DATED 1st July 2017
SIENA’s Terms and Conditions
for SIENA 365 & SIENA Cloud Service Usage
SIENA’s Terms and Condition for Cloud Service Usage (this “Terms and Conditions”) is made
A. SIENA (M) SDN BHD (Company No: 1015844-U) is a company incorporated in Malaysia and having its registered office at 18-3, Jalan 2/114, Kuchai Business Centre, Off Jalan Klang Lama, 58200 Kuala Lumpur and a place of business at Level 28, The Gardens South Tower, Mid Valley City, Lingkaran Syed Putra, 59200 Kuala Lumpur (hereinafter known as "SIENA", “we”, “us”, or “our”)
B. Individual or company that subscribes to SIENA’s Cloud Service (hereinafter known as “Customer”, “you”, or “your”)
SIENA and Customer are each a “Party” and are referred to collectively as the “Parties”. Parties that are neither SIENA nor Customer will be referred to as “3rd Party”
This Terms and Conditions governs your access to and use of SIENA’s Services. This Terms and Conditions takes effect when you subscribe to SIENA’s Services (the Terms and Conditions will be presented before confirm of purchase to SIENA’s Services). Words in the singular include the plural and in the plural include the singular.
This Terms and Conditions is subjected to change and it is the Customer's responsibility to regularly check for modifications. If Customer signed up for Services before the posted or revised date of this Terms and Conditions, the new version will become effective thirty (30) days after the posted or revised date listed above. Continued use of Services constitutes acceptance to the new version of this Terms and Conditions.
SIENA reserves the right to refuse or terminate Services to particular individuals or entities, at its sole discretion, for any reason, including but not limited to the violation of Acceptable Use Policy (refer to appendix A). Under no circumstances is SIENA responsible for any damages resulting from termination of Service.
Customer represent to us that Customer is lawfully able to enter into contracts. If Customer is entering into this Terms and Conditions for an entity, such as the company Customer works for, Customer represent to us that Customer have legal authority to bind that entity.
1. Use of Services
1.1. Customer may access and use the Services in accordance with this Terms and Conditions. Service Level Agreements (SLA) may apply to certain Services. Customer will adhere to all laws, rules, and regulations applicable to the use of the Services, including the Service Terms and the Acceptable Use Policy as defined in Appendix A.
1.2. Customer may not reverse engineer, decompile, disassemble, or work around technical limitations in the Product. Customer may not disable, tamper with, or otherwise attempt to circumvent any billing mechanism that meters the use of the Services. This Clause 1.2 shall survive the termination of this Terms and Conditions.
1.3. Customer controls the access of End Users, and Customer is responsible for their use of the Product in accordance with this Terms and Conditions. For example, Customer will ensure End Users comply with the Acceptable Use Policy.
1.4. All Services provided by SIENA may only be used for lawful purposes. The laws of Malaysia apply. The Customer agrees to indemnify and hold SIENA harmless from any claims resulting from the use of our Services.
2. Content & Data Privacy
2.1. SIENA will never sell or disclose Customer’s contact information or data to any 3rd Party, unless required by law or specifically authorized by Customer.
2.2. Customer is responsible for the content of all End User’s data (if any). Customer will secure and maintain all rights in End User’s data necessary for SIENA to provide Services to you without violating the rights of any 3rd Party.
2.3. SIENA will not assume any obligations (if any) with respect to Customer or End User’s use of Product.
2.4. SIENA undertakes to only process personal data on the instructions of the Customer, including to:
(a) employ appropriate safeguards to ensure compliance with the personal data protection laws in the Malaysia, including the implementation of administrative, physical, and technical safeguards to reasonably and appropriately protect personal data which may be authorized by Customer to be processed for and on its behalf (“Processed Data”);
(b) only process Processed Data for purposes relating to the Services and comply strictly with all directions given by Customer in respect of the same; and
(c) refrain from disclosing any Processed Data to any third party, or transfer any Processed Data, without Customer’s prior written consent.
3. Customer Responsibilities
3.1. Customer is solely responsible for the development, content, operation, maintenance, and use of Customer’s Content. For example, Customer is solely responsible for:
the technical operation of Content;
the compliance of Content with the Acceptable Use Policy and the law;
any claims relating to Content;
properly handling and processing notices sent to Customer by any individual claiming the Content violate such person’s rights, copyright act etc.
3.2. Customer is responsible for End User’s use of Services and Content. Customer will ensure that all End Users comply with the obligations under this Terms and Conditions and that the terms of Customer’s agreement with each End User are consistent with this Terms and Conditions. If Customer become aware of any violation of obligations under this Terms and Conditions by an End User, Customer will immediately terminate such End User’s access to Content and Services.
