| Cloud Computing & Data Center: Terms & Conditions |
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| 1. |
DEFINITIONS AND INTERPRETATION |
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| 1.1 |
The following words have these meanings in this Agreement, unless the contrary appears:
“Agreement” means the agreement for the Services made between Maxis and the Customer in accordance with these terms and
conditions and the Registration Form. “Customer” means the sole proprietorship, partnership, company or entity specified in
the Registration Form and on whose behalf this Agreement is executed. “Customer’s Domain Name” means the domain name
requested by the Customer pursuant to Clause 5.1 or other domain name nominated by the Customer. “Customer’s Equipment” means
the Customer’s own facilities to be procured, installed and maintained by the Customer as the case may be, including without
limitation, terminating equipment, cabling and wiring within the Site and all other computer equipment and software, other
than computer equipment and software supplied under this Agreement by Maxis, that is used to connect to the Maxis Internet
Server in order to use the Services. “Initial Term” means the period of one (1) year commencing from the completion of
commissioning tests as notified by Maxis to the Customer. “ISP” means Internet Service Provider. “Maxis Equipment” means the
equipment, cables, wires and other ancillary equipment provided by Maxis to enable the provisioning of the Service.
“Maxis Internet Server” means the Maxis computer system that the Customer connects to receive the Services. “Registration
Form” means the Maxis Registration Form, the form and content of which are set out overleaf. “Services” means access to the
Internet, which comprises a group of inter-networked computers via a transmission link (whether fixed or otherwise) between
the Sites including any value-added features that may be added by Maxis from time to time and/or other services which are
supplied by Maxis as indicated by the Customer in the Registration Form. The said services are provided by Maxis.
“Site(s)” means the premises designated in the “Installation Address” segment of the Registration Form, including the
building(s) where the premises is located, under or through which the Maxis Equipment is to be placed for the provisioning of
the Service.
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| 1.2 |
In this Agreement, unless the contrary appears:
- a reference to this Agreement is a reference to the Registration Form and includes any variation or replacement of all or any part of this Agreement;
- a reference to a Clause means a reference to a Clause in this Agreement in which the reference appears;
- a reference to a request or nomination by the Customer means a selection or nomination made by the Customer in the Registration Form;
- a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and considerations, amendments, re-enactments or replacements of any of them occurring at any time;
- the singular includes the plural and vice versa;
- a reference to a person includes a reference to the person’s executors, administrators, successors, substitutes (including, without limitation, persons taking by novation) and assigns; and a reference to a person includes a firm, body-corporate, incorporated association or authority.
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| 1.3 |
Headings are inserted for convenience only and do not affect the interpretation of this Agreement.
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| 1.4 |
In this Agreement, unless the context otherwise requires, references to “day” or “days” shall mean a twenty-four (24) hours period as in calendar day. Where anything is due to be done on a day which is not a business day, it must be done on the preceding business day.
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| 2. |
PROVISION OF SERVICE |
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| 2.1 |
At the request of the Customer and subject to acceptance by Maxis, Maxis will provide the Service.
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| 2.2 |
Unless otherwise indicated in this Agreement, the Services shall not include the provision or maintenance of any computer
equipment or software required by the Customer to connect to the Maxis Internet Server.
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| 2.3 |
Maxis does not guarantee or warrant the availability of the Services or continuous, uninterrupted or secure access to the
Internet nor does it guarantee or warrant that the data stored in the Maxis Internet Server will be backed up. The Customer
shall be responsible for keeping an independent back-up of all data stored in the space allocated to the Customer.
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| 2.4 |
Maxis reserves the right to suspend the Services or any part of them for operational reasons or in an emergency.
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| 3. |
CHARGES |
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| 3.1 |
Upon submission of the Registration Form and acceptance by Maxis, the Customer shall pay to Maxis a refundable deposit and
other charges, fees and rentals for the Service and/or equipment, as the case may be, which shall be at the rates prescribed
by Maxis from time to time and payable in advance or at such other time in accordance with Maxis’ policy or requirements. The
said charges, fees and rentals shall commence from the date the Service are made available to the Customer.
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| 3.2 |
The Customer shall promptly pay on demand by Maxis and at the times stipulated in such demand all charges, fees, rentals,
costs or other amounts in connection with the Services and shall continue to be liable for any applicable charges during the
period of interruption or loss of Services from any cause whatsoever.
