Maxis Digital Services Terms and Conditions – Solution Terms - Hardware
Version 30 March 2021 posted on 27 April 2021.
- Contract Structure
- Customer desires to purchase or lease from Maxis, and Maxis desires to provide to Customer, certain hardware as may be agreed upon by Customer and Maxis from time to time as set out in a Registration Form and/or Solution Pack ("Hardware").
- The Base Terms together with these Solution Terms, the Solution Pack and the Registration Form entered into by the Parties together comprise the Agreement documenting the terms and conditions under which Customer agrees to purchase or lease, and Maxis agrees to provide, such Hardware.
- The sale or lease of the Hardware is subject to model availability and stock availability. In the event where the particular model or stock is not available, Maxis shall endeavour to provide similar or equivalent Hardware.
- For Leased Hardware (as defined herein), Maxis reserves the right to modify and alter the Leased Hardware, or any components of the Leased Hardware including the brand, model, build, etc, provided that the specifications of the altered Leased Hardware are similar or comparable, and without providing prior notification to Customer. Maxis does not guarantee the offering of the same Leased Hardware for Customer’s subscription to Services made at different times.
- Maxis will determine and communicate to Customer the expected delivery date for the Hardware (subject to stock availability). Maxis will use all commercially reasonable efforts to deliver Hardware in a timely manner during reasonable working hours. Within the same day, Customer shall inspect the Hardware and shall confirm in writing whether the Hardware is accepted or rejected, failing which the Hardware shall be deemed accepted. Customer may only reject the Hardware or, in the case of multiple Hardware, those portions which are damaged, if the Hardware or parts thereof is damaged and the damage is verified by Maxis. In the case of damaged Hardware which has been rejected due to damaged which has been verified by Maxis, Maxis will replace the damaged Hardware.
- If the delivery of the Hardware requires any consents, Customer is required to obtain all necessary approvals, licenses, authorizations, consents and permits to enable Maxis to reasonably access Customer sites to deliver the Hardware.
- If the delivery of the Hardware requires any specific resources and/or equipment, Customer is required to ensure that it has the necessary resources and equipment to receive and accept delivery of the Hardware.
- In the event where Customer has failed to accept delivery of the Hardware on the relevant delivery date due to Customer’s fault and/or breach of this Agreement, Maxis will use commercially reasonable efforts to re-deliver the Hardware to Customer on another date, subject to any additional charges by Maxis.
If Maxis is providing installation services with the Hardware purchase or lease, the Solution Pack or the Registration Form will specify the installation applicable to the Hardware and describe Customer requirements (if any). Maxis will conduct its standard installation and test procedures to confirm completion. The installation of any Hardware will be considered as part of Professional Services and will be governed under the terms and conditions of the Solution Terms for Professional Services.
- Title and Risk
Where Hardware is purchased by Customer
- Risk of loss or damage to Hardware passes upon delivery by Maxis to Customer or its designee.
- Title to Hardware passes to Customer upon full payment of Fees.
- Customer shall, at its own cost and expense, take appropriate insurance to insure against the total loss and/or damage to the Hardware while the same remains in the possession of Customer following delivery until title passes to Customer in accordance with Clause 5(b) above. Notwithstanding that the Hardware is insured, Customer shall remain liable to reimburse Maxis for any loss and damage of the Hardware if the insurance coverage is insufficient to cover the same.
Where Hardware is leased to Customer ("Leased Hardware")
- Title to and ownership of the Leased Hardware shall at all times remain with Maxis. Customer shall not make the Leased Hardware or such parts available for sale, transfer, exchange or other disposition. Customer shall inform Maxis of the whereabouts of the Leased Hardware whenever requested by Maxis.
- Risk of loss or damage to the Leased Hardware shall pass to Customer upon delivering the same to Customer or its designee.
- All substitutions, replacement parts, additions, or improvement to the Leased Hardware whenever made shall remain Maxis’ property and Customer shall not be entitled to receive any payment from Maxis in respect thereof. It is expressly declared and agreed that nothing herein contained shall be construed to imply that title to the Leased Hardware will or may pass to Customer.
- Customer shall, at its own cost and expense, take appropriate insurance to insure against the total loss and/or damage to the Leased Hardware. Notwithstanding that the Leased Hardware is insured, Customer shall remain liable to reimburse Maxis for any loss and damage of the Leased Hardware if the insurance coverage is insufficient to cover the same.
- Customer shall immediately inform Maxis if any Leased Hardware is lost, destroyed or stolen.
- Leased Hardware
- Customer shall ensure that any operating instructions or manuals supplied by the manufacturer of the Leased Hardware for its use are fully understood and strictly observed by Customer.
- Customer shall keep the Leased Hardware secure and in good operating order and condition (ordinary wear and tear excepted) at all times. Notwithstanding Customer's subscription for any managed services or support and maintenance for the Leased Hardware in a Registration Form, Customer's obligations hereunder to maintain the Leased Hardware in accordance with the provisions of this clause shall continue to apply. Customer shall keep or host the Leased Hardware based on Maxis’ recommendations and manufacturer’s operating environment specifications / manual / instructions.
- Customer shall not make or cause to be made any alteration or modification to the Leased Hardware or remove any existing part or component from the Leased Hardware without Maxis’ prior written consent. Any parts or components of the Leased Hardware owned by Maxis that Customer removes shall remain Maxis’ property.
