Service Terms and Condition
- “Affiliate” means with respect to an entity, any person directly or indirectly controlled by, controlling or under common control with that entity, where “control” means the right to exercise, directly or indirectly, more than fifty per cent (50%) of the voting rights attributable to the management of that person and/or the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such person.
- “Applicable Taxes” means all taxes, charges, fees, levies, duties and governmental fees or other like assessments or charges of any kind whatsoever (including without limitation those relating to income (net or gross), gains, profits, sales, use, licence, excise, registration, franchise, employment, payroll, withholding, ad valorem, goods and services, transfer, stamp or transactions) whether of Thailand or elsewhere, in respect or in connection with the Services provided by the Service Provider to Service User or any right, licences and privileges granted by the Service Provider to Service User, other than ordinary corporate income tax imposed on Service Provider in all applicable jurisdictions.
- “Confidential Information” means the confidential information of a Party and includes:
- All information disclosed to or obtained by a Party pursuant to, by virtue of or in connection with this Agreement;
- Any marketing strategies, plans, financial information, sales or financial projections, operations, and business plans relating to the past, present and future business activities of such Party;
- Any plans and strategies for expansion;
- Any and all information related to the products or service offerings of either Party, scientific or technical information, invention, design, process, procedure, formula, improvement method, concepts, reports, data, know-how, development tools, specifications, computer software, source code, object code, flow charts, databases, and trade secrets (including where these are set out in standard operating procedures);
- In the case of Service User, all Service User Information; and
- In the case of Service Provider, all information disclosed by Service Provider, including Service Provider Data.
- “Intellectual Property Rights” means all copyright, patents, trademarks, service marks, domain names, layout design rights, registered designs, design rights, database rights, trade or business names, rights protecting trade secrets and confidential information, rights protecting goodwill and reputation, and all other similar or corresponding proprietary rights and all applications for the same, whether presently existing or created in the future, anywhere in the world, whether registered or not, and all benefits, privileges, rights to sue, recover damages and obtain relief for any past, current or future infringement, misappropriation or violation of any of the foregoing rights.
- “SOW” means the Statement of Work appended to this Agreement, which may be modified from time to time by the Parties’ agreement in writing, setting out the Services to be provided by the Service Provider to each Service User Entity, as well as the Service Fees and KPIs to be achieved for each of the Services.
- “Work Product” means any tangible or intangible work product, creation, material, item or deliverable, that is developed, conceived of, prepared, arise, procured, generated or produced, by the Service Provider exclusively for Service User using any Service User Information in connection with the performance of this Agreement or the Services hereunder, including concepts, works, inventions, information, modifications made to Service User’s training materials, drawings, designs, programs, or software, whether developed by the Service Provider or the Service Provider Personnel, either alone or with others, and whether completed or in-progress. Work Product shall not include the Service Provider Data or Software, as that term is defined above or any Service Provider Property.
The Service Provider may provide services to any other third party on terms and conditions established and determined by the Service Provider in its sole discretion, provided that terms and conditions in this Agreement are strictly complied with at all times (including Clause 8 (Intellectual Property Rights) and 8 (Confidentiality)).
This Agreement shall take effect on the Effective Date and continue for a term of (12) months from the Effective Date (“Term”). This Agreement shall expire without notice at the end of the Term unless mutually extended in writing for further terms or terminated sooner in accordance with the terms of this Agreement.
- The Service Provider will provide and perform the Services described in, and subject to the terms and conditions of this Agreement and the SOW. The Services shall include any changes to the same, all of which shall be effective when mutually agreed upon in writing.
- Except as otherwise expressly provided in this Agreement and subject to the terms and conditions by which the Service Provider is obligated to perform hereunder, all facilities, resources, personnel, information and materials required for the proper performance of Services by the Service Provider hereunder, shall be under the control, management and supervision of the Service Provider.
- The Service Provider shall be responsible, at its sole cost and expense, for procuring, obtaining and making available, all such facilities, resources, personnel, information and materials.
