HUAWEI CLOUD Marketplace Terms

HUAWEI CLOUD Marketplace Terms

These Terms govern your use of the HUAWEI CLOUD Marketplace (“Marketplace”) and grant you access to it and the right to purchase services provided by Sellers on the Marketplace (“Marketplace Services”). These Terms are entered into by and between HUAWEI CLOUD Contracting Party as defined in Section9.1 of these Terms (“HUAWEI CLOUD”, “we”, “us” and “our”), the entity you represent or you individually (“You / you / your”). These Terms take effect as of the date you accept these Terms.


1.       Prices and Payment

1.1   Payment. You agree to pay all applicable fees related to your use of the Marketplace Services. These fees are separate and in addition to fees applicable to your use of any other HUAWEI CLOUD Services. You shall solely be responsible to pay the bank charges and related fees incurred during the performance of these Terms.

1.2   Orders. The prices and payment methods under these Terms shall be subject to those specified in the order on HUAWEI CLOUD Marketplace. The pricing at any time may be adjusted at Seller’s discretion. You may view the updated price list at: https://www.huaweicloud.com/intl/product/price.html. 

1.3   Invoicing. We will issue an invoice to you if we are legally obligated by a local authority to do so. Due to fulfill financial arrangements for us. You agree that such invoicing by us does not and will not obligate us in any way or form in the rendering of the Marketplace Services that you are purchasing from the Seller and do you agree that we will not assume any liabilities and / or responsibilities for the Marketplace Services provided by Sellers. Any liability or responsibility related to Marketplace Services is solely assumed by Sellers.

1.4   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. If any other taxes (including but not limited to cross-board tax withholding) are required by law to be levied on any payment, you shall make extra payments to ensure that we would have received payment equal to the amount no taxes had been required. In such circumstances, you will use reasonable efforts to minimize any such taxes to be withheld to the extent legally allowed (including to the extent allowed by the operation of any applicable double taxation agreements or treaties) including the filing of any documents with any relevant taxation authority. You agree to provide us with evidence(s) upon request that any such withholding tax has been timely and properly remitted to the relevant tax authorities within 60 days after the payment is made. 

1.5   Refunds. In the event that you apply for a refund and we confirm that the application meets the refund requirements provided by Seller, we will send a refund notification to You and the Seller. When we get the final confirmation from Seller, then we will refund to you for the Marketplace Services in question, strictly in accordance with the refund process of HUAWEI CLOUD.

1.6   Cancelation. You further agree that we will be entitled to suspend or cancel your access to Marketplace Services in the event of You being unable to make on-time and full payment(s) for the Services you are purchasing. Such cancelation or suspension may result in your data loss.

1.7  Payment Collection Agent. Notwithstanding anything to the contrary, you agree that, under our sole discretion on the basis of reasonable business consideration, our affiliate which acts as an agent authorized by the contracting party subject to Section 9.1 may be responsible for collecting payment from you and issuing an invoice to you related to your use of the Marketplace Services. For example, if you register your account in Brazil or India, the affiliate responsible for the said duties will be HUAWEI DO BRASIL TELECOMUNICACOES LTDA.or HUAWEI TELECOMMUNICATIONS (INDIA) COMPANY PRIVATE LIMITED respectively. 


2.       Use and Support

2.1   Marketplace End User License Agreement. Unless otherwise specified in these Terms, your use of any Marketplace Service is governed by the Marketplace End User License Agreement.

2.2   Use of Marketplace Services. If you can perform the following operations after logging in to the Marketplace, it is deemed that Marketplace Services can be used by You: a) On the Console page, you can view the Marketplace Services. B) You can manage and maintain Marketplace Services by related guides provided by Seller. C) You can use the methods recognized by Seller to query the related parameters that are consistent with the selected specifications and models in the order.

