any such Affiliate.

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

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, the United States and other countries and regions. 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 with Applicable Laws related to your subscription, access, and use of our services, including but not limited to Products that you upload, process, provide, and/or make available to your End Users.

17.5 Relationship. Each Party is an independent contractor. This Agreement does not create any partnership, joint venture, agency or employment relationship between the Parties of any nature. Neither Party is entitled to make any representation or enter into any contract or commitment on behalf of the other.

17.6 Full Understanding. You acknowledge and agree that you have carefully read and fully understood this Agreement, have requested and obtained full explanations from Huawei Cloud for terms about which you have doubts, and are willing to formally enter the service application procedure and agree to be bound by all of the terms and conditions herein.

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

17.8 Severability. If any term of this Agreement is found to be invalid, illegal or unenforceable, the remaining terms of this Agreement shall be unaffected thereby and will remain valid and enforceable, and the Parties agree to that the invalid, illegal or unenforceable term shall be amended by mutual agreement in writing so as to give effect to the original intent of the Parties as closely as possible.

17.9 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.

17.10 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.

17.11 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.

17.12 Financial Compliance. You hereby represent, warrant and undertake that (a) neither you nor (if any) any of your subsidiaries, directors, shareholders, officers, affiliates, agents or employees is a Restricted Party; (b) any fund or payment made to us at any time shall not, directly or indirectly, derive from or relate to or involve a Restricted Party, money-laundering, terrorist-financing or any other transaction, activity or business that would be in violation of Applicable Laws and regulations and all or any part of the proceeds or funds you acquire at any time pursuant to this Agreement shall not be, directly or indirectly, used or contributed to, or otherwise made available to fund, support or facilitate any illicit and unlawful transaction, activity or business, including but not limited to those that would reasonably be expected to result in a Party being in breach of any applicable Sanctions or prohibited by applicable Sanctions; (c) you agree to immediately indemnify us on demand against any liability or damage, including but not limited to any losses, fines, penalties, costs, expenses, attorney fees, or damages that we may incur or suffer in connection with your failure to comply with any representation, warranty and undertaking in this Section 17.12.

For the purpose of this Section 17.12:

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

Sanctions means embargo and economic sanctions, international laws, regulations or restrictive measures imposed, administered or enforced from time to time by (i) the United Nations; (ii) the European Union; (iii) United States Treasury Department's Office of Foreign Assets Control (“OFAC”), or the US Department of State; (iv) HM Treasury of the United Kingdom; and (v) other competent governmental institutions in any jurisdiction; to the extent that they apply to a Party’s activities under this Agreement (collectively, the “Sanctions Authorities”);

Sanctions List means the 'Financial Sanctions' list published by the EU Commission, the Sanctions Committees list published by the United Nations, the "Specially Designated Nationals and Blocked Persons" list maintained by OFAC, the Consolidated List of Financial Sanctions Targets maintained by HM Treasury of the United Kingdom, or any similar list maintained by, or public announcement of Sanctions designation made by, any of the Sanctions Authorities.

18. Definitions

Capitalised terms used in this Agreement shall have the meanings set out in this Section or those given in the Section of the Agreement where they are first used and defined.

18.1 “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 this Agreement by reference, as may be updated from time to time. 

18.2 "Affiliate" in relation to a Party means any entity which directly or indirectly controls, is controlled by, or under common control with a Party, now or anytime in the future. 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.

18.3“Applicable Laws” refers to legislation, regulations, codes of practice, guidance and other requirements of any relevant governmental or regulatory agency or other relevant or competent body.

18.4 “Huawei Cloud KooGallery Guidelines" or "Guidelines" refer to a series of guidelines that maintain order in the KooGallery and guide the KooGallery Seller. Huawei Cloud is entitled to update the Guidelines from time to time and may publish the updated Guidelines on the Website.

18.5 “Huawei Cloud KooGallery” or “KooGallery” refers to a neutral e-commerce platform that is established and operated by Huawei Cloud located at https://marketplace.huaweicloud.com/intl/, on which you can promote and sell Services to KooGallery End Users.

