HUAWEI CLOUD Customer Agreement
HUAWEI CLOUD Customer Agreement
The below terms and conditions of the HUAWEI CLOUD Customer Agreement are applicable if you purchase the Huawei Cloud Services directly from us. If you purchase through any of our Solution Providers, the below terms and conditions are not applicable. In such a case, your access and use of Huawei Cloud Services are governed by the Huawei Cloud End User License Agreement, please review it at https://www.huaweicloud.com/eu/declaration/eula.html.
This Huawei Cloud Customer Agreement (the “Agreement”) contains the terms and conditions that govern your access and use of your Huawei Cloud account (the “Account”) and your use of Huawei Cloud Services. This Agreement is entered into by and between Huawei Cloud Contracting Party as defined in Section 15.4 of this Agreement (“Huawei Cloud”, “we”, “us” and “our”) and the entity you represent or you individually if you don’t designate an entity in connection with the Account and Services (“Customer”, “you” or “your”). If you enter into this Agreement for a company or other legal entity, you represent and warrant that you have the power and authority to do so and to bind the entity to the terms and conditions of this Agreement. You also represent to us that you act in your professional capacity, not as a consumer. This Agreement takes effect as of the date you accept this Agreement, unless otherwise notified by us (the “Effective Date”). You and Huawei Cloud are each referred to as a “Party” and collectively as “Parties” hereunder.
1. Use of the Services
1.1 Rights Granted. For the Services subscribed, we grant you a non-exclusive, non-transferable, non-sub-licensable and limited right to access and use the Services in accordance with the terms and conditions of this Agreement. You shall comply with this Agreement, applicable laws and regulations in connection with your access and use of the Services. You may allow your End User to access and use the Services, provided that you shall procure that the End User complies with the terms and conditions of this Agreement as if the End User were a party and you shall be responsible for any non-compliance by the End User with the terms and conditions of this Agreement. If you become aware of any violation of this Agreement caused by the End User, you will notify us immediately and take appropriate actions to remedy such violation, including but not limited to suspending or terminating access to or use of the Services by such End User.
1.2 Your Account. You need to create a Huawei Cloud Account to access and use the Services. To create an Account, please use our Website at https://reg.eu.huaweicloud.com/registerui/eu/register.html. When creating the Account, you shall provide truthful and accurate information. If your information changes at any time, please update such information in your Account to reflect those changes. You are responsible for (a) maintaining the confidentiality of your Account and the security of any passwords, authentication keys or security credentials used for enabling your access to the Account and the Services, and (b) all activities that occur under your Account, whether they are your activities, those of any End User or otherwise. You will notify us immediately about any unauthorized access to or misuse of your Account or any security incident related to the Services. You acknowledge and agree that we will not be responsible for any unauthorized use or misuse of your Account, unless such is directly caused by our violation of the terms and conditions hereunder.
1.3 Acceptable Use Policy. Other than the terms and conditions of this Agreement, you agree to comply with the Acceptable Use Policy, which is incorporated into the terms of this Agreement by reference. You may review the current version of this Acceptable Use Policy at: https://www.huaweicloud.com/eu/declaration/sa_nisr.html.
1.4 Your Content. You will ensure that Your Content does not violate the terms and conditions of this Agreement and applicable laws and regulations. You are solely responsible for the legality, accuracy, integrity and reliability of Your Content. You are solely responsible for securing and maintaining any required notice, consent or authorization related to your provision of and our processing of Your Content as part of the provision of the Services. We will not assume any obligations and liabilities in relation to Your Content, unless otherwise required by the governing law.
1.5 Third-Party Content. The Services may include or be provided together with Third-Party Content. Third-Party Content may be governed by this Agreement, or if applicable, separate terms and conditions specified in the Services Terms and other documentation as may be notified to you. Third-Party Content is provided on an “as-is” and “as available” basis. We make no representation or warranty of any kind in respect of any Third-Party Content and shall have no liability for any loss, damage, expense or cost of any nature or kind resulting from any Third-Party Content.
