This Huawei Cloud Partner Network Certification Agreement (hereinafter "Agreement") is made by and between Huawei Cloud Contracting Party as defined in Section 13.3 of this Agreement (hereinafter "Huawei Cloud", "we”, “us", or "our") and you or the entity you represent (hereinafter "you" or "your" ) regarding your use of the Huawei cloud partner network ("HCPN") and related websites through which Huawei Cloud may provide you with access to products, documents and information related to a program Huawei Cloud offered to its partners. If you enter into this Agreement on behalf of an entity, you represent and warrant that you have the requisite power and authority to do so and to bind the entity to the terms and conditions of this Agreement. This Agreement takes effect as of the date you accept this Agreement on our website and will be binding on you from the said date (“Effective Date”).

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

1. General

1.1  Participate in the HCPN. To participate in the HCPN, you shall create an account through https://www.huaweicloud.com/intl/en-us/partners/, complete the application and be bound by the terms and conditions of the applicable Customer Agreement at https://www.huaweicloud.com/intl/en-us/declaration/sa_cua.html.

1.2  HCPN benefits. The HCPN gives access to (a) our content, information, sales tools, documentation and other resources ("HCPN Resource"); (b) our offers, incentives, and programs ("HCPN Program") and (c) our services, products and technologies ("the Services") for you to deliver great solutions to your customers.

1.3  Your Permission. Huawei Cloud will administer the HCPN and its benefits from time to time and you give us permission to communicate with you to (a) send you promotional information in terms of the HCPN; (b) collect, use, disclose, share, process and retain any information, personal or otherwise, that you provide to us in connection with the HCPN according to the privacy statement which is available at https://www.huaweicloud.com/intl/en-us/declaration/sa_prp.html.

1.4  Additional Terms. This Agreement applies to your HCPN partnership and any HCPN program you may join in future, but it does not authorize you to distribute, resell or use the Services. In order to distribute, resell or use the Services, you shall also participate in the related HCPN Program and additional terms will be applied under such program. In the event of conflict between this Agreement and the terms of a certain program, the terms of the certain program shall govern such program.

2. Proprietary Rights and Restrictions

2.1  Your Marks. We may disclose your name, website, and other general contact information on our website, which is available at https://www.huaweicloud.com/intl/en-us/. You grant us and our Affiliates a non-exclusive, non-transferable, worldwide, royalty-free license to use any tradename, trademark, and other logo or domain name that you provide to us in connection with HCPN or HCPN Program (“Your Marks”).

2.2  Your Material. You may use, reproduce and incorporate into portions of your own materials ("Your Material") into HCPN Resource solely for your business purposes contemplated under the HCPN during the term of this Agreement.  If you provide Your Material to us, you grant us and our Affiliates a non-exclusive, worldwide, royalty-free license to reproduce, publish, distribute, modify and translate all or any part of Your Material in connection with the HCPN.

2.3  Huawei Cloud Marks. With our prior written approval, you may use our trademarks, tradenames, trade dress, designs, slogans and logos ("Huawei Cloud Marks") under a non-exclusive, non-transferable, worldwide, royalty-free license solely in connection with the performance under this Agreement.

2.4  Third Party Content.  Your use of content, software, products or services that are provided or supported by third parties ("Third Party Content") and provided to you by us, is on an “as is” basis and without any warranty from Huawei Cloud. If there is any conflict between this Agreement and the terms of Third Party Content provider, this Agreement shall prevail.

2.5  Necessary Right. You hereby confirm that you have and, if not, that you will obtain and maintain all rights and authorizations necessary to grant us and our Affiliates access, usage rights and the requisite licenses, as set out herein above to Your Marks and Your Material. We will ensure that we have all right necessary to grant the Huawei Cloud Marks to you.

3. Non-disclosure

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

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

3.3  Permitted Disclosure. The Receiving Party may only disclose the Confidential Information to its employees, agents or subcontractors who have a need to know and who are subject to confidentiality obligation 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 or to a governmental entity, regulator or law enforcement agency only to the extent as required by the applicable laws and regulations.

4.  Indemnification

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

4.2  Indemnification by you. If a third party makes a claim against us based on the fact that (a) our use of Your Material or Your Marks in accordance with this Agreement or the combination of Your Material with our Services infringes the third party's Intellectual Property Rights, or (b) Your use of the Services in an unlawful manner or in violation of this Agreement, you shall, at your cost, defend us against the claim and indemnify us from all the damages, costs and expenses finally awarded against us by a court of competent jurisdiction or agreed to in a written settlement agreement signed by you, provided that we (a) promptly notify you in written of such claim; (b) give you sole control of the defense and settlement negotiation of the claim; and (c) provide you with all reasonable information, authority and assistance we need to defend against or settle the claim. You will not indemnify us if such claim is caused by our breach of this Agreement.  

4.3  Exclusive Remedy. This Indemnification section provides the Parties’ exclusive remedy for any infringement claims.

5.Limitation of Liability

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

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

6. Disclaimers

THE INFORMATION PRESENTED ON OR THROUGH THE WEBSITE REGARDING THE HCPN, WHICH INCLUDES BUT IS NOT LIMITED TO HCPN PROGRAM AND THIRD PARTY CONTENT IS SOLELY FOR GENERAL INFORMATION PURPOSES. WE DO NOT WARRANT THE ACCURACY, COMPLETENESS OR USEFULNESS OF SUCH INFORMATION. WE DISCLAIM ALL LIABILITY AND RESPONSIBILITY ARISING FROM ANY RELIANCE PLACED ON SUCH INFORMATION. THIS INFORMATION IS PROVIDED ON AN “AS-IS” BASIS AND BEAR NO WARRANTY. 

7. Term, Suspension and Termination

7.1  Term. The term of this Agreement will commence on the Effective Date specified hereunder and remains in force unless terminated in terms of this section 7.

7.2  Termination.

(a)  This agreement will automatically terminate upon any termination of the applicable Customer Agreement.

(b)  Either Party may terminate this Agreement, without cause, by way of a 90 days' prior written notice to the other.

(c)  Either Party may terminate this Agreement if the other Party breaches any material term of this Agreement and fails to cure the breach within 30 days from receipt of the notice from the other Party demanding remedy / cure.

7.3  Effect of Termination.

If this Agreement is terminated, you shall immediately cease to use Huawei Resources and immediately cease to identify yourself as a partner of Huawei Cloud.

8. Force Majeure

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

9. Governing Law and Jurisdiction

9.1 This Agreement and any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including any dispute or claim relating to non-contractual obligations) will be governed by and construed in accordance with the Governing Law.

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

10.  Entire Agreement

This Agreement incorporates the documents and policies by reference (including reference to information contained in a URL or referenced policy), and is the entire agreement between you and us regarding the HCPN. This Agreement supersedes all prior or contemporaneous representations, communications, understandings and agreements between you and us, whether in writing or oral, regarding the HCPN.

11.  Modifications

We may modify this Agreement, its terms and conditions, including the documents, URLs and policies referenced herein at any time and at our sole and absolute discretion by posting a revised version on the Huawei Cloud website or by otherwise notifying you. Except otherwise indicated in the modified agreement, documents or policies, the modified terms will come into effect upon posting on the Huawei Cloud website. If you do not agree to such changes, you must discontinue or terminate your participation in the HCPN or the applicable HCPN Program. Your continued participation will be deemed to be your acceptance of the modified terms. 

12.  Miscellaneous

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

12.2  Non-assignment. You will not assign or otherwise transfer all or part of this Agreement to any third party, including your Affiliates, without prior written consent from us. We may assign this Agreement without your consent to our Affiliate(s) in connection with or as part of a corporate reorganization. We will notify you, by posting announcement on our website or through other means, prior to the effectiveness of such assignment. Upon the effectiveness of such assignment, this assignor is fully released from all and any of its obligations and duties to perform the Agreement and the assignee will be deemed substituted for us.

12.3  No Third Party Beneficiary. This Agreement is intended for the benefit of the Parties hereto and their respective permitted successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other persons.

12.4  Export. In connection with this Agreement, both Parties shall comply with the applicable export and sanction laws and regulations of United Nations, China, United States and other countries. You represent and warrant that you and/or your customers and/or end users are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the list maintained by the United Nations Security Council, the United States Government, the European Union or its Member States. You shall be solely responsible for compliance related to your subscription, access and use of the Services, including but not limited to Your Material you uploaded, processed, provided and/or made it available to your customers and end users.

12.5  Notice. We may provide notice to you under this Agreement by posting a notice on the Huawei Cloud website, or by email or text. Notice we provide by posting on the Huawei Cloud website will be effective upon posting, by email will be effective upon sending out (no matter you receive or read it), by text upon sending out. You shall be responsible to keep your email address or phone number updated.

12.6  No Waivers. Failure to enforce any provision of this Agreement will not constitute a waiver of such provision or right in any way or form and will not limit the right to enforce such provision at a later time. All waivers shall be explicitly made and in writing to be effective.

12.7  Severability. If any term of this Agreement is found to be invalid and unenforceable, the remaining terms of this Agreement will remain effective, and the invalid or unenforceable term will be replaced with another term consistent with the purpose and intent of this Agreement.

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

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

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

12.11 Code of Conduct and Ethics. Partner certifies that it has reviewed and will comply with Code of Conduct and Ethics of Huawei Cloud, which is available at: https://www.huaweicloud.com/intl/en-us/declaration/hcpn_coc.html. Partner further acknowledges that Huawei Cloud prohibits the bribery in any form and partner will comply with  the Anti-Corruption Policy for Huawei Partners (“Policy”)，which is available at https://www.huaweicloud.com/intl/en-us/partners/anti_corruption_policy.html.Huawei Cloud may immediately terminate this Agreement and all other agreements between Partner and Huawei Cloud if this section is breached.

13. Definition

13.1  "Affiliate" in relation to a Party means any person which directly or indirectly controls, is controlled by, or in 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.

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

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

13.4 “Governing Law” and “Corresponding Court” refer to the following and is dependent on the Huawei Contracting Party as per 13.3 above.

14. Country Specific Terms

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

If you are registered in India, the above section 9 will be replaced by the following term.

9.1 This Agreement and any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including any dispute or claim relating to non-contractual obligations) will be governed by and construed in accordance with the laws of India.

9.2 The Parties agree to submit all disputes, controversies or claims in relation to this Agreement, whether contractual or tortious, for arbitration. The arbitration shall be governed by the provisions of the Arbitration and Conciliation Act, 1996 or any statutory modification or enactment thereof for the time being in force. The place of the arbitration shall be in New Delhi. The arbitration proceedings shall be a sole arbitrator appointed mutually by the Parties and shall be conducted in English language. The award of the arbitration shall be final and binding against the Parties. All costs and expenses in respect of the arbitration shall be borne by the non-prevailing Party.

Any Party may, without violating section 9.2 above, seek from the courts at Gurgaon, Haryana, any provisional remedy that may be necessary to protect its rights pursuant to this Agreement. Notwithstanding that, the final right of determination of any provisional remedy granted and the ultimate controversy or dispute shall be resolved and decided according to section 9.2.

Last Updated: November 16th, 2020