This Service Agreement hereinafter referred to as “this Agreement” was made and entered into this June, 2020 hereinafter referred to as “Effective date” by and between Hafele (Thailand) Limited. Hereinafter referred to as “Hafele” of one part, and you. Hereinafter referred to as “Client” of the other part. Hafele and Client are hereinafter referred to individually as a “Party” and collectively as the “Parties”
A. Hafele is one of the subsidiaries of the Hafele Holding GmbH, which was established in 1994 to support the market growth of furniture fittings and architectural hardware along with top class alliances in the business field of construction, furniture and property trading as well with trading partners and dealers in Thailand.
B. The Parties wish to make an agreement between the personal data controller and the data processor in accordance with the Thailand Personal Data Protection Act B.E. 2562.
NOW, THEREFORE, in consideration of the premises and the mutual covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto covenant and agree as follows:
In this Agreement:
1.1) The headings and paragraph numbering are for convenience only and shall be ignored in construing this Agreement;
1.2) Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to them in this Agreement, unless the context shall otherwise require;
1.3) The singular includes the plural and vice versa;
1.4) Terms not herein expressly defined shall have the meanings ordinarily ascribed thereto in the Black Law Dictionary;
1.5) References to Articles, Sections and Schedules are, unless the context otherwise requires, references to Articles, Sections of, and Schedules to, this Agreement;
1.6) References to any agreement, enactment, ordinance or regulation includes any amendment thereof or any replacement in whole or in part;
1.7) All references herein to time are to Thailand time;
1.8) The words “include,” “includes” and “including” are not limiting; and
1.9) The words “hereof,” “herein,” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.
In this Agreement, the following expressions shall have the meaning hereby respectively assigned to them, except where the context otherwise requires:
2.1) Agreement means this Data Processing Agreement.
2.2) Main Agreement means Service Agreement of Client Smart Platform.
2.3) Applicable Law means all respects with the provisions of any law applicable in any part of the Thailand, including but not limited to Thailand Personal Data Protection Act B.E.2562.
2.4) Affiliate means a mean (i) a corporation performing activities relating to Hafele’s business in which Hafele owns and controls, directly or indirectly, at least fifty percent (50%) of the outstanding shares entitled to vote for the board of directors; (ii) a franchisee or licensee of Hafele; or (iii) a joint venture with a third party (x) which joint venture performs activities relating to Hafele's business, and (y) in which Hafele owns or controls at least twenty percent (20%) equity interest.
2.5) Personal Data means any information pertaining to a person, which enables the identification of such person, whether direct or indirect, but does not include data of dead person in particular
2.6) Data Subject / Personal Data Owner means the individuals who own personal information and shall include parents who have the power to act on behalf of minors, the guardian has the power to act on behalf of the incompetent or the guardian who has the power to act on the behalf of the incompetent.
2.7) Data processing means an operation or part of an operation which is done on personal data, whether by automated means, such as collection, recording, organization Storage structure, modifications, alterations, recovery, consultation, use, disclosure by sending Spread or make available correct placement or consolidation, limitation, deletion, and destruction.
2.8) Service means the service provided by Client in accordance with clause 2.1 of Main Agreement, which are the offering of the intelligent of life equipment management services, based on which Hafele can access to the intelligent terminal on Client Cloud Platform through the Client Control, and realize interlinkage among intelligent equipment, including but not limited to the intelligent equipment management, scene interlinkage and analysis report, etc. Such functions may be optimized or modified according to changes of users' demands or judgment of service supplier, and service supply may be suspended due to regular and irregular maintenance.
2.9) Confidential Information means any or all information regarding the service which the Hafele has procured or disclosed to Client, and the information that Hafele Owning or possessing legal possession rights.
2.10) Personal Data Controller means Hafele (Thailand) Limited.
2.11) Personal Data Processer means Hangzhou Client Information Technology Co., Ltd.
2.12) Licensed Software means to software system developed by Hafele, downloaded from the platform, and installed and applied in specified system mobile terminals.
