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Maxis Digital Services Terms and Conditions – Solution Terms - Cloud Services

 

Version 30 March 2021 posted on 27 April 2021.

 

  1. Contract Structure
    1. Customer desires to obtain from Maxis, and Maxis desires to provide to Customer, certain cloud services as may be agreed upon by Customer and Maxis from time to time as set out in the Registration Form and/or the Solution Pack.
    2. "Maxis Cloud Services" refer to cloud services which are built, operated and managed by Maxis (which may be a private or public cloud). "Third Party Cloud Services" refer to public cloud services operated and managed by a third party cloud service provider, and resold by Maxis. References in these Solution Terms to "Cloud Services" mean Maxis Cloud Services and Third Party Cloud Services collectively. 
    3. The Base Terms together with these Solution Terms, Solution Pack and the Registration Form entered into by the Parties together comprise an Agreement documenting the terms and conditions under which Customer agrees to purchase, and Maxis agrees to provide, such Cloud Services.
  1. Cloud Services
    1. Cloud Services are designed to be available twenty four (24) hours a day, seven (7) days a week, subject to maintenance. Maxis will provide reasonable prior notice of scheduled maintenance for Maxis Cloud Services.
    2. Where Maxis provides Third Party Cloud Services such as but not limited to Amazon Web Services (AWS), Microsoft Azure or Google (“Third Party”), Customer may be required to accept additional third party terms set out in the Solution Pack and/or enter into an end user agreement with such Third Party (“Third Party Terms”). Customer acknowledges that no assurances in respect of the Third Party’s services are provided, and no liability in connection therewith is assumed by Maxis under the Agreement and that this is reasonable given Customer will have a direct contractual relationship with such Third Party. Customer acknowledges that it will not be able to utilize the Third Party Cloud Services if it does not accept the Third Party Terms. Customer hereby acknowledges that it has read and agrees to the Third Party Terms and will periodically review the Third Party Terms which may be updated from time to time by the respective Third Party. 
    3. Technical support and service level commitments for Cloud Services are described in the Solution Pack.
    4. Unless otherwise provided herein, Cloud Services shall not include the provision or maintenance of any other equipment or software required by Customer to connect to the Cloud Services. Customer will be responsible for its own hardware, software and connectivity to access and use Cloud Services. 
    5. If during operation of the Maxis Cloud Services, the Customer Equipment causes fault, Customer shall pay Maxis all the restoration costs incurred to restore the Maxis Cloud Services. 
    6. Customer must maintain the confidentiality and security of all Maxis Cloud Services. Customer is responsible for all Fees incurred through any unauthorized access of its account. If Customer discovers any unauthorized access for Maxis Cloud Services, it must immediately ask Maxis to suspend its account. Customer is responsible for the use of Maxis Cloud Services by any user who accesses the same with Customer's account credentials (“Authorized User”) and all Fees incurred through unauthorized access of its account, unless such unauthorized access is solely caused by Maxis. Customer shall ensure that all Authorised Users are sufficiently competent to meet its obligations as set out in the Agreement. Where Customer has an obligation under this Agreement, such obligation shall extend to its Authorised Users and Customer shall procure compliance with such obligation by such Authorized Users. Customer remains liable for the actions, omissions, breaches and Fees incurred by the Authorised Users.
    7. Cloud Services shall not be used for any unlawful, fraudulent, obscene or offensive content or activity, such as advocating and causing harm, interfering or violating the integrity or security of a network or system, evading filters, sending unsolicited, abusive or deceptive messages, viruses or harmful code, or violating third party rights. Customer may not use Cloud Services if failure of the Cloud Services could lead to death or bodily injury, or property or environmental damage.
    8. Customer shall not reverse engineer any portion of the Cloud Services. Customer may use the Cloud Services to provide services to its own customers and its related companies but not subcontract, sublicense, supply or re-sell the Cloud Services. 
    9. Maxis will provide Maxis Cloud Services from the data/service centers designated by Maxis. Except where Maxis has agreed in the Agreement to provide Maxis Cloud Services from data/service centers in a designated geography or location, Maxis may relocate the data/service centers from time to time and where commercially practicable, with reasonable notice to Customer. Wherever infrastructure supporting Customer may be located, Customer acknowledges that Maxis and/or its Affiliates may perform related services (such as monitoring and other support) from other locations worldwide.
    10. Maxis warrants that it provides Maxis Cloud Services using commercially reasonable care and skill. This warranty for Maxis Cloud Services ends on expiry or earlier termination of the Agreement. Maxis does not warrant uninterrupted or error-free operation of Maxis Cloud Services or that Maxis will correct all defects or prevent third party disruptions or unauthorized third party access. These warranties are the exclusive warranties from Maxis and replace all other warranties, including the implied warranties or conditions of satisfactory quality, merchantability, non-infringement, and fitness for a particular purpose. Maxis' warranty will not apply if there has been misuse, modification, damage not caused by Maxis, or failure to comply with instructions provided by Maxis in connection with Maxis Cloud Services. Third Party Cloud Services are subject to separate warranties provided by the Third Party. 
