Huawei Spark Program Agreement
This Huawei Spark Program Agreement (the “Agreement”) contains the terms and conditions that govern your participation in the Huawei Spark Program (the “Program”). This Agreement is entered into by and between Huawei Services (Hong Kong) Co., Limited & NEXEA Angels Sdn Bhd (“Huawei Spark”, “we”, “us” and “our”) and the entity you represent or you individually if you don’t designate an entity in connection with the Program (“Partner”, “you” or “your”). 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, unless otherwise notified by Huawei Spark. You and Huawei Spark are each referred to as a “Party” and collectively as “Parties” hereunder.
1. Joining of the Program
1.1 Program Introduction. Huawei Spark is a hybrid accelerator program launched in 2020, with the vision of building an inclusive and sustainable startup ecosystem in Asia, being a platform for tomorrow’s scale ups, and contributing to the socioeconomic prosperity in Asia.
1.2 Application for the Program. You have to submit the application to join the Program to Huawei Spark. together with all the materials stated below for application:
● Fill in the registration form with accurate and authentic information
● Provide a company deck with information on business model, current traction, roadmap, and tech infrastructure
1.3 Program Support. Once your application to join the Program is approved by Huawei Spark, you will be entitled to a series of support as provided in accordance with this Agreement from Huawei Spark as set forth below:
1) Financial Support - Huawei Spark will, at its sole and absolute discretion, grant the varied amounts of credits to you based on your monthly cloud spending, consumption on Huawei Cloud products and Huawei Spark’s review on your performances within the term of this Agreement. All credits to be granted are only valid for one (1) year only from the date of your receipt. You should consume all credits of the current quarter before granted with new credits for the following quarter. Huawei Spark reserves the right to review cloud credit consumption on a quarterly basis and to adjust the granting of cloud credit accordingly. For the avoidance of doubt, Huawei Spark is entitled to withdraw, cancel and adjust the credits amounts to you at its sole and absolute discretion without any liability whatsoever. Notwithstanding anything stated in this Agreement, this Agreement and any part of it shall not constitute any form of guarantee or financial assistance to you whatsoever.
2) Training support - Huawei Spark, at its sole and absolute discretion, provides you with complimentary access to all training courses on HUAWEI CLOUD Official Website (https://edu.huaweicloud.com/intl/en-us/courses, “Cloud Website”) and may, at its sole and absolute discretion waive you exams fees of HCIA, HCIP and HCIE within the term of this Agreement.
3) Technical support - Huawei Spark will provide complimentary cloud migration support and no more than six (6) times in-person consultation service to you within the term of this Agreement.
1.4 Your Obligations
● You will commit to provide the number of staff and relevant resources to collaborate with Huawei Spark to realize the Program purpose.
● You shall comply with this Agreement, Huawei Cloud Customer Agreement (which is available at https://intl.huaweicloud.com/declaration/sa_cua.html), applicable laws and regulations in connection with the access and use of any services and support under the Program and the Cloud Website.
2. Use of Trademark and Huawei Support
Both Parties agree to use each Party’s authorized trademarks for the purpose of publicizing collaboration on the Program, including websites, marketing materials, exhibitions, and customer presentations provided that you shall not use Huawei Spark’s trademark without Huawei Spark’s prior written consent. Notwithstanding anything in this Agreement, you shall use any support provided by Huawei Spark for a limited purpose as provided in this Agreement and shall not, whether express or implied, use the implied warranties of Huawei Spark’s Support or Huawei Spark’s Support for any acquisition or other financial purpose.
3. Representations and Warranties
3.1 Mutual Representations. Each Party represents that it has validly entered into this Agreement and it has the legal power and authority to do so.
3.2 Your Representations and Warranties. You represent, warrant and undertake that (a) you shall comply with all applicable laws and regulations with respect to your activities under this Agreement; (b) you shall comply with the applicable export and sanction laws and regulations of the United Nations, China, United States and other countries. You represent and warrant that you and/or your 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 related to your subscription and activities; and (c) your activities under the Program shall not infringe Huawei Cloud’s intellectual property rights or any other rights of any third party.
3.3 Our Limited Warranty. We are not responsible for (a) any issues and disputes between you and your end users, or (b) any problems caused by misuse of the services provided by Huawei Cloud under the Program or in violation of the terms and conditions of this Agreement and applicable laws and regulations.
4. Fees and Costs
Unless otherwise specified in this Agreement, each Party shall be responsible for its own costs and fees that may be necessary for the performance of the Agreement.
All the technical and commercial information provided to the recipient by the discloser during the negotiation and performance of this Agreement, including but not limited to the content of this Agreement, the existence of this Agreement and all Information disclosed by either Party in the discussion and fulfillment of this Agreement shall be treated confidential ("Confidential Information").
The recipient shall strictly refrain from disclosing any Confidential Information to any third party other than its Affiliates without prior written consent of the discloser, save and except as required by applicable law, rules or regulations, court proceedings or professional duty. The recipient shall use Confidential Information only for the purpose of performance of this Agreement or its Appendices. The recipient shall use reasonable care, but in no event less than the same degree of care that it uses to protect its own confidential and proprietary information of similar importance, to prevent the unauthorized use, disclosure, publication and dissemination of Confidential Information. The recipient should refrain from disassembling, decompiling, decrypting or otherwise reverse engineering Confidential Information.
