HUAWEI CLOUD Marketplace Seller Agreement
HUAWEI CLOUD Marketplace Seller Agreement
The HUAWEI CLOUD Marketplace Seller Agreement (the “Agreement”) contains the terms and conditions that govern your releasing and listing of software, services or content (“Marketplace Services”) in HUAWEI CLOUD Marketplace. This Agreement is entered into by and between 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 or the entity you represent (hereinafter “you” or “your” or “Seller”) . If you enter into this Agreement for an entity, you represent and warrant that you have the power and authority to do so and to bind the entity to the terms and conditions of this Agreement. This Agreement takes effect as of the date you accept this Agreement. (You and HUAWEI CLOUD are each referred to as a “Party” and collectively as “Parties” hereunder).
1. Eligibility Requirements and Verification. You must meet the requirements subject to the following terms:
1.1 Your Account. Before applying to become a HUAWEI CLOUD Marketplace Seller, You must have a valid HUAWEI CLOUD account and sign the HUAWEI CLOUD Customer Agreement and related legal documents, such as the Privacy Statement, Acceptable Use Policy, and Legal Notice (collectively referred to as the HUAWEI CLOUD Customer Agreement). You shall use the user name registered on the HUAWEI CLOUD website to submit a registration application in accordance with the Marketplace Seller registration process. When submitting this application, you shall provide all of the required information.
1.2 Identity Verification. You shall warrant that you have applied to become a HUAWEI CLOUD Marketplace Seller with a real identity, that you are a citizen, legal entity, an agency, or an organization with full, legal, and valid rights and the authority to sign and perform this Agreement, and that you could assume the corresponding legal liabilities for the information provided in accordance with the laws and with this Agreement. And we may require you to provide additional registration information to verify your identity. We are entitled to verify this information whether the identification provided by you upon registration is true and valid. In the event that you are found not to have complied with the above-mentioned requirements, we are entitled to suspend or cancel the account and claim against you.
1.3 HUAWEI CLOUD Marketplace Guideline. We will provide HUAWEI Cloud Marketplace Guideline and other relevant documents to guide your listing and other issues related to Marketplace Services, and such Guideline may be updated from time to time. You shall comply with such Guideline.
2. Releasing. You may releasing your Marketplace Services in the HUAWEI CLOUD Marketplace subject to the following terms:
2.1 Review of Releasing. Before submitting and releasing Marketplace Services, you shall comply with all of the requirements for submitting Marketplace Services on the Marketplace, provide all supporting technical documents, including but not limited to supporting content and SLAs for services, and perform self-verification and testing in accordance with the listing standards for releasing Marketplace Services on the Marketplace provided by us. You shall test the Marketplace Services' features. We are entitled to test and review the integrity and security of your Marketplace Services at any time, and we will take all necessary measures to you and your Marketplace Services if you failed to pass HUAWEI CLOUD acceptance test, including but not limited to remove your Marketplace Services from HUAWEI CLOUD Marketplace.
2.2 Responsibility for Releasing a Marketplace Service. The Marketplace Services released on the platform shall not be exclusive, and you shall not engage in vicious or unfair competitive practices with other Sellers on the platform. In the event that your Marketplace Services contain open-source software, or are developed based on open-source software, you shall present the specific name of the open-source software and the type of the license agreement you used, and ensure that your use of such Marketplace Services does not violate the relevant open-source software license policies and agreements.
In the event that you offer Marketplace Services on the Marketplace, you shall bear the costs of the HUAWEI CLOUD Services required for image creation as well as the fees for deploying and using HUAWEI CLOUD Services.
2.3 Delivery Methods. The HUAWEI CLOUD Marketplace provides guidance for releasing different delivery methods of Marketplace Services on the Marketplace. You can select a releasing delivery method based on such guidance, but HUAWEI CLOUD is entitled to determine the method by which your Marketplace Services are brought listing on the Marketplace.
2.4 Other Rights. During the validity period of this Agreement, you hereby grant HUAWEI CLOUD a non-exclusive and free license that allows HUAWEI CLOUD to display your trademark and logo ("service provider logo") on Marketplace. You shall warrant that you are the legal owner and/or authorized licensor of the service provider logo and your Marketplace Services, and you are entitled to perform the aforesaid authorization. No fees will be payable to you in connection with these issues above.