Service User Entities and Affiliates
The Service Provider shall provide the Services to each of the Service User Entities, and subject to the Parties’ mutual agreement such other Affiliates that Service User may from time to time identify in writing.
- The Service Provider, in providing the Services, shall meet the KPIs set forth in the SOW, except to the extent a failure to meet the KPIs is a direct result of any breach of the terms of this Agreement by Service User and/or its Affiliates or attributable to any errors or defects in Service User Software and/or Service User Information.
- The measurement, quantification and reporting of KPIs shall be carried out in accordance with the SOW.
- On the occurrence of a default of any KPI or any other default event defined in the SOW, the applicable Service User Entity shall be entitled to (without prejudice to all other rights and remedies at law, in equity or under this Agreement that Service User may have) a discount or deduction toward the Service Fees for the Services performed in the month which the default of any KPI or any other default event defined in the SOW. Provided however that no discount will apply if the shortfall is directly attributable to any act or omission of Service User, or any error or defect in the Service User Software or Service User Information, or a Force Majeure Event.
Service Provider Personnel
- The Service Provider will assign an adequate number of Service Provider Personnel, all of whom shall be suitably and adequately trained, to perform the Services in accordance with the terms and conditions of this Agreement, including the KPIs specified in the SOW.
- The Service Provider warrants and represents that all Service Provider Personnel engaged and provided for the purpose of providing the Services under this Agreement shall comply strictly with the terms and conditions of this Agreement (including the SOW).
Intellectual Property Rights
- The Service Provider shall, at its own cost, provide the Service Provider Software specified in the SOW and such other Software that is reasonably necessary for the provision of the Services..
- Work Product.
- As part of the Services, the Service Provider may from time to time use the Service Provider’s data to enhance, augment, supplement, or otherwise improve the Services. The Intellectual Property Rights in and to any Work Product which the Service Provider delivered or is required to delivered to Service User in connection with the Services (whether solely or jointly with Service User) shall vest solely in and belong exclusively to Service User and its Affiliates. All documents, materials and computer media containing, comprising or which are necessary for the use of the Work Product delivered or required to be delivered to Service User under this Agreement shall be the property of Service User and its Affiliates.
- The Parties acknowledge that the Work Product has been specially ordered, customized for, and commissioned by Service User. The Service Provider agrees that the Work Product is a “work made for hire” for copyright purposes, and all copyrights in the Work Product shall be solely owned by Service User. To the extent that the Work Product does not qualify as a “work made for hire”, and to the extent that the Work Product includes or is derived from material subject to any Intellectual Property Rights protection, the Service Provider hereby assigns to Service User, its successors and assigns, sole and exclusive right, title and interest in and to the Work Product, including, but not limited to, all rights in and to any inventions and designs embodied in the Work Product or developed in the course of the Service Provider’s creation or development of the Work Product.
- The Service Provider shall be given a royalty-free, non-transferable, non-sublicensable, and worldwide licence to access, use, reproduce, modify, develop or create derivative works to the Work Product for the purpose of providing the Services under this Agreement, provided that all copies, developments and derivative works of the Work Product shall vest solely and belong exclusively to Service User. For the avoidance of doubt, the Service Provider shall not access, use, copy, modify or create derivative works to the deliverables to provide services to or for the benefit of any third party without the prior written consent of Service User. Such non-exclusive right and license to use shall terminate upon the termination of this Agreement.
- Nothing contained in this Agreement shall be construed to transfer, convey, restrict, impair or deprive the Service Provider of any of its ownership or proprietary interest or rights in any work, ideas, inventions, discoveries, tools, methodology computer programs, processes and improvements, computer processes, specifications, operating instructions, notes, and any other documentation (whether or not patentable), or any other Intellectual Property Rights created by the Service Provider prior to the provision of the Services and/or which is independently developed by the Service Provider outside the scope of the Services and without use of any of Service User’s Confidential Information or any Service User Information (collectively, the “Service Provider Property”). To the extent the Service Provider Property is incorporated into the Work Product, Service Provider shall provide a perpetual license for Service User to use the Service Provider Property insofar as the Service Provider Property is necessary for the use and exploitation of the Work Product by Service User.