2.3   Supports of Marketplace Services. You confirm that you understand that the Sellers are Marketplace Services providers, and Sellers will solely assume any and all responsibility and liability related to Marketplace Services. You shall appropriately configure and use Marketplace Services and take security measures to protect and back up Your Content, including but not limited to encrypting the Content to prevent it from unauthorized access and archiving the Content. Seller shall be liable for providing you with the corresponding service support and for providing upgrades, maintenance, and technical support related to the Marketplace Services. Seller shall be responsible for handling your consultations and complaints, and related after-sales services that may be required and shall propose solutions within the period as undertaken by the Seller. After the Marketplace Services which you have purchased have been removed from the Marketplace, Seller shall continue to provide service and support for you until the end date of the purchased Marketplace services. Additionally, we provide support for online payment disputes, refunds, chargebacks and cancellations to you.


2.4  
Suspension. We may suspend your right to access or use the Marketplace requested to do so by Sellers or on our own accord and discretion if: (a) your access and use of the Marketplace is in violation of the Acceptable Use Policy as set out in Section 10.5, These Terms and/or any applicable laws and/or regulations; (c) you are in breach of your payment obligations; (d) your access and use of the Marketplace may pose a security risk to the Marketplace, us or third parties; (e) your access and use of the Marketplace may adversely impact the functionality, availability or operation of the Marketplace; (f) it is required under any applicable law and/or regulations or governmental body; (g) your access and use of the Marketplace may subject us, our affiliates or subcontractors to liabilities or regulatory compliance risks; (h) you and/or Sellers infringe or threaten to infringe or in our reasonable opinion may possibly infringe a third party’s intellectual property rights; or (i) you have ceased to operate in the ordinary course, dissolved or you have resolved to enter or are placed under or applied for voluntary or compulsory liquidation (whether provisional or final) or upon you entering into business rescue proceedings or the like. You acknowledge and agree that (a) suspension does not excuse or waive your payment obligation(s) for the service fees charged during or for the suspension period; and (b) you will not be entitled to any refund or service credits due to such suspension.


3.       Data Privacy

3.1   Data Disclosed. If you access or purchase Marketplace Services, you agree that we may share with Seller your registration information and other details that are necessary for transaction on Marketplace Services.

3.2   Seller Privacy Practices and Statements. Sellers are responsible for providing privacy statements to you and describe their privacy practices with regard to your data that they collect from their Marketplace Services or disclosed by HUAWEI CLOUD. Our Privacy Statement will not apply to any Marketplace Service or to Sellers’ use of any of your data or information.

3.3   Your Data Protection. Seller shall be solely responsible for your personal data and other data protection and security.


4.       Limitation of Liability

1.  

2.  

3.  

4.  

4.1   DIRECT LOSS ONLY. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF REVENUES, PROFITS, OPPORTUNITIES, CUSTOMERS, GOODWILL, REPUTATION, DATA OR DATA USE),EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

4.2   PLATFORM LIABILITIES. HUAWEI CLOUD ONLY PROVIDES THE MARKETPLACE AS A SALES PLATFORM UNDER THESE TERMS. TO THE EXTENT PERMITTED BY LAW, HUAWEI CLOUD DOES NOT PROVIDE ANY EXPRESSED OR IMPLIED WARRANTY OR LIABILITIES FOR ANY MARKETPLACE SERVICE ON THE MARKETPLACE. UNLESS OTHERWISE SPECIFIED BY THE MANDATORY PROVISIONS OF LAWS, HUAWEI CLOUD SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, PUNITIVE, SPECIAL, AND DERIVATIVE LOSSES (INCLUDING BUSINESS LOSS, REVENUE LOSS, PROFIT LOSS, LOSS OF DATA USED, OR LOSS OF ANY OTHER ECONOMIC BENEFITS) IN CONNECTION WITH OR ARISING FROM THESE TERMS. UNDER THESE TERMS, HUAWEI CLOUD SHALL NOT ASSUME ANY LIABILITIES ON BEHALF OF THE SELLER AND ITS MARKETPLACE SERVICES AND SHALL THE SELLER BE SOLELY AND FULLY LIABLE TO YOU FOR ANY LOSSES OR DAMAGES YOU MAY SUFFER DURING YOUR USE OF THE MARKETPLACE SERVICES.