3.3. Customer is responsible for providing customer service (if any) to End Users. SIENA does not provide any support or services to End Users unless there is a separate agreement between SIENA with Customer or an End User obligating SIENA to provide support or services.
3.4. Customer is responsible for providing proper physical space allocation (rack space), proper cooling, electricity supply, etc. in order to house SIENA’s Services hardware.
3.5. Customer is responsible within reasonable capacity to maintain and protect SIENA’s Services hardware from physical damage or loss of hardware. If any hardware components are damaged or lost during Service Term, Customer will be held responsible for the loss of component and will have to reimburse the component according to the book value of the component.
3.6. Customer is responsible to maintain all its own Application and its license according to the terms stipulated by the Application’s own terms that will be running in SIENA’s Services.
3.7. In regards to Software license by number of User basis, Customer is responsible to report the number of User. Customer needs to report each User of the Software before the User uses the Software. Use is defined as but not limited to the creation of User profile, User usage of Software function and installation.
4. Fees and Payment
4.1. Customer undertakes to pay the Service Fee according to the Offer Details for the Services.
4.2. SIENA shall be entitled to charge interest in respect of late payment of any sums due under this Terms and Conditions (as well after as before judgement) at the rate of 8 per cent per annum (calculated on a daily rest) from the due date until payment.
4.3. SIENA may increase or add new fees and charges for any existing Services by giving at least 90 days prior written notice to the Customer.
4.4. Customer will be responsible for the payment of all taxes, duties (including stamp duty), fees and other charges made by any government authority in relation to this Terms and Conditions.
4.5. Customer will pay and indemnify and hold SIENA harmless from any and all taxes associated with or arising from Customer’s use of Services, including any penalties and interest and any costs associated with the collection or withholding thereof.
4.6. If payment is not received after due date, SIENA reserves all rights to suspend Services to Customer.
5. Termination & Suspension
5.1. This Terms and Conditions will remain in effect until the expiration, termination or renewal of your Services, whichever is earliest.
5.2. Customer may terminate its Services at any time during its Term; however Customer must pay all amounts due and owing before the termination is effective.
5.3. SIENA may suspend Customer’s use of the Services if:
it is reasonably needed to prevent unauthorized access to Customer’s data;
Customer fail to respond to a claim of alleged infringement;
Customer do not pay amounts due;
Customer do not abide by the Acceptable Use Policy or Customer violates other terms of this Terms and Conditions.
5.4. If we suspend Customer’s right to access or use any portion or all of the Services:
Customer remain responsible for all fees and charges that have incurred through the date of suspension;
Customer remain responsible for any applicable fees and charges for any Services to which Customer continues to have access after the date of suspension;
SIENA will not erase any of Your Content as a result of your suspension, except as specified elsewhere in this Terms and Conditions.
6. Outages, Service Interruptions and Changes to Services
6.1. Outages or Service Interruptions may be made by SIENA when in its reasonable opinion they are necessary to facilitate improvements to or maintenance of the Services. SIENA will use reasonable endeavors to minimize the Outages or Service Interruptions that may be caused by a change.
6.2. If Outages or Service Interruptions are required under Clause 6.1, SIENA will endeavor to schedule them within 3 working days for unscheduled outage and minimum 2 weeks in advance for the scheduled outage so as to minimize impact on the Services and will notify the Customer of the anticipated commencement time and its estimated duration.
6.3. Customer requested interruptions or Customer triggered interruptions including, but not limited to, server to be re-booted, will not be considered a break in service, and will not be a factor when calculating breaches of the Service Levels for any purpose or give rise to any liability on the part of SIENA.
6.4. Outages or Service Interruptions which are not caused by the coverage of SIENA including but not limited to, Internet link, application failure, power trip, physical damage of hardware and etc. will not be considered a break in service, and will not be a factor when calculating breaches of the Service Levels for any purpose or give rise to any liability on the part of SIENA.
7. Warranties and Indemnities
SIENA warrants to and undertakes with the Customer that:
7.1. SIENA will use its reasonable efforts to provide the Services and to exercise reasonable care and skill and in accordance with the terms of this Terms and Conditions;
7.2. SIENA has full right power and authority to provide the Services to the Customer in accordance with the terms of this Terms and Conditions;
7.3. Except for the express warranties set forth in this Clause 7, the Services are provided on an “as is” basis, and the Customer’s use of the Services is at its own risk. SIENA does not make, and hereby disclaims, any and all other express and/or implied warranties, statutory or otherwise, including, but not limited to, warranties of merchantability, fitness for a particular purpose and any warranties arising from a course of dealing, usage, or trade practice. SIENA does not warrant that the Services will be uninterrupted, error-free, or completely secure.