18.6 “KooGallery End User” or “End User” refers to any person you permit to access and use the Products, but does not include a Reseller.

18.7 “Products refers to the software, images, products and services (which are independently developed by you, or legally provided by you under authorization 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.

18.8 "Open-Source Software" refers to any software whose source or object code is made available with an Open-Source Software License.

18.9 Open-Source Software License" refers to any license that: (a) requires a licensor to permit reverse-engineering of the licensed software or other software incorporated into, derived from, or distributed with such licensed software; or (b) requires the licensed software or other software incorporated into, derived from, or distributed with such licensed software to be distributed in source code form or free of charge. Open-Source Software Licenses include but are not limited to: (i) GNU General Public License (GPL) or Lesser/Library GPL (LGPL); (ii) The Artistic License (e.g., PERL); (iii) the Mozilla Public License; (iv) the Netscape Public License; (v) the Sun Community Source License (SCSL); (vi) the Sun Industry Standards Source License (SISL); (vii) the Apache Server license; (viii) QT Free Edition License; and (ix) IBM Public License.

18.10 “Reseller” means a participant of the Huawei Cloud Partner Network that is authorized by Huawei Cloud to resell Products to End Users on KooGallery. A reference to “your Reseller” in this Agreement has the meaning given in Section 2.5.

18.11 "Seller" or "KooGallery Seller" refers to you as a service provider that is permitted to sell and provide Products to End Users on KooGallery.

18.12 "Seller's Account" refers to an account registered by you on the Website. Your attributes include an account number, the remaining balance, and others.

18.13 “Site Terms” refers to the terms governing access to and use of the Website, available at [https://www.huaweicloud.com/intl/en-us/declaration-sg/sa_st.html]

18.14 “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 will sell your Products)

The country/region in which will sell your Products	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.
Thailand	Sparkoo Technologies (Thailand) Co., Ltd.
Hong Kong	Sparkoo Technologies Hong Kong Co., Limited
Mexico	Huawei Technologies De Mexico, S.A. De C.V.
Saudi Arabia	Sparkoo Technologies Arabia Co., Ltd.
Countries other than the above	Sparkoo Technologies Singapore Pte. Ltd.

18.15 “Governing Law” and “Corresponding Court” refers to the following and is dependent on the Huawei Cloud Contracting Party as per Section 18.14 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

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

18.17 "SLA" or "Service Level Agreement" refers to an agreement which is concluded between you (service provider) and your End User, defining the type and quality of service provided by you to the End User, and setting out the service provider's commitment to performance and reliability assurance.

18.18 “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.

18.19 “Term” refers to the term of this Agreement, as described in Section 13.2.

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

18.21 “Personal Data” refers to any information relating to an identified or identifiable natural person, directly or indirectly, including information that can identify an individual when taken in combination with other information to which an entity has or is likely to have access.

18.22 “Intellectual Property Rights” refers to any and all intellectual property or other similar proprietary rights throughout the world, including patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, right in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, right to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

19. Country Specific term

The country-specific terms below will replace or be added to the above equivalent terms in this Agreement. 

Country/Region where the Customers are registered	Section   #	Terms and Conditions
Singapore, South Africa, Chile, Peru, Brazil, Thailand, Hong Kong, Mexico, Saudi Arabia, Malaysia, Kenya, Pakistan, Philippines, Japan, Macao, Papua New Guinea, Bahrain, Mauritius, Turkey, Ethiopia, Libya, Nigeria	Section 5.4.2	The above Section 5.4.2 will be replaced by the following term. 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. For such fees, we shall fulfill any tax compliance obligation required under Applicable Laws or under the application of double tax treaties or arrangements and we shall issue a compliant invoice to End Users and/or Resellers.  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 such as Digital Service Tax which should be filed and paid by you and us in accordance with the relevant laws and regulations. In the circumstance that a withholding tax or tax deduction is so required to be applied by End Users and/or Resellers under operation of local law or regulations, it is the End Users’ and/or Resellers’ responsibility to withhold or deduct, file and pay such tax to competent tax authority in accordance with relevant tax laws and regulations.

 

Last Updated: November 3, 2023