5.       Force Majeure

Neither Party shall be liable for any delay for failure to perform its obligations under these Terms where such delay or failure is caused by a force majeure event(s) beyond its reasonable control. Force Majeure events shall include, but not be limited to, acts of God, earthquake, storms, act of war, hostility, sabotage, act of governmental order electrical, internet or telecommunication outage, blockages, sanctions, denial orders, embargoes and riots. Both Parties will use reasonable efforts to mitigate the effect of a force majeure event. If such event however continues for more than 60 (sixty) days, either Party may cancel and end any unperformed Services and the affected orders upon written notice. Notwithstanding the above, this section does not excuse your payment obligations hereunder.


6.       Governing Law and Venue

6.1   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.

6.2   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).


7.       Changes and Modifications

7.1   Changes. We may change or discontinue Marketplace or change or remove any or all functionality of the Marketplace from time to time and at our sole and absolute discretion. We will notify you of same through a posting announcement on our website or otherwise notifying you of material changes to-, or the discontinuation of the Marketplace.

7.2   Modifications. We may modify these Terms, including the documents and policies referenced herein, at any time and at our sole and absolute discretion by posting a revised version on the Website or by otherwise notifying you. Except as is otherwise indicated in the modified Terms, documents or polices, the modified Terms will come into effect upon posting or notification. You undertake to 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 of and agreement to be bound by the modified Terms.


8.       Disclaimer

8.1   Non-breach. You agree that the following events or actions implemented by HUAWEI CLOUD does and will not constitute a breach of these Terms: (a) Service interruptions due to network adjustment and maintenance by Seller and/or HUAWEI CLOUD or slow access to the Marketplace Services due to Internet congestion; (b) Taken into account of the special characteristics of computers and the Internet, events arising from hackers' attacks, viruses, technical renovation in the telecom departments and / or the disconnection of the backbone line; (c) Unavailability of Your services or Content caused by the operations and maintenance implemented by Seller and/or HUAWEI CLOUD, provided that Seller and/or HUAWEI CLOUD gives prior notice to You with regard to data backup, service migration, or service suspension. Such operations and maintenance include, but are not limited to, troubleshooting, system upgrades, system optimization, and system capacity expansion.

8.2   Marketplace Services, Advertising and Intellectual Property Right. You understand that Seller is solely responsible for any liability of advertising and intellectual property right related to Seller’s Marketplace Services.

8.3   Your Personal Data Protection. We do not guarantee the safety of your personal data collected from Seller.

8.4   Platform Problem. We do not guarantee to completely handle any technical faults and network problems on the Marketplace.

8.5   Separated Liability. Notwithstanding anything else herein contained, Seller and HUAWEI CLOUD shall be individually liable for their respective breaches of these Terms based on their failures and actions. You agree and understand that Seller and HUAWEI CLOUD are independent contracting parties. In any event and notwithstanding anything else herein contained HUAWEI CLOUD will not assume joint liability in any way or form with Sellers.


9.       Definitions

Unless otherwise specified, the capitalized terms used in these Terms will have the same meaning as defined in Huawei Cloud Customer Agreement.

9.1   “Huawei Contracting Party” refers to Huawei Contracting Party refers to Huawei Services (Hong Kong) Co., Limited. Notwithstanding anything to the contrary hereunder, if you enter into an agreement with Huawei Services (Hong Kong) Co., Limited’s affiliate to subscribe to the Services, such Huawei affiliate entity shall assume the corresponding obligations and liabilities. In such a circumstance, Huawei Services (Hong Kong) Co., Limited will not assume any liabilities or obligations directly to you and do you hereby formally waive any claims or rights to claim against Huawei Services (Hong Kong) Co., Limited.