2.13) Services means to services provided for the Client by Hafele (Thailand) Ltd. Client can use such services on the mobile terminal with the licensed software.
3. SCOPE OF SERVICE
3.1) Hafele offers the Client the intelligent life equipment management services, based on which the Client can access to the intelligent terminal on Hafele Cloud Platform through the Hafele Control, and realize interlinkage among intelligent equipment. Service contents include intelligent equipment management, scene interlinkage and analysis report, etc. Such functions may be optimized or modified according to changes of users' demands or judgment of service supplier, and service supply may be suspended due to regular and irregular maintenance.
3.2) Hafele grants the Client with the right to use the product based on this software.
3.3) The Client is prohibited to license, sell, lease, transfer, issue the product in any form, or use the product for other commercial purpose. 3.3 Due to limitations on software adaptation platform and terminals, the Client can only use the licensed software in the authorized system platform and terminal; if you install the licensed software on other terminal equipment, it may damage your hardware or software function.
3.4) The Client acknowledges that the licensed software can only be used for non-commercial purpose and installation, application and running of the licensed software is prohibited. If such commercial operation is necessary, prior written authorization and permission from Hafele shall be obtained.
3.5) Hafele may change, upgrade or transfer the licensed software or relevant functions from time to time, and may add new functions or services in the licensed software system. If no separate agreements are accompanied with the aforesaid new functions or services, the Client is entitled to the corresponding functions and services, which is also subject to the Agreement.
3.6) The Client shall be responsible for the accuracy, reliability, integrity and legality of input data and legality of the way in which you obtain the data, and shall back up data and information from time to time. The Client shall bear all risks for damage and loss of such information.
3.7) The Client shall properly keep your account number and password. In case of any safety loophole for your account(including but not limited to divulgence of user password), the Client shall notify Hafele in time, and Hafele will assist you in taking relevant measures. Otherwise, all behaviors related to your account shall be assumed by the Client and the Client will bear all responsibilities.**
4. THIRD PARTY
4.1) The Client acknowledges that certain service of Hafele is based on software or services provided by a third party. Such service is set to facilitate your application and necessary legal authorization is obtained from the third party.
4.2) The product includes certain information and services of the third party. Hafele neither controls nor bears responsibility for information and services of the third party.
4.3) The Client acknowledges that Hafele cannot guarantee that the licensed software always uses or contains such services, or that other software provided by the same third party will be used in future. Likewise, it may use similar services supplied by another third party. Upon application, the aforesaid corresponding software or services are subject to this Agreement.**
5. SERVICE APPLICATION STANDARD
5.1) The Client shall use the licensed software in a normal manner. The following ways are in breach of the application standard:
a. Issue or share computer virus, worms, malicious codes, or software that deliberately damages or changes computer system or data;
b. Collect information or data of other users without authorization, for example, email address and the like;
c. Maliciously use the product in an automatic way, causing over load to the server, or interfere with or damage web server and network links in other forms.
d. Attempt to visit server data or communication data of the product without authorization;
e. Interfere with or damage the production application by other users.
5.2) The Client understand and agree that:
a. Hafele will determine whether or not you are involved in violation of standards above, and suspend or terminate your application license according to determination results or take other restrictions according to agreements.
b. Hafele will directly delete information in breach of laws, or infringing others' legal rights, or in breach of the Agreement issued by you when using the licensed software.
c. If a third party suffers from damage due to your breach of application standards, the Client shall independently bear legal responsibility in your name, and protect and indemnify Hafele from losses or additional expenses generated therefrom. Otherwise, Hafele has the right to claim compensation.
d. If Hafele suffers from any loss due to your breach of relevant laws or the Agreement, you shall compensate Hafele for losses and (or) expenses generated therefrom.
