This is the Software License Agreement for the use of the [ZocialEye / WarRoom] software whose service (the “Software“) developed, operated and managed by WISESIGHT (Thailand) Company Limited (the “Licensor).
By using our Software, you, either the individual or juristic entity (the “Licensee“) represent and undertake that the Licensee have read, understand and agree to be bound by the terms and conditions under this Software License Agreement (the “Agreement“). If any Licensee does not wish to be bound by this Agreement, the Licensee shall not be entitled to access or use the Software
The Company may make changes to this Agreement from time to time and the Company will post the amended Agreement on the Software. The Licensee understands and agrees that the continued use of the Software after any such amendment constitutes the acceptance of the amended Agreement.
- LICENSE AND DATA PROCESSING SERVICES
1.1 In consideration of the Fee set out in Clause 7, the Licensor hereby grants to the Licensee a non-transferable, non sub-licensable, and non-exclusive license, to use the Software solely for purposes that are directly related to the Business under the following terms and conditions:
(a) The Licensor shall not be obliged to provide the Licensee with the source code;
(b) The Licensee shall only use the Software at the Licensee’s principal office in Thailand (the “Territory”), or at such other locations as may be approved by the Licensor;
(c) Use of the Software shall be limited to the Licensee’s authorized representatives and such other persons as are approved by the Licensor for purposes specifically related to the Business;
(d) Upon written instruction given by the Licensee and an agreement by the Licensor, the Licensee shall be solely responsible for any costs or expenses related to any customized version of the Software; and
(e) All customized version of the Software and all processes and know-how in connection with the Software shall belong to the Licensor.
1.2 The Licensor agrees to deliver the Software to the Licensee, and to provide services based upon the installation plan (the “Service”).
1.3 The Parties acknowledge that the implementation of the Service will be based upon the availability of required support sources and the performance of the Licensee and the Licensor shall be entitled to extend the Implementation Schedules if the Licensee has not yet supported a substantial required source.
1.4 The Licensor represents and warrants that the Software will be performing in strict compliance with the service level as committed under the service level agreement as committed by the Licensor to the Licensee (the “Service Level Agreement”).
1.5 The Licensor shall have all rights, title, and interests, including without limitation the intellectual property rights, in any information, development, creation, or modification of the Software made by the Licensor and/or the Licensee according to specific requirements, particularly customization under this Agreement (the “Software Rights”). Nothing in this Agreement shall defer any Software Rights from the Licensor to the Licensee and all the Software Rights shall remain vested in the Licensor. For the avoidance of doubt, the Licensor and shall be entitled to use the Software Rights at their own and sole discretion within its organization, including its affiliates.
1.6 The Licensor shall provide the Licensee with telephone and internet support services for problems or questions related to the Software between 9.00 a.m. and 17.00 p.m. (Bangkok time) Mondays through Fridays. Except with the specific request made in writing in advance by the Licensee and with the additional fee to be determined at the sole discretion of the Licensor, the Licensor may assign a contact person responsible for telephone and internet support outside of office hours (Bangkok time).
- DATA PROCESSING
2.1 It is understood and agreed between the Parties that in the use and function process of the Software pursuant to the terms and conditions of this Agreement, the Licensor may process (including without limitation collect, use, possess, store, dispose, transfer or disclose intentionally or unintentionally) the data that may include personal data as defined under the Data Protection Regulations (the “Personal Data”) of the Licensee’s client who is the data subject and the Licensor may be considered performing the function of the ‘data processor’ and the Licensee shall become the ‘data controller’ under the applicable Data Protection Regulations.
For the purpose of this Agreement, the Data Protection Regulations shall refer to the Thai Personal Data Protection Act B.E. 2562 or any other applicable data protection legislation as amended from time to time (including but not limited to the EU Data Protection Directive (95/46/EC) and the General Data Protection Regulation, “GDPR” (2016/679/EU)) and the instructions and binding orders of the data protection authorities.
2.2 In processing any Personal Data under this Agreement, the Licensor represents that it shall process the Personal Data on behalf of the Licensee and undertakes to process the Personal Data only to the extent necessary to provide the functions in accordance with the terms of this Agreement and the Licensee’s instructions provided in the Agreement.
2.3 For the Personal Data process that may be undertaken by the Licensor pursuant to this Agreement, the Licensee shall:
(a) comply with the terms of the Agreement and all applicable Data Protection Regulation in their performance under the Agreement and shall bear the absolute and sole responsibility and liability for the compliance with all applicable Data Protection Regulation, including without limitation the obligation to implement the appropriate technical and organizational procedures to protect Personal Data and to ensure a level of security appropriate to the risk;
(b) obtain any and all necessary permissions and authorizations necessary to permit the Licensor to execute their rights or perform their obligations under this Agreement, particular in processing the Personal Data or any data subject, and shall fully indemnify and hold the Licensor harmless for against all costs, claims, damages or expenses incurred by the Licensor or for which the Licensor may become liable due to any failure by the Licensee or its employees or agents to comply with the obligations under this Agreement;
(c) give documented instructions to the Licensor on the processing of Personal Data, which instructions shall be binding on both Parties and it shall be deemed that any data processing undertaken by the Licensor pursuant to those instruction shall be the sole responsibility and liability of the Licensee and the Licensee shall fully indemnify and hold the Licensor harmless for against all costs, claims, damages or expenses incurred by the Licensor or for the compliance with the Licensee’s instruction;
(d) assist the Licensor by appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of Licensor’s obligations under this Agreement and Data Protection Regulation; and
(e) represents and undertakes that the Licensee shall not instruct or use the Personal Data processed by the Licensor for the restricted uses and illegal use as instructed under the Agreement or the application laws (including without limitation the Data Protection Regulations) and the Licensee shall fully indemnify and hold the Licensor harmless for against all costs, claims, damages or expenses incurred by the Licensor or for the compliance with the Licensee’s instruction for the restricted or illegal use;.
2.4 In performing the Personal Data process pursuant to this Agreement, the Licensor shall:
(a) process the Personal Data only in accordance with the Data Protection Regulation, within the scope of the Agreement and as the approved documented instructions from the Licensee;
(b) ensure that all employees, agents, officers and contractors involved in the handling of Personal Data: (i) are aware of the confidential nature of the Personal Data and are contractually bound to keep the Personal Data confidential; (ii) have received appropriate training on their responsibilities as a data processor; and (iii) are bound by the terms of this Agreement;
(c) implement appropriate technical and organizational procedures to protect Personal Data to ensure a level of security appropriate to the risk and ensure that the Personal Data processed are kept confidential and shall ensure that any person authorized by the Licensor to process Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
(d) notify the Licensee without undue delay after becoming aware of (and in any event within 72 hours of discovering) any accidental or unlawful destruction, loss, alteration or unauthorized disclosure or access to any Personal Data (“Data Breach”) and shall take all commercially reasonable measures to secure the Personal Data, to limit the effects of any Data Breach and to assist the Licensee in meeting the Licensee’s obligations under the Data Protection Regulation.
For the avoidance of doubt, the Licensor’s notification of, or response to, a Data Breach pursuant to this clause will not be construed as an acknowledgement by the Licensor of any fault or liability with respect to the Data Breach and it is understood between the Parties that the Licensee shall remain solely responsible for complying with data breach notification laws applicable to the Licensee as the ‘data controller’ and fulfilling any third party notification obligations related to any Data Breach(es) as defined under the Data Protection Regulation.
(e) upon termination of the applicable purpose of the processing of Personal Data or upon the Licensee’s written request, the Licensor shall either destroy or return to the Licensee all Personal Data unless otherwise required by the applicable law.
For the avoidance of doubt, the Licensor shall be entitled to return to Licensee and destroy all Personal Data processed under this Agreement if the Licensee has not requested the Licensor to do so within sixty (60) days from the date when the applicable purpose of the processing of Personal Data has terminated.
(f) in case of the third-party subcontractors engagement, (i) ensure that the subcontractors comply with the obligations specified in this Agreement; (ii) be fully liable for the performance of the subcontractor’s obligations; and (iii) inform the Licensee regarding the subcontractors in which case the Licensee may object to such subcontract with the valid justification by notifying the Licensor within five (5) days of such notice.
2.5 The Parties acknowledge that it is the duty of the Licensee as the ‘data controller’ to notify the Licensor within a reasonable time, of any changes to applicable Data Protection Regulations which may affect the contractual duties of the Licensor and the Licensee shall respond within a reasonable timeframe in respect of any changes that need to be made to the terms of this Agreement or to the technical and organizational measures to maintain compliance.
For the avoidance of doubt, the Parties agree that the Licensor shall be entitled to charge additional fees, when the Licensee requests the Licensor to provide assistance pursuant to this Agreement to accommodate the change in Data Protection Regulations and the Data Processor will notify the Data Controller of its fees for providing assistance, in advance.
- RESTRICTIONS ON USE
3.1 The Licensee shall not:
(a) sub-license the use of the Software to any third party unless other the Licensee obtains prior written consent from the Licensor;
(b) make copies of the Software, except as may be required for the purpose of the Business or as permitted by this Agreement or furnish or distribute copies of the Software, or any portion thereof, to any third party, or to permit the use of any copy of the Software, or any portion thereof, by any third party, or to decompile, reverse-engineer, or otherwise attempt to reconstruct the source code of the Software.
(c) make copies of related materials, except as may be required for the purpose of the Business or as permitted by this Agreement;
(d) remove or obscure any copyright or trademark notices of the Licensor as displayed and embedded in the Software; or
(e) further develop the Software either for its own use or for the use of the others’ person; provided that the failure to comply with this Clause shall result in the royalties or compensation for losses or damages that the Licensee shall pay to the Licensor as the Licensor seems appropriate.
3.2 For the use of the Software for data processing through the integration with the social media platform (including without limitation Twitter) (the “Social Media”), the Licensee agree that the content extracted for the Social Media (the “Social Media Content”) and provided by the Licensor to the Licensee pursuant to the terms under this Agreement shall not be used by, or knowingly displayed, distributed, or otherwise made available to:
(a) any public sector entity (or any entities providing services to such entities) for surveillance purposes, including but not limited to: (i) investigating or tracking social media’s users or their Social Media Content; and; and (ii) tracking, alerting, or other monitoring of sensitive events (including but not limited to protests, rallies, or community organizing meetings);
(b) any public sector entity (or any entities providing services to such entities) whose primary function or mission includes conducting surveillance or gathering intelligence;
(c) any entity for the purposes of conducting or providing surveillance, analyses or research that isolates a group of individuals or any single individual for any unlawful or discriminatory purpose or in a manner that would be inconsistent with our users’ reasonable expectations of privacy;
(d) any entity to target, segment, or profile individuals based on health (including pregnancy), negative financial status or condition, political affiliation or beliefs, racial or ethnic origin, religious or philosophical affiliation or beliefs, sex life or sexual orientation, trade union membership, data relating to any alleged or actual commission of a crime, or any other sensitive categories of personal information prohibited by law;
(e) any entity that is reasonable to believe will use such data to violate the Universal Declaration of Human Rights.
For the avoidance of doubt, if law enforcement personnel request information from the Licensee about the Social Media Content or the social media users for the purposes of an ongoing investigation, the Licensee shall inform and contact the Licensee immediately and shall not take any action until and unless there is a clear written instruction given by the Licensor.
3.3 The Parties understand and acknowledge that through the integration of the Software to the Social Media, the Parties shall be required to comply with certain obligations or restriction on the use or the share of the Social Media Content either in the form or substance and the Parties undertake to provide the full cooperation and coordination to comply with all of those requirements made by the Social Media.
- SUPPORT AND MAINTENANCE SERVICES
4.1 In case that certain device or hardware is required to be installed by the Licensor pursuant to the specific written request order of the Licensee (the “Devices”), the Licensor agrees to provide maintenance and support services for the Devices to the Licensee pursuant to the applicable warranty period defined for each Device by the Devices manufacturer without any additional Fee, except for the out-of-pocket actually incurred by the Licensor for the performance of the required service during such period.
4.2 If the Licensor is unable to correct a problem relating to the Devices to the satisfaction of the Licensee by telephone, secure remote connection, or e-mail support within the reasonable times being notified in writing, the Licensor shall provide on-site support to the Licensee (the “On-Site Support”); provided that the Licensee shall be responsible to pay for On-Site Support at the rate quoted by the Licensor, except after full scrutiny by the Licensor and it appears that such a problem is due to defects of installation or set-up of the Devices, or any fault of the Licensor, the Licensor shall not charge any fees to the Licensee for such support.
For the avoidance of doubt, the Licensor’s On-Site Support rates are exclusive of value added tax (“VAT”), currently at the rate of 7%; provided that the applicable VAT shall be charged and included in the Licensor’s invoices and the invoices for On-Site Support shall be submitted to the Licensee periodically as time and expenses are incurred.
In addition to the first introductory training(s) included in the Services, upon written request by the Licensee, the Licensor shall facilitate, conduct, and provide training and operational demonstrations for the Licensee’s employees, personnel, and operators as (the “Training”); provided that the fee for the Training shall be excluded and additional to the Fee, as defined under Clause 7.
- THIRD-PARTY SOFTWARE
6.1 The Licensee shall acquire third-party software on a timely basis, at its own expense, and in strict accordance with the Licensor’s recommendations and the Licensee shall be solely responsible for entering into any applicable software licenses, and for obtaining maintenance and support of the third-party software (the “Third-Party Software”).
6.2 The Licensor shall use the reasonable efforts to assist the Licensee in obtaining the required and recommended Third-Party Software at the best prices available.
6.3 The Licensor shall not be responsible for the operation or performance of the Third-Party Software
For the avoidance of doubt, the recommendation provided by the Licensor on the Third-Party Software or any waiver for not objecting to the non-recommended Third-Party Software acquired by the Licensee shall not constitute or be deemed as the acceptance, representation or assurance provided by the Licensor on the Third-Party Software and the Licensor shall not assume any liability whatsoever from the operation or performance of the Third-Party Software.
7.1 The Licensee shall pay the licensing fees and service fees (collectively referred to as the “Fees”) to the Licensor at the rate and pursuant to the payment term as set out in quotation from the Licensor to the Licensee.
7.2 All invoices shall be due within 30 calendar days of receipt by the Licensee.
7.3 Any late payment of the Fee amounts due under this Agreement shall be subject to interest at the maximum applicable rate under the governing laws, calculated from the due date until the full payment of the outstanding Fee is fully received by the Licensor.
7.4 The Licensor’s right to claim for the interest rate as defined in Clause 7.3 shall be additional to any reasonable and documented costs of collection, including reasonable attorney’s fees, if collection efforts are initiated by the Licensor.
7.5 During the period where the Fee remains outstanding, the Licensor shall be entitled to unilaterally suspend the Licensee’s access to the Software and/or suspend any performance of any services or obligations under this Agreement at their sole and absolute discretion and the Licensee shall not be entitled to claim for any damages incurred during the exercise of this rights by the Licensor.
- ANNUAL UPGRADE SERVICES
8.1 Subject to Clause 8.2, during the Term of this Agreement, the Licensor will provide the Licensee with ongoing upgrades of the Software if the Software is developed from time to time in the future without any additional charge.
8.2 In case that the Licensee requires the Licensor to modify the Software, or sets any new requirements for a specific use (customization) other than the one defined and undertaken pursuant to Clause 1.1 (c), the Licensee shall pay additional service fee to the Licensor; provided that the applicable service fee shall depend upon the scope of the work as defined in the Licensee’s requirements and the Parties shall agree on the additional service fee and the scope of customization before commencing such additional services.
Subject to Clause 9 below, the Licensor warrants to the Licensee that: (i) the Software will perform in substantial accordance with the functional specifications under this Agreement and the Service Level Agreement; (ii) the Licensor has the right, title and interests in the Software to grant the license pursuant to the terms and conditions of this Agreement.
9.1 The Licensor shall not warrant that: (a) the Software is error-free or able to operate at all times without fault; (b) all programming errors will be corrected; or (c) the Software will be customized to meet all of the Licensee’s requirement.
9.2 The Licensor’s warranty shall not be extended in case that the Software malfunctions is caused by the extrinsic causes not attribute to the Licensor, including without limitation (a) neglect or misuse by the Licensee, or other failure by the Licensee to comply with the instructions set forth in the related materials; (b) corrections or modifications of the Software by the Licensee which are not provided or recommended by the Licensor; (c) the Licensee’s failure to permit the Licensor to install the required and necessary updates and/or changes in the Software; or the new products and services necessary for the performance and function of the Software requested by the Licensee and agreed to by the Licensor; or (d) the combination of the Software by the Licensee with other computer programmes not recommended by the Licensor; or (e) the malfunction caused by malware, including but not limited to viruses, trojan horses, worms and ransomware; and the Licensor shall be entitled to claim for the applicable service fee at the rate as agreed between the Parties for the performance of any reparation and replacement of the Software in such circumstances as requested in writing by the Licensee.
9.3 The Licensor shall be excluded and disclaimed for all warranties, conditions, representations, indemnities, and guarantees in regard to the Software, Services and/or Devices, whether express or implied, arising by law, custom, prior verbal or written statements by the Licensor, or otherwise (including, but not limited, to any warranty of merchantability or fitness for a particular purpose) except as expressly provided in this Agreement.
- LIMITATION OF DAMAGES
10.1 To the fullest extent possible and permitted under the applicable laws, under no circumstances will the Licensor and/or its affiliates be liable for any consequential, indirect, special, punitive, or incidental damages, or lost profits, whether foreseeable or unforeseeable, based on claims of the Licensee or users (including, but not limited to, claims for loss of data, goodwill, use of money, or use of the software, interruption in use or availability of data, stoppage of other work, or impairment of other assets), arising out of breach or failure of express or implied warranty, breach of contract, misrepresentation, negligence, strict liability in tort, or otherwise.
10.2 Subject to Clause 10.1 and to the fullest extent possible and permitted under the applicable law, the Licensor shall be responsible for damages at the actual amount; provided that the total liability in this Agreement (including negligence or breach of statutory duty or otherwise to any other party), shall not exceed the aggregate amount of the Fees that the Licensor has already received from the Licensee under this Agreement at any point in time.
11.1 The Licensor may list the Licensee as a client in its brochures, on its website, and in marketing or other public communication materials without obtaining the prior consent of the Licensee.
11.2 Subject to the conditions under Clause 11.1, the existence or subject matter of this Agreement, and any confidential information or documents given by a party pursuant to or in connection with this Agreement (including without limitation the Personal Data shared pursuant to the terms of this Agreement) (“Confidential Information”) shall be treated by the other party as strictly confidential, shall be used strictly for the purpose of this Agreement, and shall not be disclosed to third parties, except as required by law and regulations governing the parties, in which case such Confidential Information will be disclosed only after consultation with the Party disclosing such Confidential Information. Any release of Confidential Information pursuant to this Agreement by a party to any third party shall require prior written approval from the other party, which shall not be unreasonably withheld.
11.3 At the request of the Licensor or after the termination of this Agreement, the Licensee shall immediately return or destroy all documents and other media that contain Confidential Information, including permanently delete all Confidential Information stored electronically and shall indemnify and hold the Licensor harmless for any damages or claims arisen from the failure of the Licensee to comply with this obligation under this Agreement. For the avoidance of doubt, the return of the Confidential Information under this Clause 14 shall not release the Licensee or from their obligations.
11.4 If required by the Licensor, the Licensee must provide the Licensor with written confirmation, signed by 2 officers of the Licensee, certifying that the Licensee, related persons of the Licensee and employees have complied fully with this Clause 11.
11.5 The obligations of non-disclosure in this Agreement shall survive the termination of this Agreement.
- TERM AND TERMINATION
12.1 Subject to the following conditions under Clause 12, the term of this Agreement is [∙] months from the date of this Agreement (the “Term”).
12.2 Either Party may terminate this Agreement by giving written notice to the other Party upon the occurrence of any of the following events: provided that the termination shall be effectuated after 90 days after the occurrence of the events.
(a) any Party breaches or fails to perform their obligations as defined under this Agreement, and such a breach is not remedied within 15 days of receipt of notice from the Party not in default; or
(b) any party becomes insolvent, or is unable to pay its debts as they become due, or makes an assignment for the benefit of creditors, applies for or consents to the appointment of a receiver, trustee, conservator, or liquidator of that party or of any of its assets, or a petition for relief is filed by that party under any bankruptcy, insolvency, reorganization, or similar laws, or a petition in, or a proceeding under, any bankruptcy, insolvency, reorganization, or action under similar laws is filed or instituted against that party and is not dismissed within, or does not remain fully stayed after, 30 days following the filing or institution thereof.
13.1 No Assignment. Except for the assignment of rights under this Agreement by the Licensor to its affiliates, this Agreement shall not be assigned, or otherwise transferred by either party without the written consent by the other Party.
13.2 No Agency. The relationship between the Parties hereunder shall be that of an independent manner. Either Party shall have no authority to legally bind other Party. Nothing contained herein shall be deemed to create the relationship of employer and employee, or principal and agent, joint venture or partner between the Parties. Either Party shall not be inferred of being the agent, employee, legal representative, partner, or joint venture of the other Party for any purpose whatsoever.
13.3 No Solicitation. Each Party undertakes that, during the Term of this Agreement and 1 year after, except with the prior written consent of the other Party, such Party shall not, either on its own account or for any other person, firm, or company, solicit, interfere with, or endeavor to entice away any employee or the customer of the other Party or any employee or the customer of any company associated with the other Party.
13.4 Force Majeure. Either Party shall be excused from performance of this Agreement, and shall not be held liable for any delay in its performance, in whole or in part, caused by the occurrence of any contingency beyond its reasonable control, or beyond the control of its subcontractors and suppliers, including without limitation war, sabotage, insurrection, riot, acts of a public enemy, a failure or delay in transportation, acts of any government or any agency or subdivision thereof affecting the terms hereof, accident, fire, earthquake, explosion, flood, severe weather, or other such forces beyond either party’s reasonable control, or a shortage of labor, fuel, raw material, or machinery.
13.5 Entire Agreement. This Agreement sets forth the entire agreement of the Parties concerning the subject matter as defined under this Agreement and shall supersedes all prior and contemporaneous agreements concerning the subject matter.
13.6 Non-Waiver. The waiver or modification or the failure to insist upon the performance of the terms of this Agreement by either Party shall not void, waive, or modify any other terms or conditions hereunder and shall not be construed as a waiver or relinquishment of such a Party’s rights to such performance or to the future performance of such a term.
13.7 Severability. If any provision contained in this Agreement is or becomes invalid, illegal, or unenforceable, whether in whole or in part, such invalidity, illegality, or unenforceability shall not affect the remaining provisions and portions of this Agreement. The Parties shall negotiate in good faith to replace such an invalid or illegal provision with a valid and legal provision that is as similar to the original as possible.
13.8 Governing Law and Dispute Resolution
(a) This Agreement shall be governed by and construed in accordance with the laws of Thailand.
(b) In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement or the breach thereof (the “Dispute”), the Parties hereto shall use their best efforts to settle the Dispute in good faith to reach a just and equitable solution satisfactory to all the Parties. If the Parties do not reach such solution within a period of 90 (ninety) days, then, upon notice by either Party to the all other Parties, the court in Thailand shall settle the Dispute.