3. Your Obligations and Warranties
3.1 Marketplace Service License. You shall warrant that your Marketplace Services are entitled to worldwide using, selling and marketing, and you shall be solely responsible for granting licenses to Marketplace End Users to use your Marketplace Services and related content, or for authorizing Marketplace End Users to use your Marketplace Services and related content through other means. Such licenses and authorization apply only to you and Marketplace End Users, and shall not impose any obligations or liabilities on HUAWEI CLOUD.
3.2 Marketplace End User License Agreement and Privacy Statement. When releasing Marketplace Services on the Marketplace, you shall elaborate an Marketplace End User License Agreement with Marketplace End Users to explicitly define the support services, SLA, and delivery standard and conditions, and provide a Privacy Statement to Marketplace End Users regarding how you using and protecting data from Marketplace End Users, and providing your Marketplace Service after getting the consent of privacy statement from Marketplace End User. The privacy statement you provided to Marketplace End Users shall include what kind of data you will collected and how you will using such data and other requirements specified by the applicable law. You hereby warrant that Marketplace End User License Agreement do not contain any term that against HUAWEI CLOUD Marketplace Seller Agreement and applicable laws related to your Marketplace Services. You shall solely responsible for any dispute arise from Marketplace End Users, and hold HUAWEI CLOUD harmless from any damage and liability.
3.3 Marketplace Services and Technical Support. You are responsible for: (a) Providing Marketplace Services that are independently developed based on our Services or legally obtained from the relevant rights holders. (b) Releasing Marketplace Services on the Marketplace and managing them according to the terms and requirements of the HUAWEI CLOUD Marketplace. (c) Providing Marketplace Services and related pre-sales consultation and technical support services to Marketplace End Users.
You are entitled to stop selling or discontinue the Marketplace Services released according to your business needs. In the event that your Marketplace Services which were sold in the past are no longer being sold, you shall continue to provide support services to your Marketplace End Users who have purchased your Marketplace Services.
In the event that you sell or provide Marketplace Services free of charge on the platform, you shall be solely responsible for the Marketplace End Users of such Marketplace Services, including but not limited to providing applications, after-sales support, security safeguard, and Q&A. You are solely responsible for providing all service supports for your Marketplace Services to Marketplace End Users and shall solely assume all of the liabilities of this support. HUAWEI CLOUD will not provide any support or service other than with respect to the HUAWEI CLOUD Service for you and Marketplace End Users.
You are solely responsible for providing service support for Marketplace End Users who have purchased your Marketplace Services. You are obligated to correctly upgrade and maintain your Marketplace Services and provide corresponding technical support, and to solely assume all problems, losses, compensation, and related liabilities incurred from incorrect upgrades or maintenance.
3.4 Regular Technical Support. You shall provide off-site technical support services for at least 5 days x 8 hours per week, including but not limited to online support and support through telephone or email. In addition, you shall also provide a Marketplace Services hotline or other contact information, and designate Marketplace End Users service support staffs.
3.5 Responding in Time. You are responsible for responding to Marketplace End Users' questions and complaints and for providing related after-sales services for various problems with your Marketplace Services. You shall propose solutions within the time you have guaranteed to your Marketplace End Users.
3.6 Trouble Clearing. In the event that your Marketplace Services cannot be used and your Marketplace Services fail to run properly, you shall provide Marketplace End Users with a solution or workaround within 24 hours. In the event that it is difficult for Marketplace End Users to use Your Marketplace Services due to degraded performance, you shall provide Marketplace End Users with a solution or workaround within 48 hours.
3.7 Marketplace End User Disputes Resolution. You shall be solely liable for any disputes, penalties, lawsuit, or other matters in connection with the applications or services you provide, and you shall take effective measures to hold HUAWEI CLOUD harmless from any liabilities and compensate HUAWEI CLOUD for any losses incurred by you.