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| 3.3 |
All payments due to Maxis under this Agreement shall be made in full, without deduction for any reason, including but not
limited to, set-off, counterclaim or other equitable or lawful claim.
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| 3.4 |
The Customer shall receive a rebate of 5% per annum or part thereof the refundable deposit paid, which shall be credited to
the Customer’s bill at the end of each year. The balance of the refundable deposit shall be held to the Customer’s credit and
repaid to the Customer free of interest after the expiry or earlier termination of the Agreement, subject to the deduction of
any amounts due to Maxis from the customer pursuant to this Agreement.
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| 3.5 |
The Customer will be responsible for the payment of all taxes, duties (including stamp duty), fees and other charges made by
any government authority in relation to this Agreement (other than taxes payable on the overall income of Maxis).
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| 3.6 |
Interest is payable on any amount due and payable which is outstanding under this Agreement at rate of 1.5% per month on such
overdue amounts and the Customer shall continue to be liable to pay such amounts, including any accrued interest thereon.
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| 3.7 |
If the Customer cancels any order after the same has been accepted by Maxis, the Customer shall be liable to pay a
cancellation charge, if any, at Maxis’ prescribed rate for cancellation.
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| 3.8 |
Maxis may vary its charges from time to time by return notice to the Customer. All variations will take effect from the date
specified in the notice and the Customer shall be bound to observe and comply with such variations.
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| 3.9 |
Maxis may, at its absolute discretion and at any time, set off, consolidate or combine accounts or transfer any monies
outstanding to the credit of the Customer’s account with Maxis or any of its related companies (as defined in Section 5 of the
Companies Act. 1965) of whatever description towards the reduction or discharge of any sum due to Maxis by the Customer under
this Agreement.
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| 4. |
DOMAIN NAME MANAGEMENT SERVICE |
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| 4.1 |
If requested by the Customer, Maxis will, as agent for the Customer, apply for the domain name requested by the Customer
(“Requested Domain Name”).
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| 4.2 |
Maxis does not guarantee that it will be successful in its application for the Requested Domain Name.
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| 4.3 |
If the application for the Requested Domain Name is successful, then Maxis will become the delegated domain name administrator for the Requested Domain Name and Maxis will automatically direct to a Maxis Internet Server all electronic mail messages
received by Maxis and addressed to the Customer’s Registered Users using the Customer’s Domain Name.
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| 4.4 |
Maxis will renew the Customer’s Domain Name and the Customer shall pay Maxis any renewal fee that may apply provided:-
- Maxis is the delegated domain name administrator of the Customer’s Domain Name at the scheduled time of expiry; and
- the Customer is, at that time, the owner of the Customer’s Domain Name; and
- the Customer requests Maxis to renew the Customer’s Domain Name.
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| 5. |
CUSTOMER’S OBLIGATIONS |
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| 5.1 |
The Customer shall, at its expense, install and maintain the necessary computer equipment and software to enable connection to
the Maxis Internet Server, other than any equipment and/or software supplied by Maxis under this Agreement.
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| 5.2 |
The Customer shall be responsible for all telecommunications charges arising from any service used to establish a leased line
connection to the Services. The Customer acknowledges that when the call to access the Services is made from facilities
provided by a third party, the Customer is responsible for any surcharges levied by the third party for the call.
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| 5.3 |
The Customer shall not use the Services:
- to send unsolicited or unwelcome or bulk electronic mail messages to anyone or otherwise cause excessive or
disproportionate load on the Services;
- for any unlawful purposes such as, but not limited to, vice, gambling or other criminal purposes whatsoever or for
sending to or receiving from any person or displaying any message or posting which is offensive on moral, religious,
communal or political grounds, or is abusive or of an indecent, obscene or menacing character;
- for any purpose which is against public interest, public order or national harmony;
- to publish defamatory, infringing, obscene or other unlawful material;
- in connection with the infringement of the copyright, patent, trademark, trade secret or other propriety rights of any
third party or rights of publicity or privacy;
- to interfere with, damage, disrupt or unlawfully use or gain access to any service, equipment or computer network
without authorisation by the owner of the said service, equipment or computer network;
- to resell the Services or otherwise provide the Services to anyone;
- in violation of any laws relating to unfair competition, anti-discrimination or false advertising; or
- that result in distribution of viruses, Trojan horses, worms, time bombs, cancelbots, or other similar harmful or
deleterious programming routines
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| 5.4 |
The Customer shall procure the necessary permission or licenses, for Maxis or its authorised agents, at all reasonable times,
to enter upon the Site to carry out such works which are necessary to install, maintain and/or disconnect the Service (as the
case may be). As part of routine maintenance the Customer agrees upon Maxis’ request, at the Customer’s own cost, to inspect
and/or test the Customer’s Equipment to ensure that the Customer’s Equipment is functioning properly.