7.4. SIENA does not and cannot control the flow of data to or from Customer’s network and other portions of the Internet. Such flow depends in large part on the performance of Customer’s Internet services provided or controlled by third parties. At times, actions or omissions of such third parties can impair or disrupt connections to the Internet (or portions thereof). Accordingly, SIENA disclaims any and all liability resulting from or related to such events.
8.1. Each party recognises that it is impossible to maintain flawless security but (where relevant) SIENA shall take all reasonable steps to prevent security breaches in its servers’ interaction with the Customer.
8.2. SIENA will provide necessary access (username and password) of SIENA’s Services to Customer in compliance to Customer’s company policy if required. However, SIENA reserves the right to perform audit exercises to monitor any misuse of SIENA’s Services.
9. Backup Limit & Data Loss
9.1. Backup service is provided as a courtesy service and SIENA cannot be held liable for any data loss. Customers’ use of this service is at their own risk. SIENA is not responsible for files and/or data residing on the Customer’s account. Customer is advised to maintain a backup copy of their data on their own. In case of data loss, SIENA will provide the courtesy service of restoring the data into the account. Take note that data restored may not be up to date and SIENA can only restore the data from the latest good backup copy.
10. Limitation of Liability
Except as expressly stated in Clause 10.4
10.1. SIENA shall not be liable, whether under this Terms and Conditions or any collateral contract, for loss of or damage to the Customer’s tangible property unless caused by the negligence of SIENA, its officers, employees, contractors or agents.
10.2. SIENA shall have no liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
special damage, even though SIENA was aware of the circumstances in which such special damage could arise;
loss of profits;
loss of anticipated savings;
loss of business opportunity;
loss of or goodwill;
loss of or damage to data.
provided that this Clause 10.2 shall not prevent claims for loss of or damage to the Customer’s tangible property that fall within the terms of Clause 10.1
10.3. Customer agrees that, in entering into this Terms and Conditions, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this Terms and Conditions or (if it did rely on any representations, whether written or oral, not expressly set out in this Terms and Conditions) that it shall have no remedy in respect of such representations and (in either case) SIENA shall have no liability otherwise than pursuant to the express terms of this Terms and Conditions;)
10.4. The exclusions in Clause 10.2 shall apply to the fullest extent permissible at law but SIENA does not exclude liability for:
death or personal injury caused by the negligence of Provider, its officers, employees, contractors or agents; or
fraud or fraudulent misrepresentation; or
breach of the obligations or
any other liability which cannot be excluded by law.
10.5. SIENA shall not be liable for any loss or damage of whatsoever nature suffered by the Customer arising out of or in connection with any act, omission, misrepresentation or error made by or on behalf of the Customer or arising from any cause beyond SIENA's reasonable control.
10.6. The Customer accepts that SIENA is in no way liable for any virus or other contaminants which enter the Customer's system or computer network.
11. Service Level Agreement (SLA)
11.1 During the Term of the subscription of Services, Services will be operational and available to Customer based on the uptime percentage within a calendar month which was defined in the Offer Details of the Services. If SIENA does not meet the required uptime percentage, and if Customer meets its obligations under this Terms and Conditions, Customer will be eligible to receive Service Credits. (Refer to Offer Details of the Services/Product)
11.2 In order to receive any of the Service Credits described above, Customer must notify SIENA within thirty days from the time Customer becomes eligible to receive a Service Credit. Failure to comply with this requirement will forfeit Customer's right to receive a Service Credit.
11.3 Amount of Service Credits that will be reimbursed will be according to the table below with the formula of :
Maximum Available Hour:
Total accumulated hour during a billing year for SIENA’s Cloud Service. Service Interruption hours as stipulated in Clause 6 will not be part of Maximum Available Hour.
Total accumulated hour that are part of Maximum Available Hour that have total loss of service.
Monthly Uptime Percentage % = (Maximum Available Hour - Downtime) / (Maximum Available Hour) x 100
| Monthly Uptime Percentage||
Platinum Private Cloud
|Monthly Uptime Percentage|| Service Credit|
< 99.95%|| 10%|
| < 99%|| 30%|
Gold Private Cloud
|Monthly Uptime Percentage|| Service Credit|
| < 99.9%|| 10%|
| < 99%|| 30%|
Silver Private Cloud
|Monthly Uptime Percentage|| Service Credit|
| < 99%|| 30%|
Bronze Private Cloud
|Monthly Uptime Percentage|| Service Credit|
| < 99.95%|| 10%|
| < 99%|| 30%|
12. Intellectual Property Rights
12.1. Without prejudice to the Customer’s rights in its own materials, the parties hereby agree that the Customer shall not acquire any Intellectual Property Rights whatsoever in respect of the Software, documentation and other materials used by SIENA in connection with or related to the provision of the Services hereunder.
