V1001 November 2023

This Huawei Cloud KooGallery Product Agreement (this “Agreement”) contains the terms and conditions that govern the release and listing of Products on the Huawei Cloud KooGallery. This Agreement is entered into by and between the Huawei Cloud Contracting Party as defined in Section【18.8】of this Agreement (hereinafter referred to as “Huawei Cloud”, “we”, “us”, or “our”) and you and you or the entity which you represent as specified in your Huawei Cloud account (hereinafter “you”, “your” or “Vendor”)

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 18.19), 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].

1. Eligibility Requirements and Verification. 

Your ability to release and list the Products shall be subject to the following terms and conditions:

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

1.2 Identity Verification. You represent, warrant and undertake: (a) that the information contained in your application to become a KooGallery Vendor and any additional information you may have submitted for this purpose, including (without limitation) information relating to your identity, shall be true, accurate and valid; (b) that you are a real person or legal entity; (c) that you have full power and authority to enter into and perform this Agreement; and (d) once entered into, this Agreement will constitute valid and binding obligations on you and which will be enforceable in accordance with the terms of this Agreement. Huawei Cloud may require you to provide additional registration information in order to verify your identity. Huawei Cloud shall also be entitled to take further steps as necessary in order to verify the information you provided for the purposes of registration is true, accurate and valid. Without prejudice to our other rights and remedies, 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 has been resolved or verified, which time shall be determined exclusively by Huawei Cloud.

1.3 Huawei Cloud KooGallery Guidelines.  We will provide the Huawei Cloud KooGallery Guidelines, together with any other documents we consider relevant, to be followed by you when listing Products and when dealing with other issues related to Products, upon your acceptance of this Agreement (the “Guidelines”). The Guidelines may be updated by us, at our discretion, from time to time, and we will inform you the updates by publishing on the website, notification, email, or other methods. You acknowledge agree that you will, at all times, comply with such Guidelines.

2. Products.

You may release your Products on KooGallery in accordance with the following terms:

2.1 Provision of Products. Prior to submitting or releasing any Products, you shall comply with all applicable requirements for submitting 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, Products support of Products provided by Sellers and service levels for Products), performing self-verification and testing of the Product (such 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 you Huawei Cloud considers 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 Customers, 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 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 including loss or damage suffered by KooGallery Customers, End Users, Resellers and/or third parties.

2.2 Responsibility for Products. 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 Vendors on KooGallery, including any practice aimed at damages 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 Customers use of such Products; do not breach the relevant Open-Source Software license agreements.

2.3 Costs. If you offer Products on KooGallery, you shall bear the costs of the Huawei Cloud Products which are required for image creation as well as any other fees which may be incurred in order to deploy and use Huawei Cloud Products to offer those Products and to perform this Agreement.

2.4 Granted Right. By releasing a Product on KooGallery under this Agreement, you are giving us irrevocable authorization and/or right to sell an unlimited quantity of your Product on the terms of this Agreement to Customers or Resellers. You hereby agree that we shall be entitled to promote, sell and provide Operational Services to your Products to Customers or Resellers. You further agree and guarantee that we shall be entitled to authorize Resellers and/or other third party to promote or sell your Products. With sending notification to you properly, we shall be entitled to cancel our orders for your Products at any time without further liability to you, in the event that the corresponding order of the relevant Customer and/or Reseller that purchased the Products from us is cancelled for any reason, the Customer and/or Reseller is in breach of their agreements with us, or a circumstance has arisen that entitles us to cancel their order or terminate their agreement with us.

2.5 Formats. Huawei Cloud provides guidance for releasing Products in different formats on KooGallery. You may select the relevant format for your Product based on such guidance and options provided on KooGallery; provided that Huawei Cloud shall be entitled in its sole discretion to determine the format of your Products as listed on KooGallery.

2.6 Other Rights. You hereby grant Huawei Cloud a non-exclusive, worldwide, transferable, sub-licensable and royalty-free license to use and display your trademark and logo (“Vendor Logo”) on KooGallery and in other publicity materials during the term of this Agreement. You represent and warrant that you are the legal owner of or otherwise have full right and authority to license the Vendor Logo and your Products as contemplated in this Agreement. For the avoidance of doubt, no fees will be payable to you in connection with your obligations in this Section 3.5, including the grant of the license herein.

3. Your Obligations and Warranties

3.1 Product 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 exclusively responsible for granting:

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

(b) all necessary rights and licenses to Resellers to access, use and resell your Products and any 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 KooGallery Customers as necessary to effect the resale of your Products; and

(c) all necessary rights and licenses to Resellers so that Resellers can provide related services including but not limited to, consultancy services, after-sales services and technical support as required.

Such rights, licenses and authorization apply only between you on the one hand and Resellers or KooGallery Customers on the other hand and shall not impose any obligations or liabilities of any kind on Huawei Cloud and its Affiliates.

