1. INTERPRETATION

1.1 The definitions and rules of interpretation in this clause apply in this agreement.

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Authorized Users:  those employees, agents and independent contractors of the Customer who are authorized by the Customer to use the Services and the Documentation, as further described in Clause 2.2(d).

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Applicable Data Protection Laws:  

a. To the extent the THAI PDPA applies, the law of Thailand which relates to the protection of personal data.

b. To the extent the EU GDPR applies, the law of the law of the European Union or any member state of the European Union to which the Supplier is subject, which relates to the protection of personal data.

 

Business Day:  a day other than a Saturday, Sunday or public holiday in Thailand when banks in Thailand are open for business.

Confidential Information:  information that is proprietary or confidential and is either clearly labeled as such or identified as Confidential Information in Clause 11.1.

Customer Data:  the data inputted by the Customer, Authorized Users, or the Supplier on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services.

Customer Personal Data:  any personal data which the Supplier processes in connection with this agreement, in the capacity of a processor on behalf of the Customer.

Customer Materials:  all documents, information, items and materials in any form, whether owned by the Customer or a third party, which are provided by the Customer to the Supplier in connection with the Services.

Cybersecurity Requirements:  any laws, regulations, codes, guidance from regulatory and advisory bodies, international and national standards, and sanctions, which are applicable to either the Customer or an Authorized User relating to security of network and information systems and security breach and incident reporting requirements.

Deliverables:  any output of the Services to be provided by the Supplier to the Customer as specified herein and any other documents, products and materials provided by the Supplier to the Customer in relation to the Services.

Documentation:  the document made available to the Customer by the Supplier online via the channel specified herein or notified by the Supplier to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.

Effective Date:  the date when the Customer creates an account, or otherwise using the Platform and/or accepting the provisions of the Terms of Use either through electronic method or physical document(s) (whichever occurs first).

EU GDPR:  the General Data Protection Regulation ((EU) 2016/679), as it has effect in EU law.

Initial Service Term:  the initial term of this agreement as set out in Service Order.

Intellectual Property Rights:  patents, copyright and related rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other Intellectual Property Rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Mandatory Policies:  the Supplier's policies as notified to the Customer from time to time.

Normal Business Hours: 9.00 am to 5.00 pm local BKK time, each Business Day.

Renewal Period:  the period described in Clause 14.1.

Services:  the services as set out in Service Order provided by the Supplier to the Customer under this agreement.

Software:  the online software and/or Blockchain applications as set out in Service Order provided by the Supplier as part of the Services.

Service Fees:  the service fees payable by the Customer to the Supplier for the User Subscriptions and the Services provided hereunder, as set out in  Service Order.

Service Term:  has the meaning given in Clause 14.1 (being the Initial Service Term together with any subsequent Renewal Periods).

Support Services Policy:  the Supplier's policy for providing support in relation to the Services as made available to the Customer or at website address as may be notified to the Customer from time to time.

User Subscriptions:  the user subscriptions purchased by the Customer pursuant to Clause 9.1 which entitle Authorized Users to access and use the Services and the Documentation in accordance with this agreement.

Virus:  any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

Vulnerabilities:  a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be interpreted accordingly.

THAI PDPA:  the Personal Data Protection Act, B.E. 2562 (2019) of Thailand, and its related regulations.

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1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.

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1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.

 

1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

 

1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

 

1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

 

1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.

 

1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.

 

1.9 A reference to writing or written includes email.

 

1.10 References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.

 

2.USER SUBSCRIPTIONS

2.1 Subject to the Customer purchasing the User Subscriptions in accordance with Clause 3.3 and Clause 9.1, the restrictions set out in this Clause 2 and the other terms and conditions of this agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right and license, without the right to grant sublicenses, to permit the Authorized Users to use the Services and the Documentation during the Service Term solely for the Customer's internal business operations.