- Intellectual Property Rights
- Except for the limited license(s) granted in this Clause 8, in connection with the provision of Services as specified in this Agreement, each Party shall retain all rights, title and interest in and to its Intellectual Property Rights in any designs, information, systems, software, programs, processes, technology, services, methodologies, products and any other materials or rights, tangible or intangible, expressed, registered or unregistered.
Upon expiration or termination of this Agreement, or any licence granted in this Clause 8, each Party shall return or destroy all materials and documents, including all copies or derivative works made thereof, containing the other Party’s Intellectual Property, except as specifically permitted under this Agreement. Each Party shall have no further rights or licenses to use the Intellectual Property Rights or any such copies or derivative works, except as specifically agreed upon by the Parties in writing.
- The Service Provider shall not, without Service User’s prior written consent, use Service User’s name, trademarks, logos and designs in any of the Service Provider’s marketing materials, website, media or publicity releases, public announcements, advertising, promotions or other communications including internal distributions to identify Service User as a client of the Service Provider.
- Definitions for the purpose of this Clause:
- “Disclosing Party” means the Party furnishing Confidential Information; and
- “Receiving Party” means the Party receiving the Confidential Information disclosed by the Disclosing Party.
- Notwithstanding the foregoing, Confidential Information does not include information that the Receiving Party can establish:
- Is or has become generally available to the public, without any breach of any agreement by which the Receiving Party may be bound;
- Is or was known to the Receiving Party prior to disclosure to or receipt by the Receiving Party free of any confidentiality, non-disclosure or comparable restriction and without breach of any agreement by which the Receiving Party may be bound;
- Was or is disclosed to or obtained by the Receiving Party on a non-confidential basis by a third party who did not owe an obligation of confidence to the Disclosing Party with respect to the disclosed information; or
- Was independently developed by the Receiving Party without any recourse to or use of any Confidential Information.
- During the Term, the Service Provider may:
- Disclose Confidential Information received from Service User only to the Service Provider’s subcontractors, agents, representatives, employees, officers and directors and Affiliates, or to advisors bound by professional licensing or other independently recognized standards, fiduciary obligation or written contract, strictly on a need-to-know basis and solely for the purpose of performing the Services or enforcing any right under this Agreement; provided that Service User may, on a case by case basis, require that the Service Provider obtain its written consent prior to disclosure of certain categories of Confidential Information to such parties;
- Reproduce the Confidential Information of Service User solely for the purpose of performing the Services or enforcing any right under this Agreement; and
- Disclose Confidential Information as and to the extent required by Laws, provided the Service Provider gives Service User prompt notice prior to such disclosure (to the extent permitted by Laws) to allow Service User to make a reasonable effort to obtain a protective order or otherwise protect the confidentiality of such information and the Service Provider shall cooperate in all respects with such efforts.
- Except as otherwise specifically provided in this Agreement, the Receiving Party shall not during the Term of this Agreement and for a period of three (3) years after the expiry or termination of this Agreement (whichever is the later):
- Disclose, in whole or in part, any Confidential Information of Disclosing Party; or
- Sell, rent, lease, transfer, encumber, pledge, reproduce, publish, transmit, translate, modify, reverse engineer, compile, disassemble, adapt, create derivative works from or otherwise use or allow anyone else to use, the Confidential Information, in whole or in part.
- Immediately upon Disclosing Party’s request or at the expiration or earlier termination of this Agreement, the Receiving Party shall either return or, if specifically directed by Disclosing Party, destroy all Confidential Information in its possession, power or control in a manner that assures the Confidential Information is rendered unrecoverable.