1.6 Preview. Preview refers to Services or features of Services we make available at no charge for trial purposes. Preview Services are provided “as-is” and “as available”, and excluded from SLA and warranties set forth in this Agreement. Preview Services may not be covered by support, and we may change or discontinue a preview at any time and without notice. We are not obligated to release a preview or make a preview generally or commercially available.
1.7 Your network and connection. Except otherwise agreed by the Parties in writing, you shall (a) ensure that your network and systems comply with the relevant specifications (if any) provided by us from time to time; (b) be solely responsible for procuring and maintaining your network connections and telecommunication links from your systems to our or any third-party's data centers; and (c) be solely responsible for all problems, conditions, delays, delivery failures and all other loss, damage, liability, expense or cost of any nature or kind arising from or relating to your network connections or telecommunication links or caused by the Internet.
1.8 After-sales Service.Huawei Cloud provides multi-level support plans. You can enjoy the basic support plan without additional fees, or purchase a support plan at higher level (including developer, business, and enterprise) that offers richer content and better experience. For details about these support plans, visit https://support.huaweicloud.com/eu/productdesc-supportplans/support-plans_01_0001.html.
2. Security and Data Privacy
2.1 Our Security Obligations. Without prejudice to Section 1.4 and Section 2.2 of this Agreement, we will maintain appropriate administrative, physical and technical measures designed to help you protect the security and confidentiality of Your Content stored in the Services environment. We will not access or use Your Content except as necessary to provide the Services, which may include investigating security incidents or violation of the Agreement, or to comply with applicable laws and regulations or a binding order of a court or government, regulatory or other competent authority.
2.2 Your Security Obligations. Without prejudice to Section 2.1 above, you are responsible for any security vulnerabilities and the consequences of such vulnerabilities arising out of or related to Your Content, and the way you use the Account and the Services, including but not limited to any viruses, Trojan horses, worms or other harmful programming routines contained in Your Content or provided to the Services through your Account.
2.3 Data Privacy. We will process personal data that you provided to us or that we collected as a data controller (as well as data of your End Users) in the context of concluding the Agreement and providing the Services, in accordance with the Privacy Statement as applicable to the Services subscribed and other relevant activities. We may process certain data in the data center region where you use the Services and in regions where we maintain our operational, support and investigation systems and personnel. We will process Your Content in accordance with the Huawei Cloud Data Processing Addendum as applicable to the Services subscribed for and other relevant activities. The Huawei Cloud Data Processing Addendum is available at: https://www.huaweicloud.com/eu/declaration/sa_dpa.html.
3. Fees and Payment
3.1 Services Fees. All payments to be made by you to us under this Agreement shall be made without any set-off, counterclaim, withholding or deduction, be it tax-related or otherwise, unless specifically required by any applicable laws and/or regulations in the territory or under applicable double tax treaties or arrangements. You will pay us the applicable fees and charges for the Services subscribed and/or used in accordance with the invoice and rules specified in our Website or the applicable Order Form. We may adjust the pricing, payment methods and rules. The modified terms will come into effect upon posting or as otherwise notified by us. You may view the latest pricing, payment methods and rules at: https://www.huaweicloud.com/eu/product/price.html. Service fees will be billed and charged monthly. We will issue invoices to you after each monthly bill is generated. You agree to pay in the currency as specified in the invoice, within the due date on the invoice. The exchange rate used for and stated in the invoice issued to you shall be the same as the exchange rate that is used for and stated in the bill. You acknowledge and agree that we may adjust your payment frequency, payment method, consumption quota or repayment period if we reasonably believe that there would be fraudulent activity or a potential breach of your payment obligations.
3.2.1 Fees for Services are：
i. exclusive of VAT, sales tax, goods and service tax (GST) or any similar or analogous turnover tax applicable in a relevant territory if any, which shall be charged in addition thereto in accordance with the relevant laws and regulations in force at the time of making the relevant taxable supply.
ii. inclusive of withholding tax, or any similar or analogous tax applicable in a relevant territory if any, which shall be deducted from Fees thereto, and any other Taxes which should be filed and paid by us in accordance with the relevant laws and regulations.