3.2 Vendor Supply and Support Terms and Privacy Statement. Upon releasing Products on KooGallery, you shall make available: (a) the terms of your supply and support terms with KooGallery Customers (the “Vendor Supply and Support Terms”) to expressly define and elaborate on the support Products provided, the applicable SLA’s, and delivery standards and conditions, to grant the rights and licences 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(if any) to KooGallery Customers setting out how you collect, use, disclose, process and protect any data obtained from KooGallery Customers. Additionally, the privacy statement shall set out any information which may be required under Applicable Laws. The Vendor Supply and Support Terms shall constitute a binding contract between you and KooGallery Customers upon their acceptance during the order process. You shall only provide your Products once you have obtained the relevant KooGallery Customers’ acceptance of your Vendor Supply and Support Terms, your privacy statement and such other consents as are required under Applicable Laws. The privacy statement you provide to KooGallery Customers shall include information about what kind of data you will collect and how you will use and/or disclose such data, and any other information required by Applicable Laws. You hereby represent and warrant that:

(a) the Vendor Supply and Support Terms do not and will not contain any terms that may be inconsistent with this Agreement, the Huawei Cloud KooGallery Products User Agreement【https://www.huaweicloud.com/intl/en-us/declaration-sg/hpua.html】, or Applicable Laws; and

(b) the Products that you provide shall comply with all Applicable Laws. You shall be exclusively responsible for any claim or dispute which may be raised by KooGallery Customers in relation to your Products. You shall indemnify and hold Huawei Cloud harmless from and against any losses, costs (including, without limitation, reasonable attorney’s fees), damages and liabilities suffered by Huawei Cloud or any of its Affiliates arising out of or in connection with any such claims or disputes.

3.3 Reseller Agreement. Prior to selling any of your Products under the Resale Model, you shall enter into a valid Reseller agreement with each of the Resellers. The Reseller Agreement shall include the terms on which the Reseller will access, use and resell your Products, including details on the respective roles and responsibilities for delivery and support provided to KooGallery Customers in connection with the Products (the “Reseller Agreement”). You represent and warrant that:

(a) any Reseller Agreements which you enter into will not contain any term that is inconsistent with this Agreement, the KooGallery Products User Agreement【https://www.huaweicloud.com/intl/en-us/declaration-sg/hpua.html】or Applicable Laws;

(b) any Reseller Agreement which you enter into shall 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 exclusively between you and the Resellers, and nothing shall construe Huawei Cloud as being a party to such agreements. Huawei Cloud shall have no liability arising from any such Reseller Agreements.

You further acknowledge and agree that Resellers shall not be deemed as being 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 Resellers.

3.4 Suspension or Termination. Without prejudice to its other rights or remedies, Huawei Cloud shall be entitled to suspend or terminate a Reseller’s right to access or use KooGallery and/or to resell Products in the event of a breach of this Agreement, any other agreement with you, or if such action is required by Applicable Laws. Huawei Cloud shall have no liability to you in the event of such suspension or termination.

3.5 Effect of Termination of Reseller Right. In the event that the Reseller’s right to resell Products is terminated for any reason, you and the Reseller shall be obligated to continue providing services and support to the KooGallery Customers who have purchased your Products and shall implement in good faith such transition plans as may be necessary to facilitate the smooth transition of such KooGallery Customers to you or to another Reseller. You shall be exclusively responsible for any claims or disputes raised by the Resellers in relation to any of your Products, and you shall indemnify and hold Huawei Cloud and its Affiliates harmless from and against any losses, costs (including, without limitation, reasonable attorney’s fees), damages and liabilities arising out of or in connection with any claims or disputes.

3.6 Provision of Products. You shall immediately provide all Products on KooGallery to KooGallery Customers and/or Resellers once the transaction fees have been collected by Huawei Cloud from KooGallery Customers and/or Resellers on your behalf.

3.7 Products and Technical Support. You are responsible for the following:

(a) providing Products that are independently developed based on the Huawei Cloud Products 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 Customers and/or Resellers.

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

3.9 Free Products. If you provide Products free of charge on KooGallery, you shall be exclusively responsible for KooGallery Customers 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 Customers 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 and KooGallery Customers to the extent described in the Huawei Cloud Customer Agreement.

3.10 Post Sale Services. You are exclusively responsible for providing service support for KooGallery Customers and/or Resellers who have 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.

3.11 Regular Technical Support. You shall provide off-site technical support services in connection with your Products for at least five (5) days per week and eight (8) hours per day including but not limited to online support and/or support via telephone or email. In addition, you shall also provide a Products hotline or provide other relevant contact information to KooGallery Customers and Resellers. You acknowledge and agree to make this information on the relevant Products website or on KooGallery. You shall also designate specific support service staff for KooGallery Customers and/or Resellers.

3.12 Timely Response. You shall respond promptly to KooGallery Customers' and Resellers’ questions or complaints in connection with your Products or their agreements with you. You shall also be responsible for providing any related after-sales services for any problems with the Products within forty-eight (48) hours of receiving such questions or complaints. You shall propose viable solutions within the timeframe you have guaranteed to your KooGallery Customers and Resellers.