9.2   "Seller" refers to third party service provider that is entitled to sell and provide Marketplace Services to you on the Marketplace.

9.3   "Marketplace Services" refers to the software, images, and services (which are independently developed by Sellers or legally provided by Sellers 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. These services are solely provided and supported by Sellers.

9.4   "Marketplace" refers to a neutral e-commerce platform that is established and operated by HUAWEI CLOUD. You could make transaction with Seller on this platform like purchasing Marketplace Services from Sellers.

9.5   “Marketplace End User License Agreement” refers to an agreement provided by Seller and signed between you and Seller to regulate how you using its Marketplace Services and other related issues.

9.6   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.

9.7   “Website” refers to HUAWEI CLOUD Website located at: [https://www.huaweicloud.com/intl/].

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

Country where you are registered

Section #

Terms and Conditions

Kenya

Section 1.4

1.4Taxes.

1.4.1       Fees for Services rendered by the Seller are:

 i.           exclusive of VAT, sales tax, goods and service tax (GST) or any similar or analogous turnover tax applicable in a relevant territory if any, which shall be charged in addition thereto in accordance with the relevant laws and regulations in force at the time of making the relevant taxable supply.

 ii.           Inclusive of:

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

any other taxes which should be filed and paid by seller in accordance with the relevant laws and regulations.

1.4.2       Each Party should, as required under applicable laws and regulations as well as the applicable double tax treaties or arrangements, file and pay all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) respectively that are imposed on that Party upon or with respect to the transactions and payments contemplated under this Agreement. 

1.4.3       All payments to be made by you to us under this Agreement shall be made without any set-off, counterclaim, withholding or deduction, be it tax-related or otherwise, unless specifically required by any applicable laws and/or regulations in the territory or under the applicable double tax treaties or arrangements.

1.4.4       In the circumstance that a withholding tax or tax deduction is so required, you shall fulfill the withholding liability and make the payment to us net of the withholding tax or tax deduction, subject to the following requirements under this Section.

1.4.5       Where preferential tax treatment is applicable under a double tax treaty or arrangement, or the prevailing domestic tax laws/regulations, only the tax amount under such preferential tax treatment should be withheld by you. You shall apply to tax authorities for such preferential tax treatment with reasonable efforts.  We will provide appropriate assistance during the application. To the extent that the tax authorities do not grant such preferential tax treatment, you shall provide appropriate evidence to us to support the application of the standard tax treatment.

1.4.6       Where there are Taxes to be withheld, you shall provide us with the formal tax clearance/payment certificates or other equivalent legal documents issued by the tax authority within 60 days after the completion of such withholding activity. You shall be responsible for obtaining such tax clearance certificate or equivalent legal document from the tax authority, and deliver it to us properly in good condition (i.e. not broken, stained or blurred that might affect our use) with reasonable effort. In case that a tax authority does not provide a formal tax clearance, payment certificate or equivalent legal documents, we will mutually agree what other alternative evidence can be provided. In case that such tax clearance certificate or equivalent legal document could not be provided to us due to your negligence or non-compliance, you shall indemnify us for any losses, damage, expense or cost caused thereby.

1.4.7       If you pay the charge to us net of the withholding tax or tax deduction, and a subsequent tax audit, investigation or inquiry identifies that a filing, withholding or deduction should have been made for/from the charge, you shall be liable to bear and pay amounts due under such a filing, deduction and any surcharges and penalties due thereon to the relevant authority.

1.4.8       If we incur any additional tax costs or liabilities as a consequence of your delay or omission of above mentioned tax responsibilities or due to the provision of false or incomplete information by you which is necessary for us to determine and meet our above mentioned tax responsibilities arising from our supplies of services to you (including but not limited to information relevant to the determination of your country of tax residency), you shall be solely and exclusively liable to bear such costs related to Taxes not withheld, deducted, or reported, along with any interest, penalties and other charges associated therewith which are to be settled with the relevant governmental or tax authorities.

