Service Specific Terms & Conditions -
Digital Marketing Starter Kit
- Digital Marketing Starter Kit - Terms & Conditions
- Digital Marketing Starter Kit - Appendix
The Service(s): The Service(s) is a managed technology solutions which includes but is not limited to any or a combination of the following: Digital Marketing, insights and analytics, and any other value added services which may be offered by Maxis from time to time which are specifically described in the Proposal.
- You: Business Customer signing up for the Service(s).
- The use of the Service(s) is subject to the General Terms & Conditions (“GTC”), Service Specific Terms & Conditions (“SSTC”), Summary Terms & Conditions (“STC”) and Maxis Fair Usage Policy which can be found at www.maxis.com.my/tnc/business and the additional terms and conditions contained in the Proposal.
- Capitalised terms herein have the same meaning as defined in the GTC.
- Any conflict or inconsistency between this SSTC, the additional terms and conditions contained in the Proposal, the GTC and the STC, shall be construed in the following order of precedence: (a) the additional terms and conditions contained in the Proposal; (b) SSTC; (c) GTC; and (d) STC.
- You acknowledge and agree that by virtue of your Website or Web Store being on the Internet and by using the Internet in general, you may be subject to various risks, including amongst others:
- unauthorised invasion of your privacy during, or as a result of, you or another party’s use of the network; and
- unauthorised exposure of information and material you listed or sent, on or through the Applications, to other users, the general public or any other specific entities for which the information and material was not intended by you. You acknowledge and understand that the Service(s) may be restricted or interrupted by the functionality and limitations of the Internet.
Definitions and interpretation
- Unless the context otherwise requires, the highlighted words shall have the following meaning:
“Activity Data” means the data collected or generated from the use of the Service(s) (including but not limited to the performance and effect of advertising activities);
“Application(s)” means self-contained program, web-based platform or piece of software as the service application designed to fulfill a particular purpose;
“AdWallet” means the e-wallet known as “AdWallet” which can be used for any Social Media Platforms or search engine to track and monitor your media spend on the Digital Marketing;
“Cookies” means small text files, typically of letters and numbers, downloaded on to a device when user accesses the Site and/or Social Media Platform. Cookies are used to recognise the user’s device and enable the use of the Site and/or Social Media Platform to be analysed;
“Created Materials” means works created by Maxis or its agents which is owned by Maxis subject to any pre-existing intellectual property rights;
“Customer Account Number” means the account number assigned to you upon acceptance of your application;
“DDoS” means a distributed denial of service attack;
“Digital Marketing” means advertising on Social Media Platforms or search engine pursuant to and in accordance with this Agreement within the agreed specified parameters and limits;
“End User” means your employee or agents or any person authorised to act on your behalf in relation to the Service(s);
“Hosting” means storing the Site on the Service Provider’s network and making it available on the internet, and Host and Hosted have corresponding meanings;
“Insights” means reports extrapolated, and programs, algorithms or recommendations created by us based on analysis of the Social Data and Activity Data collected;
“Log-on Detail” means the user identification detail / email address which is unique to you and accompanying initial password supplied to you for access to parts of the Service(s);
“Minimum Period of Service” means the minimum period of subscription for the Service(s) which is set out in the Proposal commencing from the Service Commencement Date unless otherwise agreed between us;
"Password" means the string of alphanumeric characters selected by you which, being unique to you and known only to you and Maxis, authenticates your user identification detail whenever you access the Service(s);
“Plan” means any of the plan for the Service(s) offered by Maxis;
“Proposal” means the proposal issued by Maxis to you setting out the pricing, scope and services of the Maxis Plan selected and subscribed by you;
“Service Commencement Date” means the date which we notify you is the commencement date of the Service(s);
“Service Providers” means independent software or software applications vendors who can be an individual or business that builds and develops an Application or third party supplier(s) supplying services which form part of the Service(s);
“Site” means the Website and/or the Web Store;
“Social Data” means the data or information that you authorise us to collect on your behalf from the Web, Social Media Platforms and Applications used in the provision of the Service(s) including data such as clicks, impressions, shares, engagement, target group sizes and custom audiences;
“Social Media Account” means your own social media account;
“Social Media Platforms” means any form of platform, including any web, desktop or mobile based technologies and Applications, that facilitates the creation and exchange of user-generated content and/or advertising content and/or the display of advertisements, for example, Facebook;
“Social Media Platforms Provider” means a provider of Social Media Platforms, for example Facebook Inc.;
“Webinar” means the feature that allows you to organize on-line conferences for a certain number of participants in which you take part as an active participant;
“Webpage” means a hypertext document which can be displayed in a web browser that is accessible through the Internet or other network;
“Website” means a collection of web pages which are grouped together;
“Web Store” means an application or a website for electronic commerce which allows purchases to be made over the Internet.