6. INFORMATION CONTENT STANDARD
6.1) The Cilent promises that the Client will not conduct any act in breach of laws or improper behaviors by using the service, such act and behavior include (but not limited to):
a. Uploading, transferring or sharing information containing one of the following contents:
I. Opposing the basic principles determined in the Constitution;
II. Endangering state safety, disclosing state secret, subverting state power and sabotaging state unity;
III. Damaging state honor and benefit;
IV. Inciting national hatred and discrimination and sabotaging national unity;
V. Destroying religious policy of the state and advocating heresy and feudalistic superstition;
VI. Spreading rumors, disturbing social order and destroying social stability;
VII. Spreading obscenity, porn, gambling , violence , murder and terror or abetting a crime;
VIII. Insulting or slandering others and infringing on the legal rights and interests of others;
IX. Containing contents of sham, defraudation, harm, threat, infringement to others' privacy, harassment, infringement, slander, coarseness, indecency, or morally repulsive contents; and
X. Containing other contents restricted or forbidden by applicable laws, regulations, rules, provisions and other legal standards.
7. TYPE OF PERSONAL DATA
The Personal Data shall be separated in 3 categories as follow:
7.1) The personal information of the client(s) that Hafele Voluntarily provide to Client which consist of:
a) Account or Profile Data: name and contact details, such as your email address, phone number, user name, and login credentials, nickname, profile picture, country code, language preference or time zone information.
b) Feedback: When the client(s) using feedback and suggestion features in our Products, email address, mobile phone number and client‘s feedback content to address, client’s problems and solve device failures on a timely basis.
7.2) The personal information that hafele collect automatically from the client and provide it to Client which consist of:
a) Device Information: MAC address of your devices, IP address, wireless connection information, operating system type and version, application version number, push notification identifier, log files, and mobile network information.
b) Usage Data: the usage data relating to visits, clicks, downloads, messages sent/received, and other usage of Hafele‘s Sites and Services.
c) Log Information: the system and exception log may be uploaded.
d) Location Information: We may collect information about your real-time precise or non-precise geo-location when you use our specific Products or Services, such as robot cleaner and weather service.
7.3) Smart Devices Related Information:
a) Basic Information of Smart Devices: device name, device ID, online status, activation time, firmware version, and upgrade information.
b) Information Reported by Smart Devices: smart weights or fitness trackers may report your height, weight, body fat mass (BFM), BMI and skeletal muscle mass (SMM); smart cameras may report images or videos captured by it.
8. EXCEPTION CLAUSES
8.1) Unless otherwise specified in laws and regulations, Hafele will do its best to ensure the security, validity, accuracy and reliability of the licensed software and technologies and information involved, but Hafele is unable to guarantee the same due to restriction by available technologies nowadays.
8.2) You understand that Hafele will not assume responsibility for direct or indirect losses caused by force majeure and default of a third party.
8.3) You shall be responsible for personnel injury or incidental or indirectly injury caused by or related to one of the following accidents:
a.) A third party uses the licensed software or changes your data without permission;
b.) Expenses and losses produced by using the licensed software;
c.) Your misunderstanding of the licensed software;
d.) Other losses related to licensed software caused by reasons not attributable to Hafele.
8.4) Any other licensed software-derived software not developed and released by Hafele or the development and release are not granted by Hafele is illegal software. Downloading, installing and using such software may cause unpredictable risks. Hafele shall be free from legal responsibilities and disputes generated therein and Hafele shall have the right to suspend or terminate application license and/or other all services.
8.5) You have been informed of that the usage of Hafele Smart Platform involves in Internet service, which may be affected by unstable factors in all links. Although Hafele has taken safeguard measures, the service may be suspended, terminated, delayed, suffered from application restriction or application failure due to inherent defects of Internet and e-communication as well as factors beyond reasonable control of any party to the Agreement (including but not limited to fire, flood, terrorist attack, pestilence, natural disasters, riot, terminal virus, hacker attack, network fault and terminal fault). You hereby agree to bear foregoing risks and agree that Hafele is free from any responsibility when normal running of services are influenced by the occurrence of foregoing risks.
9. AGREEMENT TERMINATION AND BREACH OF AGREEMENT
9.1) The Client should understand that the Client shall use the licensed software according to authorization scope, respect intellectual property of software and contents contained in the software, and perform obligations according to the Agreement when using Hafele 's services. Hafele will terminate the application license if the Client are in material breach of the Agreement.