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| 5.5 |
Whenever requested by Maxis, the Customer shall provide Maxis, at no cost, with an appropriate space at the Customer’s
Premises in accordance with Maxis’ requirements for the placement and storage of the Maxis Equipment. The Customer shall also
provide adequate power points and fuses (as approved by Tenaga Nasional Berhad).
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| 5.6 |
The Customer hereby warrants that the Customer’s Equipment shall be of the type approved by the relevant authorities. The
Customer shall not connect any equipment other than the Customer’s Equipment to the Service and the Maxis Equipment.
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| 5.7 |
The Customer shall keep the Maxis Equipment placed at the Site in good condition (fair wear and tear only excepted) and be
fully responsible for any loss or damage to the Maxis Equipment upon installation of the same at the Site. The Customer shall
not remove, relocate or cause the removal or relocation of the
Maxis Equipment without Maxis’ prior written permission.
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| 5.8 |
The Customer shall ensure that the Customer’s Equipment does not function in a manner which causes disturbance, interference
or disruption to or adversely affects the Service or other Services provided by Maxis.
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| 5.9 |
Maxis may request the Customer to disconnect the Customer’s Equipment or any part thereof, and provide all necessary
assistance, at the Customer’s own cost, to enable Maxis to perform the necessary test and/or maintenance work thereon at
reasonable times.
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| 5.10 |
The Customer agrees to pay the legal fee (on a solicitor and client basis) and other expenses incurred by Maxis in the
enforcement of its rights and entitlements under this Agreement.
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| 5.11 |
The Customer shall, prior to reporting a Service failure or problem, carry out all necessary steps to determine the cause of
the Service failure or problem.
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| 6. |
SECURITY OF DATA |
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| 6.1 |
The Customer acknowledges that Maxis shall not be liable for the security of the Customer’s data on any of the Customer’s
Equipment or passing over the Services and that Maxis shall have no obligation to ensure, and makes no representations or
warranties concerning the security of such data. The Customer shall be solely responsible for the data retrieved, stored or
transmitted through the Services.
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| 6.2 |
The Customer agrees that Maxis is not liable for any unauthorised access to the Customer’s data even when the access occurs as
a result of a fault in equipment or software owned, operated or supplied by Maxis.
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| 7. |
TERM AND TERMINATION |
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| 7.1 |
This Agreement commences on acceptance by Maxis of the Registration Form and continues until terminated in accordance with
this Clause 7.
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| 7.2 |
Maxis may terminate this Agreement of the Service without having to give any reason on the five (5) days written notice to the
Customer. The Customer shall not be entitled to terminate the Agreement or Service at anytime during the Initial Term.
If the Agreement or Service is terminated by the Customer or by Maxis due to non-compliance by the Customer of any provisions
in this Agreement prior to the expiry of the Initial Term, the Customer shall pay Maxis in full all charges, fees and rentals
for the remainder of the said term.
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| 7.3 |
Notwithstanding Clause 7.2 above, if the Customer terminates the Agreement during the Initial Term as a result of relocation
or in order to upgrade the Service, the Customer shall not be liable to pay for the remainder of the monthly rentals for the
Initial Term, provided the Customer enters into a new Agreement with Maxis for the Service at the new location or for the
upgraded service immediately upon termination of this Agreement. The new Agreement between the Customer and Maxis for the new
location or upgraded service will be based on the prevailing charges, rates and terms and conditions imposed by Maxis.
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| 7.4 |
A party may terminate this Agreement with immediate effect if:
- the other party commits a material breach of its obligations under this Agreement which is incapable of remedy; or
- the other party commits a material breach of its obligations under this Agreement which is incapable of remedy but
which is not remedied within thirty (30) days after the receipt of written notice of default from the other party; or
- the other party is insolvent or takes any corporate action, or other steps are taken or legal proceedings are
commenced for its winding up, liquidation or dissolution (other than for the purposes of solvent reconstruction on terms
approved by the party proposing to terminate this Agreement) or for the appointment of
a receiver, receiver and manager, official manager, liquidation, provisional liquidator, trustee or similar officer of it
or of any or all of its revenues and assets.
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| 7.5 |
Maxis may suspend the Services or part thereof and/or terminate this Agreement forthwith if it considers that the Customer has
breached any of its obligations under this Agreement. Any such suspension or termination shall not be a breach by Maxis of
this Agreement. All charges shall remain due and payable during such period of suspension by Maxis and the Customer shall not
be entitled to a credit or refund for loss of access during the suspension period. In the event of a suspension, Maxis
reserves the right to charge the Customer a fee for the re-commencement of the Services.
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| 7.6 |
On termination of this Agreement, the Customer shall pay Maxis:
- all amounts invoiced to the Customer in accordance with this Agreement and unpaid as at the termination date and any
interest on those amounts; and
- all amounts incurred by the Customer but not invoiced to the Customer as at the termination date.
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| 7.7 |
Upon termination of the Service or part thereof or this Agreement for any reason whatsoever, Maxis shall be entitled to enter
into the Site in order to remove the Maxis Equipment related to that part of the Service so terminated. Such removal by Maxis
shall be undertaken at the Customer’s cost if termination is pursuant to the Customer’s breach of any term of this Agreement
or if terminated by the Customer under Clause 7.2.
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| 7.8 |
Termination of this Agreement by either the Customer or Maxis for any reason whatsoever shall be without prejudice to any other
rights, remedies or claims Maxis may have against the Customer under this Agreement or at law in respect of any antecedent
breach by the Customer of any provision of this Agreement.
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| 8. |
INDEMNITY |
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| 8.1 |
The Customer agrees to indemnify and hold Maxis, its employees, suppliers, contractors and agents harmless from and against
all damages, costs, charges, liabilities and expenses, directly or indirectly, arising out of or in connection with:
- a claim for patent, trademark, copyright or intellectual property right or other proprietary right infringement being
made against Maxis by a third party in connection with the Customer’s use of the Services or in connection with the supply
of any specifications, materials or designs by the Customer;
- the use of the Services with or without the Customer’s authority;
- any non-compliance with any provisions of this Agreement by the Customer;
- any negligent or willful act of the Customer or any of its officers, employees, contractors or agents; and
- any damage to property or personal injury (including death) arising from or in connection with other equipment
supplied by Maxis or the Customer’s Equipment.
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| 9. |
WARRANTY AND LIMITATION OF LIABILITY |
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| 9.1 |
The Customer warrants that:-
- it has the power to enter into and observe its obligations under this Agreement;
- it is the owner of specifications, designs and/or the materials supplied to Maxis to enable Maxis to provide the
Services; and
- it has not relied on any representations made by Maxis or upon any descriptions or illustrations or specifications
contained in any document including any catalogues or publicity materials supplied by Maxis.
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| 9.2 |
In no event shall Maxis or its suppliers including without limitation the ISP providing Internet access in the relevant
overseas country be liable to the Customer in contract, tort (including negligence whatsoever) or otherwise in respect of any
claim brought by a third party or by the Customer or any third party whosoever for any loss of profit or revenue or loss of
business or loss of data or for interrupted or suspended communication or any direct, indirect, special, incidental,
consequential damages, or for any injuries caused to or suffered by a person or damage to property or any damages arising out
of or in connection with the Services whether or not Maxis was or should have been aware of the possibility that such damage
or loss would occur.
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| 9.3 |
The exclusion referred to in Clause 9.2 applies to any action giving rise to an obligation, duty or liability even if the
action was not authorised, or not capable of being authorised by the Customer.
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| 9.4 |
Should any claim arising out of or in connection with the relationship established by this Agreement results in Maxis becoming
liable for any loss or damage not capable of exclusion under the terms of this Agreement, then Maxis’ liability for such laws
shall be limited to the lesser of:-
- the fees paid to Maxis by the Customer over the twelve (12) months period prior to the date of the breach; and
- RM500.00
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| 9.5 |
Maxis and its suppliers including without limitation the ISP providing Internet access in the relevant overseas country,
disclaim all warranties and conditions of any kind, whether express or implied, statutory or otherwise, including but not
limited to, all implied warranties of merchantability, fitness for a particular purpose, title, non-infringement,
compatibility, quality, security and accuracy, relating to the subject matter of the Agreement.