    11. Customer accepts that Maxis and/or the Third Party (where applicable) may be required by law to monitor the content and use of the Cloud Services and to provide details of the same which may include identification of logon credentials and their usage. Maxis and/or the Third Party (where applicable) shall not be liable for any effect on the Cloud Services caused by the obligation to comply with any requests made under any authority. Customer agrees that without prejudice, Maxis and/or the Third Party (where applicable) may also monitor Customer's use of the Cloud Services and accumulate statistics for purposes connected with this Agreement and so as to be able to develop and improve the Cloud Services. 
    12. Customer shall not rent, lease, lend, resell, transfer or host any of the Cloud Services or any portion thereof, to or for third parties. 
  1. Customer Data
    1. "Customer Data" means all data, software, and information that Customer or its authorized users provide, authorize access to, or input to the Maxis Cloud Services.
    2. Use of Maxis Cloud Services will not affect Customer's ownership or license rights in Customer Data. Maxis will treat all Customer Data as confidential by not disclosing the same except to Maxis' employees, third party providers and contractors and only to the extent necessary to deliver Maxis Cloud Services.
    3. Maxis, including its Affiliates and contractors, may access and use Customer Data only (i) as authorized, directed or permitted by Customer, (ii) in connection with performance of Maxis Cloud Services, (iii) in order to comply with applicable laws, subpoenas, discovery or similar orders or requests, and/or (iv) to investigate or help prevent or mitigate security threats, fraud or other illegal, malicious or inappropriate activity. If and when any disclosure of Customer Data is required by law, Maxis will (if permitted to do so) make reasonable efforts to inform Customer so that Customer may seek legal protection.
    4. Customer is responsible for obtaining and maintaining all necessary rights and permissions to enable, and grants such rights and permissions to, Maxis, including its Affiliates and contractors, to use, provide, store and otherwise process Customer Data in the Maxis Cloud Services. This includes Customer making necessary disclosures and obtaining consent, if required, before providing individuals' information, including personal or other regulated data in such Customer Data. If any Customer Data could be subject to governmental regulation or may require security measures beyond those specified by Maxis for Maxis Cloud Services, Customer will not input, provide, or allow such Customer Data without Maxis' prior written consent. 
    5. Customer acknowledges that (i) transmissions on networks, including the internet and internet-facing applications carry certain risks that could result in loss of data and property and those risks are not Maxis' responsibilities, (ii) Maxis provides only the network and monitoring services (if any) described in the Agreement, (iii) Maxis has no responsibility for the loading or security of software installed by Customer, (iv) no security measures provide absolute protection, and (v) Customer loads and maintains all Customer Data on Maxis Cloud Services at its own risk.
    6. Customer bears ultimate responsibility over the Customer Data and Maxis has no liability for loss, corruption, or destruction of Customer Data.
    7. Customer is responsible for removing Customer Data from Maxis' computing resources upon the expiration or cancellation of Maxis Cloud Services and/or the termination / expiration of this Agreement. Maxis does not archive Customer Data, however some Customer Data may remain in Maxis Cloud Services backup files until expiration or deletion of such files as governed by Maxis' security guidelines. 
    8. Maxis is under no obligation to assist with any migration of Maxis Cloud Services to another service provider, unless it has been mutually agreed between Customer and Maxis, subject to additional charges and terms and conditions which shall apply.  
    9. Maxis may assist Customer with any migration of Cloud Services to another service provider, subject to the relevant charges from Maxis. 
  1. Security
    1. Security features and functions of Cloud Services are described in the Solution Pack. 
    2. Customer is responsible to assess the suitability of Cloud Services for its intended use and data and to take necessary actions to order, enable, or use available data protection features appropriate for such data being used with Cloud Services. 
    3. Customer acknowledges the security of the Cloud Services is a shared responsibility between Customer and Maxis or the relevant Third Party (as the case may be) and in the case of Third Party Cloud Services, subject to the Third Party Terms. Where the Cloud Services involves any on-premises integration and deployment at Customer’s premises, Customer has full control over the physical and environmental aspects of the Cloud Services. Customer is responsible for the patching of and configurations of its own or third party hardware, software and applications connected to the Cloud Services and where relevant, training its employees in respect of security aspects of the Cloud Services.  
    4. By using Cloud Services, Customer accepts responsibility for use of the Cloud Services, and acknowledges that it meets Customer's requirements and processing instructions to enable compliance with applicable Laws.