3.2.2 Each Party shall, as required under applicable laws and regulations as well as the applicable double tax treaties or arrangements, file and pay all Taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) respectively that are imposed on that Party upon or with respect to the transactions and payments contemplated under this Agreement.
3.2.3 All payments to be made by you to us under this Agreement shall be made without any set-off, counterclaim, withholding or deduction, be it tax-related or otherwise, unless specifically required by any applicable laws and/or regulations in the territory or under the applicable double tax treaties or arrangements.
3.2.4 In the circumstance that a withholding tax or tax deduction is so required, you shall fulfill the withholding liability and make the payment to us net of the withholding tax or tax deduction, subject to the following requirements under this Section.
i. Where preferential tax treatment is applicable under a double tax treaty or arrangement, or the prevailing domestic tax laws/regulations, only the tax amount under such preferential tax treatment should be withheld by you. You shall apply to tax authorities for such preferential tax treatment with reasonable efforts. We will provide appropriate assistance during the application. To the extent that the tax authorities do not grant such preferential tax treatment, you shall provide appropriate evidence to us to support the application of the standard tax treatment.
ii. Where there are Taxes to be withheld, you shall provide us with the formal tax clearance/payment certificates or other equivalent legal documents issued by the tax authority within 60 days after the completion of such withholding activity. You shall be responsible for obtaining such tax clearance certificate or equivalent legal document from the tax authority, and deliver it to us properly in good condition (i.e. not broken, stained or blurred that might affect our use) with reasonable effort. In case that a tax authority does not provide a formal tax clearance, payment certificate or equivalent legal documents, we will mutually agree what other alternative evidence can be provided. In case that such tax clearance certificate or equivalent legal document could not be provided to us due to your negligence or non-compliance, you shall indemnify us for any losses, damage, expense or cost caused thereby.
iii. If you pay the charge to us net of the withholding tax or tax deduction, and a subsequent tax audit, investigation or inquiry identifies that a filing, withholding or deduction should have been made for/from the charge, you shall be liable to bear and pay amounts due under such a filing, deduction and any surcharges and penalties due thereon to the relevant authority.
3.2.5 If we incur any additional tax costs or liabilities as a consequence of your delay or omission of above mentioned tax responsibilities or due to the provision of false or incomplete information by you which is necessary for us to determine and meet our above mentioned tax responsibilities arising from our supplies of services to you (including but not limited to information relevant to the determination of your country of tax residency), you shall be solely and exclusively liable to bear such costs related to Taxes not withheld, deducted, or reported, along with any interest, penalties and other charges associated therewith which are to be settled with the relevant governmental or tax authorities.
3.2.6 If, subsequent to the entering into, during the course of the performance of, or retrospectively applicable to this Agreement, any rates of existing Taxes are increased or decreased, a new Taxes is levied, an existing Taxes is abolished, or any change in the interpretation or application of any Taxes is adopted (collectively referred as “Tax Changes”), an equitable adjustment of the Agreement Price shall be made, taking into full account of the Tax Changes, to protect us from the detrimental impact thereof, if any.
4. Representations and Warranties
4.1 Mutual Representations. Each Party represents that it has validly entered into this Agreement and it has the legal power and authority to do so.
4.2 Your Representations and Warranties. You represent, warrant and undertake that (a) you have read and understand this Agreement, including the Acceptable Use Policy and all other applicable terms referred to in this Agreement; (b) you shall comply with all applicable laws and regulations with respect to your activities under this Agreement; (c) you shall comply with this Agreement and the Acceptable Use Policy in connection with your use of the Services; and (c) your use of the Services shall not infringe the Intellectual Property Rights or any other rights of any third party.
4.3 Our Limited Warranty. We warrant that during the Services period, we will perform the Services using commercially reasonable care and skill to meet the terms of the SLA. Your exclusive remedies for breach of this warranty are those set forth in the SLA. We are not responsible for (a) any issues relating to the Services caused by Your Content or Third-Party Content or products and/or services not provided by us, or (b) any problems caused by misuse or unauthorised modification of the Services, or use of the Services in violation of the terms and conditions of this Agreement and applicable laws and regulations. Preview Services and trial Services are provided “as-is” and “as available”, without warranties of any kind.