9.2) Your application of the software relies on supporting services supplied by Hafele 's related companies. Breach of terms, agreements, rules, annunciation and other relevant regulations of Hafele and its related companies may cause failure in normal usage of licensed software, in which case, Hafele shall be entitled to terminate the application license, or take measures to restrain your application license or other rights and interests controlled by Hafele as agreed in the Agreement, including suspension or termination of your application license.
9.3) In case of your breach of the Agreement or other agreements signed with Hafele , Hafele shall have the right to notify the related companies, requiring them to take restrictive measures to your rights and interests, including requiring related companies to suspend or terminate supplying part or whole services for the Client , and legally announce your breach of agreement on websites run or actually controlled by them.
9.4) The licensed software is downloaded from the downloading platform and the Client shall abide by stipulations of the download platform, system platform and terminal manufacture on application ways and restrictions of the licensed software. If the above mentioned third party confirms that the Client are in breach of the agreement and Hafele's treatment is required, Hafele may terminate your application license at the third party's request.
9.5) When the application license terminates, the Client shall stop using the licensed software and destroy all copies.
9.6) the Client must bear all compensation responsibilities if Hafele and other users suffer from losses caused by your breach of terms in the Agreement.
10. RIGHT OF DATA SUBJECT (CLIENT)
10.1) The client has the right to access and obtain a copy of his or her personal data for which the data controller is responsible.
10.2) The client shall have the right to object the collection, use, or disclosure of his or her personal data.
10.3) The client shall have the right to request the controller to erase, destroy or make it become unidentifiable data.
10.4) The client shall have the right to restrict the use of personal data.
10.5) The client shall be able to easily withdraw consent as it given.
11. TRANSFER OF PERSONAL DATA
11.1) Data storage location
Subject to Clause 7.2, personal data relating to Data Pocessor services will be maintained in the regions specified in this Agreement or the Data Controller have specified. Data Processor will not transfer personal information to other regions unless they have received written permission from the Data Controller.
11.2) Data transfer exception
However, in the event that it is necessary to provide the service and it has been ordered to process personal information from Data Controller, Data Processor is able to access and process personal data from areas or locations outside the regions defined in 7.1.
12. THE DUTIES OF AFFILIATES OF DATA PROCESSORS
12.1) Data Processor is obliagted to set up its affiliate in accordance to the rights and duties set forth in this Agreement only.
12.2) Duties of affiliates require to participate in the service agreement relevant to the duty for protecting and secure the data. Moreover, Data Processor for the affiliated companies and the data processors in the said period to perform the duties as stipulated in this Agreement as well as according to the laws governing cases.
13. SECURITY MEASURES FOR PROTECTING PERSONAL DATA
13.1) Data Security - Data Processor use commercially reasonable physical, administrative, and technical safeguards to preserve the integrity and security of Personal Data. Data Processor provides various security strategies to effectively ensure data security of user and device. As for device access, Data Processor proprietary algorithms are employed to ensure data isolation, access authentication, applying for authorization. As for data communication, communication using security algorithms and transmission encryption protocols and commercial level information encryption transmission based on dynamic keys are supported. As for data processing, strict data filtering and validation and complete data audit are applied. As for data storage, all confidential information of users will be safely encrypted for storage. If you have reason to believe that your interaction with us is no longer secure (for example, if you feel that the security of any account you might have with us has been compromised), you could immediately notify us of the problem by emailing.
13.2) Data confidentiality – Data Processor, affiliates, and sub-processors in accordance with the above clause 8 are obligated to process personal information under a written confidentiality agreement or non-disclosure agreement.
14. ALTERNATIVE DISPUTE RESOLUTION (ADR)
Any dispute arising out of or relating to this Agreement, including the alleged breach, termination, validity, interpretation and performance thereof (“Dispute”) shall be resolved with the following procedures:
14.1) Negotiation. Upon written notice of any Dispute, the Parties shall attempt to resolve it promptly by negotiation between executives who have authority to settle the Dispute and this process should be completed within 30 days.