 

2.2 In relation to the Authorized Users, the Customer undertakes that:

(a) the maximum number of Authorized Users that it authorizes to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;

(b) it will not allow or suffer any User Subscription to be used by more than one individual Authorized User unless it has been reassigned in its entirety to another individual Authorized User, in which case the prior Authorized User shall no longer have any right to access or use the Services and/or Documentation;

(c) each Authorized User shall keep a secure password for their use of the Services and Documentation, that such password shall be changed frequently and that each Authorized User shall keep their password confidential;

(d) it shall maintain a written, up to date list of current Authorized Users and provide such list to the Supplier within 5 Business Days of the Supplier's written request at any time or times;

(e) it shall permit the Supplier or the Supplier's designated auditor to audit the Services in order to establish the name and password of each Authorized User and the Customer's data processing facilities to audit compliance with this agreement. Each such audit may be conducted no more than once per quarter, at the Supplier's expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal conduct of business;

(f) if any of the audits referred to in Clause 2.2(e) reveal that any password has been provided to any individual who is not an Authorized User, then without prejudice to the Supplier's other rights, the Customer shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual; and

(g) if any of the audits referred to in Clause 2.2(e) reveal that the Customer has underpaid Service Fees to the Supplier, then without prejudice to the Supplier's other rights, the Customer shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with the prices set out in Service Order within 10 Business Days of the date of the relevant audit.

 

2.3 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:

(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

(b) facilitates illegal activity;

(c) depicts sexually explicit images;

(d) promotes unlawful violence;

(e) is discriminatory based on race, gender, color, religious belief, sexual orientation, disability; or

(f) is otherwise illegal or causes damage or injury to any person or property;

 

and the Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause.

 

2.4 The Customer shall not:

(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement:

(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or

(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or

(b) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or

(c) use the Services and/or Documentation to provide services to third parties; or

(d) subject to Clause 22.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorized Users, or

(e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this Clause 2; or

(f) introduce or permit the introduction of, any Virus or Vulnerability into the Supplier's network and information systems.

 

2.5 The Customer shall use all reasonable endeavors to prevent any unauthorized access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorized access or use, promptly notify the Supplier.

 

2.6 The rights provided under this Clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.

 

2.7 In case some parts or materials of the Services, Software, User Subscriptions and the Documentation for the Customer are licensed from the Supplier’s third-party vendor (“Licensed Materials”), the Customer accepts and agrees that:

 

1. the Customer shall accept and strictly comply with the terms and conditions including relevant policies imposed by such Supplier’s third-party vendor who is the licensor of the Licensed Materials;

2. this agreement shall not make any representations or warranties or provide any indemnification obligations with respect to the Licensed Materials from the Supplier’s third-party vendor that are either (1) expressly or impliedly on the Supplier’s third-party vendor’s behalf or (2) contrary to (or broader than) the representations, warranties and indemnification obligations specified in the contract made between the Supplier’s third-party vendor and the Supplier; 

3. this agreement shall not grant to the Customer any right, title or interest in or to Licensed Materials except as and solely to the extent authorized in this agreement; 

4. the Customer agrees to limitations and restrictions on access to and use of the Licensed Materials that are substantiality similar to, and at least as protective as, the limitations and restrictions specified in the contract made between the Supplier’s third-party vendor and the Supplier;

5. the Customer is prohibited from the transfer, assignment and/or sublicense of the Customer’s rights, interests or obligations with respect to any Licensed Materials to any third party except as and solely to the extent authorized through the prior written consent of Supplier’s third-party vendor who is the licensor of the Licensed Materials;

6. without limiting the foregoing, the Customer shall protect interests and Intellectual Property Rights of the Supplier’s third-party vendor who is the licensor of the Licensed Materials and limit potential liability of the Supplier’s third-party vendor who is the licensor of the Licensed Materials in a manner at least as protective as the Customer protects its own interests and Intellectual Property Rights and limits its own potential liability;

7. the Customer shall not amend or modify any of the terms contained in this agreement unless otherwise specified herein; 

8. the Supplier’s third-party vendor who is the licensor of the Licensed Materials shall be a third-party beneficiary of this agreement. The Supplier’s third-party vendor who is the licensor of the Licensed Materials is authorized to enforce its’s rights with respect to the Licensed Materials as a third-party beneficiary under this agreement if any action or omission of the Customer (i) results in, or would reasonably be likely to result in, the infringement, misappropriation or other violation of any Intellectual Property Rights of the Supplier’s third-party vendor who is the licensor of the Licensed Materials, or any material harm to the Supplier’s third-party vendor who is the licensor of the Licensed Materials’ networks or systems, or (ii) adversely affects the Supplier’s third-party vendor who is the licensor of the Licensed Materials’ rights in and to any Licensed Materials;