4.4 DISCLAIMERS. WE DO NOT WARRANT THAT: (a) THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED; (b) WE WILL CORRECT ALL DEFECTS OR ERRORS, OR PREVENT THIRD PARTY DISRUPTIONS OR UNAUTHORIZED THIRD PARTY ACCESS IN CONNECTION WITH THE SERVICES; OR (c) THE SERVICES WILL OPERATE IN CONJUNCTION WITH YOUR CONTENT OR ANY OTHER HARDWARE, SOFTWARE, SYSTEMS, SERVICES OR DATA NOT PROVIDED BY US. TO THE EXTENT PERMITTED BY LAW IN EACH CASE AND EXCEPT AS EXPRESSLY PROVIDED HEREIN, WE EXCLUDE AND SPECIFICALLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, TERMS, CONDITIONS OR OTHER COMMITMENTS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES, REPRESENTATIONS, TERMS, CONDITIONS OR OTHER COMMITMENTS OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
5. Proprietary Rights and Restrictions
5.1 Your Content. You and/or your licensors retain the Intellectual Property Rights in and to Your Content. You grant us the right to host, process and/or transmit Your Content to operate and provide the Services in accordance with this Agreement.
5.2 Services Offerings. We and/or our licensors retain all ownership, Intellectual Property Rights, titles and interests in and to the Services (including any underlying software programs and all of its portions, reproductions and modifications), derivative works thereof, and anything developed or delivered by or on behalf of us under this Agreement. Except as expressly provided herein, nothing in this Agreement shall be construed to grant you any rights, titles and interests in and to the Services.
5.3 Restrictions. You may not, and may not cause or permit End Users or others to (a) modify, alter or make derivative works of the Services; (b) disassemble, decompile, reverse engineer, reproduce any part of the Services, or apply any other procedure to derive the source code of any software included in the Services; (c) distribute, resell, sublicense, transfer or assign the Service, except as otherwise provided in this Agreement or agreed by the Parties in writing; and (d) access the Services in order to (i) build a competitive product or services; (ii) copy any features, functions or graphics of the Services; or (iii) perform or disclose any benchmark, security testing or performance testing of the Services.
5.4 Feedback and Suggestions. If any feedback, suggestions, requests, or recommendations are provided by you or any End User to us or our Affiliate in connection with the operation of the Services ("Customer Suggestion"), you acknowledge and agree that we and our Affiliates are entitled to use the Customer Suggestions without restrictions of any kind, including but not limited to any right to use and incorporate the Customer Suggestion into our Services to develop new features or enhance the performance, functionalities or security of the Services, and we retain all ownership, Intellectual Property Rights, titles and interests thereof.
6.1 Indemnification by us. If a third party makes a claim against you that the Services provided by us and used by you infringe the third party’s Intellectual Property Rights, we will, at our cost, defend you against the claim and indemnify you from the damages, costs and expenses finally awarded by the court to the third party claiming infringement or the settlement agreed to by us, provided that you (a) promptly notify us in writing of such claim; (b) give us sole control of the defense and settlement negotiation of the claim; and (c) provide us with all reasonable information, authority and assistance we need to defend against or settle the claim. We may at our discretion (a) modify the Services to be non-infringing while substantially preserving its functionality; (b) obtain a license to allow for continued use; or (c) terminate the provision of the Services and refund the fees prepaid for unused Services upon prior written notice. Notwithstanding the foregoing, we will not indemnify you if (a) the claim is caused by the use or combination of the Services or any part thereof with software, hardware, or content not provided by us; (b) the claim arises from Your Content, Third-Party Content, or your breach of this Agreement; (c) you alter the Services or use them outside the scope of use identified in the Services Terms and other documentation as may be notified to you (or you use the Services in a manner contrary to our instructions given to you); (d) the claim arises from any modification to the Services or the underlying software not carried out by us; (e) the claim arises from any necessary implementation of an industry standard or protocol or compliance with any applicable laws and regulations; (f) you continue to use the Services after being notified to stop due to a third party claim; or (g) you fail to cooperate with the upgrade of the Services to the updated version, or fail to implement the recommendations from us, if the infringement claim could have been avoided by using an unaltered updated version or implementing the recommendations we provided.