The confidential duties or obligations of this Agreement shall remain in force during the term of this Agreement and for an additional period of three (3) more years after termination of this Agreement.
6. Breach and Indemnification
6.1 In case you fail to perform your obligations under this Agreement, or rendered non-conforming performances, you shall bear respective liabilities for breach of agreement in accordance with the provisions of this Agreement and with the applicable laws and regulations.
6.2 You shall reimburse, indemnify and hold harmless Huawei Spark for, from and against losses, damages, suits and claims (and costs and expenses in connection therewith, including reasonable attorney fees and other investigation and defense costs) relating to, arising out of or caused by your gross negligence or willful misconduct or a material breach of the terms and conditions of this Agreement.
7. Limitation of Liability
7.1 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 OF THE CREDITS GRANTED BY US TO YOU IN ACCORDANCE WITH CLAUSE 1.3(1) HEREUNDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
7.2 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.
8. Term and Termination
8.1 This Agreement shall be valid for one (1) year from the Effective Date unless otherwise early terminated by either Party in accordance with the terms and conditions of this Agreement.
8.2 In addition to other provisions under this Agreement, either Party (the “Initiating Party”) may terminate this Agreement with immediate effect by notice to the Breaching Party on or at any time after the occurrence of any of the following events in relation to the Breaching Party:
8.2.1 the Breaching Party having committed a breach of any obligation under this Agreement and, if the breach is capable of remedy, failing to remedy the breach within 5 working days (or another reasonable time limit specified in the notice from the Initiating Party) starting on the day after receipt of notice from the Initiating Party giving particulars of the breach and requiring the Breaching Party to remedy the breach and stating that a failure to remedy the breach may give rise to a termination under this Article 9;
8.2.2 the Breaching Party having committed a breach of any obligation under this Agreement and the breach is incapable of remedy;
8.2.3 the Breaching Party becoming bankrupt, insolvent, or the subject of proceedings or arrangements for liquidation or dissolution, or ceasing to carry on business, or becoming unable to pay its debts as they become due.
The termination of this Agreement for any reason shall not release any Party from any obligation which has already accrued prior to such termination, or which, by its terms, is to continue beyond such termination.
The provisions of Article 5 (Confidentiality) and Article 6 (Breach and Indemnification) (but only with respect to claims arising prior to the termination hereof or with respect to other continuing obligations), Article 6 (No Promotion) shall survive the termination of this Agreement.
9. Force Majeure
9.1 For the purpose of this Agreement, “Force Majeure” shall mean all events which are beyond the control of the Parties to this Agreement, and which are unforeseen, unavoidable or insurmountable, and which prevent total or partial performance by any Party. Such events shall include earth-quakes, typhoons, flood, fire, war, failures of international or domestic transportation, acts of government or public agencies, epidemics, civil disturbances, strikes and any other objective circumstance which cannot be foreseen, prevented or controlled, including events which are recognized as Force Majeure in general commercial practice.
9.2 If an event of Force Majeure occurs, a Party’s contractual obligations affected by such an event shall be suspended during the period of delay caused by the Force Majeure and the period for performing such obligations shall be extended for a period equal to such suspension.
9.3 The Party claiming Force Majeure shall promptly inform the other Party in writing and shall give within three (3) working days valid proof of the occurrence and inform about the expected duration of such Force Majeure. The Party claiming such an event shall also use all reasonable endeavors to terminate the Force Majeure.
9.4 In the event of Force Majeure, both Parties shall immediately consult each other in order to find an equitable solution and shall use all reasonable endeavors to minimize the consequences of such Force Majeure.
10. Governing Law and Dispute Resolution
This Agreement and any matters relating to this Agreement shall be governed by and construed in accordance with the laws of Hong Kong, without giving effect to principles of conflicts of law. All disputes arising under the terms of this Agreement shall be settled amicably through negotiations between the Parties firstly.
In the event such dispute cannot be settled amicably through negotiations within a 30-day period, the parties to this Agreement have the right to submit the dispute to the exclusive jurisdiction of Hong Kong Courts having competent jurisdiction in Hong Kong.
11.1 No forbearance, delay or indulgence by either Party in enforcing the provisions of this Agreement shall prejudice or restrict the rights of that party nor shall any waiver of its rights in relation to a breach of this Agreement operate as a waiver of any subsequent breach.
11.2 No right, power or remedy given to or reserved to either Party under this Agreement is exclusive of any other right, power or remedy available to that party and each such right, power or remedy shall be cumulative.
11.3 Unless otherwise agreed in this Agreement, neither Party may assign or sub-contract any of its rights or obligations under this Agreement to any other third party without first obtaining the express written consent of the other party (such consent not to be unreasonably withheld or delayed).
11.4 Notwithstanding that the whole or any part of any provision of this Agreement may prove to be illegal or unenforceable the other provisions of this Agreement and the remainder of the provision in question shall remain in full force and effect.
11.5 This Agreement may only be changed or added to by a written variation agreed and signed by both Parties.
11.6 This Agreement is executed in English in four (4) originals, with each Party holding two (2) originals.