9. in no event may the term of access and usage of the Licensed Materials by the Customer be longer than the term of access and usage of the Licensed Materials permitted for the Supplier under the contract made between the Supplier’s third-party vendor and the Supplier (e.g., with respect to the platform services in no event may the term of access and usage of the platform services be longer than the term specified in the contract made between the Supplier’s third-party vendor and the Supplier);

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3. ADDITIONAL USER SUBSCRIPTIONS

3.1 Subject to Clause 3.2 and Clause 3.3, the Customer may, from time to time during any Service Term, purchase additional User Subscriptions in excess of the number set out in Service Order and the Supplier shall grant access to the Services and the Documentation to such additional Authorized Users in accordance with the provisions of this agreement.

 

3.2 If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify the Supplier in writing. The Supplier shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or rejection of the request. Where the Supplier approves the request, the Supplier shall activate the additional User Subscriptions within a reasonable period after its approval of the Customer's request.

 

3.3 If the Supplier approves the Customer's request to purchase additional User Subscriptions, the Customer shall, within the payment term specified herein, pay to the Supplier the relevant fees for such additional User Subscriptions as set out in Service Order and, if such additional User Subscriptions are purchased by the Customer part way through the Initial Service Term or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by the Supplier for the remainder of the Initial Service Term or then current Renewal Period (as applicable), unless otherwise specified in Service Order.

 

4. SERVICES

4.1 The Supplier shall, during the Service Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this agreement.

 

4.2 The Supplier shall use commercially reasonable endeavors to make the Services available 24 hours a day, seven days a week, except for:

(a) planned maintenance carried out during the maintenance window specified in Service Order; and

(b) unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavors to give the Customer at least 6 Normal Business Hours' notice in advance.

 

4.3 The Supplier will, as part of the Services and in consideration of the support fees set out in Service Order, provide the Customer with the Supplier's standard customer support services during Normal Business Hours in accordance with the Supplier's Support Services Policy in effect at the time that the Services are provided. The Supplier may amend the Support Services Policy in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at the Supplier's then current rates.

 

5. DATA PROTECTION (ONLY WHEN APPLICABLE)

5.1 For the purposes of this Clause 5, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the THAI PDPA.

 

5.2 Both parties will comply with all applicable requirements of the Applicable Data Protection Laws. This Clause 5 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under Applicable Data Protection Laws.

 

5.3 Without prejudice to Clause 5.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Customer Personal Data to the Supplier for the duration and purposes of this agreement.

 

5.4 The Customer provides its prior, general authorization for the Supplier to:

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(a) appoint processors to process the Customer Personal Data, provided that the Supplier:

(i) shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on the Supplier in this Clause 5;

(ii) shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of the Supplier; and

(iii) shall inform the Customer of any intended changes concerning the addition or replacement of the processors, thereby giving the Customer the opportunity to object to such changes provided that if the Customer objects to the changes and cannot demonstrate, to the Supplier's reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Customer shall indemnify the Supplier for any losses, damages, costs (including legal fees) and expenses suffered by the Supplier in accommodating the objection.

 

(b) transfer Customer Personal Data outside of Thailand as required for the purpose hereof, provided that the Supplier shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Customer shall promptly comply with any reasonable request of the Supplier, including any request to enter into standard data protection clauses adopted by Applicable Data Protection Laws applicable to the transfer.

 

6. THIRD PARTY PROVIDERS

The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. The Supplier makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not the Supplier. The Supplier recommends that the Customer refers to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website. The Supplier does not endorse or approve any third-party website nor the content of any of the third-party websites made available via the Services.

 

7. SUPPLIER'S OBLIGATIONS

7.1 The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.

 

7.2 The undertaking at Clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier's instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier's duly authorized contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavors to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in Clause 7.1.

 

7.3 The Supplier:

(a) does not warrant that:

(i) the Customer's use of the Services will be uninterrupted or error-free; 

(ii) that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements;

(iii) the Software or the Services will be free from Vulnerabilities or Viruses; and/or

(iv) the Software, Documentation or Services will comply with any Cybersecurity Requirements.

 

(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

 

7.4 This agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.

 

7.5 The Supplier warrants that it has and will maintain all necessary licenses, consents, and permissions necessary for the performance of its obligations under this agreement.

 

7.6 In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy against the Supplier shall be for the Supplier to use reasonable commercial endeavors to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party except those third parties sub-contracted by the Supplier to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable.