6.2 Indemnification by you. If a third party makes a claim against us that (a) Your Content or our use of Your Content in accordance with this Agreement or the combination of Your Content with our Services infringes the third party’s Intellectual Property Rights, or (b) you have used or are using the Services in an unlawful or infringing manner or in violation of this Agreement, you will, at your cost, defend us against the claim and indemnify us from the damages, costs and expenses finally awarded by the court to the third party claiming infringement or the settlement agreed to by you, provided that we (a) promptly notify you in writing of such claim; (b) give you control of the defense and settlement negotiation of the claim; and (c) provide you with reasonable information, authority and assistance that are necessary to defend against or settle the claim. We may at our discretion suspend or terminate the provision of the Services, this Agreement or the applicable Order Form, without refund of any fees paid. You will not indemnify us if such claim is caused directly by our breach of this Agreement.
6.3 Exclusive Remedy. To the extent permitted under applicable law, this Indemnification section provides the Parties’ exclusive remedy for any third party infringement claims.
7.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”) in the course of their dealings relating to this Agreement whether before or after the date of this Agreement, in any media or format (including written, oral, visual or electronic), whether or not marked or described as "confidential", or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, which relates to the Disclosing Party (or any of its Affiliates), or to the employees, officers, customers or suppliers of the Disclosing Party (or any of its Affiliates). Confidential Information shall not include information that: (a) is or becomes generally known to the public through no act or omission of the other Party; (b) was in the other Party’s lawful possession prior to the disclosure without breach of confidentiality obligations owed to the Disclosing Party; (c) is lawfully disclosed to the other Party free of any obligation of confidence by a third party which itself was not under any obligation of confidence in relation to that information; or (d) is independently developed by the other Party.
7.2 Protection of Confidential Information. Each Party agrees to keep the other Party’s Confidential Information in confidence during the term of this Agreement and for a period of five years thereafter. Each Party shall not disclose the other Party's Confidential Information to any person except with the prior written consent of the other Party or in accordance with this Section 7. 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.
7.3 Permitted disclosure. The Receiving Party may only disclose the Confidential Information to its employees, officers, agents or subcontractors who have a need to know and who are subject to confidentiality obligations no less stringent than the degree of protection as required herein. Each Party may only use the other Party’s Confidential Information for the purpose of performing this Agreement, unless otherwise authorized by the other Party. Notwithstanding anything to the contrary, each Party may disclose the other Party’s Confidential Information in a legal proceeding, or as required by law and regulatory requirements.
8. Limitation of Liability
8.1 LIMITATION OF LIABILITIES. NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE EXTENT PERMITTED BY LAW, OUR MAXIMUM AGGREGATE LIABILITY IN RESPECT OF ANY LOSS, DAMAGE, FINES, LIABILITY, CHARGE, PROCEEDING, EXPENSE, OUTGOING OR COST OF ANY NATURE OR KIND, INCURRED BY US OR ANY OF OUR AFFILIATES ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, MISREPRESENTATION (WHETHER TORTIOUS OR STATUTORY), TORT (INCLUDING NEGLIGENCE) AND BREACH OF STATUTORY DUTY OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER FOR THE SERVICES THAT GIVE RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
8.2 EXCLUSION OF LIABILITIES. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT OR CONSEQUENTIAL LOSSES OR DAMAGE, OR ANY LOSS OF REVENUES, PROFITS, OPPORTUNITIES, CUSTOMERS, DAMAGE TO GOODWILL, REPUTATION, 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.
9. Term, Suspension and Termination
9.1 Term. The term of this Agreement will commence on the Effective Date and remains in force unless terminated hereunder.