3.13 Troubleshooting. If the Products cannot be used and the Products fail to run in a proper manner, you shall provide KooGallery Customers with a solution or workaround without undue delay and no later than twenty-four (24) hours. In the event that KooGallery Customers are unable to use the Products due to any degraded performance, you shall provide KooGallery Customers with a solution or workaround within forty-eight (48) hours.

3.14 Disputes with KooGallery Customers and Resellers. You shall be exclusively liable for any claims, disputes, penalties, lawsuits, or other matters in connection with the applications or Products 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 any such claims, disputes, penalties, or lawsuits.

3.15 Compliance. You acknowledge and agree that the Products which you provide shall at all times:

(a) comply with all Applicable Laws;

(b) 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 Huawei Cloud 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.

3.16 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.

3.17 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 Customers 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.

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

3.19 Data Protection. If your application servers are deployed outside of the European Economic Area and important data or Personal Data is required to be transferred, you shall perform all necessary security assessments which may include, Transfer Impact Assessments (“TIA’s”), Data Protection Impact Assessments (“DPIA’s”), and implementing additional measures when transferring any such data in accordance with all applicable data protection laws and regulations. You hereby agree and acknowledge that you shall abide by all relevant data protection laws when carrying out any transfers that may be contemplated under this Section 3.19. In the event that the Applicable Laws have other provisions, those provisions shall prevail.

4. Huawei Cloud KooGallery

4.1 Platform and Operational Support. Huawei Cloud relies on the Huawei Cloud Website and KooGallery to provide you with operational support, including operations management, maintenance, electronic transactions, and settlement services in connection with the Huawei Cloud 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 any limitation 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 centre 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 Platform 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 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 running status which may be required. This monitoring is implemented only on data from the Website and KooGallery and without involving KooGallery Customers 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 to the other rights and remedies available to it.

5. Settlement and Payment

5.1 Fees.

(a) Huawei Cloud will pay you the applicable fees in relation to your Products that we sell, in accordance with such sharing ratios or rates as may be separately agreed between the Parties, subject to the terms of this Agreement. We shall not be obligated or liable to pay you any fees in relation your Products, until we have received full payment of the relevant fees due to us from the relevant Customer or Reseller that purchased the Product from us.

(b) You shall ensure that all fees and charges payable by Customers and/or Resellers for Products and associated services are billed and collected through us. You shall not offer or establish any alternative means of payment or attempt to bill Customers and/or Resellers directly for Products or any associated services. You shall not agree or enter into any terms between (i) you on the one hand, and (ii) Customers or Resellers on the other hand, which are consistent with this Agreement.

(c) Huawei Cloud will process all relevant payments received by us in relation to the Products monthly. The settlement amount is calculated by transaction amount * sharing ratios * exchange rate of the settlement month and needs to take Taxes (see section 5.3) into consideration . We may withhold, deduct, or set off any amounts payable by you to us or our Affiliates against any amounts that are due to you. Huawei Cloud may also withhold for investigation or refuse to process any amount related to any transactions relating to your Products that we suspect is fraudulent, unlawful, or otherwise violates the terms of this Agreement or Applicable Laws.

5.2 Billing and Invoicing. We will generate and issue a statement to you at the end of each month showing all payments that are due to you in respect of transactions that meet the following conditions in full: (1) we have received the full amounts from Customers and/or Resellers payable in respect of your Products; (2) you have fully completed the delivery of Products to Customers and/or Resellers, and you have fulfilled any other After-Sales Responsibilities where applicable; and (3) the order status of the relevant Products must be shown as “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. The invoice term is invoice 30D，Without limiting the generality of Section 17, 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). We will use EUR as the settlement currency.

5.3 Taxes.

5.3.1 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.

5.3.2 Fees for Products 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 and regulations or under the application of double Tax treaties or arrangements and we shall issue a compliant invoice to Customers 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, which shall be deducted from Fees thereto; and

(c) inclusive of any other taxes such as Digital Service Tax which should be filed and paid by 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 Customers and/or Resellers under operation of local law or regulations, it is the Customers’ 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; 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.

5.3.3 We will remit to you the amounts that we receive from Customers and/or Resellers in relation to your Products, after deducting the relevant portion of Product Fees collected which are due to us under this Agreement along with relevant Tax payment certificates that have been provided by Customers 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 such as Digital Service Tax due on the supply to the Customers and/or Resellers) by us to you is inclusive of:

(a)value added tax, sales tax or analogous tax; and

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

(c)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.

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

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

5.3.6 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 responsible and 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.

5.3.7 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.

5.3.8 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.

5.4 Refund. If a Customer and/or Reseller applies for a refund and it is confirmed by Huawei Cloud that the application meets the refund requirements, Huawei Cloud will send a refund notification to the Customer and/or Reseller (as the case may be) After you have refunded to us, we will refund to the Customer and/or Reseller.

5.5 Risk of Fraud or Loss. You shall bear the risk of fraud or loss, including the risk of chargebacks or credit card fraud, associated with your Products. 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.

