Cloud Service Agreement
The contents of this Cloud Service Agreement (“CSA”), its applicable schedules and official quotation attachments herein are deemed documents to be read together with this CSA (the “Agreement”) as integral component of this CSA. The details of Customer’s order such as service description, specifications of orders, miscellaneous charges, fees and ordering information shall be referred to the official quotation attached in Schedule .
Any other additional or special conditions requested shall be referred to as “Conditions” under Appendix . Provided that such conditions has been accepted by acknowledgement by way of signature of an agreement or in any form of confirmation in writing from both Parties, BIG BAND shall have the right to deny any claims for additional services, safe and except of those standard terms provided and specified within the four corners of the official quotation and this CSA.
1.0 SERVICES TERMS & SPECIFICATIONS
1.1 BIG BAND is a provider of Cloud Services (“CS”) and have the capability and expertise to customize and manage its services to cater for individual capacity requirement, with an uptime of 99.5%, safe and except during the periodically maintenance schedule by BIG BAND technical team, for such maintenance , Customer will be duly notified in writing 7 days in advance before the maintenance exercise;
1.2 BIG BAND may from time to time cooperate with integrated partners to provide additional services/function to its CS for the benefit of customer, or as per requested for such services requested in its procurement specifications, as such Customer will be require to accept the 3rd party terms (if any) as part of the terms of this agreement , and BIG BAND shall not be responsible for any non-BIG BAND product(s) / services, all non-BIG BAND’s product/service responsibility shall be the 3rd party’s obligation to fulfill (refer to schedule - Official Quotation) ;
1.3 Acceptance of BIG BAND’s official quotation means Customer acknowledged and acceptance of its contents and the product specifications proposed, requested and procured by Customer and by signing and returning of the acknowledged official quotation in any mode of reply / communication accepted by Parties shall mean BIG BAND shall be authorized proceed with Customer’s orders;
1.4 BIG BAND shall provide the facilities, equipment (if necessary), hotline and online support, management (if any), technical services and software system required to support Customer’s use of CS including authorization to download to customer’s Client System (if any) any application or software to enable and to facilitate the use of the CS;
1.5 Customer will be able to enable and access to the CS services including use of other non-BIG BAND products which are licensed to BIG BAND as a reseller in accordance to the licensing terms provided in the quotation on a where “as it-is basis” without any additional warranties of any kind thereon, Customer may request for additional product/services which shall be considered as add on to the exiting agreement, in the event of such request is received, BIG BAND shall issue a quotation for Customer’s acceptance. Customer acknowledged that any add on means there will be additional cost for such item requested (refer to Schedule Official Quotation);
1.6 BIG BAND shall provide the hardware (if necessary), software, switches (if any) and connectivity such as IP address to access the CS, including the required client-specific URL addresses and it associated provider (s) (if any), Customer acknowledged that these connectivity are specifically configured for Customer’s use only, and Customer shall refrain from sharing its security password for use or access the CS to unauthorized 3rd party or personnel. Customer shall be wholly responsible to safeguard its password for any possible breach or hacking into the system;
1.7 Customer will be given authorization to access the CS during the tenure and validity of the terms of service under the Client’s credentials provided, and Customer shall be solely responsible for its contents and undertake to ensure all its contents shall not consist any information which is deemed unlawful, obscene, offensive or fraudulent, pornography, online gambling, advocating and causing harm or interfering with and violating of any rights of individuals, religious establishment or transmission any contents which is deemed as an act of terrorism or supporting of any act of terrorism and infringe any 3rd party trademark, copyrights and patent ; further, Customer shall not reverse engineer any portion or sequence or codification of the CS, assign or resell the access to a 3rd party not purview to this CSA, in the event of occurrence of any the above-mentioned, it shall be a critical breached and BIG BAND shall have the authorization to suspend and terminate the CS without notice and further BIG BAND will assist relevant authority/enforcement agency (when requested) to provide all necessary information of Customer and its data to assist in or with investigation without first obtain any consent from Customer. BIG BAND will notify Customer of such request/demand/instruction issued by the enforcement authority(s);
1.8 Customer acknowledged that BIG BAND’s CS may differ from those of another provider and BIG BAND shall use its upmost competency to provide the necessary services based on industry best practice standard;
1.9 Customer shall be solely responsible for all its personnel including 3rd party authorized by Customer whom has been granted access to the CS by Customer (collectively authorized personnel), BIG BAND shall not be held responsible for any disruption of services or to the system or downtime of the CS cause or caused by Customer’s authorized personnel activities.