9.2 Suspension. We may suspend your right to access or use the Services if (a) it is reasonably needed to prevent unauthorized access to Your Content; (b) your or your End User’s access and use of the Services is in violation of the Acceptable Use Policy, this Agreement and/or applicable laws and regulations; (c) you are in breach of your payment obligations; (d) you and your End User’s access and use of the Services may pose a security risk to the Services, us or third parties; (e) you and your End User’s access and use of the Services may adversely impact the functionality, availability or operation of the Services; (f) it is required under applicable laws and regulations, or by a government, regulatory or other competent authority; (g) you and your End User’s access and use of the Services may subject us, our Affiliates or subcontractors to liabilities or regulatory compliance risks; (h) you may infringe a third party’s Intellectual Property Rights; (i) it is reasonably believed that there would be fraudulent activities; or (j) to the extent permitted under applicable law, you have ceased to operate in the ordinary course, or are in bankruptcy, insolvency, liquidation, dissolution or similar proceedings. We will notify you if we become aware of or reasonably suspect any of the above and therefore decide to suspend your right to access or use the Services. At our sole discretion, the suspension may be effective immediately, or after a notice period set by us, if you do not cure the violation before any such notice period comes to an end. You acknowledge and agree that (a) suspension does not excuse your payment obligation for the services fees charged during or before the suspension period; and (b) you will not be entitled for any refund or services credit for such suspension.
9.3.1 Either Party may terminate this Agreement if the other Party breaches any material term of this Agreement and fails to cure the breach within 30 days from receipt of notice from the first-mentioned Party identifying such breach and requesting its cure.
9.3.2 You acknowledge and agree that we also have the right to immediately terminate the Services or any part thereof, applicable Order Form or this Agreement upon notice if any scenario described in Section 9.2 (a) to (j) occurs, and Your Content stored in the Services environment may be deleted immediately.
9.4 Consequences of Termination.
9.4.1 Termination of this Agreement shall not (a) affect the accrued rights and obligations of the Parties as at the date of termination; (b) affect the continued operation of Sections 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 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 (c) relieve you of any of your obligations hereunder to pay any fees and charges under Section 3 accrued or payable to us during the term of this Agreement (including any fees incurred during the suspension period) and you shall immediately pay us all such fees upon the effective date of termination.
9.4.2 Except as provided at Section 9.3.2, upon termination, during the extended and/or retention period as detailed in our Website, you may retrieve Your Content.
10. Force Majeure
Neither Party shall be liable for any delay or failure to perform this Agreement caused by acts, events, omissions or accidents beyond its reasonable control, including but not limited to acts of God (including earthquake, storms or other natural disaster), epidemic, pandemic, quarantine, acts of terrorism, war or warlike operations, civil unrest or riot, electrical, internet or telecommunication outage, blockages, sanctions, embargoes, fire, flood, explosion or malicious damage, or failure of plant or equipment, or change of any law, governmental order, rule, regulation, direction or industry standard. Both Parties will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 60 days, either Party may cancel unperformed Services and the affected orders upon written notice. This section does not excuse your payment obligations hereunder.
11. GOVERNING LAW AND VENUE
11.1 This Agreement and any issues, disputes or claims arising out of or in connection with this Agreement or its subject matter or formation (whether contractual or non-contractual in nature such as claims in tort, from breach of statute or regulation or otherwise) shall be governed by and construed in accordance with the laws of Ireland.
11.2 The Parties agree irrevocably that courts of Ireland shall have exclusive jurisdiction to settle any issues, claims, disputes or matters arising out of, relating to, or in connection with this Agreement (whether contractual or non-contractual).
12. Entire Agreement
12.1 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 Services. This Agreement replaces, extinguishes and supersedes all prior or contemporaneous representations, communications, understandings, undertakings and agreements (including any collateral contracts of any nature) between you and us, whether in written or oral form, regarding the Services. It is expressly agreed by the Parties that the terms of this Agreement and the applicable Order Form 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.
12.2 Each Party acknowledges that in entering into this Agreement it has not relied upon any oral or written statements, collateral or other warranties, assurances, undertakings, misrepresentations or representations that were made by or on behalf of the other Party in relation to the subject matter of this Agreement at any time before the taking effect of this Agreement, unless otherwise explicitly provided in this Agreement.