 

8. CUSTOMER'S OBLIGATIONS

8.1 The Customer shall:

(a) provide the Supplier with:

(i) all necessary co-operation in relation to this agreement; and

(ii) all necessary access to such information as may be required by the Supplier;

in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;

 

(b) without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement;

(c) carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;

(d) ensure that the Authorized Users use the Services and the Documentation in accordance with the terms and conditions of this agreement and shall be responsible for any Authorized User's breach of this agreement;

(e) obtain and shall maintain all necessary licenses, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;

(f) ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and

(g) be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Supplier's data centers, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.

 

8.2 The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data and Customer Personal Data.

 

9. CHARGES AND PAYMENT

9.1 The Customer shall pay the Service Fees to the Supplier for the User Subscriptions and Services in accordance with this Clause 9 and Service Order and the support fees in accordance with Clause 4.3 and Service Order.

 

9.2 The Customer shall on the Effective Date provide to the Supplier valid, up-to-date and complete credit card details or approved Service Order information acceptable to the Supplier and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:

(a) its credit card details to the Supplier, the Customer hereby authorizes the Supplier to bill such credit card:

(i) on the Effective Date for the Service Fees payable in respect of the Initial Service Term; and

(ii) subject to Clause 14.1, on each anniversary of the Effective Date for the Service Fees payable in respect of the next Renewal Period;

 

(b) its approved Service Order information to the Supplier, the Supplier shall invoice the Customer:

(i) on the Effective Date for the Service Fees payable in respect of the Initial Service Term; and

(ii) subject to Clause 14.1, at least 30 days prior to each anniversary of the Effective Date for the Service Fees payable in respect of the next Renewal Period,

 

and the Customer shall pay each invoice within the payment term specified herein after the date of such invoice.

 

9.3 If the Supplier has not received payment within the payment term specified herein after the due date, and without prejudice to any other rights and remedies of the Supplier:

(a) the Supplier may, without liability to the Customer, disable the Customer's password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and

(b) interest shall accrue on a daily basis on such due amounts at the maximum default interest rate, commencing on the due date and continuing until fully paid, whether before or after judgment.

 

9.4 All amounts and fees stated or referred to in this agreement:

(a) shall be payable in the currency specified in this agreement or Service Order;

(b) are, subject to Clause 13.3(b), non-cancellable and non-refundable;

(c) are exclusive of value added tax, which shall be added to the Supplier's invoice(s) at the appropriate rate.

 

9.5 If, at any time whilst using the Services, the Customer exceeds the amount of disk storage space specified in the Documentation, the Supplier shall charge the Customer, and the Customer shall pay, the Supplier's then current excess data storage fees. The Supplier's excess data storage fees current as at the Effective Date are set out in Service Order.

 

9.6 The Supplier shall be entitled to increase the Service Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to Clause 3.3, the support fees payable pursuant to Clause 4.3 and/or the excess storage fees payable pursuant to Clause 9.5 upon 30 days' prior notice to the Customer and Service Order shall be deemed to have been amended accordingly.

 

10. PROPRIETARY RIGHTS

10.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all proprietary rights in the Services and the Documentation. Except as expressly stated herein, this agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of the Services or the Documentation.

 

10.2 The Supplier confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.

 

10.3 Intellectual Property Rights

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10.3.1 when applicable, in relation to the Deliverables (except the NFTs which the Supplier mints for and on behalf of the Customer hereunder):

(a) the Supplier and its licensors shall retain ownership of all Intellectual Property Rights in the Deliverables, excluding the Customer Materials;

(b) the Supplier grants the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free license during the term of this agreement to copy and modify the Deliverables (excluding the Customer Materials) for the purpose of receiving and using the Services and the Deliverables in its business; and

c) the Customer shall not sub-license, assign or otherwise transfer the rights granted in Clause 10.3.1(b), unless obtaining a prior written approval from the Supplier.

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10.3.2 when applicable, in relation to the Customer Materials and NFTs which the Supplier mints for and on behalf of the Customer hereunder, the Customer:

(a) and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials; and

(b) grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable license to copy and modify the Customer Materials and/or NFTs which the Supplier mints for and on behalf of the Customer hereunder for the term of this agreement for the purpose of providing the Services to the Customer.