5.6 Credit Policy. By releasing your Products on KooGallery, you agree that your Products may be sold on credit (including on a subscription basis payable in arrears) at your sole risk, in accordance with such terms as may be set out in Huawei Cloud’s Credit Policy, as updated from time to time at our sole direction. You agree to comply with the terms of Huawei Cloud’s Credit Policy. The fees for your Products which are sold on credit will be collected from Customers in the following month or otherwise as stipulated in Huawei Cloud’s Credit Policy. In the event that a Customer 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 be liable to pay you for any Products in relation to which a Customer or Reseller fails 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. Confidential Information shall not include information that: (a) is or becomes generally known to the public through no act or omission of the Receiving  Party; (b) was in the Receiving  Party’s lawful possession prior to the disclosure without breach of confidentiality obligations owed to the Disclosing Party; (c) is lawfully disclosed to the Receiving Party free of any obligation of confidence by a third party which itself was not under any obligation of confidence in relation to that information; or (d) is independently developed by the Receiving  Party. For the purposes of this Section 6, references to “Party”, “Disclosing Party” and “Receiving Party” shall, in relation to us, be interpreted as a reference to us and our Affiliates.

6.2 Protection of Confidential Information. The Receiving Party agrees to keep the Disclosing Party’s Confidential Information confidential during the term of this Agreement and for a period of five (5) years thereafter. The Receiving Party shall not disclose the Disclosing Party's Confidential Information to any other person or entity except with the prior written consent of the Disclosing Party or in accordance with this Section 7. The Receiving Party agrees to take appropriate measures to protect the Disclosing Party’s Confidential Information which shall in no event, be less than the degree of care that it uses to protect its own Confidential Information. All Confidential Information shall remain the property of the Disclosing Party and the Disclosing Party reserves all rights in its Confidential Information. Nothing in this Agreement or the disclosures envisaged by this Agreement shall (except as expressly agreed otherwise in this Agreement) operate to transfer or operate as a grant of any licences or rights to use any Intellectual Property Rights in the Confidential Information.

6.3 Permitted Disclosure. The Receiving Party may not use the Disclosing Party’s Confidential Information except in connection with the performance of its obligations under this Agreement, or otherwise for the purposes of this Agreement or as required by Applicable Laws. The Receiving Party may only disclose Confidential Information to its employees, officers, agents, or subcontractors (and in the case of Huawei Cloud, its Affiliates) who have a need-to-know and who are subject to confidentiality obligations no less than the degree of protection as required herein. Each Party may only use the other Party’s Confidential Information for the purpose of performing this Agreement, unless otherwise authorized by the other Party. Notwithstanding anything to the contrary, each Party may disclose the other Party’s Confidential Information in a legal proceeding, as required by Applicable Laws or in order to comply with a legally binding request under Applicable Laws, to the extent required to comply with the applicable binding requirements. In such circumstances (provided that it is practical and lawful to do so): (a) the Receiving Party must notify the Disclosing Party in writing as soon as practicable before the disclosure; (b) the Parties must use all reasonable endeavors to consult with each other with a view to agreeing the timing, manner, and extent of the disclosure; and (c) the Receiving Party must in any event use all reasonable endeavors to obtain written confidentiality undertakings in its favor from the third party. If the Receiving Party is unable to inform the Disclosing Party before Confidential Information is disclosed, it must (provided that it is lawful to do so) fully inform the Disclosing Party immediately afterwards in writing of the circumstances of the disclosure and the Confidential Information which has been disclosed.

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 but not limited to patent rights, copyrights, exclusive rights to use trademarks, trade secret rights, and the rights to the designs of integrated circuit layouts. You hereby grant Huawei Cloud and our Affiliates a royalty-free, worldwide, irrevocable, non-exclusive, transferable, perpetual and sub-licensable license to show and perform security checks on the Products. 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 our Affiliates.

7.2 Authorization to Releasing Products. You agree that Huawei Cloud and our Affiliates have the right to release the Products and any related information on our websites, publicity materials, or other cooperative 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 Customers 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, including company, application, and Product information submitted to Huawei Cloud by you.

7.3 Trademarks. Except as otherwise agreed upon in this Agreement, without one Party's prior written consent, the other Party shall not present, use, or allow any third Party to present or use the aforementioned Party's and its Affiliates’ trade names, service marks, brands, or trademarks. Notwithstanding the foregoing, Huawei Cloud may use your trade names, service marks, brands, and trademarks for the purposes of promoting, marketing and selling the Products including using the same in promotional and advertising materials. 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)

7.4 Intellectual Property Rights Confidentiality. Without limiting the generality of Section 6 and notwithstanding anything to the contrary in this Agreement, both Parties shall keep confidential： any and all technical secrets, know-how and business secrets which may be obtained from the other Party other during the performance and conclusion of this Agreement. Both Parties shall comply with all relevant competition laws, and laws and regulations on Intellectual Property Rights and all other relevant laws and regulations during the term of this Agreement and thereafter. Without obtaining the prior written consent of the other Party, neither Party shall disclose, transfer, license others to use, exchange, donate, share such secrets with any other individual or organization in any manner, or improperly use such trade secrets. If a Party commits a breach of this clause and such breach causes loss to the other Party, it shall be liable for such breach in accordance with all Applicable Laws.

