These Terms of Service (“Terms”) form a contract between:
Nested Co., Ltd. (“NESTED” or “We”) and
the company or other legal entity accepting these Terms, including such entity’s personnel (“Customer” or “You”), that governs the parties’ obligations and liabilities related to NESTED’s provision, and the Customer’s access to and use of, the ERP solution ("Service") provided by NESTED.
For clarity, the NESTED Software, which is made available to the Customer as part of our provision of the Service, constitutes as an essential part of the Service and shall be construed herein as such.
1 APPLICATION OF TERMS
1.1 These Terms apply to your use of the Service. By setting up an account on the NESTED Software:
(a) You agree to these Terms; and
(b) Where your access and/or use is on behalf of another person (e.g. a company), you confirm that you are authorised to, and do in fact, agree to these Terms on that person’s behalf and that, by agreeing to these Terms on that person’s behalf, that person is bound by these Terms.
1.2 If you do not agree to these Terms, you are not authorised to access and use the Service, and you must immediately stop doing so.
We may change these Terms at any time by notifying you of the change via email or by posting a notice on the NESTED Website (www.nested.co.th) or via other modes of contact or publication NESTED may use in the future. Unless stated otherwise, a change takes effect from the date set out in the email or notice. You are responsible for ensuring you are familiar with the latest Terms. By continuing to access and use the Service from the date on which the Terms are changed, you agree to be bound by the changed Terms.
In these Terms:
"Analytical Data” means secondary anonymised and aggregated statistical and analytical data generated for ERP analytical purposes through any function of the Service based on the Data.
“Confidential Information” means any information including trade secrets and intellectual property rights disclosed to, or otherwise acquired by a party from the other party, whether communicated in writing, photographically, electronically or any other form, including formulations, manufacturing processes, specifications, techniques, methods, technical processes, materials, samples, plans, machine settings, data, tables, customer or supplier information, know-how and designs, and all correspondence, whether or not the forgoing information is patented, tested, reduced to practice, or subject to copyright.
“Customer’s Personal Data” means any Personal Data related to the Customer and/or its designated end user that may be subject to collection, use or disclosure to third parties by NESTED under its provision of the Service.
"Data” means all data, content, and information (including any non-user’s Personal Data collected by the Customer and entered into the Service by the Customer) owned, held, collected, used or created by you or on your behalf that is stored using, or inputted into, the Service.
“Documentation” means any visual material published by NESTED related to or as part of its provision of the Service.
“Force Majeure” means an event that is beyond the reasonable control of a party.
“Live-Chat User” means a user of the Service, who is not the Primary Contact Person, for whose use of the Service the Support Service add-on has been purchased, enabling such user to directly access the Support Service.
“NESTED Software” means the software conceptualised, developed, created, and owned by NESTED, the access to and use of which we grant to the Customer as part of the provision of the Service. For purposes of these Terms, the NESTED Software constitutes as an essential part of the Service.
“Personal Data” means, as per the Thai Personal Data Protection Act B.E. 2562, any information relating to a natural person, which enables the identification of such person, whether directly or indirectly.
“Primary Contact Person”: A person designated by the Customer in the Order Form for the Service, as the primary point of contact for all communications in relation to the Service between us and the Customer.
“Start Date” means the first day on which we make available the Service to the Customer under these Terms.
“Underlying Systems” means the computer-engineered software and inter-operational models that form the basis of the Service.
4 PROVISION OF THE SERVICE
4.1 We shall use reasonable efforts to provide the Service:
(a) In accordance with these Terms and the laws of Thailand;
(b) Exercising reasonable care, skill and diligence; and
(c) Using suitably skilled, experienced and qualified personnel.
4.2 Our provision of the Service to you is non-exclusive. Nothing in these Terms prevents us from providing the Service to any other person.
4.3 We shall use reasonable efforts to ensure the Service is available on a 24/7 basis.
However, it is possible that on occasions the Service may be temporarily unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure. In case of such temporary unavailability, we shall use reasonable efforts to publish on the NESTED Website and/or issue you an email in advance to give details of the relevant temporary unavailability. To avoid doubt, you shall not be entitled to any refund, discount or other compensation for temporary unavailability of the Service.