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10.3.3 The Customer:

(a) warrants that the receipt and use of the Customer Materials in the performance of this agreement by the Supplier, its agents, subcontractors or consultants shall not infringe the rights, including any Intellectual Property Rights, of any third party. The Customer must at all times ensure that no Customer Materials, such as, art, images or other data used for minting NFTs hereunder violate third party’s rights, including, without limitation, Intellectual Property Rights; and

(b) shall indemnify the Supplier in full against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any claim brought against the Supplier, its agents, subcontractors or consultants for actual or alleged infringement of a third party's right and/or Intellectual Property Rights arising out of, or in connection with, the receipt or use in the performance of this agreement of the Customer Materials.

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11. CONFIDENTIALITY AND COMPLIANCE WITH POLICIES

11.1 Confidential Information means all confidential information (however recorded or preserved) disclosed by a party or its Representatives (as defined below) to the other party and that party's Representatives whether before or after the date of this agreement in connection with this agreement, including but not limited to:

(a) the terms of this agreement or any agreement entered into in connection with this agreement;

(b) any information that would be regarded as confidential by a reasonable businessperson relating to:

(i) the business, assets, affairs, customers, clients, suppliers, or plans, intentions, or market opportunities of the disclosing party (or of any member of the group of companies to which the disclosing party belongs); and

(ii) the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party (or of any member of the group of companies to which the disclosing party belongs);

(c) any information developed by the parties in the course of carrying out this agreement and the parties agree that:

(i) details of the Services, and the results of any performance tests of the Services, shall constitute Supplier Confidential Information; and

(ii) Customer Data shall constitute Customer Confidential Information;

Representatives means, in relation to a party, its employees, officers, contractors, subcontractors, representatives and advisers.

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11.2 The provisions of this clause shall not apply to any Confidential Information that:

(a) is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause);

(b) was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;

(c) was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party's knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party; or

(d) the parties agree in writing is not confidential or may be disclosed; or

(e) is developed by or for the receiving party independently of the information disclosed by the disclosing party.

 

11.3 Each party shall keep the other party's Confidential Information secret and confidential and shall not:

(a) use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with this agreement (Permitted Purpose); or

(b) disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 11.

 

11.4 A party may disclose the other party's Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:

(a) it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and

(b) at all times, it is responsible for such Representatives' compliance with the confidentiality obligations set out in this clause.

 

11.5 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority (including, without limitation, by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 11.5, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

 

11.6 A party may, provided that it has reasonable grounds to believe that the other party is involved in activity that may constitute a criminal offence, disclose Confidential Information to by any governmental or other regulatory authority without first informing the other party of such disclosure.

 

11.7 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party's Confidential Information other than those expressly stated in this agreement are granted to the other party, or to be implied from this agreement.

 

11.8 On termination or expiry of this agreement, each party shall:

(a) destroy or return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party's Confidential Information;

(b) erase all the other party's Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically and legally practicable); and

(c) certify in writing to the other party that it has complied with the requirements of this clause, provided that a recipient party may retain documents and materials containing, reflecting, incorporating or based on the other party's Confidential Information to the extent required by law or any applicable governmental or regulatory authority. The provisions of this clause shall continue to apply to any such documents and materials retained by a recipient party, subject to clause 14 (Termination).

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11.9 No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

 

11.10 Except as expressly stated in this agreement, no party makes any express or implied warranty or representation concerning its Confidential Information.

 

11.11 The above provisions of this Clause 11 shall survive for a period of five years from termination or expiry of this agreement.

 

11.12 In performing its obligations under this agreement the Customer shall comply with the Mandatory Policies.

 

12. INDEMNITY

12.1 The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services and/or Documentation not in accordance with this agreement. 

 

12.2 The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Customer's use of the Services or Documentation in accordance with this agreement infringes any Thai patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:

(a) the Supplier is given prompt notice of any such claim;

(b) the Customer does not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable co-operation to the Supplier in the defense and settlement of such claim, at the Supplier's expense; and

(c) the Supplier is given sole authority to defend or settle the claim.

 

12.3 In the defense or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.

 

12.4 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:

(a) a modification of the Services or Documentation by anyone other than the Supplier; or

(b) the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by the Supplier; or

(c) the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.

 

12.5 The foregoing and Clause 13.3(b) state the Customer's sole and exclusive rights and remedies, and the Supplier's (including the Supplier's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trademark, database right or right of confidentiality.