7.5 Original Ownerships. Except as otherwise provided under this Agreement, the listing of the Products on the 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, information, software and service description. 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 alleges or complains to Huawei Cloud, our Affiliates, or Customers that the Products submitted by you in accordance with this Agreement and/or your content and related services infringe on the Intellectual Property Rights infringement of such Intellectual Property Rights, you shall be exclusively liable for any compensation payable for the infringement of these intellectual property rights. You shall indemnify and hold harmless Huawei Cloud, our Affiliates, Resellers and/or Customers from and against any and all third-party claims, suits, demands, actions, damages, losses, liabilities, costs and expenses (including attorney’s fees and costs) arising out of any infringement of third party Intellectual Property Rights or proprietary information by the Products and/or your content and related services. We are entitled to remove your Products from the KooGallery or take any measures we deem necessary if we receive a third party’s notice alleging that you are infringing a third party’s intellectual property rights. Without prejudice to the foregoing, if you become, or, in the opinion of Huawei Cloud, may become the subject of a claim because the Products provided by you in accordance with this Agreement and/or your content and related services are suspected of infringing on 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 for Huawei Cloud, our Affiliates, Resellers and/or Customers the right to use such Products without causing any infringement or subjecting us, our Affiliates, Resellers and/or Customers to any indemnification liabilities arising from the use of the aforementioned Products;

(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 Products 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 Customers as a result.

8. Security and Data Privacy

8.1 Your Security. You are exclusively 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 Data Privacy. You represent, warrant and undertake that all Personal Data you collect from Customers and/or Resellers will be collected, used, disclosed, transferred and/or otherwise processed (collectively “process”, “processed” or “processing”) in compliance with all Applicable Laws relating to Personal Data and privacy. You acknowledge and agree that, in providing the Products and fulfilling the After-Sales Responsibilities, any processing of Personal Data relating to Customers and/or Resellers that you undertake is done on behalf of and for your purposes, and that you do not process such Personal Data on behalf of or for the purposes of Huawei Cloud and its Affiliates. We are not responsible for giving you instructions on or determining the purposes for which you process Personal Data. You shall ensure that you obtain consent from Customers and/or Resellers and/or otherwise take all actions necessary to ensure that you process their Personal Data in compliance with Applicable Laws. You acknowledge and agree that you will be solely responsible for any loss and liability if you violate such Applicable Laws.

You understand and agree to the Privacy Statement [https://www.huaweicloud.com/intl/en-us/declaration-sg/sa_prp.html] as we may update it from time to time. Please carefully read this Privacy Statement before you submit your Personal Data to us. The Personal Data protection terms applicable to the processing operations performed in relation to this Agreement are set out in the Huawei Cloud Data Processing Addendum [https://www.huaweicloud.com/intl/en-us/declaration-sg/sa_dpa.html] incorporated by reference herein.

8.3 Limitations on Use of Data. You shall not illegally obtain or use any data (including but not limited to Customer and/or Reseller information, Personal Data, Customer and Reseller transaction information, and operational data for your Products) that is obtained through the KooGallery platform’s technical interfaces or public channels under this Agreement for any purposes beyond those set forth in this Agreement.

8.4 Data Protection Assessments and Other Measures. Without prejudice to any of your other obligations under this Agreement, you shall perform all assessments required to ensure that you process Personal Data in compliance with Applicable Laws, including security assessments, transfer impact assessments, data protection impact assessments, and shall take all other measures required to ensure that any transfers of data you undertake comply with Applicable Laws. For avoidance of doubt, to the extent that Applicable Laws may impose any additional requirements or requirements that are more stringent than those set out herein, you shall comply with the provisions of Applicable Laws.

9. Disclaimer

9.1 Actions Undertaken or Events Initiated by Huawei Cloud. You hereby agree and acknowledge 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, KooGallery, or the Products, which may occur while Huawei Cloud carries out adjustments to the network, there is a drop in the rate of access to your Products due to any form of Internet access blocking, or Huawei Cloud carries out routine or emergency maintenance in respect 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 will use its reasonable commercial endeavours to keep disruption to and unavailability of KooGallery to a minimum;

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

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

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

(e) except as expressly provided in this Agreement, KooGallery is provided “as is” and to the extent permitted by Applicable Laws, Huawei Cloud disclaims all other conditions, warranties, representations, undertakings and other terms which might have effect between the Parties with respect to KooGallery, or be implied or incorporated into this Agreement, whether by statute, common law, custom or otherwise, including any implied conditions, warranties, undertakings or other terms relating to satisfactory quality, reasonable care and skill, fitness for a particular purpose, ability to achieve a particular result or arising from course of dealing or usage of trade. Huawei Cloud does not warrant anything in relation to systems that do not make up KooGallery or the connection to those systems.

9.2 Reservation of Rights. 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 may occur during data transmission when you, Customers, Resellers or other third parties use the Huawei Cloud Services, Huawei Cloud shall not be liable for any damage caused in relation to any delay, inaccuracies, errors or omissions which may occur and are beyond its control..