13. Changes and Modifications
13.1 Changes of Services. We may change or discontinue Services or change or remove functionality of the Services from time to time at our discretion. We will notify you through posting an announcement on our Website or otherwise notifying you of material changes to or discontinuation of the Services you subscribed. We may update the SLA from time to time in accordance with Section 13.2 below.
13.2 Modifications to the Agreement. We may modify this Agreement, including the documents and policies reference herein, at any time at our discretion by posting a revised version on the Website or by otherwise notifying you. Except as otherwise indicated in the modified Agreement, documents or policies, the modified terms will come into effect upon posting or as otherwise notified by us. You will review such terms regularly on the Website. Your continuous use of the Services after the coming into effect of such modification will be deemed as your acceptance to the modified terms.
14.1 Relationship. Each Party is an independent contractor. This Agreement does not create any partnership, joint venture, agency or employment relationship between the Parties.
14.2 Non-assignment. You will not assign or otherwise transfer all or part of this Agreement to any third party, including your Affiliates, without prior written consent from us. We may assign or transfer any rights or obligations under this Agreement without your consent to our Affiliate. We will notify you, by posting an announcement on our Website or through other means, prior to the effective date of such transfer or assignment.
14.3 No Third Party Beneficiary. Unless otherwise expressly provided in this Agreement, a person who is not a Party to this Agreement may not enforce any of its provisions hereunder.
14.4 Services Monitoring. In order to (a) operate and provide the Services, (b) detect and address threats to the functionality, security, integrity and availabilities of the Services, (c) support your services requests, and (d) detect illegal activities or breach of the Acceptable Use Policy, this Agreement and applicable laws and regulations, we may continuously monitor the Services and your use thereof.
14.5 Export. Each of the Parties shall each comply with all applicable international and national laws and regulations in their performance of their obligations and the exercise of rights pursuant to this Agreement, including (but not limited to) all import and export control laws, customs, embargos and sanction regimes of the United Nations, China, United States, and other jurisdictions. You represent and warrant that neither you and/or your End Users are subject to sanctions or otherwise designated on any list of prohibited or restricted persons, including (but not limited) to the lists maintained by the United Nations Security Council, the United States Government, the European Union, or any of its Member States. Solution Provider shall be exclusively responsible for compliance with applicable laws, regulations or legally binding requests issued by governmental, regulatory, or other competent authorities, related to your performance of this Agreement or your subscription, access and use of the Services, including (but not limited) to Your Content you upload, process, provide and/or make available to your End Users. If requested by us, you shall promptly provide us with any reasonable assistance requested to enable us to perform any activity required by any competent government or agency in any relevant jurisdiction for the purpose of compliance with any laws and regulations described in this clause 14.5.
14.6 Financial Compliance. You hereby represent, warrant and undertake that 1) neither you nor (if any) any of your subsidiaries, directors, shareholders, officers, affiliates, agents or employees is a Restricted Party; 2) 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; 3) 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 Clause 14.6.
In this Agreement:
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.
14.7 Notice. We may provide notice to you under this Agreement by posting a notice on the Website, by email, or by text message (including via SMS and other instant messaging platforms). Notices we provide by posting on the Website will be effective upon posting, and in the case of email and text messages upon sending out (irrespective of whether and when you receive or read it). You shall be responsible to keep your email address or phone number updated. Here you will find information on how to contact us.
14.8 Customer Reference. In consideration of our provision of the Services, you acknowledge and agree that we may refer to you as our customer in our sales and marketing materials and activities. We may use your logo for such purpose.
14.9 No Waivers. Any delay or failure to enforce any provision of this Agreement will not constitute a waiver of such provision and will not limit the right to enforce such provision at a later time. If a Party waives a breach of any provision of this Agreement, this will not operate as a waiver of a subsequent breach of that provision, or as a waiver of a breach of any other provision. All waivers shall be expressly made in writing to be effective.
14.10 Severability. If any term of this Agreement is found to be invalid, illegal or unenforceable, the remaining terms of this Agreement shall be unaffected thereby and will remain valid and enforceable. The invalid, illegal or unenforceable term shall be modified so as to give effect to the original intent of the Parties as closely as possible.