3.8 Compliance. The Marketplace Services provided by you shall comply with all applicable laws, regulations, this Agreement, and other cooperation agreements, including the terms of services related to HUAWEI CLOUD Services, the HUAWEI CLOUD Customer Agreement, HUAWEI CLOUD Marketplace Guideline, and other policies provided on the HUAWEI CLOUD Website and Marketplace like Accepted Use Policy. You shall warrant that your Marketplace Services do not contain any content that violates the laws, regulations, and international treaties recognized or acceded to by Hong Kong, China. We are entitled to remove your Marketplace Services from Marketplace when we receive any notice from third-party which claim against you for your Marketplace Services infringe third-party’s rights or there are illegal contents in your Marketplace Services.
3.9 Security. You shall properly configure, use, and ensure the security of your Marketplace Services, and properly protect and back up your Marketplace Services, including but not limited to using encryption technologies to prevent unauthorized access to your Marketplace Services and archiving your Marketplace Services. You warrant that your Marketplace Services do not contain any malicious computer programs or viruses, and without any security problem, and shall not interfere with or attempt to interfere with the platform, other applications, or any part or functions of other applications.
3.10 Data Protection. All of the rights to the operational data of the HUAWEI CLOUD Services, Marketplace, and related websites belong to HUAWEI CLOUD. Without prior official and 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 Marketplace for any purposes. You warrant that all personal data you collected from Marketplace End Users comply with all applicable data and privacy laws.
You shall not use any data (including but not limited to Marketplace End User information, personal data, Marketplace End User transaction information, and operational data for your Marketplace Services) that is obtained through the platform's technical interfaces or public channels under this Agreement for any purposes beyond those set forth in this Agreement, and shall not illegally obtain and use Marketplace End User information and personal data.
In the event that your application servers are deployed outside of Hong Kong, China and that important data or personal data needs to be transferred, you shall perform security assessments in accordance with the methods formulated by the all applicable laws and regulations. In the event that the applicable laws and regulations have other provisions, those provisions shall prevail.
4. HUAWEI CLOUD Marketplace Platform
4.1 Platform and Operational Support. We rely on the HUAWEI CLOUD Website and Marketplace to provide you with platform and operational support, including operation management, platform maintenance, electronic transactions, and settlement services. We are entitled to (a) operating and maintaining the Marketplace platform. (b) Reviewing the Marketplace Services that are offered by you on the Marketplace, as well as any changes to them. HUAWEI CLOUD is entitled to verify all of the Marketplace Services released on the Marketplace by you from time to time and decide, at our own discretion, whether to discontinue them.
4.2 Reselling. HUAWEI CLOUD reserves the rights to operate, sell, and promote the Marketplace Services provided by you under this Agreement. Unless otherwise agreed upon by both Parties through a written agreement, HUAWEI CLOUD is entitled to resell the aforesaid Marketplace Services and may use various resellers for resale and promotion.
4.3 Upgrades and Changes. HUAWEI CLOUD will upgrade the Marketplace platform when necessary, or move the aforesaid platform to a different equipment center. The upgraded Marketplace shall be compatible with the existing functions to the extent possible.
4.4 Suggestions Provided by You. You hereby irrevocably transfers all rights to and interests in suggestions provided by you to HUAWEI CLOUD, and agrees to provide necessary support for the arrangement, improvement of the aforesaid suggestions.
4.5 Limited Monitoring. You understand that the Marketplace platform service provided by HUAWEI CLOUD, and agree that HUAWEI CLOUD may take the limited and necessary technical means to perform limited and necessary monitoring of the Marketplace running status. This monitoring is implemented only on data from the HUAWEI CLOUD Website, Marketplace, without involving the content and data of the Marketplace End Users or of your Marketplace Services. In the event that you violate this Agreement or that the Marketplace Services are defective, or to meet your own business development needs, HUAWEI CLOUD is entitled to stop selling or discontinue your Marketplace Services, or to remove the Marketplace Services from the Marketplace after notifying you.
5. Settlement and Payment
5.1 Platform Fees. We are entitled to collect fees from you which are including but not limited to platform service fees and platform listing fees.
5.2 Collection and Transfer. We are appointed by you as your payment processing agent and will process and collect all fees (payments and refunds for Transactions) related to sales of your Marketplace Services from your Marketplace End User on your behalf and then transfer such fees to you. At the beginning of each month, we will proceed all previously unpaid fees that we have collected in last month, except that we may withhold our payment to you until you fulfill the minimum settlement payment of your Marketplace Services. We do not guarantee payment on behalf of any Marketplace End User who owe you. We will deduct the platform fees due to us from each payment related to your Marketplace Services. We may also withhold, deduct, or set off any amounts payable by you to us or our affiliates against any Transaction Proceeds. All fees and charges payable by your Marketplace End Users for your Marketplace Services are billed and collected through us.