1.4.9       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”), an equitable adjustment of the Agreement Price shall be made, taking into full account of the Tax Changes, to protect us from the detrimental impact thereof, if any.

1.4.10    If the Seller involve Digital Service Tax liability in Kenya, fees for Services are inclusive of Digital Service Tax,which shall be filed and paid by Seller to the tax authority in accordance with the relevant laws and regulations of Kenya.

Malaysia

Section 1.4

1.4Taxes.

1.4.1       Fees for Services rendered by the Seller are:

  i.           exclusive of VAT, sales tax, goods and service tax (GST) or any similar or analogous turnover tax applicable in a relevant territory if any, which shall be charged in addition thereto in accordance with the relevant laws and regulations in force at the time of making the relevant taxable supply.

  ii.           Inclusive of:

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

 any other taxes which should be filed and paid by seller in accordance with the relevant laws and regulations.

1.4.2       Each Party should, as required under applicable laws and regulations as well as the applicable double tax treaties or arrangements, file and pay all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) respectively that are imposed on that Party upon or with respect to the transactions and payments contemplated under this Agreement. 

1.4.3       All payments to be made by you to us under this Agreement shall be made without any set-off, counterclaim, withholding or deduction, be it tax-related or otherwise, unless specifically required by any applicable laws and/or regulations in the territory or under the applicable double tax treaties or arrangements.

1.4.4       In the circumstance that a withholding tax or tax deduction is so required, you shall fulfill the withholding liability and make the payment to us net of the withholding tax or tax deduction, subject to the following requirements under this Section.

1.4.5       Where preferential tax treatment is applicable under a double tax treaty or arrangement, or the prevailing domestic tax laws/regulations, only the tax amount under such preferential tax treatment should be withheld by you. You shall apply to tax authorities for such preferential tax treatment with reasonable efforts.  We will provide appropriate assistance during the application. To the extent that the tax authorities do not grant such preferential tax treatment, you shall provide appropriate evidence to us to support the application of the standard tax treatment.

1.4.6       Where there are Taxes to be withheld, you shall provide us with the formal tax clearance/payment certificates or other equivalent legal documents issued by the tax authority within 60 days after the completion of such withholding activity. You shall be responsible for obtaining such tax clearance certificate or equivalent legal document from the tax authority, and deliver it to us properly in good condition (i.e. not broken, stained or blurred that might affect our use) with reasonable effort. In case that a tax authority does not provide a formal tax clearance, payment certificate or equivalent legal documents, we will mutually agree what other alternative evidence can be provided. In case that such tax clearance certificate or equivalent legal document could not be provided to us due to your negligence or non-compliance, you shall indemnify us for any losses, damage, expense or cost caused thereby.

1.4.7       If you pay the charge to us net of the withholding tax or tax deduction, and a subsequent tax audit, investigation or inquiry identifies that a filing, withholding or deduction should have been made for/from the charge, you shall be liable to bear and pay amounts due under such a filing, deduction and any surcharges and penalties due thereon to the relevant authority.

1.4.8       If we incur any additional tax costs or liabilities as a consequence of your delay or omission of above mentioned tax responsibilities or due to the provision of false or incomplete information by you which is necessary for us to determine and meet our above mentioned tax responsibilities arising from our supplies of services to you (including but not limited to information relevant to the determination of your country of tax residency), you shall be solely and exclusively liable to bear such costs related to Taxes not withheld, deducted, or reported, along with any interest, penalties and other charges associated therewith which are to be settled with the relevant governmental or tax authorities.                                              

1.4.9    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”), an equitable adjustment of the Agreement Price shall be made, taking into full account of the Tax Changes, to protect us from the detrimental impact thereof, if any.

Last Updated:November 1st, 2021