    5. Maxis has no responsibility for viruses or other malware introduced by Customer, any of its users or any third party, or for restoration of any resulting lost or corrupted data or applications. 
    6. Customer is responsible for maintaining the logon details (e.g. username and password) and of any non-public authentication credential associated with its use of the Cloud Services. Customer must promptly notify Maxis about any possible misuse of its accounts or authentication credentials or any security incident related to the Maxis Cloud Services. 
  1. Compliance
    1. Customer has verified that Cloud Services meet Customer’s needs and will support Customer’s compliance with applicable laws.
    2. Customer bears responsibility for use of Cloud Services by Customer and its users, including compliance with laws that apply to such uses and to uses in combination with Maxis' performance (such as export controls, arms trafficking, electronic communications, telecommunications, or common carrier laws or regulations). Customer may not use Cloud Services (including data stored, transmitted or processed using Cloud Services) in ways that would impose additional regulatory or other legal obligations upon Maxis because of that use (for example, by subjecting Maxis to regulations that apply to Customer’s industry) unless the Parties have expressly agreed to do so in the Agreement.
    3. Imports, exports and other transfers of data or software stored, used or processed using Cloud Services or related infrastructure are Customer’s sole responsibility, and Customer will obtain any authorizations that may be required. Customer will not use, distribute, transfer, or transmit any products, software or technical information (even if incorporated into other products) in violation of applicable export laws or regulations.
  1. Intellectual Property
    1. Third Party Software. Maxis shall obtain and maintain sufficient rights to third party software that Maxis uses to perform Maxis Cloud Services. Customer shall obtain and maintain sufficient rights to third party software that Customer uses in connection with its receipt of Cloud Services and use of related infrastructure, including applications or systems software furnished or installed by Customer.
    2. Customer Software. Customer grants Maxis a non-exclusive, revocable license to use any of its proprietary software or other intellectual property from time to time transmitted to, stored, or otherwise used on the Maxis Cloud Services infrastructure, to the extent necessary to perform the Maxis Cloud Services.
    3. BYOL. Where “bring-your-own-licence” model is applicable, Customer shall be responsible to ensure that the relevant software is up-to-date and have the necessary licences (including numbers of licences and users) to use such software according to the number of Customer’s users / devices that may access or use the software.  
    4. Audit. Customer's use of the Cloud Services may be subject to audits by Maxis and/or the relevant Third Party (or their designees) and therefore, Customer shall provide all necessary cooperation to facilitate such audit. Where the audit reveals any non-compliance with the terms of this Agreement by Customer, Customer agrees to indemnify Maxis for any and all claims, losses, liabilities, damages, penalty costs and expenses arising from the same.
  1. Changes
    1. Clause 12 (Change Control) of the Base Terms shall not apply to Cloud Services.
    2. Customer may request certain changes in writing ("Cloud Change Request"). Changes are priced at Maxis' then-current standard rates or as the Parties may agree. Maxis may decline to quote in response to any Cloud Change Request. Maxis may also offer enhancements as options at additional cost. Cloud Change Requests (which may include a new Registration Form), once signed by the Parties’ authorized representatives, amend and supplement this Agreement effective as of the agreed date.
    3. Maxis reserves the right to make changes to Maxis Cloud Services and/or its service levels or Fees. Maxis will give Customer fourteen (14) days' prior written notice if Maxis (i) changes the Fees as aforementioned, or (ii) makes a material change to the Maxis Cloud Services that has a material impact on Customer's use of such Services.
    4. Maxis also reserves the right to discontinue the Maxis Cloud Services in whole or in part, and will inform Customer before such discontinuation unless Maxis replaces such discontinued Services or functionality with materially similar Services or functionality. 
    5. Changes made in accordance with this clause will automatically amend and modify this Agreement.
  1. Suspension
    1. Maxis reserves the right to suspend without prior notice, and terminate immediately upon notice, some or all Cloud Services, the applicable Solution Packs and/or this Agreement if (i) Customer violates (or authorises or permits others to violate) the restrictions and requirements regarding use of Cloud Services in this Agreement, or (ii) Customer’s or its users' use of Cloud Services adversely affect, or could adversely affect, Maxis’ operations or delivery of services to other customers (for example, by causing electrical faults or security issues) (iii) Maxis reasonably believes that the owner of any intellectual property forming part of Customer Data has withheld, withdrawn or failed to give its permission for Customer’s use of the same, or (iv) Maxis is requested to do so by any authority.
    2. If there is an adverse impact on Maxis Cloud Services, Maxis' operations or delivery of services to other customers, the Parties will cooperate to identify and rectify issues so that Maxis Cloud Services may be restored as soon as reasonably possible.
    3. Customer is obliged to pay the Fees for the duration of the suspension. Customer will be liable for any additional costs incurred by Maxis relating to the matter causing the suspension.