5.3 Invoicing. You shall issue invoices to us in accordance with the payment amounts listed on the bills and the relevant tax laws.
5.4 Marketplace Services Providing. You shall immediately provide all Marketplace Services on the Marketplace to your Marketplace End User when we collect your transaction fees from Marketplace End Users on your behalf.
5.5 Taxes. Each Party is responsible, as required under applicable laws and regulations, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that Party upon or with respect to the transactions and payments contemplated under this Agreement. When we are legally obligated by a valid taxing authority, we will collect Taxes, and we will provide Marketplace End Users with a compliant tax invoice.
5.6 Refund. In the event that a Marketplace End User applies for a refund and we confirm that the application meets the refund requirements, we will send a refund notification to you and the Marketplace End User. After we have refunded to the Marketplace End User, you shall reimburse us for all amounts so refunded.
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, that is designated as confidential”) 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 without restriction on the disclosure 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.
6.2 Protection of Confidential Information. Each Party agrees to keep the other Party’s Confidential Information in confidence during the term of this Agreement and for a period of five years thereafter. Each Party shall not disclose the other Party's Confidential Information to any person except with the prior written consent of the other Party or in accordance with this Section 6. Each Party agrees to take appropriate measures to protect the other Party’s Confidential Information but in no event be less than the degree of care that it uses to protect its own confidential information.
6.3 Permitted disclosure. The Receiving Party may only disclose the Confidential Information to its employees, agents or subcontractor 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. In those 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 shall warrant that your Marketplace Services, 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 understand and agree that, during the validity period of this Agreement, a free, worldwide, irrevocable, non-exclusive, intellectual property license to HUAWEI CLOUD and our Affiliates for using, showing, and security checking the Marketplace Services under this Agreement.
7.2 Authorize to Releasing. You agree that HUAWEI CLOUD and our Affiliates have rights to release the Marketplace Services and any related information on our self-owned websites, self-owned 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 Marketplace Services on the Internet to make it available to Marketplace End Users. (b) Presenting, using, duplicating, disseminating, or selling Marketplace Services according to this agreement signed between both Parties. (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 Marketplace Services, including company, application, and Marketplace Service information submitted to HUAWEI CLOUD by you.
7.3 Trademarks. Except otherwise agreed upon in the 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 trade name, service mark, brand, or trademark. Each Party shall clearly understand that each Party's trade name, service mark, brand, and trademark are the proprietary assets of that Party.
7.4 Intellectual Property Rights Confidentiality. Both Parties shall keep confidential any and all technical secrets and business secrets obtained or learned from each other during the conclusion and performance of this Agreement, respect each other's intellectual property rights and business secrets, and comply with the relevant competition laws, and regulations on intellectual property rights, and all other relevant laws and regulations of Hong Kong, China, both during the validity period of this Agreement and thereafter. Without prior written consent by one Party, the other Party shall not disclose, transfer, license others to use, exchange, donate, or share such secrets with any other individual or organization in any manner, or co-use or improperly use such secrets with any such individual or organization. A Party that breaches this clause and causes losses to the other Party shall bear the relevant legal liabilities.
7.5 Original Ownerships. The intellectual property rights of your Marketplace Services which are listed on the Marketplace does not change and shall still belong to the original subject of such intellectual property rights.
7.6 Accountability. If a third Party complains to HUAWEI CLOUD, our Affiliates, or Marketplace End Users that the Marketplace Services submitted by you in accordance with this Agreement and/or your content and related services infringe on the intellectual property rights or proprietary information of the third Party, you shall solely assume all liabilities for compensation for the infringement of these intellectual property rights, and hold HUAWEI CLOUD, our Affiliates, or Marketplace End Users harmless from any loss. We are entitled to remove your Marketplace Services from Marketplace or take any necessary measure if we receive third party’s notice regarding you infringe third party’s intellectual property rights. If You becomes, or, in the opinion of HUAWEI CLOUD, may become, the object of a claim because the Marketplace Services 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 proprietary rights of a third Party, You shall, in a timely manner: (a) Acquire for HUAWEI CLOUD, our Affiliates, and/or Marketplace End Users the right to use such Marketplace Services without causing any infringement or bearing any indemnification liabilities arising from the use of the aforementioned Marketplace Services. And (b) Modify your Marketplace Services and/or content and related services such that they become non-infringing. And (c) Use non-infringing substitutes that substantially comply with the requirements of this Agreement, satisfy HUAWEI CLOUD and the third Party by replacing the aforesaid Marketplace Services and/or Content and related services, and compensate HUAWEI CLOUD, your Affiliates, and/or Marketplace End Users for all expenses involved.