12.2. SIENA warrants that it has all necessary right, title and interest to enable the Customer to benefit from the Services in accordance with this Terms and Conditions.
12.3. SIENA to seek prior consent and approval from the Customer for the usage of:-
a non-exclusive, royalty-free, world-wide license during the Term to use, copy, reproduce, and manipulate data provided by the Customer or resulting from the Services for the purposes of using the data for the provision of the Services; and provided always the privacy and confidentiality of the data is maintained and not transmitted or used by third parties.
a non-exclusive, royalty-free, world-wide license during the Term to use, reproduce and display the Customer’s trade marks for the purposes of using the data for the provision of the Services.
12.4. Subject to any contrary provision in this Terms and Conditions, SIENA undertakes only to use the Customer’s trademarks and data for the purpose of providing the Services.
13. Force majeure
13.1. Neither party hereto shall be liable for any breach of its obligations hereunder, except in respect of payment, resulting from causes beyond the reasonable control of the party in default (or its sub-contractors) including but not limited to acts of God, war, insurrection, riot, civil commotion, Government regulation, embargo, explosion, strike, labour dispute, illness, flood, fire or tempest (an ‘Event of Force Majeure’). Any time limit or estimate for a party to perform any act hereunder shall be suspended during an Event of Force Majeure.
13.2. Each of the parties hereto agrees to give notice forthwith to the other upon becoming aware of an Event of Force Majeure, such notice to contain details of the circumstances giving rise to the Event of Force Majeure.
13.3. If a default due to an Event of Force Majeure shall continue for more than 30 days then the party not in default shall be entitled to terminate this Terms and Conditions. Neither party shall have any liability to the other in respect of the termination of this Terms and Conditions as a result of an Event of Force Majeure but such termination shall not affect any pre-existing rights or obligations of either party.
14.1. The waiver by either party of a breach or default of any of the provisions of this Terms and Conditions by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.
15.1. No announcement or information concerning this Terms and Conditions or any ancillary matter shall be made or released or authorised to be made or released in any advertising publicity promotional or other marketing activities by either of the parties without the prior written consent of the other party.
16. Invalidity and Severability
16.1. If any provision of this Terms and Conditions shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Terms and Conditions and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.
17.1. This Terms and Conditions shall be binding upon and ensure for the benefit of the successors in title of the parties hereto.
18.1. Neither party shall be entitled to assign this Terms and Conditions nor all or any of its rights and obligations hereunder unless agreed in writing by both parties.
19.1. SIENA shall be entitled to sub contract the whole or any part of its obligations hereunder to any third party but shall remain liable as if it were performing the Services itself.
20.1. This Terms and Conditions shall be governed by and construed in accordance with Malaysia law and the parties submit to the exclusive jurisdiction of the courts of Malaysia.
21. Third Party Rights
21.1. No term of this Terms and Conditions is intended to confer a benefit on or to be enforceable by, any person who is not a party to this Terms and Conditions.
22. SIENA Public & Private Cloud Services Terms
22.1. SIENA’s cloud service provides customer with the ability to run a virtual server with one of several operating systems of customer’s choice. You may choose from pre-configured Virtual Machine images available from SIENA. If selection of operating system is not within SIENA’s selection, separate or best effort arrangement can be made.
22.2. Customer may be given the access (username and password) for the entire Private Cloud (In accordance to Clause 8.2) but only SIENA can alter or provision from SIENA’s Cloud hypervisor.
22.3. Customer is responsible for patching, configuring and maintaining the operating system and other Software within your Virtual Machine unless you have subscribed to SIENA’s management services.
22.4. SIENA may provide customers with the option of running Windows Server and other related operating systems or Software from SIENA. Customer has no other rights to copy and run the software (e.g., you may not run copies of SIENA’s software on your on-premise servers unless you separately obtain the license to do so).
22.5. In connection with your use of SIENA’s Cloud and Services, Customer is responsible for maintaining licenses, reporting licenses and adhering to the license terms of any Application you run.
23. SIENA Public & Private Cloud Software Violation
23.1. Should Customer fail to comply with clause 3.7, SIENA reserves the right to incur penalty charges to the Customer appropriate to the number of Software violations
“Acceptable Use Policy”
Means the policy currently stated in Appendix A.
Customer’s owned program, binary or executables that are not part of SIENA’s Software.