4.4 Through the use of web services and APIs, the Service interoperates with a range of third-party service features. We do not make any warranty or representation on the availability of those features. Without limiting the previous sentence, if a third-party feature provider ceases to provide a particular feature or ceases to make that feature available on reasonable terms, we may cease to make available that feature to you. To avoid doubt, if we exercise our right to cease the availability of a third-party feature, you shall not be entitled to any refund, discount or other compensation.
4.5 The Service includes access to Technical Support via web-based ticket system, which we shall use reasonable efforts to ensure availability during normal business hours in Thailand (Monday to Friday between 8.30 a.m. and 5.30 p.m. Thailand time). Technical Support is made available to the Primary Contact Person and any Live-Chat User. Through the Technical Support system, we shall use reasonable efforts to respond to all support tickets as soon as possible. You are responsible for ensuring that any support request by a non-Live-Chat Use is channelled and appropriately escalated to us through the Primary Contact Person. The channelling and escalation of support requests by a Live-Chat User shall be made directly to us by the relevant Live-Chat User. We shall not be responsible for handling any support requests:
(a) Pertaining to a non-Live-Chat User which are not submitted to us by the Primary Contact Person; or
(b) Pertaining to a Live-Chat User which are not submitted to us by the relevant Live-Chat User her/himself.
4.6 As part of our Technical Support, it may be necessary for us or our designated personnel to conduct a support action by remotely accessing and controlling the computer of a designated user. In case of our Technical Support actions:
(a) You hereby authorise us to conduct such support action; and
(b) You accept that such support action may involve accessing the Data and any portion thereof constituting non-users’ Personal Data, but it does not constitute the collection, use or disclosure of the relevant non-users’ Personal Data.
4.7 We reserve the right to, at our sole discretion, make necessary unscheduled deployments of changes, updates or enhancements to the Service at any time. We may add or remove functionalities or features to the Service and may suspend or stop the Service in whole or in part.
5 YOUR OBLIGATIONS
5.1 You and your personnel must:
(a) Use the Service in accordance with these Terms solely for your own internal lawful business purposes; and
(b) Not resell or make available the Service to any third party, or otherwise commercially exploit the Service.
5.2 When accessing the Service, you and your personnel must not:
(a) Attempt to bypass any technical limitations in the NESTED Software;
(b) Modify, create derivative works from or redistribute the NESTED Software in any way;
(c) Reverse-engineer, decompile, disassemble, or otherwise attempt to derive the source code related to the NESTED Software;
(d) Use or misuse the Service in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the Service;
(e) Attempt to view, access or copy any material or data through the NESTED Software other than:
(i) That which you are authorised to access; and
(ii) To the extent necessary for you to use the Service in accordance with these Terms; and
(f) Use the Service, nor transmit, input or store any Data through the Service, in a manner that breaches any third-party rights (including Intellectual Property Rights and privacy rights) or is unlawful, objectionable, incorrect or misleading.
5.3 You are responsible for procuring all licenses, authorisations and consents required for you and your personnel to use the Service, including to use, store and input the Data into, and process and distribute Data through, the Service.
5.4 The Customer is responsible for updating NESTED of any reassignment and/or any changes in email, phone, or address information of its designated Primary Contact Person.
5.5 A breach of any provision of these Terms by your personnel is deemed to be a breach of these Terms by you.
6.1 You acknowledge that:
(a) We may require access to the Data to exercise our rights and perform our obligations under these Terms; and
(b) To the extent that this is necessary, we may authorise a member or members of our personnel to access the Data for purposes of exercising our rights and perform our obligations under these Terms.
6.2 You must arrange all consents and approvals that are necessary for us to access the Data as described in clause 6.1.
6.3 You acknowledge and agree that:
(a) We may:
(i) Use the Data and information about yours and your end users’ use of the Services to generate the Analytical Data; and
(ii) Use the Analytical Data for our internal research and product development purposes and to conduct statistical analysis and identify trends and insights; and
(iii) Supply Analytical Data to third parties, subject to your express consent.
(b) Our rights under clause 6.3 (a) above will survive termination of expiry of the Agreement subject to clause 6.7; and
(c) The title to, and all Intellectual Property Rights in, the Analytical Data is and remains our property.
6.4 We store the Data, Analytical Data and the Customer’s Personal Data in accordance with best industry practices and applicable information security laws and regulations, and we maintain at least three (3) copies of the Data to protect from data loss.