Protection of Service User Information
- The Service Provider shall comply with all Service User Data Security Policies as updated and notified by Service User in writing from time to time, with respect to safeguarding the Service User Information. The Service Provider further agrees that:
- The Service Provider shall make arrangements for all relevant employees, agents and subcontractors providing the Services under this Agreement to attend the mandatory security and data protection training to be provided by Service User to the Service Provider at Service User’s cost;
- The Service Provider shall provide appropriate Service Provider Equipment and Service Provider Software to implement security solutions in accordance with Service User’s Data Security Policies;
- The Service Provider shall segregate Service User Information from that of any third party, including any other client of the Service Provider;
- The Service Provider shall ensure that each of the Service Provider Personnel will not attempt to access or allow access to Service User Information that is not required strictly for the performance of the Services;
- Without prejudice to the generality of the foregoing, the Service Provider shall establish and maintain safeguards in accordance with Service User’s Data Security Policies against the:
- Unauthorised, accidental or unlawful access, disclosure, use or processing;
- Destruction, corruption, interference, loss, modification, amendment or alteration; and
- Other misuse,
of any Service User Information in the custody, possession or control of the Service Provider that are no less rigorous than the most rigorous practices of the Service Provider for similar types of information;
- All Services shall be billed and invoiced in the manner set forth in the SOW. The Service Fees for the Services provided in a calendar month shall be computed on a calendar month basis and shall be prorated for any partial month.
- The Service Fees shall be invoiced to the relevant Service User Entity in accordance with the terms set out in the SOW.
- Service User is responsible for and shall pay any value-added or other tax imposed by the relevant authorities on Service User as the consumer of the Services. The Service Fees for Services set forth in this Agreement are exclusive of such Taxes.
- Service User shall withhold any taxes as required by Laws and any such withholding shall reduce the payment. Upon the Service Provider’s reasonable request, Service User will provide the Service Provider with official receipts issued by the applicable taxing authority, or such other evidence as is reasonably requested by the Service Provider, to establish that such taxes have been paid.
- Service User shall responsible for any extra expenses including but not limited to travel, accommodation in case the Service User requires any of the Service Provider Personnel to perform Services other than off-site as agreed.
Representations and Warranties
- It is a corporation duly incorporated (or is any other form of legally recognized entity), validly existing and is in good standing under the Laws of the jurisdiction in which it is incorporated, and is duly qualified and in good standing in each other jurisdiction where the failure to be so qualified and in good standing would have an adverse effect on its business, activities, ability to perform its obligations under this Agreement or compliance with any of its promises, representations and warranties hereunder;
- It has all necessary corporate power and authority to own, lease and operate its assets and to carry on its business as presently conducted and as it will be conducted pursuant to this Agreement.
- It has all necessary corporate power and authority to enter into this Agreement and to perform its obligations hereunder and thereunder, and the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and thereby have been duly authorised by all necessary corporate actions.
- This Agreement constitutes a legal, valid and binding obligation of such Party, enforceable against it in accordance with its terms except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and any other laws of general application affecting enforcement of creditors’ rights generally;
- To the best of its knowledge, there are no threatened or actual claims or suits in connection with any matters, including patents and other intellectual property matters that would materially adversely affect either Party’s ability to perform its obligations under this Agreement.
- Each Party represents and warrants that:
a. It has appropriate entitlements to provide the equipment, software, and any third party software, for or in the course of the Service Provider’s performance of Services hereunder and that the use and possession of such equipment and software shall not violate any third party’s Intellectual Property Rights or Confidential Information;
b. The Service Provider’s provision of the Services under this Agreement shall not violate or infringe any binding restraint of trade imposed by any third party on the Service Provision, or any third party’s Intellectual Property Rights or Confidential Information.
Unless expressly provided in this Agreement or the Schedules, the Service Provider does not extend any statutory, express or implied warranties of merchantability, fitness for particular purpose and non-infringement.
Indemnification and Liability
- The Service Provider shall indemnify, defend and hold Service User and (through Service User) its Affiliates, employees, officers, directors and agents harmless against Losses (except to the extent the claim arises from the acts or omissions of Service User and or its Affiliates) resulting from:
a. Infringement or misappropriation of any Confidential Information or Intellectual Property Rights of any third party arising in connection with the Service Provider’s provision of the Services, Service Provider Software or Service Provider Equipment under this Agreement;
b. The Service Provider’s material breach of its warranties and representations in this Agreement;
c. The Service Provider’s fraud, fraudulent misrepresentation, wilful default or gross negligence in performing the Services under this Agreement; and
d. The Service Provider’s wilful default or gross negligence.