15. Agreement Definitions
15.1 “Acceptable Use Policy” refers to the policy located at: https://www.huaweicloud.com/eu/declaration/sa_nisr.html, which is incorporated into this Agreement by reference, as may be updated from time to time.
15.2“Affiliate”in relation to a Party means any person which directly or indirectly controls, is controlled by, or under common control with that Party. For purposes of the foregoing, “control” shall mean the possession of power to direct or cause the direction of the management and policies of a person, whether through the ownership of equity or voting power, by contract or otherwise.
15.3 “End User”refers to any person you permit to access and use the Services and/or Your Content.
15.4“Huawei Cloud Contracting Party”refers to Sparkoo Technologies Ireland Co., Limited.
15.5 “Intellectual Property Rights”means (a) patents, inventions, designs, copyright and related rights, database rights, trademarks, service marks and trade names (whether registered or unregistered), and rights to apply for registration; (b) proprietary rights in domain names; (c) knowhow and Confidential Information; (d) applications, extensions and renewals in relation to any of these rights; and (e) all other rights of a similar nature or having an equivalent effect which currently exist anywhere in the world.
15.6 “Order” or “Order Form”refers to the order you placed with us either online or offline for subscription of the Services.
15.7 “Privacy Statement” refers to Privacy Statement located at: https://www.huaweicloud.com/eu/declaration/sa_prp.html, which is incorporated into this Agreement by reference, as may be updated from time to time.
15.8 “Services” or “Huawei Cloud Services”refers to the services made available by us or our Affiliates.
15.9 “Services Terms” refers to the services terms located at: https://www.huaweicloud.com/eu/declaration/sa_cua.html, which are incorporated into this Agreement by reference, as may be updated from time to time.
15.10 “SLA” refers to the Service Level Agreement located at: https://www.huaweicloud.com/eu/declaration/sla.html, which is incorporated into this Agreement by reference, as updated from time to time.
15.11 “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.
15.12 “Third-Party Content” refers to any third-party software, data, interfaces or other products installed, used or downloaded by you in connection with the Services.
15.13 “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 and/or your End User that is transferred to, stored in, or processed on the Services. Our materials, data and information will not fall within the definition of Your Content.
15.14 “Website” or “Site” refers to the Huawei Cloud Website located at: https://www.huaweicloud.com/eu.
16. Country Specific Terms
The country-specific terms below will replace the above equivalent terms in this Agreement.
Country where you are registered
Terms and Conditions
Fees for Services are exclusive of withholding tax, VAT, sales tax, goods and services tax (GST) or any similar or analogous tax applicable in a relevant territory if any, which shall be charged in addition thereto in accordance with the relevant laws and regulations in force at the time of making the relevant taxable supply.
Both you and us shall, as required under applicable laws and regulations 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) that are imposed on you and/or us respectively upon or with respect to the transactions and payments contemplated under this Agreement. If any other taxes (including but not limited to withholding tax) are required by relevant law to be levied on any payment, you shall make payments of such additional amounts as may be necessary to ensure that we actually receive payment of the full amount chargeable for the Services as if no taxes had been required. Any additional tax, penalty, or interest arising from your delay or omission in complying with the above mentioned tax responsibilities shall be borne by you.
If we incur any additional Taxes, costs or liabilities as a consequence of your delay or omission of the above mentioned tax responsibilities or due to the provision of false or incomplete information by you which is necessary for us to determine and meet our above mentioned tax responsibilities arising from our supplies of services to you (including but not limited to information relevant to the determination of your country of tax residency), you shall be solely and exclusively liable to bear such costs related to Taxes not withheld, deducted, or reported, along with any interest, penalties and other charges associated therewith which are to be settled with the relevant governmental or tax authorities.
If, subsequent to the entering into, during the course of, or retrospectively applicable to this Agreement, any rates of existing Taxes are increased or decreased, a new Tax is levied, an existing Tax is abolished, or any change in the interpretation or application of any Tax is adopted (collectively referred as “Tax Changes”), we reserve the right to adjust the amounts payable by you to us, taking into account the Tax Changes, such that there would be no financial detriment to us arising from the Tax Changes.
Updated: September 16, 2022