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. Any such third-party services shall be subject to separate terms and conditions and subject to separate charges. Huawei Cloud is not obligated to test or screen third-party services. You hereby agree and acknowledge that any use of third-party services shall be 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 Customers 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 governmental, regulatory or other competent authorities. In such circumstances, Huawei Cloud shall not be liable for breach of this Agreement.

9.6 Necessary Conditions. If your Products are unable to be provided, are unable to be provided in time, or if quality defects exist in your Products because you or a Customer or Reseller has failed to provide the necessary conditions for provisioning your Products, Huawei Cloud shall not be deemed to be responsible or held liable for any such failure.

9.7 Exceptions in Your Products. If the stability of any network or system (whether of as a result of Huawei Cloud or any other person) is affected due to exceptions in your Products, which may include but not limited to bulk sending junk emails, a source of malicious attack, which may lead to a network security problem and which may further affect other users of KooGallery or Huawei Cloud Services, Huawei Cloud shall be entitled to suspend the use of your Products.

9.8 Disputes arising from Your Products. Huawei Cloud shall not be responsible or liable for the After-Sales Responsibilities or any issues relating thereto, 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 Customers 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 Customers. Huawei Cloud shall not be liable for any direct or indirect losses, damages, costs or other liabilities between you and Customers and/or Resellers.

9.10 Collection of Personal Information. In the event that you do not comply with Applicable Laws relating to data protection or privacy, and where required inform or obtain the consent of Customers, Customers and/or Resellers to the collection, use and/or disclosure of their personal information, you shall assume all liabilities arising therefrom and indemnify, hold harmless and defend Huawei Cloud and its Affiliates from and against any and all losses, damages, liabilities, costs, penalties, expenses (including attorney’s fees and costs), third-party claims, suits, demands and actions, arising out of or in connection with your breach of this Section 9.10.

10. Force Majeure

Except for your payment obligations under this Agreement, neither Party shall be liable for any delay or failure to perform this Agreement which may be caused by a force majeure event beyond either Party’s reasonable control, including acts of God (including earthquakes, storms or other natural disasters), 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 sixty (60) days, either Party shall have the right to cancel any unperformed services and any affected orders upon written notice to the other.

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 it may have by reason of this Agreement or as otherwise provided by Applicable Laws.

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 fulfill the After-Sales Responsibilities and provide all relevant services and support to Customers , End Users and/or Resellers to enable to them to continue using and accessing your Products that they have purchased. If you fail to fulfill the After-Sales Responsibilities or provide relevant services and support in a timely manner, Huawei Cloud is entitled to take any remedial measures that we deem necessary, and you shall compensate Huawei Cloud for all costs, expenses and losses (if any) incurred therefrom. Without prejudice to the foregoing, you shall indemnify and hold Huawei Cloud and our Affiliates harmless from and against any and all losses, damages, liabilities, costs, penalties, expenses (including attorney’s fees and costs), third-party claims, suits, demands and actions, arising out of or in connection with a breach of your obligations under this Section 11.2.

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 Huawei Cloud and its Affiliates against the claim and indemnify us and our Affiliates from the damages, costs and expenses finally awarded by a competent court to the third party claiming infringement or the settlement agreed to by you. You shall be exclusively liable for and indemnify and hold Huawei Cloud and our Affiliates harmless from any losses to a third party caused by you or arising from your Products, and you shall compensate 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 Customers 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. Without prejudice to any other rights and remedies, you shall indemnify, defend and hold harmless Huawei Cloud and its Affiliates from and against any and all losses, damages, liabilities, costs, penalties, fines, expenses (including attorney’s fees and costs), claims, suits, demands and actions (collectively “Losses”) arising out of or in connection with: (a) a breach of your obligations under this Agreement; (b) any inaccuracy in your representations or breach of your warranties in this Agreement; (c) your Products, including any failure or defect relating to the delivery, provisioning and/or quality of your Products, whether they are sold to Customers by us or Resellers; (d) the After-Sales Responsibilities, including any failure or alleged failure by you to fulfill any part thereof; (e) the Product Supply and Support Terms including any breach of your obligations thereunder; (f) any Losses relating to a failure to obtain the Regulatory Approvals; and/or (g) any Personal Data that you, your Affiliates and/or subcontractors process in connection with the Products; in each case including but not limited to: fines paid by Huawei Cloud, expenses to repair damaged equipment, data and system recovery expenses, compensation payments, settlement fees, attorney fees, legal costs paid by Huawei Cloud to third parties, travel expenses, transportation fees, and accommodation fees. Additionally, Huawei Cloud shall be entitled to deduct such amounts in relation to the foregoing from any amounts which may be payable to you, and in the event that we do so you shall remain liable for the remaining amounts (if any) and shall promptly arrange payment.

11.5 No Liability. Under no circumstances will Huawei Cloud or its Affiliates have any liability for any losses, claims, damages, costs or expenses caused by errors or omissions in any information, instructions or scripts provided by Huawei Cloud or its Affiliates by or on behalf of you in connection with KooGallery, or any actions or omissions taken by Huawei Cloud or its Affiliates at your direction.

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. THE LIMITATONS OF LIABILITES IN THIS SECTION 12 SHALL NOT APPLY TO VENDOR’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT.