- Service User shall indemnify and hold the Service Provider harmless against:
a. Infringement or misappropriation of any Confidential Information or Intellectual Property Rights of any third party arising in connection with the Service User’s provision of the Service User Information, Service User Equipment and Service User Software under this Agreement;
b. Service User’s material breach of its warranties and representations in this Agreement;
c. Service User’s wilful default or gross negligence.
Limitation of Liability
Neither we nor you shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control. If the period of delay continues for thirty days, the party not affected may terminate this Licence by giving fourteen days’ written notice to the affected party.
- Either party shall be liable for indirect, consequential, exemplary, special or punitive damages (or any comparable category or form of such damages, howsoever characterized in any jurisdiction), regardless of the form of action, or any lost profits, lost savings, lost goodwill, whether in contract, tort, strict liability or otherwise, and even if foreseeable or if such party has been advised of the possibility of such damages.
- Each Party’s aggregate liability to the other Party under this Agreement, whether in tort, contract or otherwise, shall not exceed the Service Fees payable to the Service Provider (excluding any expenses) in six (6) months prior to the event giving rise to the liability.
- For the avoidance of doubt, there shall be no limit on the Service Provider’s liability as a result of all losses (except to the extent the claim arises from the acts or omissions of Service User and or its Affiliates) throughout the Term of this Agreement made pursuant to and/or as a result of misuse or unauthorised disclosure of any Confidential Information resulting in a breach of the Service Provider’s confidentiality obligation under Clauses 9 (Confidentiality), Clause 8 (Intellectual Property Rights).
- Unless otherwise provided herein, without prejudice to any other rights and remedies it might have, non-breaching Party shall have the right at any time to terminate this Agreement by giving thirty (30) days’ notice in writing to the breaching Party in the event:
- The breaching Party fails to remedy, to the reasonable satisfaction of the non-breaching Party, a material breach or default of any provision of this Agreement, which is capable of being remedied, within thirty (30) days of receiving written notice of that breach or default;
- The breaching Party commits a material breach or default of any provision of this Agreement which is not capable of being remedied; or
- A bona fidepetition has been filed for the winding up or judicial management, whether voluntarily or otherwise, or a bona fidenotice has been issued for the summoning of a meeting at which is to be moved a resolution proposing the winding up of a Party, or a Party becomes insolvent or goes into liquidation, receivership or administration, or a Party has compounded with or made an assignment for the benefit of its creditors.
In the event Agreement is terminated by the Service Provider pursuant to this Clause, Service User shall be liable to pay Early Termination Charges as provided under Clause 16.2 of the Agreement.
- The Service User shall not be entitled to terminate for convenience within the Term (“Commitment Period”). In the event Service User terminates this Agreement for convenience within the Commitment Period, Service User shall be liable for the payment of early termination charges equivalent to the total amount of any unamortised costs directly attributable to this Agreement (and where Service Provider is unable to defray such costs through the transfer, sale of , or recondition for other uses, Equipment owned by the Service Provider) (“Early Termination Charges”).
- Where a notice of default or termination has been issued, the Parties shall continue to perform the Services in accordance with the terms and conditions of this Agreement until the effective termination date.
- The expiry or termination of this Agreement howsoever arising is without prejudice to the rights, remedies, duties and liabilities of either Party accrued prior to expiry or termination. The provisions in this Agreement which expressly or impliedly will continue to have effect after expiry or termination.
- Where Service User has the right to terminate the Agreement in accordance with this Clause, Service User may, at its discretion, partially terminate any part of the Agreement or Services by specific identification of the part of the Agreement or Services to be terminated, without prejudice to the remainder of the Agreement and Services.