Means application, data, text, images, audio or video
Part of the hardware infrastructure of SIENA’s Services hardware
Means any individual or entity that directly or indirectly accesses or uses Customer’s Content through SIENA’s Services.
Each of the services made available by SIENA
“Intellectual Property Rights”
Means all copyrights, patents, database rights, registered and unregistered design rights, trademarks and service marks and applications for any of the foregoing, together with all trade secrets, know-how, rights to confidence and other intellectual and industrial property rights in all parts of the world and for the full term thereof including all rights to renew the same
Means the software used by SIENA to provide the services which is either SIENA’s proprietary software or third party software in respect of which SIENA has a licence
The fee of which covers the provision of the Services
Details of the product or services available from SIENA
Each of the product made available by SIENA
Means the levels of performance to which the Services are to be provided to the Customer by SIENA as set out in offer details of the Services/Product.
Means a period during Service Hours during which there is total loss of the Services
An instance of downtime
Means a period during Service Hours during which there is partial loss of the Services
Percentage of the applicable Service Fees credited to Customer
Employee, contractor, sub-contractor or any individual affiliated to the End User.
No Illegal, Harmful, or Offensive Use or Content
You may not use, or encourage, promote, facilitate or instruct others to use, the Services for any illegal, harmful, fraudulent, infringing or offensive use, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, fraudulent, infringing or offensive. Prohibited activities or content include:
Illegal, Harmful or Fraudulent Activities. Any activities that are illegal, that violate the rights of others, or that may be harmful to others, our operations or reputation, including disseminating, promoting or facilitating child pornography, offering or disseminating fraudulent goods, services, schemes, or promotions, make-money-fast schemes, ponzi and pyramid schemes, phishing, or pharming.
Infringing Content. Content that infringes or misappropriates the intellectual property or proprietary rights of others.
Offensive Content. Content that is defamatory, obscene, abusive, invasive of privacy, or otherwise objectionable, including content that constitutes child pornography, relates to bestiality, or depicts non-consensual sex acts.
Harmful Content. Content or other computer technology that may damage, interfere with, surreptitiously intercept, or expropriate any system, program, or data, including viruses, Trojan horses, worms, time bombs, or cancelbots.
No Security Violations
You may not use the Services to violate the security or integrity of any network, computer or communications system, software application, or network or computing device (each, a “System”). Prohibited activities include:
Unauthorized Access. Accessing or using any System without permission, including attempting to probe, scan, or test the vulnerability of a System or to breach any security or authentication measures used by a System.
Interception. Monitoring of data or traffic on a System without permission.
Falsification of Origin. Forging TCP-IP packet headers, e-mail headers, or any part of a message describing its origin or route. The legitimate use of aliases and anonymous remailers is not prohibited by this provision.
No Network Abuse
You may not make network connections to any users, hosts, or networks unless you have permission to communicate with them. Prohibited activities include:
Monitoring or Crawling. Monitoring or crawling of a System that impairs or disrupts the System being monitored or crawled.
Denial of Service (DoS). Inundating a target with communications requests so the target either cannot respond to legitimate traffic or responds so slowly that it becomes ineffective.
Intentional Interference. Interfering with the proper functioning of any System, including any deliberate attempt to overload a system by mail bombing, news bombing, broadcast attacks, or flooding techniques.
Operation of Certain Network Services. Operating network services like open proxies, open mail relays, or open recursive domain name servers.
Avoiding System Restrictions. Using manual or electronic means to avoid any use limitations placed on a System, such as access and storage restrictions.
No E-Mail or Other Message Abuse
You will not distribute, publish, send, or facilitate the sending of unsolicited mass e-mail or other messages, promotions, advertising, or solicitations (like “spam”), including commercial advertising and informational announcements. You will not alter or obscure mail headers or assume a sender’s identity without the sender’s explicit permission. You will not collect replies to messages sent from another internet service provider if those messages violate this Policy or the acceptable use policy of that provider.
Our Monitoring and Enforcement
We reserve the right, but do not assume the obligation, to investigate any violation of this Policy or misuse of the Services. We may:
investigate violations of this Policy or misuse of the Services; or
remove, disable access to, or modify any content or resource that violates this Policy or any other agreement we have with you for use of the Services.
We may report any activity that we suspect violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. Our reporting may include disclosing appropriate customer information. We also may cooperate with appropriate law enforcement agencies, regulators, or other appropriate third parties to help with the investigation and prosecution of illegal conduct by providing network and systems information related to alleged violations of this Policy.
Reporting of Violations of this Policy
If you become aware of any violation of this Policy, you will immediately notify us and provide us with assistance, as requested, to stop or remedy the violation.