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| 10. |
FORCE MAJEURE |
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| 10.1 |
Maxis shall not be liable for any breach of this Agreement caused by Act of God, insurrection of civil disorder, war or
military operations, national or local emergency, acts or omissions of Government, highway authorities or other competent
authority, industrial disputes of any kind, fire, lightning, explosion, flood, subsidence, inclement weather, acts or
omissions of persons or bodies for whom Maxis is not responsible which includes, but is not limited to, third party operators
whom Maxis may use in order to provide the Service, or any other cause whether similar or dissimilar or outside Maxis’
reasonable control.
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| 10.2 |
Upon the happening of a force majeure event, Maxis may elect to terminate this Agreement or the Service or any part thereof or
suspend the performance of this Agreement in whole or in part for the duration of the delaying cost in which event Clause 10.3
shall be applicable.
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| 10.3 |
In the event that the Service or any part thereof is suspended pursuant to Clause 10, the rentals payable pursuant to this
Agreement shall be suspended for the affected Service or any part thereof throughout the duration of the delaying cost but the
Customer shall continue to be liable to pay for the rentals and all other charges billed for the Service preceding the
effective date of suspension.
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| 10.4 |
Notwithstanding anything contained in this Agreement, Maxis may elect to terminate the Service or any part thereof or this
Agreement at anytime during the said period of suspension.
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| 11. |
NOTICES |
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| 11.1 |
Any notice to be given by Maxis to the Customer under this Agreement shall be in writing and sent to its last known address.
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| 11.2 |
Any notice to be given by the Customer to Maxis under this Agreement shall be in writing and sent to Maxis Broadband Sdn Bhd,
Level 19, Menara Maxis, Kuala Lumpur City Centre, 50088 Kuala Lumpur or any other address notified by Maxis from time to time.
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| 11.3 |
Any notice given pursuant to this Clause shall be deemed to have been served if:-
- sent by prepaid registered post, on the second business day of the date of posting,
- sent by ordinary post, on the fifth business day after the date of posting,
- hand delivered, upon delivery.
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| 12. |
GENERAL |
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| 12.1 |
Maxis may from time to time, upon giving prior return notice to the Customer, make any alterations to the Services or vary the
terms and conditions in the Agreement. The Customer shall be bound to observe and comply with any such alterations and
variations.
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| 12.2 |
Maxis reserves the right at anytime to disclose or share its database with its holding and/or any of its subsidiary or related
companies (as defined in the Companies Act. 1965) in order to provide integrated Services to its Customers, or to provide
information on the Customer to any regulatory or other authorities upon their request.
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| 12.3 |
Either party may exercise a right, power or remedy at its discretion and separately or concurrently with another right, power
or remedy. Failure by a party to exercise, or delaying in exercising, a right, power or remedy does not prevent its exercise.
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| 12.4 |
A provision or a right created under this Agreement may not be waived except in writing signed by the party granting the
waiver, or varied except where stated to the contrary in this Agreement, or agreed to in writing and signed by the parties.
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| 12.5 |
The warranties, undertakings and indemnities in this Agreement do not merge on completion or termination of this Agreement.
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| 12.6 |
Each indemnity in this Agreement is a continuing obligation, separate and independent from other obligations of the parties
and survives termination of this Agreement.
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| 12.7 |
The rights, powers and remedies provided in this Agreement are cumulative with and are not inclusive of the rights, powers or
remedies provided by law independently of this Agreement.
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| 12.8 |
Maxis may assign or novate any of its rights of obligations under this Agreements by notice to the Customer without the
Customer’s consent. The Customer may not assign or novate any of its rights and obligations under this Agreement without
Maxis’ written consent.
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| 12.9 |
In the event of a conflict between the Registration Form and the terms of this Agreement, the terms of this Agreement shall prevail to the extend of the inconsistency.
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| 12.10 |
This Agreement constitutes the entire agreement between the parties concerning their subject matter and supersede previous
agreements, understandings, proposals, representations and warranties relating to that subject matter.
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| 12.11 |
Any stamp duty payable in respect of this Agreement shall be paid by the Customer.
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| 12.12 |
Neither party is liable to the other party for any delay or failure to perform its obligations under this Agreement if the
delay is due to a circumstance beyond the party’s reasonable control.
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| 13. |
GOVERNING LAW AND JURISDICTION |
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| 13.1 |
This Agreement and the transactions contemplated by this Agreement are governed by the law in force in Malaysia without
reference to any principle of conflict of laws. Disputes arising out of or related to this Agreement shall be exclusively
subject to the jurisdiction of the courts of Malaysia.
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