This Agreement shall be subject to and governed by the laws of Thailand.
- Any notice, demand or other communication required or permitted to be given under this Agreement shall be in writing and shall be deemed given, delivered to a Party and effective: (a) if personally delivered, at the time of delivery; (b) if sent by post, and is not returned to the sender as undelivered; or (c) if sent by email.
- The Parties agree that any notice issued to or from Service User shall be effective only if issued to or from Service User, in accordance with this Clause.
- Assignment. Either Party may with the written consent of the other Party, such consent not to be unreasonably withheld or delayed, assign any and/or all of its rights and obligations under this Agreement to: (a) an entity that acquires all or substantially all of its assets, or all or substantially all of the assets of one or more of its business units, (b) an Affiliate; or (c) a successor entity in a merger or acquisition. Subject to the foregoing, this Agreement shall be binding on the Parties and their respective successors and permitted assigns.
- Costs. In this Agreement, unless otherwise specifically provided, all costs and expenses (including the fees and disbursements of legal counsel) incurred in connection with this Agreement and the performance of the transactions and obligations contemplated by this Agreement shall be borne by the Party incurring such expenses.
- Hand-Off. The Service User shall not engage to employ or employ any of the Service User Personnel during the Term or within 6 month after termination of Services without written consent of the Service Provider.
- Amendment. No supplement, modification, amendment to or waiver of this Agreement shall be binding unless executed in writing by the Party against whom enforcement of such supplement, modification, amendment or waiver is sought and is executed, if applicable, in the manner and with respect to the subject matter, consistent with the requirements of this Agreement. No waiver of any of the provisions of this Agreement shall constitute a waiver of any other provision (whether or not similar) nor shall such waiver constitute a continuing waiver unless otherwise expressly provided.
- Severability. Any provision in this Agreement which is prohibited, invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition, invalidity or unenforceability, without invalidating, affecting or impairing the remaining provisions or affecting the validity or enforceability of such provision in any other jurisdiction. To the extent practicable, the prohibited, invalid or unenforceable provision shall be replaced, for purposes of such jurisdiction, with a permitted, valid and enforceable provision which comes closest to the intention of the Parties with respect to the provision so replaced.
- Entire Agreement. This Agreement constitutes the entire agreement between the Parties pertaining to the subject matter hereof and supersedes all prior, inconsistent and/or contemporaneous agreements, understandings, promises, representations, warranties, negotiations and discussions, whether oral or written, of the Parties pertaining to the subject matter hereof.
- Survival. Any provisions of this Agreement which contemplates performance or observance subsequent to any termination or expiration of this Agreement or which must survive in order to give effect to their meaning shall survive the expiration or termination of this Agreement.
- Independent Contractor. The Service Provider shall perform its obligations under this Agreement and for all purposes is and is acting as an independent contractor of Service User. Nothing herein shall be deemed to constitute the Service Provider and Service User as partners, joint venture partners, or principal and agent or be construed as requiring or permitting the sharing of profits or losses. The Service Provider has no authority to represent or bind or create any legal obligations for or on behalf of Service User as to any matters, except as expressly authorized in this Agreement.
- No-employee relationship. The Service Provider shall procure that none of the Service Provider Personnel shall identify, represent or hold himself or herself out as an employee or agent of Service User in any manner and at any time.
- Non-solicitation. Except as otherwise specifically agreed upon by the Parties in writing or as otherwise set forth in this Agreement, during the Term of this Agreement and for a period of one (1) year from the expiration or termination of the Term, neither Party, nor any of their respective Affiliates, shall, directly or indirectly, solicit the services of the other Party’s or its Affiliate’s employees, subcontractors, agents or representatives without the express prior written consent of the other Party, which may be withheld at the Party’s sole discretion.
- Third Party Rights. Nothing in this Agreement, express or implied, shall or is intended to confer on any other person, firm or enterprise, any rights, benefits, remedies, obligations or liabilities of this Agreement, other than the Parties, their respective successors or permitted assigns.
Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which taken together shall constitute one and the same instrument.