8. Security and Data Privacy
8.1 Your Security. You are responsible for any security vulnerabilities and the consequences of such vulnerabilities arising out of or related to your Marketplace Services, including but not limited to any viruses, Trojan horses, worms or other harmful programming routines contained in your Marketplace Services.
8.2 Marketplace End User Data Privacy. You acknowledge and agree that you will comply with all applicable laws and regulations regarding personal privacy and data protection, including but not limited to your collection, using, and transfer of data of Marketplace End Users. You acknowledge and agree that you will be solely responsible for any loss and liability if you violate such laws and regulations, and will hold HUAWEI CLOUD harmless from any damage and liability.
9.1 Actions Undertaken or Events Initiated by HUAWEI CLOUD. You confirm that the following actions undertaken or events initiated by HUAWEI CLOUD do not constitute a breach of this Agreement, and that HUAWEI CLOUD does not need to bear any liabilities therefrom.
(a) The interruption of services while HUAWEI CLOUD adjusts and maintains the network, or a drop in the rate of access to your Marketplace Services due to any form of Internet access blocking.
(b) The consequences arising from (but not limited to) the malicious activities of hackers, viruses, technical renovation in the telecom departments, and the disconnection of the backbone line, in view of the special characteristics of computers and the Internet.
(c) The unavailability of your Marketplace Services caused by the operations and maintenance measures of HUAWEI CLOUD, provided that HUAWEI CLOUD gives prior notice to you with regard to data backup, service migration, or service suspension. Such operations and maintenance measures include but are not limited to troubleshooting, system upgrading, system optimization, and system capacity expansion. In the case of an emergency fault, HUAWEI CLOUD is entitled to take the corresponding measures without any prior notice.
9.2 Rights Reserve. HUAWEI CLOUD reserves the right to, at our sole discretion, change, upgrade, modify, and transfer the Marketplace, your Marketplace Services, Cloud Service, and related functions and application software at any time. HUAWEI CLOUD further reserves the right to develop new modules, functions, software, and services in our Services. Unless otherwise specified by HUAWEI CLOUD, the aforesaid new modules, functions, software, and services are provided in accordance with this Agreement.
9.3 Data Transmission. You agree that HUAWEI CLOUD shall not be responsible for any delays, inaccuracies, errors, or omissions that occur during data transmission when you, Marketplace End Users, or third Parties use the Cloud Service, nor for any damage caused thereby.
9.4 Third-Party Services Third-party services, including but not limited to products or services provided by third Parties and third-party applications based on the HUAWEI CLOUD Website, may be provided directly to you by other natural persons, legal persons, or organizations in accordance with separate clauses and subject to separate charges. HUAWEI CLOUD is not obligated to test or screen third-party services. You shall use third-party services at your own risk.
9.5 Government Authority Requirements. During the validity period of this Agreement, if a concerned government authority issues an injunction or a similar notice or requirement with regard to your Marketplace Services, or prohibit Marketplace End Users to purchase your Marketplace Services, HUAWEI CLOUD shall notify you as early as possible, when the relevant laws and government authorities permit. In this case, HUAWEI CLOUD shall not be liable for breach of this Agreement.
9.6 Providing the Necessary Conditions. In the event that your Marketplace Services cannot be provided or cannot be provided in time, or if quality defects exist in your Marketplace Services because you or an Marketplace End User has failed to provide the necessary conditions for provisioning your Marketplace Services, HUAWEI CLOUD shall not bear relevant responsibilities.