 

13. LIMITATION OF LIABILITY

 

13.1 Except as expressly and specifically provided in this agreement:

(a) the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer's direction;

(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or law are, to the fullest extent permitted by applicable law, excluded from this agreement; and

(c) the Services and the Documentation are provided to the Customer on an "as is" basis.

 

13.2 Nothing in this agreement excludes the liability of the Supplier:

(a) for death or personal injury caused by the Supplier's gross negligence; or

(b) for fraud or fraudulent misrepresentation.

 

13.3 Subject to Clause 13.1 and Clause 13.2:

(a) the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and

(b) the Supplier's total aggregate liability in contract (including in respect of the indemnity at Clause 12.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Service Fees paid for the Services during the 12 months immediately preceding the date on which the claim arose.

 

13.4 Nothing in this agreement excludes the liability of the Customer for any breach, infringement or misappropriation of the Supplier’s Intellectual Property Rights”.

 

14.TERM AND TERMINATION

 

14.1 This agreement shall, unless otherwise terminated as provided in this Clause 14, commence on the Effective Date and shall continue for the Initial Service Term and, thereafter, this agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:

(a) either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial Service Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Service Term or Renewal Period; or

(b) otherwise terminated in accordance with the provisions of this agreement;

and the Initial Service Term together with any subsequent Renewal Periods shall constitute the Service Term.

 

14.2 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:

(a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;

(b) the other party commits a material breach of any other term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 15 days (or any period agreed between parties) after being notified in writing to do so;

(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of the applicable insolvency act;

(d) the other party applies to court for, or obtains, a moratorium under the applicable insolvency act;

(e) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or

(f) the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy;

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14.3 On termination of this agreement for any reason:

(a) all licenses granted under this agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;

(b) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;

(c) the Supplier may destroy or otherwise dispose of any of the Customer Data and Customer Personal Data in its possession unless the Supplier receives, no later than ten days after the effective date of the termination of this agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data and Customer Personal Data. The Supplier shall use reasonable commercial endeavors to deliver the back-up to the Customer within 60 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data and Customer Personal Data; and

(d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.

 

15. FORCE MAJEURE

Neither party 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 result from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate this agreement by giving 15 days' written notice to the affected party.

 

16. CONFLICT

If there is an inconsistency between any of the provisions of this agreement and the Terms of Use or Service Order, the provisions of this agreement shall prevail.

 

17. VARIATION

No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorized representatives).

 

18. WAIVER

18.1 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

 

18.2 A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

 

19. RIGHTS AND REMEDIES

Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

 

20. SEVERANCE

20.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.

 

20.2 If any provision or part-provision of this agreement is deemed deleted under Clause 20.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

 

21. ENTIRE AGREEMENT

21.1 Except as expressly provided in this agreement, the Term of Use or Service Order, this agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings be or tween them, whether written or oral, relating to its subject matter.

 

21.2 Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.

 

21.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.

 

21.4 Nothing in this clause shall limit or exclude any liability for fraud.

 

22. ASSIGNMENT

22.1 The Customer shall not, without the prior written consent of the Supplier, assign, novate, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

 

22.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

 

23. NO PARTNERSHIP OR AGENCY

Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorize either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

 

24. THIRD-PARTY RIGHTS

Except as expressly provided in this agreement, this agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns).

 

25. COUNTERPARTS

This agreement may be executed in either through electronic method or physical document(s).

 

26. NOTICES

26.1 Any notice given to a party under or in connection with this agreement shall be in writing and shall be:

(a) delivered by hand or by registered post or other delivery service at its registered office (if a company) or its principal place of business (in any other case); or

(b) sent by email to the following addresses (or an address substituted in writing by the party to be served):

(i) Supplier: loyalty.support@ascendbit.com

(ii) Customer: the email address specified by you during the account registration.

 

26.2 Any notice shall be deemed to have been received:

(a)if delivered by hand, at the time the notice is left at the proper address;

(b)if sent by registered post or other delivery service, at 9.00 am on the second Business Day after posting; or if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.

 

27. GOVERNING LAW

This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and interpreted in accordance with the law of Thailand.

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28. JURISDICTION

Each party irrevocably agrees that the courts of Thailand shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims). 

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29. LANGUAGES

In case of discrepancies between the English and any language versions of this agreement, the English version shall prevail.