2.1 The content shall consist of all data including word data, video streaming, pictures, graphic and any information which is deemed data, installation of software application(s) and information of Customer or its customers information input or uploaded and captured in the CS;
2.2 Customer shall grant BIG BAND, its authorized personnel and BIG BAND’s authorized 3rd party contractor/ system partner to access Customer’s system only for the purpose of providing maintenance, troubleshooting and managing the CS. Customer’s contents shall be treated with upmost confidential and BIG BAND and its authorized personnel or 3rd party contractor/system partner undertake not to disclose any information, safe and except for those authorized to do so for the purpose of maintenance, troubleshooting or recovery only;
2.3 Customer shall be responsible to obtain the rights and permissions to enable and access the CS and such permission and authorization shall include disclosure of any consent obtained for any sensitive content which may subject to obtaining special consent from governmental agencies (if any), however, any contents which are deemed sensitive information, customer shall inform BIG BAND in advance in the event that such sensitive information may requires additional security measures and such information are deemed to be considered as Special Conditions and required both Parties to agree to additional terms in writing; in the event that such information is not made known to BIG BAND, BIG BAND shall not be held responsible for any loss of data, damages in the event such information are obtained by 3rd parties, system being hacked, stolen or downloaded without authorization, safe and unless such breach are done with willful malice on the part of BIG BAND or its authorized 3rd party personnel;
2.4 Safe and except for the CS operating system or software, Customer shall be fully responsible for the backing up of its own data including any videos, pictures and all other contents, this obligation is applicable to Customer whom had subscribed to BIG BAND’s data backup plans.
3.0 DATA PROTECTION
3.2 Customer shall practice full compliance of its data protect policy with its data policies and use of any data within the CS, and Customer shall indemnify and continue to hold harmless against BIG BAND from any complaints, claims, damages, loss of profits or reputation for breach of data protection compliance by Customer.
4.0 UPDATE AND CHANGES
4.1 Customer acknowledges that BIG BAND may update and modify its CS features as and when required to ensure the CS system is operating on par with the industry practice and to ensure all back end technical support system are up to date for customer’s continuous use with minimal interference and interruption from any update of software;
4.2 BIG BAND shall have the sole discretion to modify or to replace the older version from the time a new version is made available, BIG BAND shall notify Customer of such update and modification (if any);
4.3 In the event of any update or modification ,where its product specification may vary from those found in BIG BAND’s quotation during its validity period, BIG BAND shall notify Customer if there would be involved changes to the current plan, or BIG BAND may proceed to update the system and allow Customer to continue to use of the newly update system for the time being until the next renewal interval for re-negotiations of new terms thereon;
5.1 that BIG BAND has the expertise to service and maintain the CS system with reasonable skills and care in accordance to the industry practice;
5.2 This warrant covers the expressed terms as indicated in the quotation agreed by Parties and it does not warranty against any 3rd part interruption or unauthorized access;
5.3 This warranty covers the general quality of the product of merchantability quality;
5.4 This warranty is not applicable if there has been misuse or modification or damages not cause by BIG BAND or customer’s failure to follow instructions provided by BIG BAND.
6.0 CHARGES AND PAYMENT
6.1 Customer agrees to pay all applicable charges, tax/duty imposed (if any) and any other miscellaneous charges for the CS as per official quotation. (Refer to Schedule );
6.2 All invoices shall be issued on a monthly basis and delivered to Customer by email on or before the 5th of each month and Customer agrees to settle all monthly payment on or before the 28th of each month from the date of the invoice;
6.3 In the event that Customer failed to settle the payment within 28 days the date of invoice, BIG BAND shall have the discretionary right to suspend the CS until full payment is received;
6.4 All invoice will be in denominated in Ringgit Malaysia.
7.0 LIMITATION AND INDEMNITY
7.1 BIG BAND’s liabilities shall be capped to the value of this CSA (Refer to Schedule - Official quotation);
7.2 Customer shall indemnify and shall continue to hold harmless against BIG BAND for its contents against any breached due to unauthorized access, hacking, corrupted data, loss of data, breach of 3rd party intellectual property, copyright, trademark and patent.
7.3 BIG BAND shall not be held responsible for any claims against non-BIG BAND products and services or any violation of laws caused by unauthorized 3rd party infringement of Customer’s content, design or materials, intellectual property copyright, trademark and patent whatsoever.