- Unless the context otherwise requires, the highlighted words shall have the following meaning:
Provision of the service(s)
- If you request for any changes to the Service(s) or any item which does not fit within the Service(s), such request shall be subject to Maxis’ agreement and any additional terms which shall be set out in the Proposal. You may be charged additional fees which will either be quoted separately or charged as an extra at full hourly rates.
- We may send you service or commercial announcements, notice, messages or other information in connection with your use of the Service(s) via any mode of communication. You may opt out of these communications by writing to us.
- We do not guarantee any minimum response times or delivery times in connection with performance of the Service(s). Scheduled or emergency maintenance (including temporary suspension of the Service(s) if necessary) may be performed to maintain or modify the Service(s) without prior notice given to you and without any liability on Maxis and the Service Providers. However, in the event of scheduled maintenance that would last for more than one (1) day, we will use reasonable efforts to give you at least 1 days’ notice. We will endeavour to ensure that scheduled maintenance will be carried out with an aim to minimize business interruption.
- There may be third-party plugins, products and associated programs provided by third party providers used in the Site which are provided ‘As Is’ and “As Available”. We are not responsible for such third-party plugins, products and associated programs.
- Maxis and the Service Providers are not liable to rectify any errors caused or partly caused directly or indirectly by or arising from:
- any mis-information provided by you; or
- any direction given by you; or
- any of your conduct or any third party.
Copyright and Trademark Notice
Our/Service Providers’ Content
- The compilation (including but not limited to the collection, arrangement and assembly) of all Content in the Service(s) is the exclusive property of Maxis or the Content suppliers, and protected by copyright, trademarks and/or other intellectual property rights and other applicable laws of Malaysia, the country of domicile of the suppliers and international copyright laws. You are only allowed to view and use the Content and Service(s) for commercial purposes during the term of the Agreement. Any Content in the Service(s) may not be reproduced, distributed, transmitted, published, displayed, broadcasted, stored, adapted, licensed, altered, hyperlinked or otherwise used in any manner or by any means except with our prior written consent.
- We and/or the Service Providers’ reserve the right to modify, add or delete any Content appearing on or in connection with the Service(s), at any time without prior notice.
- Use of the Service(s) does not transfer ownership of any intellectual property rights and should not be construed as granting, by implication, estoppel or otherwise, any license or right in the Service(s) or Content to you unless otherwise agreed by the parties in writing. You may not frame or utilise framing techniques to enclose any Content, or use any meta tags or any other "hidden text" utilising names, logos or trademarks (including images, text, page, layout, or form) belonging to Maxis and the Service Providers without the prior written consent being obtained.
- You are entitled to use materials that we render available to you solely to use the Service(s) for its intended purpose, notwithstanding whether such materials are paid or free, customized or standard. Please note that our resources (in particular the predesigned templates) may include materials which are subject to third party’s copyright. You agree that we have the right at any time and at our sole discretion to remove such materials from our resources, disable access to such materials or demand that you immediately stop using them, in particular on your Site. If you do not satisfy our demand, we are entitled to delete such materials at our sole discretion, with no liability on our side. In the aforementioned situations you will not be entitled to any reimbursement of any amount paid by you to us.
- You acknowledge and agree that by using the Applications, you may be exposed to Content which may be inaccurate, misleading, defamatory, offensive and/or unlawful. Any reliance on or use of any Content on or accessible from the Applications is at your own risk. We are not responsible nor do we endorse, support or guarantee the lawfulness, accuracy or reliability of any Content submitted to, transmitted or displayed by or linked to the Service(s) including Content provided by other users or advertisers.
- We and the Service Providers do not guarantee the quality, reliability or suitability of any third party Content and services provided, made available, advertised or linked through the Applications and we bear no responsibility for your use of or relationship with any such third parties or third parties services. These third party Content or services may be subject to further terms from the relevant third party that originally produced or created such Content or service and you agree to comply with any such further terms and conditions in relation to your use of such third party Content and Service(s).
- Some of the Application(s) allow you and/or your Site’s visitors or participants to upload, send or otherwise make available Content on the Application(s). This includes any links to other websites or resources or other third party services that you use. We do not claim ownership of such Content and you (or your Site’s visitor/participant) retain all right, title, and interest in and to such Content, with the exception of the materials which you take from our resources, in particular from the collection of predesigned templates.
- You shall be responsible for all of your Content and for the accuracy, integrity, legality, reliability, appropriateness, quality and ownership of your Content.
- You should not post, send or provide Content that:-
- violates or infringes a third party’s rights of publicity, privacy, copyright, trade mark or other intellectual property right; or
- misrepresents or misleads; or
- bullies, harasses or intimidates; or
- slanders, defames or libels; or
- is inaccurate or false; or
- spams other users; or
- is in breach of any applicable law and regulations.
- By transmitting, uploading, posting, submitting or storing any of your Content through the Service(s), you grant or have procured the permission to grant us and the relevant Service Providers a worldwide, royalty free, non-exclusive, perpetual, worldwide license to use, distribute, modify, reproduce, publish and Host your Content in any form anywhere. In addition, you authorize us and the relevant Service Providers to create derivatives of your Content on your behalf to post online, expose to search engines and syndicate to directories and other websites and services, to such extent as we and the relevant Service Providers in our absolute discretion, deem advisable in order to deliver the Service(s). This license continues even if you cease using the Service(s), for example where you continue to use the Application(s).
- If you post, upload, send or otherwise make available your Content through third parties, you are obliged to adhere to such third party’s terms and conditions of service or license, in addition to and not in derogation of your obligations resulting from these terms and conditions.
- You agree that in the event of any suspected violation or infringement of any law or regulation or a competent regulator or authority having jurisdiction, requests for particulars in connection with your Content, then, you unconditionally agree, that we may preserve your Content and we or the Hosting provider may disclose any such associated information including but not limited to any of your confidential information to the appropriate authority(s) if we are required to do so by law (for onward investigation and prosecution) without any notice to you. You acknowledge and accept that we may preserve your Content and disclose it if we are required to do so by law or if it is necessary to enforce these terms and conditions, a court order or a decision of a competent public authority, respond to claims that any of your Content or the activity of your Webstore’s visitor or participants violates the law or the third party’s rights.
Access and Password
- We will create accounts and provide you with one (1) master Log-on Detail information required to connect and access each Application(s) or any part of the Service(s), including a sufficient number of Log-on Details, as determined by us to provide your End User(s) with access. You agree that you are responsible for any activity that occurs in your account.
- You are encouraged to periodically change your password especially when an End User is changed.
- You acknowledge and accept that your Log-on Details, Password and Customer Account Number provided is specific to you and shall be held secure and confidential by you at all times with restricted access or disclosure to any third party including your personnel or agents. You shall retain the custody and control of the Application(s) and Service(s) at all times with yourself and not permits any third party to use the Application(s) or Service(s). You agree that the acts, omissions or defaults of the End User(s) and use by any third party shall be deemed to be the acts, omissions or defaults of you and you accept responsibility and liability for all activities that occur under your Log-on Details, Password and/or user authentication. You shall be liable to make due payments for all charges, purchase, orders and early termination charge as applicable and invoiced by Maxis irrespective of whether or not such actions or change were authorised by you.
- You shall report immediately to us upon the discovery of any fraud, unauthorised usage or any other unlawful acts or have any reason to believe that your Log-on Details, and/or Password has been misused and/or compromised whether by theft, fraud or otherwise. You agree to lodge a police report whenever instructed by us and/or the Service Provider and to give us and/or the Service Provider a certified copy of such report.
- We reserve the right to invalidate or suspend your Log-on Details and Password at any time without being obliged to offer you any explanation or prior notice in the event of (i) non-payment, (ii) suspected and/or proven misuse of the Service(s), (iii) you are not complying with your responsibilities and obligations under the Agreement, or (iv) any infringement of a third party's Intellectual Property occurs or is alleged in connection with your Web. We shall not be liable for any loss or damage which you may suffer as a result of such invalidation and/or suspension.
- You hereby grant to Maxis and the Service Providers a non-exclusive, non-assignable subscription license during the term of the Agreement and warrant that Maxis and the Service Providers are authorised, to use the intellectual property of your enterprise to depict your business on the Site and copy, modify, configure and integrate your data and Content solely for the purposes of Maxis providing the Service(s) hereunder and as otherwise agreed in the Agreement.
- We or the Service Providers hereby grant you a personal, limited, worldwide, non-exclusive, non-assignable, non-transferable right and revocable license to access and use the Application(s) and Hosting service during the term of the Agreement.
- Your registration for the Service(s) entitles you for only one (1) subscription license to each account. No rights, title, or interest, except the limited license expressly set forth in the Agreement shall pass to you.
- You acknowledge that the accounts are made available by the respective Service Providers that are not affiliated with Maxis and you agree that Maxis is not responsible for these account and the services related thereto. You have the option to not utilise such accounts that are made available to you. You understand and agree that any non-usage will not entitle you to any discount or reduction in the Charges.
- If any Account or the Hosting service is the target of a DDoS or any other electronic attack or threat, the Service Provider may, at any time and without giving prior notice to any person, take such protection and/or mitigation measures as it in its sole discretion considers reasonably necessary, including:
- suspending the Application(s), the Site or any other Service;
- moving the Application(s), the Site and/or your data to a quarantine server;
- implementing access control lists; and/or
- applying IP address filtering and/or blocking.
- If the Service Provider takes any such measures, it may continue them until such time as the attack or threat is considered by the Service Provider (in its absolute discretion) to be eliminated, avoided or otherwise dealt with.
- All untilised media spend on any Social Media Platforms or search engine will be credited into your AdWallet account. If you terminate the Service(s) before the expiry of the Minimum Period of Service or upon the expiry of the Minimum Period of Service, the remaining credit balance in the Ad Wallet will be forfeited and will not refunded to you.
- Where we refer any third party service providers to you for any other services as requested by you (eg. third party logistics services or payment gateway services), you acknowledge that Maxis will not be providing such services to you and that you are required to enter into a direct commercial and contractual relationship and agreement with the respective third party service providers. We are not liable for any claims or demands whatsoever arising from or in connection with the arrangement and the direct agreement entered into by you with the third party service providers.
- The respective Service Providers owns all intellectual property of their respective Application(s) and Maxis owns all Maxis Intellectual Property. You will not acquire any right in any and all Maxis Intellectual Property or the Service Providers’ intellectual property.
- Unless otherwise stated herein, nothing in the Agreement shall be interpreted in any way to vest, transfer or confer any right upon a party to use the intellectual property of another party without that other party’s prior written consent.
- You agree to license, and warrant that Maxis and the Service Providers are authorised, to use, copy, modify, configure and integrate your data and your Content for the purpose of the Agreement. You are solely responsible to ensure that any Content supplied by you which is licensed, remains current and is subsisting. You are required to alert and notify us if the license for such Content has expired.
- Nothing herein disclaims, abrogates, alienates or affects the Service Providers’ and Maxis’ subsisting and continuing moral rights in the respective Application(s) and its own intellectual property.
- You hereby expressly authorise and consent to Maxis and/or the Service Providers collecting and using the data collected via the Service(s) for research and development and to improve the performance of the Service(s). Such data will not be disclosed to any other third party without your consent. You agree to waive any moral rights you may have in such data and you hereby transfer and assign an exclusive and irrevocable right to any intellectual property rights inherent in such data or feedback to Maxis and/or the Service Providers, as the case may be without any compensation to you.
- Unless otherwise agreed between the parties in writing, Maxis may use the Created Materials for other customers and in the course of our business. We licence to you the right to use the Created Materials for your specific purpose only. The Created Materials may not be used for any other purpose unless prior written authorisation is given by us.
Security and Ownership
- Copyright to Site
- You understand and agree that Maxis may use its own and/or intellectual property belonging to third parties (which may include, but are not limited to server-side applications, clip art, "back-end" applications, music, stock images, or any other copyrighted work) which Maxis deems necessary for us to perform our services and obligations, which cannot be transferred to you. Such intellectual property which is owned by Maxis or third parties may be used in the design and/or development of other web sites separate from your Site.
- You agree that the design and development of the Site may include source code, documentation, and/or application programs that were previously written or developed by us and modified to meet your specific requirements (the "Code Content"). We shall continue to own all worldwide right, title, and interest in and to the Code Content, but will provide you upon full payment of the Charges for Site development, subject to the intellectual property belonging to Maxis and third parties and the applicable licensing terms and conditions, a worldwide, royalty-free, non-exclusive right and license to use and modify the Site. We and our subcontractors or Service Providers retain the right to display graphics and other web design elements of the Site as examples of our work in our respective portfolios.
- In relation to Social Data and Activity Data, you hereby grant us a worldwide, irrevocable, non-exclusive, transferable, fully paid-up, and royalty-free license:
- to anonymise and aggregate where applicable the Social Data and Activity Data to create Anonymised Data for the purposes of our business intelligence (including enhancing the applicable features and functionality of the Service(s)), our benchmarking and/or marketing collateral including the Insights. “Anonymised Data” means the Social Data and/or Activity Data anonymised by us; and
- to analyse and use the Social Data, Activity Data and Anonymised Data to create Insights and for any other purposes as determined by us.
- You acknowledge and agree that:
- Maxis is the exclusive owner of the Insights and the Anonymised Data created by us which may be used by us in our course of business. The Insights and Anonymised Data shall not include databases or Personal Data made available by you to us pursuant to the Agreement
- Any ad account created on the Service Provider’s platform will not belong to you and the ownership of the Ad Account shall belong exclusively to Maxis.
- Copyright to Site
- Upon acceptance of your application, you agree to pay the Charges charged to your Customer Account Number in respect of the provision of the Service(s) commencing from the Service Commencement Date.
- Termination of the Service(s) does not release you from the obligation to pay Charges already due and any early termination charge. Work includes but is not limited to contact and liaison between Maxis’ account manager and you, commencement of wireframes, designing and/or other work undertaken in connection with the Service(s). Any upfront fees paid by you are non-refundable.
- In the event of:-
- a charge-back by the credit card company (or similar action by another payment provider); or
- non-payment due to expired credit card or debit card (“Card(s)”); or
- insufficient funds for debit card;
for the Card(s) used in connection with any payment for the use of certain Application(s) or Service(s) where your Card(s) is required, you agree and understand that the Application(s) or Service(s) shall not initiate or will be discontinued, if previously in use, and any information maintained by the Application(s) or Service(s) may be suspended or deleted along with your account and the remainder of your Service(s) being locked until payment of any administrative fees and the Charges is made in full.
Your Additional Obligations
- You shall use the Service(s) solely and directly related to your trade, business or profession. You shall not use the Service(s) in any manner that could damage, disable, impair, disrupt, inhibit or otherwise interfere with other users from enjoying the Application(s) or that could damage, disable, overburden or impair the functioning of the Application(s) within the Service(s), the networks or security systems used to provide the Service(s).
- You shall be responsible for all telecommunications charges arising from any service used for connectivity in order to use the Application(s). You acknowledge that when usage is made from facilities provided by a third party, you are responsible for any charges levied by the third party for the use.
- You are solely responsible to ensure all device(s) or equipment are compatible with the Application(s) and can properly function. You agree to use only properly licensed third party software with the Service(s) at your expense. We shall not be liable for any failure to provide the Service(s) due to faulty device(s) or equipment.
- You acknowledge and agree that you shall:-
- access the Site only through the interface provided by the Service Provider and not by any other automated means or interfaces to access the Application(s);
- be responsible for any activities and changes made via the Service(s);
- adhere to the terms and conditions herein;
- use the Application(s) at your own risk;
- send or stream through the Service(s) only such materials that you have full rights to use and publish on the Internet;
- be solely responsible for all of your data, Content of any information and communications (visual, written or audible) transmitted or received using the Application(s) (whether or not authorised by you) and the security of such information/data retrieved, stored or transmitted;
- manage the use of the storage capacity for your data/information to ensure it is within the capacity allocated to you. We recommend that you also back up your Content and information/data elsewhere regularly as we do not back up or manage your Content and information/data. We are not liable for any unauthorised access or use of the Application(s) (notwithstanding the cause of such unauthorised access) and for any loss or damage due to loss of your information/data stored on the servers;
- use the Service(s) according to the guidelines, notices, directions and recommendations as we may see fit to issue from time to time or if we have reason or cause to suspect that you are not complying with your responsibilities and obligations under these terms and conditions. You undertake to observe all security measures prescribed by us generally in respect of the Service(s). You shall immediately disconnect or cease to use the Service(s) at our and/or the Service Provider’s request;
- impose necessary restrictions and obligations on the End Users to ensure they uphold these terms and conditions as if the End Users were a party to the Agreement;
- ensure your products or parcel does not contain any harmful, dangerous, illegal, controlled, unlawful, forbidden or objectionable material which in any way which could lead directly to death, personal injury, or severe physical injury or environmental damage;
- be adequately insured with a reputable insurer against all risks which a prudent person carrying on its business would insure against;
- obtain prior consent of your customers and subscribers for:-
- the collection and processing of the personal data of your customers and subscribers;
- sending to your customers and subscribers any information or communication via the Service(s) or part thereof; and
- sharing with Maxis and its Service Providers the personal data and data of online activities of your customers and subscribers for Maxis and its Service Providers to carry out research into, among others, customer demographics, consumer trends, ecommerce buying patterns and Artificial Intelligence generated insights and recommendations, conduct analytics and marketing on your behalf and to produce related data, reports and statistics which shall be anonymised or aggregated in a manner that does not identify your customers and subscribers as an individual;
and ensure they have not subsequently withdrawn such consent;
- use the Service(s) in a manner consistent with all applicable laws and regulations; and
- inform us immediately of changes of domain names, websites, technical setup and any other material information regarding the technical infrastructure which may affect the Service(s) delivered by us.
- You undertake that you shall not:-
- suspend the Service(s);
- install, connect, link or use or permit the installation, connection, linking or usage of any device(s) or software with the Service(s) which is intended to damage or interfere with the proper and timely functioning of the Service(s), or may generate or is likely to generate traffic or usage which causes or is likely to cause congestion in or disruption to the provision or operation of any services by us or any other service provider or to surreptitiously intercept any system, data or personal information from the Service(s) nor any website owned or controlled by us and the Service Providers;
- access, penetrate or probe or attempt to do the same, to test the vulnerability of the security measures of Maxis’ or the Service Providers, software or hardware, electronic communications system, whether or not the intrusion results in the corruption or loss of data;
- disrupt or undermine the security of the various networks and systems that are connected to the Service(s), or violate the regulations, policies, or procedures of such networks or systems. This may include any failure to update software use on your account that is known to be vulnerable to malicious activity or exploitation;
- carry out or permit to be carried out any additions, enhancements, adjustments, modifications, alterations or replacements, reverse assemble, reverse engineer, hack, break into, tamper, attempt to discover source code, sell, resell, rent, lease, assign, sublicense, share, gift or otherwise attempt to transfer any right or interest in the Application(s), Hosting service or Service(s) or permit any other person or entity to access or use your account;
- cause, or knowingly allow others to cause, any embarrassment, distress, nuisance, annoyance, or inconvenience, whether to us or any of your customers by any means via the Service(s);
- contravene any applicable laws of the country of domicile of the Application(s) and the laws of Malaysia and not to infringe any intellectual property rights of the Service(s);
- use the Service(s) for any purpose that is unlawful or prohibited or disrupt the integrity or performance of the Service(s) or interfere with the enjoyment or use by any other party of the Service(s);
- use the Service(s) to store or transmit infringing, libellous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights or malicious code;
- use the Service(s) in a manner that results in distribution of viruses, trojan horses, worms, time bombs, cancelbots, or other similar harmful or damaging programming routines which are designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunication equipment;
- use any robot, spider, crawler, scraper or extract other users’ information;
- use or develop any third party applications that interact with other users’ Content or the Application(s) without our prior written consent;
- attempt to circumvent any content-filtering or gain or attempt to gain unauthorised access to related systems or networks of the Application(s);
- impersonate any corporation or entity including but not limited to falsely stating or otherwise misrepresenting your affiliation with a corporation or entity;
- monitor without authority any data or traffic on any network or system; and/or
- circumvent any user authentication or security of any host, network or account (cracking or hacking).
- We are entitled, to use Service Providers (companies and/or individuals) for the provision of the Service(s) and Application(s). We may change, remove or add any suppliers or Service Providers relating to the provision of the Service(s) and Application(s) at any time without any liability and notice to you. You authorise and hereby grant us the rights and permission to disclose necessary information and data to the relevant Service Providers and for us to access the Service(s) and Application(s) in order for us to perform our obligations under the Agreement.
- You acknowledge that we and the Service Providers may modify or replace any software or change, add, remove, suspend of stop any features or functionalities of the Service(s) and Application(s) in whole or any part thereof or withdraw, suspend, disconnect or terminate the Service(s) or Application(s) or any part thereof at any time without liability or notice to you or any third party. Where reasonably practicable, we will endeavour to give you advance notice of such changes, be it through written notice, electronic mail, our bill, our website or such other form as we deem appropriate.
- We may, at our sole discretion, refuse to upload any Content which you make available to us, if we receive any information or have reasonable suspicion that your Content violate these terms and conditions including those which may or are alleged to contravene the laws of Malaysia, are false, improper, defamatory, offensive, indecent, objectionable or illegal or infringes any party’s intellectual property rights or is otherwise objectionable. In the aforementioned situations we are not liable for the consequences of the measures taken.
- If there is a third party claim made or threatened against us, we may immediately cancel or suspend the Service(s) unless we are satisfied in our sole discretion that the claim is wholly without merit or you provide us with sufficient evidence to protect and indemnify us against such claim. Any cancellation, suspension or refusal by us under this clause does not give you any right to claim for loss, damages, compensation of any nature from us.
- Without prejudice and/or limiting our rights and remedies available to us, we may do one or any of the following if you breach any of these terms and conditions:-
- issue a warning to you; and/or
- deny or limit your access to the Applications or Service(s); and/or
- suspend or terminate the Applications or Service(s); and/or
- refuse to provide any other products or services to you.
- Unless otherwise requested by you in writing, you agree that we may use your intellectual property (such as trade names, trademarks, service marks, logos, domain names and other intellectual property marks) and present your Site in our case studies, presentations, marketing materials, customer lists and website listing (including links to your Website/Web Store) to advertise or publicise your use of the Service(s). We will use such intellectual property marks in accordance with your guidelines as provided to us in writing.
- Maxis undertakes and agrees to indemnify, defend and hold you, your officers, directors and employees, harmless from and against any and all claims, demands, actions, damages, loss, costs, charges, liabilities and expenses (including solicitor’s fees and costs) of every nature directly and indirectly, arising out of or in connection with any actual infringement arising out of or as a result of or relating to Maxis’ Intellectual Property which infringes any patent, copyright, trademark, rights of publicity or privacy, or any other proprietary right of any third party.
- In addition to but not in derogation of Clause 15.1 of the GTC, you undertake and agree to indemnify, defend and hold Maxis and the Service Providers, each respective party’s employees, directors, officers, suppliers, contractors and agents harmless from and against any and all claims, demands, actions, damages, loss, costs, charges, liabilities and expenses (including solicitor’s fees and costs) of every nature directly and indirectly, which may result or which Maxis and/or the Service Providers may sustain arising out of or in connection with the provision of the Service(s) and Application(s) to you and your use of the Service(s) and Application(s), including but not limited to your failure to obtain the consent from individuals for collecting, processing and transferring of their personal data, related to or arising from your Content, your modification of any of the Application(s), violation of any laws or regulations and/or the contents of the parcel supplied by you.
- You acknowledge and understand that not all the Service(s) are performed by Maxis and therefore we are not responsible or liable for any loss, damage, liability or expenses arising from any claims whatsoever including but not limited to:-
- cyber terrorism, invasion of privacy, infringement of intellectual property rights, errors, omissions or inaccuracies of content or information; or
- loss of your products and/or parcels; or
- breach of any law or regulations;
arising from your use of the Application(s) or Service(s) provided by the respective Service Providers.
- It is agreed that Maxis and you owe each other a limited duty of care in light of the contractual relationship between the parties under the Agreement. All Parties’ obligations and liabilities are limited to the performance of the strict contractual terms expressly set out under the Agreement.
- You acknowledge and understand that not all the Service(s) are performed by Maxis and therefore we are not responsible or liable for any loss, damage, liability or expenses arising from any claims whatsoever including but not limited to:-
- Maxis reserves the right to temporarily suspend all or any part of the Service(s) for operational reasons by giving you prior notice or as soon as reasonably practicable in case of an emergency or due to a breach by you.
- If the Service(s) is suspended by us for any reason, your licences to use the Application(s) are immediately suspended and all Log-on Detail, Activity Data, Social Data, your data and your Content will be inaccessible.
- In the event all or any part of the Service(s) is suspended including suspension of the Site due to any failure by you to perform your obligations herein or as directed by Maxis, breach of any of the provisions under the Agreement or your Site being the subject of dispute resolution or court proceedings, you understand that certain processes that took place with respect to your account, set or planned campaigns, collected data and other information, cannot be reversed and we bear no responsibility for any consequences resulting therefrom.
- You acknowledge and agree that it may take up to 48 hours for any Service(s) to recommence or be restored.
- You warrant that:-
- you have the power to enter into and observe your obligations under the Agreement; and
- you are the owner or have all necessary licenses and permissions to use and share the specifications, designs, materials and/or your Content supplied to Maxis to enable Maxis to provide the Service(s); and
- in entering into the Agreement, you have not relied on any statement, promise or 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. Any samples, drawings, descriptive matter, or advertising issued by us and any descriptions or illustrations contained in our catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Service(s) described in them. They shall not form part of the Agreement or any other contract between you and us for the supply of the Service(s);
- you have obtained the prior consent of your customers and subscribers to share their personal data and data of their online activities with third parties such as Maxis and its Service Providers to carry out research into, among others, customer demographics, consumer trends, ecommerce buying patterns and Artificial Intelligence generated insights and recommendations, conduct analytics and marketing on your behalf and to produce related data, reports and statistics which shall be anonymised or aggregated in a manner that does not identify your customers and subscribers as an individual.
- You warrant that:-
Disclaimer and Limitation of Liability
- YOU AGREE THAT THE SERVICE, IN WHOLE OR IN PART, IS PROVIDED BY THIRD PARTY SERVICE PROVIDERS INCLUDING THE LICENSOR AND/OR ANY OTHER THIRD PARTY PROVIDING ANY HOSTING, DISTRIBUTION, MANAGEMENT, MAINTENANCE AND/OR OPERATION OF ANY SOFTWARE, SOFTWARE WHICH IS PROVIDED AS A SERVICE, DATA, DATABASE, INFRASTRUCTURE, AND/OR PLATFORM, WHICH IS PROVIDED AND/OR ACCESSED OVER THE INTERNET AND/OR ANY OTHER NETWORK.
- IN ADDITION TO AND NOT IN DEROGATION OF THE GTC, WE EXCLUDE ANY LIABILITY RELATED TO IT AND ARE NOT RESPONSIBLE FOR ANY LOSS, DAMAGE, LIABILITY OR EXPENSES ARISING FROM ANY CLAIMS WHATSOEVER INCLUDING BUT NOT LIMITED TO CYBER TERRORISM, INVASION OF PRIVACY, INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR BREACH OF ANY LAW OR REGULATION ARISING FROM THE USE OF THE SERVICE, WHETHER BY YOU OR ANY OTHER THIRD PARTY. RISK PASSES TO YOU IMMEDIATELY UPON ACTIVATION OF THE SERVICE.