12.2 LIMITATION OF LIABILITIES. SUBJECT TO SECTION 12.1, OUR MAXIMUM AGGREGATE LIABILITY TOGETHER WITH THAT OF OUR AFFILIATES IN RESPECT OF ANY LOSS, DAMAGE, FINES, PENALTY, 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 US IN RELATION TO YOUR PRODUCTS UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.

13.3 EXCLUSION OF LIABILITIES. SUBJECT TO SECTION 12.1, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE TO THE OTHER PARTY FOR:

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

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

ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF OR WERE AWARE OF THE POSSIBILITY THAT SUCH DAMAGE OR LOSS MIGHT BE INCURRED BY THE OTHER PARTY.

13. Term, Suspension, and Termination

13.1 Initial Term and Renewal. The term of this Agreement will commence on the Commencement Date. Unless terminated earlier in accordance with its terms, this Agreement shall continue in force for the 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 term of this Agreement will commerce on the date you accept this Agreement and remains in force unless terminated hereunder.

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 Customer’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 Customer’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 Customer’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 Customer’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 you will not be entitled for any refund or services credit for such suspension. 

13.4 Termination. Without affecting any other right or remedy available to it, either Party may terminate this Agreement with immediate effect by giving written notice if; the other Party commits a material breach of any term of this Agreement and which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days upon receipt of notice from such Party identifying such breach and requesting its cure; or to the extent permitted under Applicable Law, either Party has ceased to operate in the ordinary course, or is in bankruptcy, insolvency, liquidation, dissolution, or similar proceedings..

13.5 Consequences of Termination. If this Agreement is terminated for any reason, without prejudice to any other right or remedy that Huawei Cloud may have, you agree that:

(a) all licences granted under this Agreement shall immediately terminate and you shall immediately cease using all resources provided by Huawei Cloud, save that any licences granted by you to Huawei Cloud under this Agreement which are stated to be granted on a perpetual and irrevocable basis shall survive the termination of this Agreement for any reason and shall continue in full force and effect;

(b) you shall not be entitled to identify yourself as a Vendor of Huawei Cloud;

(c) you shall pay all sums and amounts payable to Huawei Cloud or any other third party under the terms of this Agreement or contemplated by this Agreement;

(d) each Party shall return or destroy, and in each case, make no further use of any equipment, property, materials and other items (and all copies of them), belonging to the other Party, including the other Party’s Confidential Information (except Huawei Cloud may retain reasonable records of yours and your use of KooGallery and shall be entitled to retain your Confidential Information for the purposes of internal audit, litigation and/or compliance with Applicable Law);

(e) any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages or indemnification in respect of any breach of this Agreement which existed at or before the date of termination shall not be affected or prejudiced; and

(f) termination of this Agreement shall not affect the continued operation of Sections 6,7, 8, 9, 10, 12, 13, 13.4, 15, 16, 17 and 18, your indemnification obligations under this Agreement, and any provisions of this Agreement which are deemed necessary for the interpretation or enforcement of this Agreement, all of which shall survive such termination.

14. Modifications and Additions to the Agreement

Huawei Cloud may modify this Agreement, including the documents and policies referenced herein, at any time at our discretion and will notify you. Except as otherwise expressly indicated in the modified Agreement, documents, or policies, the modified terms will come into effect upon notification. You will review such terms regularly on the Website. Your continuous use of KooGallery after the coming into effect of such modification will be deemed as your acceptance to the modified terms. 

15. Governing Laws and Venue

15.1 This Agreement and any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including any 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 is expressly and entirely excluded.

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

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

17.2 Use of Affiliates. Huawei Cloud shall have the right to exercise its rights and perform its obligations under this Agreement either itself or through any of its Affiliates. Huawei Cloud’s Affiliates shall have the benefit of all rights of Huawei Cloud under this Agreement; provided, however, that Huawei Cloud will remain responsible hereunder for the acts and omission of its Affiliates.

17.3 Third Party Beneficiary.

(a) Subject to Section 17.3(b), this Agreement is intended for the benefit of the Parties hereto and their respective permitted successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other persons.

(b) You acknowledge and agree that each of our Affiliates is an intended third party beneficiary of this Agreement and is entitled to enforce any term of this Agreement. Notwithstanding the foregoing, the rights of the Parties to rescind or vary this Agreement are not subject to the consent of any such Affiliate.

17.4 Notice. We may provide notice to you under this Agreement by posting a notice on the Website, or by email 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 by email and text messages upon sending out (irrespective of whether and when you receive or read it). You shall be responsible for ensuring that your email address and phone number on your Huawei Cloud account are up to date at all times.

17.5 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 Customers 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 Customers.

17.6 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 representations or enter into any contract or commitment on behalf of the other.

17.7 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 any terms in respect of 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.

17.8 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.

17.9 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 invalid, illegal or unenforceable term shall be modified so as to give effect to the original intent of the Parties as closely as possible.

17.10 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.

17.11 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.

17.12 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.

17.13 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 this Section 17.13.

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.