14.2) Mediation. If the dispute has not been resolved by negotiation in accordance with clause 14.1) above, then the Parties shall proceed to mediation unless the Parties at the time of the dispute agree to a different timeframe. A “Notice of Mediation” shall be served, signifying that the Negotiation was not successful and to commence the mediation process. The parties shall agree on a mediator; however, if they cannot agree within 14 days then [then a local mediation from Thailand Arbitration Center] shall appoint a mediator. The mediation session shall be held within 45 days of the retention of the mediator, and last for at least one full mediation day, before any party has the option to withdraw from the process. The parties may agree to continue the mediation process beyond one day, until there is a settlement agreement, or one party [or the mediator] states that there is no reason to continue because of an impasse that cannot be overcome and sends a “notice of termination of mediation.” All reasonable efforts will be made to complete the mediation within 30 days of the first mediation session.
During the course of the mediation, no party can assert the failure to fully comply with clause 14.1) above, as a reason not to proceed or to delay the mediation. The service of the Notice of Mediation shall stay the running of any applicable statute of limitations regarding the Dispute until 30 days after the parties agree that the mediation is concluded or the mediator issues a Notice of Impasse. Each side shall bear an equal share of the mediation costs unless the parties agree otherwise.
All communications, both written and oral, during clause 14.1) and 14.2) are confidential and shall be treated as settlement negotiations for purposes of applicable rules of evidence; however, documents generated in the ordinary course of business prior to the Dispute, that would otherwise be discoverable, do not become confidential simply because they are used in the Negotiation and/or Mediation process.
14.3) Arbitration. Any Dispute not resolved through negotiation or mediation in accordance with paragraphs 14.1) and 14.2) shall be resolved by final and binding arbitration in accordance with the rules of Thailand Arbitration Center Rule on Mediation, B.E. 2557 (2014). The arbitration will be held in Bangkok, Thailand using one arbitrator, unless the Dispute exceeds one million dollars (USA) in which case there shall be three neutral arbitrators, as a panel. The arbitrators may award costs and/or attorneys’ fees to the prevailing party. The parties understand that arbitration is final and binding and that they are waiving their rights to other resolution processes (such as court action or administrative proceeding). The process shall be confidential based on terms acceptable to the mediator and/or mediation service provider
15. GOVERNING LAW
15.1) This Agreement shall be governed by and construed in accordance with laws of Thailand, without regard to its conflicts of law’s provisions.
15.2) No failure or neglect by a Party to exercise any rights hereunder or to insist upon strict compliance with or performance of another Party’s obligations under the Agreement, shall constitute a waiver of the provisions of the Agreement and a Party may at any time require strict compliance with the provisions of the Agreement.
15.3) No indulgences or extensions of time or latitude which one of the Parties may allow to the other Party shall constitute a waiver by that Party of any of its rights, and it shall not thereby be prevented from exercising any of its rights which may have arisen in the past or may arise in the future.
15.4) Each of the provisions of the Agreement shall be considered as separate terms and conditions. In the event that the Agreement is affected by any legislation or any amendment thereto, or if the provisions herein contained are by virtue of such legislation or otherwise held to be illegal, invalid or unenforceable, then any such provisions shall be ineffective only to the extent of the illegality, invalidity or unenforceability and each of the remaining provisions hereof shall remain in full force and effect as if such illegal, invalid or unenforceable provision was not a part hereof.
Except as otherwise expressly provided herein, any provision of this Agreement may be amended and the observance of any provision of this Agreement may be waived (either generally or in any particular instance and either retroactively or prospectively) only with the written consent of the parties hereto. However, it is the intention of the parties that this Agreement be controlling over additional or different terms of any purchase order, confirmation, invoice or similar document, even if accepted in writing by both parties, and that waivers and amendments of any provision of this Agreement shall be effective only if made by non-pre-printed agreements signed by both parties and clearly understood by both parties to be an amendment or waiver. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights.