Tencent Cloud Second-Level Reseller Terms and Conditions

PLEASE READ THESE TERMS CAREFULLY BEFORE AGREEING TO BECOME A TENCENT CLOUD SECOND-LEVEL RESELLER PARTNER

YOUR PARTICIPATION AS A TENCENT CLOUD SECOND-LEVEL RESELLER (I.E. A RESELLER APPOINTED BY A TENCENT CLOUD DISTRIBUTOR, AND REFERRED TO AS A “SECOND-LEVEL RESELLER” HEREIN) IS SUBJECT TO THESE TERMS AND CONDITIONS INCLUDING EXHIBITS, DOCUMENTS AND ADDENDUMS REFERENCED HEREIN (COLLECTIVELY, THESE “TERMS”). THESE TERMS ARE LEGALLY BINDING AND GOVERN THE SECOND-LEVEL RESELLER’S RESELLING OF TENCENT CLOUD SERVICES AND USE OF THE PARTNER CONSOLE. YOU ACKNOWLEDGE AND AGREE THAT TENCENT MAY AMEND THESE TERMS AT ANY TIME BY POSTING THE UPDATED TERMS ON THE PARTNER CONSOLE WHICH WILL BECOME EFFECTIVE NO EARLIER THAN 7 DAYS AFTER THE DATE OF POSTING. YOU ACKNOWLEDGE THAT THESE TERMS ARE SEPARATE FROM THE RESELLER AGREEMENT BETWEEN SECOND-LEVEL RESELLER AND THE AUTHORIZED TENCENT CLOUD DISTRIBUTOR WHICH GOVERN THEIR RIGHTS AND OBLIGATIONS WITH RESPECT TO EACH OTHER IN THEIR DISTRIBUTOR--RESELLER RELATIONSHIP.

BY CLICKING “AGREE” BUTTON BELOW, YOU REPRESENT AND WARRANT THAT (I) YOU HAVE READ AND UNDERSTOOD THESE TERMS; (II) YOU ARE DULY AUTHORISED TO ACT ON BEHALF OF THE ENTITY APPLYING TO BECOME A TENCENT CLOUD SECOND-LEVEL RESELLER; AND (III) YOU ARE AUTHORISED TO ENTER INTO THESE TERMS AND LEGALLY BIND THE SECOND-LEVEL RESELLER TO THESE TERMS. IF YOU ARE NOT AUTHORISED TO BIND THE ENTITY TO THESE TERMS OR YOU DO NOT AGREE TO THESE TERMS IN FULL, DO NOT CLICK THE “AGREE” BUTTON BELOW, AND YOU CANNOT ENGAGE IN TENCENT CLOUD RESELLER ACTIVITES NOR REPRESENT YOURSELF AS A TENCENT CLOUD SECOND-LEVEL RESELLER.

1. DEFINITIONS

(a) “Applicable Data Protection Lawsstrong>” means, in respect of a Party, any law, statute, declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding instrument relating to the protection of Personal Data, in each case as amended, consolidated, re-enacted or replaced from time to time, including but not limited to, as applicable, the General Data Protection Regulation (EU) 2016/679 ("GDPR"), the UK Data Protection Act 2018 (“UK DPA”), the UK General Data Protection Regulation as defined by the UK DPA as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019, and the Privacy and Electronic Communications Regulations 2003, the California Consumer Privacy Act (“CCPA”).

(b) “Appointment” means the confirmation of appointment of Second-Level Reseller set out in Section 2(a).

(c) “Authorized Reseller Territory” or “Territory” means the territory or territories where Second-Level Reseller is authorized to Resell Tencent Services, which shall be specified by Authorized Tencent Cloud Distributor and set in the Second-Level Reseller Account in the Partner Console.

(d) “>Authorized Tencent Cloud Distributor” means an authorized distributor of Tencent Services from whom Second-Level Reseller have entered into a reseller agreement to enable Second-Level Reseller to Resell Tencent Services in the Authorized Reseller Territory.

(e) “Console Documentation” means the information relating to the user guides, pricing, operation, support, functions of Tencent Services and the Console that are made available via the Console.

(f) “Data Processing Addendum” means the then-current data processing agreement applicable insofar as any performance pursuant to these Terms constitutes the processing of any Personal Data and/or is otherwise subject to any applicable laws relating to the processing of Personal Data and data protection in general in effect in any relevant jurisdiction, as located at https://www.tencentcloud.com/zh/document/product/1085/55684 and updated from time to time.

(g)“End User” means a purchaser who is a customer of Second-Level Reseller and subscribes to any Tencent Services under a Subscription Agreement from the Second-Level Reseller for such purchaser’s own internal use and not for resale, transfer, or distribution to third parties.

(h) “End User Purchase” means any purchase of Tencent Services by an End User.

(i) “European Economic Area” means the member countries of the European Union specified in the official website of the European Union (https://europa.eu/european-union/about-eu/countries_en).

(j) “Existing Customer of Tencent Services” means a customer who already has a Tencent Cloud CID (Tencent Cloud Account ID) and/or any person/entity who have been purchasing Tencent Services directly from either Tencent, an authorized distributor or an authorized reseller.

(k) “North America” means Canada and the United States of America.

(l) “Partner Console” means the area designated as Console in the Tencent Cloud portal at http://www.tencentcloud.com. The Partner Console will provide Second-Level Reseller with Console Documentation, updates, and online tools to administer and manage Second-Level Reseller’s reseller activities relating to these Terms.

(m) “Personal Data” shall have the meaning as set out in the Applicable Data Protection Laws, and where such term is not defined in Applicable Data Protection Laws such term shall be defined by reference to the materially analogous term in the Applicable Data Protection Laws, and in respect of Data Subjects located in the state of California, “Data Subject” shall have the meaning given to the term “Consumer” in the CCPA and “Personal Data” shall have the meaning given to the term “Personal Information” in the CCPA.

(n) “Resell” or “Resale” means with respect to any Tencent Service, any resale or distribution of such Tencent Service to any End User in the Territory.

(o) “Second-Level Reseller Account” means the Second-Level Reseller’s own login account, which shall be tied to the Authorized Tencent Cloud Distributor’s account, for accessing the Partner Console to administer and manage reseller activities relating to these Terms.

(p) “Tencent Services” means software, content, digital materials and other items and services made available as a service offering by Tencent, through an Authorized Tencent Cloud Distributor, to Second-Level Reseller under these Terms, including, without limitation, any such service offerings made available to Second-Level Reseller for purchase via the Tencent Cloud international portal at intl.cloud.tencent.com.

(q) “Updates” means periodic updates to Tencent Services that Tencent may provide from time to time.

2. CONFIRMATION OF APPOINTMENT AND GENERAL OBLIGATIONS

(a) Confirmation of Appointment. Subject to these Terms and as long as there is a valid legally binding Reseller Agreement between the Second-Level Reseller and its Authorized Tencent Cloud Distributor, Tencent confirms the appointment of Second-Level Reseller as a non-exclusive independent reseller to Resell, on a non-exclusive basis, subscriptions to Tencent Services to End Users for their own use solely in the Authorized Reseller Territory, on the condition that Second-Level Reseller may not resell to an Existing Customer of Tencent Services. Second-Level Reseller will use its best efforts to promote and market the Tencent Services and to increase sales of the Tencent Services in the Territory. Tencent reserves the right to (by itself or by authorizing a third party to) promote, market, Resell, and support the Tencent Services inside and outside of the Territory to any End User. For the avoidance of doubt, Second-Level Reseller shall not Resell any Tencent Services outside the Territory, unless otherwise agreed in writing by Tencent.

(b) Partner Console Management. Second-Level Reseller shall administer and manage Resell activities relating to End Users through the functions and tools provided through Partner Console or via other processes authorized or designated by Tencent. Second-Level Reseller shall create a Second-Level Reseller Account in Partner Console in order to access and use Partner Console, and comply with all applicable terms and conditions governing its use of Partner Console. Second-Level Reseller will be provided a special URL link to enable its End Users to create a Tencent Cloud account and to submit subscription orders to purchase Tencent Services. All such End Users’ Tencent Cloud accounts will be linked to the Second-Level Reseller account identifying the Second-Level Reseller being the reseller.

(c) Terms of Sale. The End Users of a Second-Level Reseller who make purchases of Tencent Services will be associated as a purchase from the Second-Level Reseller and all such End Users transactions will be identified as a reseller sales transaction. In the interest of limiting each party’s liability to End Users and protecting certain rights, in connection with Second-Level Reseller’s Sale of the Tencent Services, All End Users must accept all applicable terms and conditions relating to use of Tencent Services including, without limitation, the Tencent Cloud Reseller Customer Terms of Service, Acceptable Use Policy, Privacy Policy and other terms and conditions in the Tencent Cloud portal.

(d) Relationship. Second-Level Reseller is an independent contractor of Tencent under these Terms. All financial obligations associated with Second-Level Reseller’s business are the responsibility of Second-Level Reseller. The parties acknowledge and agree that Second-Level Reseller will be the primary point of contact with End Users and will be solely responsible for maintaining the relationship with such End Users (including managing all respective End User accounts and related resources). However, Tencent may, in its sole discretion, contact any such End User to resolve issues or to comply with applicable laws. All sales and other agreements between Second-Level Reseller and its End Users are Second-Level Reseller’s exclusive responsibility.

(e) Tencent Trademarks. Tencent hereby grants to Second-Level Reseller a non-exclusive, non-transferable, and non-sublicensable license in the Territory to use the trademarks, trade names, service marks, and logos of Tencent (“Tencent Trademarks”), during the Term and solely in the Territory and solely in connection with Second-Level Reseller’s marketing, promotional, and sales of the Tencent Services in accordance with these Terms. Second-Level Reseller will ensure that its use of any Tencent Trademark complies with Tencent’s then-current trademark use guidelines as may be changed by Tencent from time to time. Any use of Tencent’s Trademarks by Second-Level Reseller will first be submitted to Tencent for approval. Second-Level Reseller will not alter or remove any Tencent Trademarks provided with or embedded in the Tencent Services. Other than otherwise expressly provided herein, nothing contained in these Terms will grant or will be deemed to grant to Second-Level Reseller any right, title, or interest in or to Tencent’s Trademarks. All uses of Tencent’s Trademarks and related goodwill will inure solely to Tencent. Second-Level Reseller may not register or attempt to register, directly or indirectly, within the Territory or elsewhere, any trademarks, service marks, or URLs that utilize, or that are confusingly similar to, a Tencent Trademark.

(f) Second-Level Reseller Trademarks. Second-Level Reseller hereby grants to Tencent a non-exclusive, non-transferable, and non-sublicensable license in the Territory to use the trademarks, trade names, service marks, and logos of Second-Level Reseller (“Second-Level Reseller Trademarks”) that are provided by Second-Level Reseller and/or uploaded by Second-Level Reseller to the Partner Console, during the Term and solely in the Territory and solely in connection with Tencent’s marketing and promotion of the Tencent Services involving Second-Level Reseller’s participation as a reseller of Tencent Services in accordance with these Terms. Tencent will ensure that its use of any Second-Level Reseller Trademark complies with Second-Level Reseller’s then-current trademark use guidelines as may be changed by Second-Level Reseller from time to time. Other than otherwise expressly provided herein, nothing contained in these Terms will grant or will be deemed to grant to Tencent any right, title, or interest in or to Second-Level Reseller’s Trademarks. All uses of Second-Level Reseller’s Trademarks and related goodwill will inure solely to Second-Level Reseller. Tencent may not register or attempt to register, directly or indirectly, within the Territory or elsewhere, any trademarks, service marks, or URLs that utilize, or that are confusingly similar to, a Second-Level Reseller Trademark. For the avoidance of doubt, Tencent may identify Second-Level Reseller as a reseller/partner of the Tencent Services on its website and marketing and promotional materials.

3. RESALE OF TENCENT SERVICES

(a) Second-Level Reseller Orders. Second-Level Reseller shall submit a purchase order for Tencent Services through the standard ordering process on Tencent Cloud international portal, Partner Console or through an order form in a format designated by Authorized Tencent Cloud Distributor and Second-Level Reseller shall specify the purchase order details (e.g., such as applicable price to be paid, type and volume ordered, minimum commitment, product activation date, term, and End User identity, address and entity details)(“Purchase Order”). Second-Level Reseller shall pay all applicable fees to its Authorized Tencent Cloud Distributor for the Tencent Services purchased under the Purchase Order.

(b) Account Access. Once a Purchase Order is accepted, Second-Level Reseller will be responsible to arrange for its End User to set up a Tencent Cloud account (either as a separate End User account or a sub-account for End User under the Second-Level Reseller account through the Partner Console) so as to facilitate their access to the Tencent Services purchased by such End Users. For all such End Users accounts, they will be associated with their relevant Second-Level Reseller’s account in the Partner Console so as to enable Second-Level Reseller to manage reseller activities related to its End Users’ accounts.

(c) Subscription Agreement. Second-Level Reseller must require each End User to agree and enter into a valid and enforceable written agreement that meets all of the following requirements (a “Subscription Agreement”): (i) contains terms and conditions that are at least as restrictive and protective of Tencent as the Tencent Cloud Reseller Customer Terms of Service and applicable terms and conditions for that Tencent Service (which terms and conditions may be made available at intl.cloud.tencent.com and any supplemental URLs thereto and successor URLs thereof) (without limiting the generality of the foregoing, the Subscription Agreement must disclaim, to the maximum extent permitted by applicable laws, Tencent’s liability for any damages, whether direct, indirect, incidental, or consequential, arising from the use of the Tencent Services, except for the express warranties made by Tencent in the applicable terms and conditions for that Tencent Service); (ii) does not make any representations, warranties, or guarantees concerning the Tencent Services that are inconsistent with or in addition to those made by Tencent in these Terms; (iii) names Tencent as an intended third party beneficiary with the right to enforce the terms of that Subscription Agreement;(iv) provides that, upon expiration or termination of these Terms, that Subscription Agreement will automatically terminate or provide Second-Level Reseller the right to assign that Subscription Agreement to Tencent or any of its affiliates without End User’s consent; and (v) specifies that access to Tencent Services may be immediately suspended or terminated if the End User is in default. Second-Level Reseller will be responsible for collecting payment from each End User. Second-Level Reseller will use its best efforts to enforce each Subscription Agreement with at least the same degree of diligence used in enforcing similar agreements governing others, which in any event will be sufficient to adequately enforce each Subscription Agreement. Second-Level Reseller will use its best efforts to protect Tencent’s proprietary intellectual property rights, promptly notify Tencent of any breach of a material obligation under a Subscription Agreement affecting any part of a Tencent Service, and cooperate with Tencent in any legal action to prevent or stop unauthorized use of any Tencent Service. Second-Level Reseller will provide to Tencent copies of all executed Subscription Agreements upon request, and will cooperate with Tencent if Tencent elects to enforce a Subscription Agreement directly against an End User. Second-Level Reseller acknowledges that Tencent is a third party beneficiary of each Subscription Agreement.

(d) Service Provisioning. Depending on the Territory where the Tencent Services are provisioned, they shall be provisioned by the Tencent entity specified in the Tencent Cloud Terms of Service on the Tencent Cloud portal.

4. SECOND-LEVEL RESELLER SUPPORT AND REFUND OBLIGATIONS

(a) Support. Second-Level Reseller and Tencent will provide support to End Users and Tencent will provide limited support to Second-Level Reseller as follows:

Support provided by Peseller to End Users	Support Level	Support provided by Tencent to Second Level Reseller
• Troubleshooting for End Users • Setup and configuration assistance	Tier 1 Support	N/A
• Troubleshooting for End Users with assistance from Tencent	Tier 2 Support	• Resolution of issues that cannot be easily resolved by Second-Level Reseller alone • Unless expressly specified otherwise in a Purchase Order, support provided in accordance with the General Service Level Agreements (as further described at https://www.tencentcloud.com/document/product/301/12905)
• Troubleshooting for End Users with assistance from Tencent	Tier 3 Support	• Resolution of material technical issues that cannot be resolved by Partner alone

For the avoidance of doubt, Tencent may redirect any End Users requests for support to Second-Level Reseller as appropriate in accordance with the above conditions.

(b)End Users Refunds. If End User seeks to exercise its right to refund under applicable laws, Second-Level Reseller shall promptly notify its Authorized Tencent Cloud Distributor and provide all necessary information relating to the End User’s refund request. Tencent will, through the Authorized Tencent Cloud Distributor, review the request and, if required under applicable laws, process the refund request by providing a refund or service credit to Second-Level Reseller through the Authorized Tencent Cloud Distributor and in turn Second-Level Reseller shall promptly process the End User refund request and revert to the End User. If Tencent receives a refund request from End User directly, the refund request will be redirected to Second-Level Reseller to follow up on the relevant purchase order between Second-Level Reseller and End User.

5. TERM AND TERMINATION

(a) Term.The Appointment commences when the Second-Level Reseller creates a Second-Level Reseller account and click “Agree” to these Terms and shall continue in effect until terminated in accordance with this Section 5 (“Term”).

(b)Termination without Cause. .Tencent may terminate these Terms without cause upon 60 days prior written notice to Second-Level Reseller.

(c)Termination of Reseller Agreement with Authorized Tencent Cloud Distributor. . The Appointment will be terminated automatically when the Tencent Cloud services reseller agreement between Authorized Tencent Cloud Distributor and the Second-Level Reseller is terminated.

(d)Termination for Cause..Either party may terminate the Appointment if the other party (i) commits a material breach of these Terms and fails to cure that material breach within 30 days following its receipt of notice regarding that material breach from the non-breaching party; (ii) becomes insolvent; or (iii) ceases, or threatens to cease, to carry on business. Tencent may terminate the Appointment when it is required to do so by applicable law, court order or requirements imposed by government bodies, or if Tencent otherwise determines that it is reasonable to do so in order to ensure that Tencent does not violate or risk violation of the same.

(e) Effects of Termination

  (i)Upon termination of the Appointment, all rights granted to Second-Level Reseller shall be terminated immediately, Second-Level Reseller shall cease all Resell of Tencent Services and all use of the Tencent Trademarks as contemplated under these Terms. Tencent shall cease all use of the Second-Level Reseller Trademarks as contemplated under these Terms, both Tencent and Second-Level Reseller shall work in good faith for a transition of the End Users, including without limitation, whether to terminate or assign their subscription agreements to Tencent, one of its affiliates or to another reseller partner;

  (ii) Second-Level Reseller will, at Tencent’s direction, terminate Subscription Agreements or assign Subscription Agreements to Tencent or one of its affiliates or other reseller partner and provide contact and other reasonable information to Tencent about transferred End Users; and

  (iii)Second-Level Reseller is responsible to pay its Authorized Tencent Cloud Distributor all amounts of outstanding and unpaid fees accepted prior to the date of termination.

(f) Survival.The following provisions will survive any expiration or termination of these Terms: Sections 1, 4(b), 5(e), 5(f), 6(d), 7 to 12. The termination or expiration of the Appointment and these Terms will not relieve Second-Level Reseller of: (i) the obligation to pay any fees that are due to its Authorized Tencent Cloud Distributor; or (ii) Second-Level Reseller’s obligation to indemnify Tencent as specified in these Terms.

6. SUSPENSION RIGHTS

(a) Suspension of Second-Level Reseller’s access to Tencent Services by Tencent..Tencent retains the right to immediately upon written notice suspend Second-Level Reseller’s access to any or all Tencent Services resold by Second-Level Reseller if (i) Authorized Tencent Cloud Distributor informs Tencent that Second-Level Reseller has failed to make any payment of agreed price for Tencent Services purchased under a Purchase Order when due, (ii) Second-Level Reseller has breached any terms of these Terms, or (iii) the resale of Tencent Services by Second-Level Reseller will violate any applicable laws or regulations, and Tencent may continue to impose the suspension indefinitely until the aforesaid issues have been rectified to the satisfaction of Tencent.

(b) Suspension of End User’s access to Tencent Services by Tencent. Tencent retains the right to immediately upon written notice suspend an End User’s access to any or all Tencent Services purchased from Reseller if (i) any conditions in Section 6(a) apply; (ii) such End User fails to make any payment of fees for Tencent Services purchased from Reseller when due; (iii) the credit balance allocated by Second-Level Reseller in relation to such End User’s Tencent Cloud account falls to 0 (zero) or below; (iv) such End User has breached any terms and conditions applicable to the use of the relevant Tencent Services and/or the Subscription Agreement, or (v) the provision of Tencent Services to End User will violate any applicable laws or regulations, and Tencent may continue to impose the suspension indefinitely until the aforesaid issues have been rectified to the satisfaction of Tencent.

(c) Suspension of End User’s access to Tencent Services by Second-Level Reseller.. Second-Level Reseller. Subject to prior approval by Tencent, Second-Level Reseller may also exercise the right to suspend its End User’s access to any or all of Tencent Services resold by Second-Level Resellerr if (i) such End User has breached any terms and conditions applicable to the use of the relevant Tencent Services and/or the Subscription Agreement; (ii) such End User fails to make any payment of fees for Tencent Services purchased from Second-Level Reseller when due; or (iii) the resale of Tencent Services by Second-Level Reseller to End User will violate any applicable laws and regulations.

(d) Suspension Override by . Second-Level Reseller. For selected End Users which are determined by Second-Level Reseller and configured through the Partner Console, Second-Level Reseller may override the suspension of the End User’s access to Tencent Services even if the credit balance allocated by Second-Level Reseller in relation to such End User’s Tencent Cloud account falls to 0 (zero) or below provided always that Second-Level Reseller shall be responsible to repay and indemnify Tencent of all additional fees that are incurred by such End User after their credit balance falls to 0.

7. INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS NOTICES

(a) Intellectual Property. All right, title, and interest in and to the Tencent Services and any derivative work thereof, including all intellectual property rights therein, are and will remain exclusively with Tencent. Second-Level Reseller has no right or license with respect to any Tencent Services, except as expressly set forth in these Terms. Second-Level Reseller may not act to jeopardize, limit, or interfere in any manner with Tencent’s ownership of and rights with respect to the Tencent Services.

(b) Proprietary Rights Notices. Second-Level Reseller may not remove or alter any trademark, trade name, copyright, patent, patent pending, or other proprietary notices, legends, symbols, or labels appearing on or with the Tencent Services or related documentation provided by Tencent

8. WARRANTIES; DISCLAIMER

(a) Warranties.Unless expressly specified otherwise in a Purchase Order, Tencent represents and warrants that each Tencent Service will be provided consistently with, and will meet, the applicable General Service Level Agreement (as further described at https://www.tencentcloud.com/document/product/301/12905) (each, an “SLA”). With respect to Tencent’s failure to meet the applicable SLA for a Tencent Service, Second-Level Reseller’s sole and exclusive remedy, and Tencent’s sole and exclusive liability, will be service credits provided pursuant to the terms of the applicable SLA. Second-Level Reseller represents and warrants that (a) it has the full legal power and authority to enter into and perform its obligations under these Terms, (b) the performance of its obligations under these Terms will not violate any other agreement to which it is a party, and (c) it will comply with all applicable laws when performing its obligations under these Terms.

(b) Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 8(a), TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TENCENT DISCLAIMS ALL WARRANTIES WITH REGARD TO THE TENCENT SERVICES. ALL TENCENT SERVICES ARE PROVIDED “AS IS”. TENCENT MAKES NO ADDITIONAL REPRESENTATIONS OR WARRANTIES OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. TENCENT EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, INFRINGEMENT AND TITLE. TENCENT DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE TENCENT SERVICES OR AGAINST INFRINGEMENT. TENCENT DOES NOT WARRANT THAT THE TENCENT SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE TENCENT SERVICES WILL BE SECURE OR UNINTERRUPTED. SECOND-LEVEL RESELLER WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTIES ON BEHALF OF TENCENT TO ANY OTHER THIRD PARTY. USE OF ANY INFORMATION OR DATA OBTAINED THROUGH THE TENCENT SERVICES IS AT SECOND-LEVEL RESELLER’S AND EACH END USER’S SOLE RISK. THE PARTIES AGREE THAT TENCENT WILL BEAR NO RESPONSIBILITY FOR THE ACCURACY OR QUALITY OF INFORMATION OR DATA OBTAINED THROUGH THE TENCENT SERVICES.

9. INDEMNIFICATION

(a) (a) Indemnification by Second-Level Reseller.. Second-Level Reseller hereby indemnifies, defends, and holds harmless of Tencent and its affiliates and their respective employees, directors, agents, and representatives (“Tencent Indemnified Parties”) from and against any and all third party claims, demands, suits, actions, judgments, damages, costs, losses, expenses (including attorneys’ fees) and other liabilities (each, a “Claim”) arising from or relating to: (i) any actual or alleged breach of any of the representations, warranties, or covenants made by Second-Level Reseller under these Terms; (ii) any actual or alleged breach of any agreement between Second-Level Reseller and End User; (iii) any violation of or non-compliance with any applicable law; (iv) any unauthorized use or violation of a Tencent Service by an End User; or (v) Second-Level Reseller’s negligence or willful misconduct.

(b) Indemnification Procedures. Tencent will promptly give Second-Level Reseller written notice of the Claim and will grant to Second-Level Reseller control over the defense and settlement of the Claim. Upon reasonable request by Second-Level Reseller, Tencent will provide assistance in connection with the defense and settlement of the Claim. However, Tencent’s failure to comply with one or more of the obligations in the preceding sentence will not relieve Second-Level Reseller of its obligations under this Section 9 except and solely to the extent that such failure materially prejudices Second-Level Reseller’s defense of the Claim. Second-Level Reseller may not settle any Claim without Tencent’s prior written consent.

10. PRIVACY AND END USERS DATA

(a) Data Privacy Compliance. Second-Level Reseller shall comply with all applicable laws and regulations relating to privacy and data protection, and where applicable, provide all necessary notices to and obtain sufficient consents and authorizations from End Users and any other persons providing Personal Data to Second-Level Reseller and Tencent in connection with the processing of Personal Data by Second-Level Reseller, Tencent and its affiliates pursuant to these Terms. Tencent is entitled to collect, use, transfer and process End Users’ data in accordance with the Tencent Cloud Terms of Service, Acceptable Use Policy, Privacy Policy and other terms and conditions in the Tencent Cloud portal.

(b) Data Processing Addendum. Second-Level Reseller shall comply with all applicable laws and regulations relating to privacy and data protection, and where applicable, provide all necessary notices to and obtain sufficient consents and authorizations from End Users and any other persons providing Personal Data to Second-Level Reseller and Tencent in connection with the processing of Personal Data by Second-Level Reseller, Tencent and its affiliates pursuant to these Terms. Tencent is entitled to collect, use, transfer and process End Users’ data in accordance with the Tencent Cloud Terms of Service, Acceptable Use Policy, Privacy Policy and other terms and conditions in the Tencent Cloud portal.

(c) End Users’ Data.Second-Level Reseller shall only use End Users’ data solely for the purpose of providing End Users with the Tencent Services and support services in accordance with these Terms and to provide assistance to the End Users as well as managing and administering the End Users’ records relating to their use and purchase of Tencent Services. If Second-Level Reseller receives a request for End Users’ data from law enforcement authorities, then Second-Level Reseller shall redirect the authorities to request that data directly from the End Users. If compelled to disclose End Users’ data to law enforcement authorities, Second-Level Reseller shall promptly notify End Users together with a copy of the official notice from the law enforcement authorities, unless it is illegal to do so. If Tencent is compelled to disclose End Users' data and related information to law enforcement authorities, Second-Level Reseller shall co-operate fully with Tencent to satisfy all requests from the law enforcement authorities including, without limitation, to obtain all necessary consents from such End User(s) to give full force and effect to this Section to provide such End User(s)'s data and related information to the law enforcement authorities.

11. LIMITATION OF LIABILITY

(a) DISCLAIMER OF DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TENCENT WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO SECOND-LEVEL RESELLER OR END USERS FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED UNDER THESE TERMS, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF, OR DAMAGE TO, DATA OR CONTENT AND LOSS OF BUSINESS, EVEN IF TENCENT IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.

(b) CAP ON LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL TENCENT’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THESE TERMS (INCLUDING WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF THE PRICE OF THE TENCENT SERVICES SUPPLIED TO PARTNER UNDER THESE TERMS DURING THE 12 MONTHS PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).

(c) INDEPENDENT ALLOCATIONS OF RISK. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE COMMISSION OFFERED BY TENCENT TO SECOND-LEVEL RESELLER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THE WARRANTIES IN THESE TERMS HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

12. GENERAL

(a) Independent Contractors. The relationship of the parties established by these Terms is that of independent contractors, and nothing contained in these Terms should be construed to give either party the power to (i) act as an agent or (ii) direct or control the day-to-day activities of the other. Financial and other obligations associated with each party’s business are the sole responsibility of that party.

(b) Non-Assignability and Binding Effect. Neither party will assign its rights and obligations under these Terms without the written consent of the other party, except: (i) that Tencent may assign these Terms to a successor to its business (including a successor by way of merger, acquisition, sale of all or substantially all of its assets, or operation of law); and (ii) Tencent may freely assign these Terms to its affiliates. Subject to the foregoing, these Terms will be binding upon and inure to the benefit of the parties and their successors and assigns.

(c) Non-solicitation. During the Term and for a period of one year thereafter, Partner may not, directly or indirectly, employ or solicit the employment or services of a Tencent employee or independent contractor without the prior written consent of Tencent.

(d) Notices. Except for provisions that expressly allow for email notice, any notice required or permitted to be given under these Terms will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the Partner at the physical address specified by Partner in the Partner Account and with the appropriate postage affixed. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier. For any notice sent to Tencent, copies of the notice will also need to be sent to Tengyun Building, Tower A, No. 397 Tianlin Road, Xuhui District, Shanghai, 200233, China (Attn: International Business Legal Center) and by email to IBLClegalnotice@tencent.com.

(e) Force Majeure. Nonperformance of either party will be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts, orders or restrictions, pandemic or any other reason where failure to perform is beyond the control and not caused by the negligence of the non-performing party.

(f) Export Control and Sanctions. Partner hereby represents and warrants to Tencent that at the time of entering into these Terms and throughout the Term neither Partner, its subsidiaries, nor any of Partner or Partner’s subsidiaries’ officers, directors, shareholders, agents or employees, are:

  (a) listed in any list of designated persons maintained by the United States (including, without limitation, the list of “Specially Designated Nationals” as maintained by the Office of Foreign Assets Control of the U.S. Treasury Department, the United Nations Security Council, the United Kingdom (including the Consolidated List of Financial Sanctions Targets as maintained by His Majesty’s Treasury), the European Union and any Member State thereof (including the Consolidated List of Persons, Groups and Entities Subject to Financial Sanctions), or any other list of restricted persons maintained by any authority with jurisdiction over Partner (any person so listed being a “Restricted Person”));

  (b) organized under the laws of, operating from or located or resident in a country or territory that is the target of comprehensive sanctions (as of the date of these Terms, Iran, Cuba, North Korea, Syria and the Crimea/Sevastopol region and the so-called Donetsk and Luhansk People’s Republics (collectively, “Sanctioned Territories”)); or

  (c) controlled or owned 50 percent or more (directly or indirectly) in the aggregate, by one or more Restricted Persons. In connection with Partner’s performance of its obligations under these Terms, Partner will comply with all applicable export controls and economic sanctions laws and regulations of the United Nations, PRC, United States, European Union, including its member states; and other applicable government authorities, including without limitation, the U.S Export Administration Regulations (“EAR”) and the economic sanctions rules and regulations implemented under statutory authority and/or the U.S. President’s Executive Orders and administered by the U.S. Treasury Department’s Office of Foreign Assets Control (collectively, “Trade Laws”). Partner agrees not to engage in any activities in connection with the performance of its obligations that would violate Trade Laws or that would risk placing Tencent in breach of any Trade Laws and Partner is solely responsible for compliance with Trade Laws related to the manner in which Partner performs its obligations including: (a) Partner's transfer and processing of End User’s data; (b) the provision of End User’s data to End Users; and (c) accurately specifying the Territory in which any of the foregoing occur. For the avoidance of doubt, Partner is solely responsible for compliance with applicable laws (including the Trade Laws) relating to the use of the Tencent Services by the Partner and End Users.

(g) Relevant Actions. If at any time during the term of these Terms, (a) provision of the Tencent Services becomes otherwise restricted or prohibited as a consequence of the imposition of sanctions or by operation of Trade Laws; (b) Tencent reasonably believes a breach of Section 12(f) has occurred or is at risk of occurring; (c) Tencent reasonably believes that Partner or Partner’s subsidiaries are in violation of Trade Laws or are engaging in activities that would risk placing Tencent in breach of any Trade Laws, Tencent shall not be obliged to perform any of its obligations under these Terms or continue to provide the Tencent Services and shall be entitled, in its sole discretion, to terminate these Terms, or any relevant Purchase Orders, and the provision of the Tencent Services with immediate effect and without any liability. Tencent is also entitled to take any other actions against Partner as it deems appropriate in the circumstances, including but not limited to, requesting Partner to remove any content that is subject to export control.

(h) Governing Law and Resolution of Disputes.(h) Governing Law and Resolution of Disputes. These Terms shall be governed by and interpreted in accordance with the laws as follows: If Second-Level Reseller is located in Europe Economic Area, UK and Switzerland, these Terms are governed by and interpreted in accordance with English laws. Any claims for equitable relief may be brought in any court of competent jurisdiction even if the parties have chosen an exclusive venue below. Any dispute or difference between the parties arising out of or in connection with these Terms, its interpretation or subject-matter, shall be referred to and finally resolved by arbitration under the London Court of International Arbitration (LCIA) Rules, which rules are deemed to be incorporated by reference into this Section. The seat of arbitration shall be London, the United Kingdom. The language to be used in the arbitral proceedings shall be English; If Second-Level Reseller is located in North America, these Terms are governed by and interpreted in accordance with the laws of the State of California, USA, without giving effect to provisions related to choice of laws or conflict of laws. Any claims for equitable relief may be brought in any court of competent jurisdiction and for all claims arising out of or relating to these Terms or the Services. Any dispute or difference between the parties arising out of or in connection with these Terms will be settled by binding arbitration in Santa Clara County, California under the auspices of the American Arbitration Association (the “Association”) and under the rules of the Association in force at the commencement of such arbitration proceedings. Judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction; and If Second-Level Reseller is located in the rest of the world except People’s Republic of China, these Terms is governed by and interpreted in accordance with the laws of Singapore. Except for the right of either party to apply to any court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, any dispute as to the interpretation, enforcement, breach, or termination of these Terms will be settled by binding arbitration under the Rules of Singapore International Arbitration Center (“SIAC Rules”) by three arbitrators appointed in accordance with the SIAC Rules. The place of arbitration shall be Singapore. The language of proceedings shall be English. Judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction. The prevailing party will be entitled to receive from the other party its reasonable attorneys’ fees and costs incurred in connection with any arbitration or litigation instituted in connection with these Terms.

(i) Remedies Cumulative. The remedies provided to the parties under these Terms are cumulative and will not exclude any other remedies to which a party may be lawfully entitled.

(j) Waiver and Severability. The waiver by either party of any breach of these Terms does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation under these Terms will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of these Terms. If any part of these Terms is unenforceable, the remaining portions of these Terms will remain in full force and effect.

(k) Entire Agreement. These Terms are the final and complete expression of all agreements between these parties and supersedes all previous oral and written agreements regarding these matters.

(l) No Third Party Rights. No one other than a party to these Terms, their successors and permitted assignees, will have any right to enforce any of its terms.

(m) Costs. Partner will bear the entire cost, taxes, and expense incurred in connection with its performance of these Terms.