18. Definitions

18.1 “Acceptable Use Policy” means 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 “After Sales Responsibilities” means any and all responsibilities, obligations and liabilities related to the following: (a) providing, delivering, provisioning and operating the Products, including ensuring that Products are available and can be accessed by Customers (and their Customers) throughout the relevant subscription period; (b) Product quality, uptime, and service levels; (c) technical support and maintenance; (d) after-sales support services including the provision of installation assistance and consultation on the Products; (e) responding to question and complaints; (f) assistance to diagnose, propose solutions to and correct problems and other issues relating to the Products; (g) providing upgrades, fixes, patches, updates and new releases; and (h) any other similar matters.

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

18.4 “Applicable Laws” means legislation, regulations, codes of practice, guidelines and any other binding requirements issued by a governmental or regulatory agency or other competent authority.

18.5 “Customer” means any person, company or other legal entity who has purchased, ordered and/or subscribed to Product, but excluding Huawei Cloud.

18.6 “End User” means a person, company or other legal entity who is permitted by a Customer to access and use the Products that they have purchased, in accordance with the relevant rights, licenses and authorizations that have been granted to the Customer.

18.7 “Governing Law” and “Corresponding Court”  refer to the following

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

18.8 “Huawei Cloud” or “Huawei Cloud Contracting Party” refers to the following

The country/region in which you will sell your product	Huawei Cloud Contracting Party
South Africa	Sparkoo Technologies South Africa (Pty) LTD.
Chile	Sparkoo Technologies Chile SpA
Peru	Sparkoo Technologies PERU S.A.C.
Brazil	Sparkoo Technologies Do Brasil Ltda.
Mexico	Huawei Technologies De Mexico, S.A. De C.V.
Thailand	Sparkoo Technologies (Thailand) Co., Ltd.
Hong Kong	Sparkoo Technologies Hong Kong Co., Limited
Saudi Arabia	Sparkoo Technologies Arabia Co., Ltd.
Countries other than the above	Sparkoo Technologies Singapore Pte. Ltd.

18.9 “Huawei Cloud KooGallery Guidelines” or “Guidelines” means 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 them on the Website.

18.10 “Huawei Cloud KooGallery” or “KooGallery” or “Huawei Cloud Services” means the e-commerce platform established and operated by Huawei Cloud located at【https://marketplace.huaweicloud.com/intl/】, on which you can promote and sell Products.

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

18.12 “Huawei Cloud Products”means software, services, content or other products developed by Huawei Cloud and/or Huawei Affiliates.

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

18.14 “Open-Source Software” means any software whose source or object code is made available with an Open-Source Software License.

18.15 "Open-Source Software License" means 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.

18.16 “Operational Services” means services provided by Huawei Cloud to Customers which are ancillary to the sale of Products under the Joint Operation Model, where the scope and nature of the services are determined and may be modified from time to time by Huawei Cloud in its discretion, and which may include but are not limited to the following features: unified payment, pre-sales consultation, coordinating with Third Party Vendors on orders, assisting Customers and Resellers to manage orders, assistance to develop or optimise delivery plans, Q&A, expert evaluation, customer service hotline, and service ticket handling.

18.17 “Order” means the relevant order form or other order document on KooGallery that specifies Customer’s purchase and/or subscription of the Products, including details such as pricing, other associated services (if any) and related information.

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

18.19 “Products” means the software, images, products and services (which are independently developed by you or legally provided by you under licenses and authorizations granted by the relevant rights holders) traded on KooGallery, including but not limited to the following product and service categories: basic operating environments, databases and caches, network security, business management, e-commerce, storage and backup, business intelligence, information security, industrial software, data migration, troubleshooting, security, etc.

18.20 “Reseller”means the legal entity who must be accepted by Huawei Cloud as a valid and ongoing participant in the HCPN in accordance with all applicable terms and conditions governing the HCPN, including the Huawei Cloud Partner Network Certification Agreement  and the Huawei Cloud Solution Provider Cooperation Agreement.

18.21 “Vendor” means you as a developer or legal provider of Products listed on KooGallery for sale under this Agreement.

18.22 “Vendor Supply and Support Terms” has the meaning given in Section 3.2.

18.23 “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】.

18.24 “Taxes” means all taxes, including but not limited to income tax, withholding tax, wealth tax, capital gain tax, value added tax, goods and services tax, service tax, sales tax, surcharge, duties, levies and other similar charges, however designated, which are imposed by law on an entity as a result of the existence or performance of this Agreement.

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

18.26 “your Products” means the Products that you list and release on KooGallery, which are sold or to be sold by us to Customers under this Agreement.

18.27  In this Agreement, unless the context otherwise requires, the terms “solely responsible” and “exclusively responsible” and their grammatical variations have the same meaning and are interchangeable.

19. Country Specific terms

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, Türkiye, Ethiopia, Libya, Nigeria	Section 5.3.2	The above Section 5.3.2 will be replaced by the following term. 5.3.2. Fees for Products 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 and regulations or under the application of double Tax treaties or arrangements and we shall issue a compliant invoice to Customers and/or Resellers if legally required to do so; and (b) 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