9.7 Exceptions in Your Marketplace Services. If the stability of the Internet is affected due to exceptions in your Marketplace Services, including but not limited to the sending of a large number of junk emails or becoming the source of a malicious attack, which may lead to a severe network security problem and further affect other Users, HUAWEI CLOUD is entitled to suspend the use of Your Marketplace Services.
9.8 Problems and Disputes from Your Marketplace Services. HUAWEI CLOUD shall not be responsible for after-sales services that arise from any problems, including those related to the operating system or the layer above the operating system attached to your Marketplace Services, which are caused by you, your Marketplace Services, or related services provided by you to Marketplace End Users through the Marketplace. HUAWEI CLOUD shall not be responsible for any losses and any direct or indirect liabilities arising from the aforesaid problems and disputes.
9.9 Legal Liabilities between You and Marketplace End Users. HUAWEI CLOUD shall not assume any direct or indirect legal liabilities between you and Marketplace End Users.
9.10 Personal Information Collection. In the event that you do not declare or obtain the consent of Marketplace End Users to the collection of their personal information, you shall assume all liabilities arising therefrom and compensate for all losses caused to HUAWEI CLOUD.
10. Force Majeure
Neither Party shall be liable for any delay for failure to perform this Agreement caused by force majeure event beyond reasonable control, including but not limited to acts of God, earthquake, storms, act of war, hostility, sabotage, act of governmental order electrical, internet or telecommunication outage, blockages, embargoes, riots. Both Parties will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 60 days, either Party may cancel unperformed Services and the affected orders upon written notice. This section does not excuse your payment obligations hereunder.
11.1 Exclusive Remedy. This Indemnification section provides the Parties’ exclusive remedy for any infringement claims.
11.2 Continue to Support. In the event that this Agreement is terminated due to your breach of this Agreement, you shall subsequently continue to provide services and support for the Marketplace End Users who have purchased your Marketplace Services. If you fail to provide such support in time, HUAWEI CLOUD is entitled to take any necessary remedial measures, and you shall compensate HUAWEI CLOUD for the losses (if any) incurred therefrom.
11.3 Indemnification by You. If a third party makes a claim against us that your Marketplace Services infringes the third party’s intellectually property rights, you will, at your cost, defend us against the claim and indemnify us from the damages, costs and expenses finally awarded by the court to the third party claiming infringement or the settlement agreed to by you. You shall be solely liable for and hold HUAWEI CLOUD harmless from any losses to third party caused by you or arising from your Marketplace Services, and you shall compensate HUAWEI CLOUD for the losses (if any) incurred therefrom. Any dispute, controversy, loss, infringement, and liability for breach of agreement between you and Marketplace End Users shall be resolved between yourself, and HUAWEI CLOUD shall not be liable for any losses caused to the Parties of the transactions on the Marketplace platform. You shall be solely liable for and hold HUAWEI CLOUD harmless from any losses or demand for payment of any taxes imposed in connection with your Marketplace Services, 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 Marketplace Service.
11.4 Other Losses. You shall compensate HUAWEI CLOUD for other losses due to your behavior, including but not limited to fines paid by HUAWEI CLOUD, expenses to repair damaged equipment, data and system recovery expenses, and compensation payments, settlement fees, attorney fees, and legal costs paid by HUAWEI CLOUD to third Parties, as well as travel expenses, transportation fees, and accommodation fees incurred therefrom. Additionally, HUAWEI CLOUD is entitled to deduct the compensation payable by you from the amount payable to you, and you shall separately pay the remaining amount (if any).
12. Limitations of Liabilities
12.1 NO LIMITATION.Nothing in this Agreement will operate so as to exclude or limit the liability of either party to the other for fraud, death or personal injury arising out of negligence or any other liability that cannot be excluded or limited by law.
12.2 LIMITATION OF LIABILITIES. SUBJECT TO SECTION 12.1, 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 OUR MARKETPLACE PLATFORM SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
12.3 EXCLUSION OF LIABILITIES. SUBJECT TO SECTION 12.1 AND 12.2, 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, DATA OR DATA USE,
ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF OR WAS AWARE OF THE POSSIBILITY THAT SUCH DAMAGE OR LOSS MIGHT BE INCURRED BY THE OTHER PARTY.
13. Term, Suspension and Termination
13.1 Term. The term of this Agreement will commerce on the effective date specified hereunder and remains in force unless terminated hereunder.
13.2 Suspension. We may suspend your right to access or use the Marketplace if: (a) it is reasonably needed to prevent unauthorized access to your Marketplace Services; (b) your or your Marketplace End User’s access and use of the Marketplace is in violation of the Acceptable Use Policy, this Agreement and applicable laws and regulations; (c) you are in breach of your payment obligations; (d) you and your Marketplace End User’s access and use of the Marketplace may pose security risk to the Marketplace, us or third parties; (e) you and your Marketplace End User’s access and use of the Marketplace may adversely impact the functionality, availability or operation of the Marketplace; (f) it is required under applicable laws and regulations, or by governmental body; (g) you and your Marketplace End User’s access and use of the Marketplace may subject us, our Affiliates or subcontractors to liabilities or regulatory compliance risks; (h) you may infringe third party’s Intellectual Property Rights; or (i) you have ceased to operate in the ordinary course, or are in bankruptcy, liquidation, dissolution or similar proceedings. You acknowledge and agree that (a) suspension does not excuse your payment obligation for the services fees charged during or for the suspension period; and (b) you will not be entitled for any refund or services credit for such suspension.
13.3 Termination. If either Party materially breaches this Agreement and fails to cure the breach within 30 days upon receipt of the notice from the other Party.
13.4 Consequences of termination. If this Agreement is terminated, you shall immediately cease to use Huawei Resources and immediately cease to identify yourself as a Seller of HUAWEI CLOUD. Termination of this Agreement shall not: (a) affect the accrued rights and obligations of the parties as at the date of termination; (b) affect the continued operation of Sections 3, 4, 6 (as appropriate), 7, 8, 9, 11, 12, 13.3, 14, 15 16 and 17 and any provisions of this Agreement which are necessary for the interpretation or enforcement of this Agreement; or (c) relieve you of any of your obligations hereunder to pay any fees and charges under Section 5 accrued or payable to us during the term of this Agreement and you shall immediately pay us all such fees upon the effective date of termination.
14. Modifications and Additions to the Agreement
We may modify this Agreement, including the documents and policies reference herein, at any time at our discretion by posting a revised version on the Website or by otherwise notifying you. Except otherwise indicated in the modified agreement, documents or polices, the modified terms will come into effect upon posting or notification. You will review such terms regularly on the Website. Your continuous use of the Marketplace after the effectiveness 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 dispute or claim relating to non-contractual obligations) will be governed by and construed in accordance with laws of Hong Kong SAR of the People’s Republic of China.
15.2 The Parties agree to submit any dispute arising out of or in connection with this Agreement to the exclusive jurisdiction of the courts of Hong Kong SAR of the People’s Republic of China (including any dispute or claim relating to non-contractual obligations).
16. Entire Agreement
16.1 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 Services. This Agreement replaces, extinguishes and supersedes all prior or contemporaneous representations, communications, understandings, undertakings and agreements (including any collateral contracts of any nature) between you and us, whether in written or oral, regarding the Services. It is expressly agreed by the Parties that the terms of this Agreement will supersede any terms and conditions that is different or in addition to the terms of 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.
17.1 Non-assignment. You will not assign or otherwise transfer all or part of this Agreement to any third party, including your Affiliates, without prior written consent from us. We may assign or transfer any rights or obligations under this Agreement without your consent to our Affiliate [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 transfer or assignment. [Upon the effectiveness of such transfer or assignment, this assignor is fully released from all and any of its obligations and duties to perform the Agreement and the licensee will be deemed substituted for us.]
17.2 No Third Party Beneficiary. Unless otherwise expressly provided in this Agreement, a person who is not a party to this Agreement may not enforce any of its provisions under the Contracts (Rights of Third Parties) Ordinance.
17.3 Notice. We may provide notice to you under this Agreement by posting a notice on the Website, email, text. Notice we provide by posting on the 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.
17.4 Export. In connection with this Agreement, both Parties shall comply with the applicable export and sanction laws and regulations of United Nations, China, Unites States and other countries and regions. You represent and warrant that you and/or your Marketplace End User are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the listed 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 related to your subscription, access and use of the Services, including but not limited to Your Content you uploaded, process, provided and/or made it available to your Marketplace End User.
17.5 Relationship. Each Party is an independent contractor. This Agreement does not create any partnership, joint venture, agency or employment relationship between the Parties.
17.6 Fully Understanding. You acknowledge and states that you have carefully read and fully understood this Agreement, have requested and obtained full explanations from HUAWEI CLOUD for terms about which you have doubts, and is willing to formally enter the service application procedure and agree to be bound by all of the foregoing terms and conditions.
17.7 No Waivers. Failure to enforce any provision of this Agreement will not constitute a waiver of such provision and will not limit the right to enforce such provision at a later time. If a party waives a breach of any provision of this Agreement, this will not operate as a waiver of a subsequent breach of that provision, or as a waiver of a breach of any other provision. All waivers shall be explicitly made in written to be effective.
17.8 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.
17.9 Further Assurance. Each party must at its own cost and expense execute, or use all reasonable endeavors to ensure the execution of, whatever further documents or deeds the other party reasonably requires from time to time for the purpose of giving that other party the full benefit of the provisions of this Agreement.
17.10 Rights and Remedies. The rights, powers and remedies provided in this Agreement are (except as expressly provided) cumulative and not exclusive of any rights, powers and remedies provided by applicable laws or regulations or otherwise.
17.11 Cost. Each party must (except as expressly provided) bear its own costs and expenses in connection with the preparation, negotiation, and entering into of this Agreement.
18.1 “Website” refers to Huawei Cloud Website located at: [https://www.huaweicloud.com/intl/].
18.2 "Affiliate" refers to any company or legal organization controlled by, controlling, or jointly controlled by either Party hereto, either currently or in the future. "Control" means the direct or indirect holding of shares or other securities representing thirty percent (30%) or more of the combined voting power for the election of directors (or other management) of a controlled or jointly controlled organization.
18.3 "Marketplace" refers to a neutral e-commerce platform that is established and operated by HUAWEI CLOUD located at [https://marketplace.huaweicloud.com/intl/], on which you can promote and sell Marketplace Services based on HUAWEI CLOUD Services to Marketplace End Users.
18.4 "Marketplace Services" refers to the software, images, and services (which are independently developed by you or legally provided by Parties authorized by the relevant rights holders) traded on the Marketplace, 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.
18.5 "Seller" refers to you as a service provider that is entitled to sell and provide Marketplace Services to Marketplace End Users on the Marketplace.
18.6 "Seller's Account" refers to an account registered by you on the HUAWEI CLOUD Website. Your attributes include an account number, the remaining balance, and others.
18.7 “Marketplace End User” refers to any person you permit to access and use the Marketplace Services.
18.8 “Huawei Contracting Party” refers to Huawei Services (Hong Kong) Co., Limited.
18.9 "Open-Source Software" refers to any software whose source or object code is made available with an open-source software license.
18.10 "Open-Source Software License" refers to any license that: (a) requires a licensor to permit reverse-engineering of the licensed software or other software incorporated into, derived from, or distributed with such licensed software; or (b) requires the licensed software or other software incorporated into, derived from, or distributed with such licensed software to be distributed in source code form or free of charge. Open-Source Software Licenses include but are not limited to: (i) GNU General Public License (GPL) or Lesser/Library GPL (LGPL); (ii) The Artistic License (e.g., PERL); (iii) the Mozilla Public License; (iv) the Netscape Public License; (v) the Sun Community Source License (SCSL); (vi) the Sun Industry Standards Source License (SISL); (vii) the Apache Server license; (viii) QT Free Edition License; and (ix) IBM Public License.
18.11 "HUAWEI CLOUD Marketplace Guideline" ("the Guideline ") refers to a series of guidelines that maintain order in the Marketplace and guide the Marketplace Seller. HUAWEI CLOUD is entitled to update the Guidelines from time to time and display them on the HUAWEI CLOUD Website.
18.12 "SLA" refers to short for Service Level Agreement, is an agreement which is concluded between you (service provider) and your Marketplace End User. An SLA defines the type and quality of service provided by you to the Marketplace End User, setting out the service provider's commitment to performance and reliability assurance.
18.13 “Acceptable Use Policy” refers to the policy located at: https://www.huaweicloud.com/intl/declaration/sa_nisr.html, which is incorporated into this Agreement by reference and may be updated from time to time.