- WE DO NOT CONTROL OR ENDORSE THE CONTENT, MESSAGES OR INFORMATION FOUND IN THE SERVICE AND, THEREFORE, WE SPECIFICALLY DISCLAIMS ANY LIABILITY WITH REGARD TO THE SERVICE AND ANY ACTIONS RESULTING FROM YOUR USE OF THE SERVICE.
- WE ARE NOT LIABLE FOR ANY UNAUTHORISED ACCESS OR USE OF THE SERVICE (NOTWITHSTANDING THE CAUSE OF SUCH UNAUTHORISED ACCESS) AND FOR ANY LOSS OR DAMAGE DUE TO LOSS OF YOUR INFORMATION AND/OR DATA AND SHALL HAVE NO OBLIGATION TO BACK UP OR MANAGE THE DATA/INFORMATION.
- WE DO NOT RECOMMEND THE USE OF THE SERVICE WHERE THE RISK OF NON-CONNECTION OR LOSS OF CONNECTION OF THE SERVICE CARRIES A MATERIAL RISK. WE WILL NOT BE HELD RESPONSIBLE FOR ANY LOSS OR DAMAGE THAT YOU OR ANY THIRD PARTIES MIGHT SUSTAIN AS A RESULT OF THE USE OF THE SERVICE BY YOU. ACCORDINGLY YOU MAY ONLY USE THE SERVICE IF YOU ACCEPT ALL SUCH RISK AND INSURE ACCORDINGLY.
- THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. MAXIS SHALL NOT BE HELD LIABLE FOR AND MAKES NO EXPRESS OR IMPLIED REPRESENTATION OR WARRANTIES OF ANY KIND IN RELATION TO THE SERVICE. ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES, AND GUARANTEES WITH RESPECT TO THE SERVICE, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY MAXIS OR ITS AGENTS, OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, SATISFACTION, FITNESS FOR PARTICULAR PURPOSE OR NON-INFRINGEMENT) ARE HEREBY OVERRIDDEN, EXCLUDED AND DISCLAIMED.
- MAXIS DOES NOT GUARANTEE THAT (A) THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT MAXIS WILL CORRECT ALL ERRORS IN THE SERVICE; (B) THE SERVICE WILL OPERATE IN COMBINATION WITH YOUR CONTENT OR YOUR APPLICATIONS, OR WITH ANY OTHER SOFTWARE, HARDWARE, SYSTEMS, OR DATA; (C) THE SERVICE, INCLUDING ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL YOU OBTAIN FROM MAXIS UNDER THE AGREEMENT, WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; AND (D) ANY SERVICE LEVELS, PERFORMANCE INDICATORS, OR ANY OTHER BENCHMARKS WILL BE MET BY THE SERVICE.
- YOU ACKNOWLEDGE THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN COMMUNICATIONS FACILITIES AND NETWORKS, INCLUDING THE INTERNET. MAXIS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
- YOU AGREE THAT MAXIS RESERVES THE RIGHT TO MAKE CHANGES OR UPDATES TO THE SERVICE AT ANY TIME WITHOUT NOTICE.
- YOU ARE SOLELY RESPONSIBLE FOR ANY CONTENT, APPLICATION, SOFTWARE, OR NON-MAXIS MATERIALS THAT YOU LOAD INTO OR USE TOGETHER WITH THE SERVICE OR CREATE, AND YOU AGREE, AT YOUR SOLE COST AND EXPENSE, TO DEFEND MAXIS AGAINST ANY CLAIM AND INDEMNIFY MAXIS FROM ANY DAMAGES, LIABILITIES, COSTS AND EXPENSES OR THE SETTLEMENT AGREED TO BY YOU, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY SUCH CONTENT, APPLICATION, SOFTWARE, OR NON-MAXIS MATERIALS.
- SHOULD ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THE RELATIONSHIP ESTABLISHED BY THE AGREEMENT RESULTS IN MAXIS BECOMING LIABLE FOR ANY LOSS OR DAMAGE NOT CAPABLE OF EXCLUSION UNDER THE TERMS OF THE AGREEMENT, THEN MAXIS’ LIABILITY SHALL BE LIMITED TO THE FEES PAID BY YOU TO MAXIS OVER THE TWO (2) MONTHS PERIOD PRIOR TO THE DATE OF THE BREACH EVEN IF THE CLAIM OR LOSS WAS FORESEEABLE OR MAXIS HAS BEEN ADVISED OF THE POSSIBILITY OF THE CLAIM OR LOSS. THIS CLAUSE WILL SUPERSEDE CLAUSE 18.5 OF THE GTC.