- Customer shall not sell, assign, sub-let, pledge, mortgage, charge, encumber, relocate or part with possession of or otherwise deal with the Leased Hardware or any interest therein nor create nor allow to be created any lien on the Leased Hardware. If Customer becomes aware of the occurrence of such event, Customer shall promptly notify Maxis thereof and Customer shall at its own cost and expense forthwith cause the Leased Hardware or any part thereof to be released therefrom.
- Customer shall permit Maxis, upon prior notice, to inspect the Leased Hardware and associated maintenance records during Customer's normal business hours and subject to Customer's normal security procedures.
- Leased Hardware shall be returned to Maxis in accordance with the instructions given by Maxis or on the effective date of termination of the Agreement. In the event Customer defaults on this obligation following expiry of the applicable lease term, Customer shall be liable for additional charges specified in the Solution Pack.
- Any right for Customer to re-purchase Leased Hardware (where applicable) is stated in the Solution Pack.
- In storing or holding the Leased Hardware, Customer must (i) properly segregate (where reasonably possible); and (ii) identify in such manner as to clearly indicate that the Leased Hardware are property of Maxis.
- Customer must not by any act or default render the Leased Hardware liable to any distress execution or other legal process or to suffer the appointment or the presentation of a petition for the appointment of an administrator under any insolvency laws for the time being in force.
- In the event of termination of this Agreement for any reason: (i) Customer shall pay Maxis the termination fees for Leased Hardware specified in the Solution Pack, and (ii) Maxis may take or recover immediate possession of the Leased Hardware. Maxis shall be entitled to charge Customer the costs incurred by Maxis in repossessing or acquiring a replacement of the Leased Hardware not returned or returned in a damaged or defective condition.
- All the data contained in the Leased Hardware shall be transferred, migrated or removed by Customer prior to the dismantling and removal of the Leased Hardware by Customer.
- Notwithstanding the provision of the Leased Hardware by Maxis, Customer is the data user / data processor and Maxis is not considered as the data processor for any data that may be received / processed by the Leased Hardware (for the purposes of the Personal Data Protection Act 2010).
- Customer shall irrevocably consent to Maxis’ arrangement in assigning personnel, either from Maxis, its Affiliates or subcontractors, for on-site collection, including but not limited to the following circumstances:
- the term for the lease or subscription of the Leased Hardware has reached the end of its duration and Customer agrees to enter into a new subscription with Maxis under which Customer shall return the original / existing Leased Hardware in replacement for a new unit;
- the term for the lease or subscription of the Leased Hardware has reached the end of its duration and Customer wishes to terminate the subscription;
- Customer has overdue payment that triggers the involuntary termination of this Agreement;
- Customer has used the Deliverables inappropriately or has breached the Agreement; or
- Customer’s business ceases or enters into a state of insolvency.
- Maxis reserves the right to limit the use of SIM cards on the Leased Hardware provided as part of the Deliverables. Customer shall not transfer the SIM card to any other equipment and/or devices.
- In the event of suspension of any associated Services due to outstanding payment or breach of the Agreement by Customer, Maxis reserves the right to lock the Leased Hardware (where applicable) and prevent Customer’s access and use of the operating system and any software preinstalled by Maxis or subsequently by Customer. Maxis is not responsible for any loss of productivity and/or monies as a result of locking the Leased Hardware.
- Built-in Software
Where software is included with or built into the Hardware, the third party's software licence terms will govern Customer's use of such software.
- Customer understands and agrees that any warranty with respect to the Hardware shall be provided to Customer directly by the manufacturer of the Hardware and not by Maxis. Maxis will pass on the requisite warranty from the manufacturer of the Hardware to Customer and such warranty shall be governed by and subject to the terms and conditions imposed by the manufacturer of the Hardware. Such warranty is in lieu of all other warranties and conditions, and the manufacturer of the Hardware disclaims all other warranties and conditions, express or implied, including any warranty or condition of merchantability, satisfactory quality, fitness for a particular purpose or arising from the course of dealing between the parties or usage of trade.
- Unless otherwise specified in the Agreement or the warranty statements referenced in (a) above, Hardware warranty claims do not cover:
- improper use, misapplications, site preparation or site conditions;
- modifications or improper system maintenance, repair, enhancements or calibration not performed or authorized by Maxis;
- malware not introduced by Maxis;
- abuse, negligence, accident, fire or water damage, electrical disturbances, transportation by Customer, or other causes beyond the control of Maxis and/or the manufacturer of the Hardware;
- use of Hardware in combination with other products not supplied by Maxis;
- defects or problems caused by or resulting from events beyond the reasonable control of the manufacturer of the hardware; and/or
- defects caused by Customer's failure to meet minimum system requirements.
- Customer shall deal directly with the manufacturer for any claim of faults or defect under warranty during the warranty period for the Hardware as set out in the limited warranty statements. If Customer subscribes for managed services or support and maintenance for the Hardware in a Registration Form, Maxis will provide reasonable assistance to Customer in facilitating warranty claims against the manufacturer for faults or defects in the Hardware. If the manufacturer rejects any claim or is unwilling or unable to perform under the terms of the warranty, Customer agrees that Maxis shall not be liable.