8.0 EFFECTIVE DATE, RENEWAL & TERMINATION
8.1 The effective date shall be the date of execution of this CSA and the official quotation shall be inclusive and to be read together as one integral agreement;
8.2 The Parties may enter into negotiation for extension/renewal of this Agreement 60 days before the expiry date calculated from the effective date by notifying the other party in writing, (Refer to Schedule -Official Quotation for period of service);
8.2 Either Party may terminate this CSA before the expiry date by serving to the other party a 60 days’ notice of termination (“Early Termination”);
8.3 In the event of the Customer breached any terms of this CSA, BIG BAND shall have the right to suspend or terminate this CSA by way of notice to Customer;
8.4 In the event of termination, Customer shall settle all the remaining period of tenue due to BIG BAND within the notification period of termination;
8.5 Upon termination of the CSA, Customer shall be given a grace period of 14 days to remove all contents, data and materials from the system before the cancellation of all authorization access to Customer without further notification and BIG BAND shall not be responsible for any loss of data, material, information and/or disruption of Customer’s daily transaction due to the termination of the CSA and revocation of access to the CS.
8.6 EARLY TERMINATION
In the event of early termination, BIG BAND shall tabulate the remaining period of the contract and shall invoice Customer within 5 days from the date of termination notice. Customer is obligated to settle the outstanding sum as per para 6.2;
8.7 Customer may write in to BIG BAND in the event of any dispute arises within 7 days from the date of receiving of the final invoice for early termination.
9.0 GOVERNING LAWS
This CSA shall be govern by the jurisdiction of Malaysia and Parties agrees to submit to the Courts of Malaysia or any mode of dispute resolution in the event of dispute arises.
10.1 BIG BAND is an independent service provider and is not an agent, joint venture partner or affiliated to any organization. Customer and its authorized operators are sole responsible, to use and to manage the data, content and all other material in the system;
10.2 Neither party may assign this CSA in part or whole to a 3rd party unless with proof of written consent by the other party;
10.3 BIG BAND may at time engage the use of 3rd party contractor to access the system for the purpose of managing the system and shall undertake to upkeep its obligation under the Data Protection which such obligation shall be imposed on the authorized 3rd party;
10.4 All communication shall be in writing and transmitted to the other party as stated in Schedule  by way of physical or any means of digital transmission acceptable by both Parties;
10.5 BIG BAND shall customized the use of the CS in-accordance to the specification based on the approved/acknowledged official quotation;
10.6 In the event of additional customization is required, it must be agreed in writing and by way of procurement in writing and acceptance of additional charges imposed by BIG BAND.
In the event that any part of this CSA shall be held contrary to the application of law, statute or regulation in that regards, the invalidity of such part shall not affect in anywhere the validity of any other part of this CSA.
12.0 FORCE MAJEURE
Any happening of event or circumstance, which, (i) is beyond a Party’s reasonable control, (ii) could not be addressed by a reasonable person before entering this Agreement, (iii) having arisen, could not reasonably be overcome, and (iv) materially disrupts the performance of this Agreement, and subject to the foregoing being satisfied, a Force Majeure Event includes, inclement weather beyond the norm, natural disaster, pandemic, damage to facilities, supplier’s, default or failure, the conduct of third parties, acts of God, war, riot, malicious acts of damage, civil commotion, strike or lockout or industrial dispute (other than those by the employees, representatives or agents of the Party claiming the Force Majeure Event), commercial power failure, fire, orders of any authorities or orders of any persons acting for such authorities.
Save for obligations under this Contract which should have been fully performed prior to a Force Majeure Event, the Parties are excused from performing whatever obligations under this Contract which are affected by a Force Majeure Event and neither Party will be liable to the other Party for any failure or delay in performing its obligations as a result of a Force Majeure Event PROVIDED:
a. the affected Party notifies the other Party within 14 days of the start and end of a Force Majeure Event with full particulars of the Force Majeure Event, its nature, consequence thereof, likely duration and the steps that the Party proposes to take to mitigate the non-performance subject to the approval of the other Party; and
b. the affected Party furnishes all information in relation to the Force Majeure Event as reasonably required by the other Party.
The Parties shall bear their respective costs arising from a Force Majeure Event and the Parties shall perform all obligations which are unaffected by a Force Majeure Event.
If performance of the Agreement is substantially prevented by any Force Majeure Event for a continuous period of thirty (30) days, then, either Party may terminate this Agreement forthwith by written notice to the other Party and neither Party shall have any claim against the other Party or be entitled to any compensation arising thereof for, loss or damages or expenses arising from such termination save for antecedent breaches.
13.0 Entire Agreement
This Agreement is the entire agreement between the parties in respect of its subject matter and supersedes all previous agreements with respect to its subject matter, safe and except for Clause A of the CSA.