6.5 You agree that we may store Data in secure servers in overseas territories and may access that Data in overseas territories and Thailand from time to time.
6.6 While we will take standard industry measures to backup all Data stored using the Service, you agree that you should maintain a separate backup copy of all Data you have uploaded onto the Service. NESTED shall not be responsible for any loss or corruption to the Data.
6.7 If the Service is cancelled or terminated, NESTED’s treatment of the Data will be as follows:
(a) Subject to clause 13.2 (a), from the effective date of the cancellation or termination, NESTED shall store the Data for up to twelve (12) months before it is permanently deleted from all NESTED’s systems. During such period, the Customer may request access to the stored Data, which NESTED shall grant after satisfactory receipt of access fees equivalent to fifteen (15) percent of the latest applicable annual Subscription Fees for such Customer.
(b) Subject to clause 7.1, any Customer’s Personal Data shall be stored on NESTED’s systems for ninety (90) days before it is permanently deleted. Access requests to the Customer’s Personal Data during such period shall be handled according to clauses 7.7 and 7.8.
6.8 You shall indemnify us against any liability, claim, proceeding, cost, expense (including any actual legal fees charged by our solicitors) and loss of any kind arising from any actual or alleged claim by a third party that your treatment of the Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that your treatment of the Data is unlawful, objectionable, incorrect or misleading.
7.1 To begin your use of the Service, a user account must be created on the NESTED Software for each of your personnel utilising the NESTED Software, whereby we shall require information that may constitute Personal Data of such personnel, such as their names, addresses, telephone numbers or email addresses, which is necessary for us to collect and use for performing our obligations under the Terms. The Personal Data collected under this clause constitutes the Customer’s Personal Data.
7.2 User accounts are personal and must not be shared between individuals. We will not be liable for any loss or damage arising from any unauthorized use of personal user accounts. You are obligated to notify us immediately of any known or suspected unauthorized use of the service.
7.3 Customer’s Personal Data that we collect under clause 7.1 is essential for security, testing, analytics, research, maintenance, and enhancement purposes of the Service.
7.4 In providing the Service under these Terms, we shall not collect User’s Personal Data relating to your designated users aside from the user account creation stage per clause 7.1, and we shall not use such Customer’s Personal Data for any purposes other than stated in clause 7.3.
7.5 We shall not intentionally disclose the Customer’s Personal Data to any third party without consent from the owner of such Personal Data.
7.6 Non-Users’ Personal Data
(a) In using the Service, the Customer may enter into the service platform information related to various non-user persons. Such information constitutes part of the Data. However, as the collection and recording of such information is carried out by the Customer, should any portion of the relevant information constitute Personal Data under law, such portion is excluded from the Customer’s Personal Data, and NESTED is not responsible for the protection thereof.
(b) You are responsible for procuring all licenses, authorisations and consents required for you and your personnel to collect and/or use any non-user’s Personal Data that you wish to process through our Service.
(c). Although the Analytical Data is generated based on the Data, which may include Personal Data of non-users, generation of the Analytical Data via the Service is conducted anonymously, and such generation does not constitute use of the non-user Personal data by NESTED.
7.7 If the Service is cancelled, treatment of non-user Personal Data shall be according to treatment of the Data as specified in clause 6.7.
7.8 An owner of any portion of the Customer’s Personal Data has the permanent right to access and rectify all the information that concerns her/him. Such person can at any time make a request to NESTED to find out what Personal Data we hold concerning her/him, and may at any time, in writing, request us to modify or delete this information.
8 SUBSCRIPTION FEES
8.1 To validly convey your intention to subscribe to the Service, you shall submit to us a completed Order Form.
8.2 Upon our acceptance of your Order Form, we shall issue to you our Subscription Plan indicating details of the applicable Service and the applicable Subscription Fees.
8.3 The Subscription Fees are calculated on an annual basis, and provision of the Service shall not commence until the Subscription Fees are paid in full.
8.4 The Subscription Period shall begin on the first day on which we commence provision of the Service, following our satisfaction that the Subscription Fees are fully paid for the Service and any relevant add-ons, and shall have a duration of twelve (12) months.
8.5 Your subscription to the Service will automatically renew upon completion of a term of twelve (12) months, unless we receive your notice of cancellation prior to the renewal date.
8.6 At any point during the Subscription Period, the Customer can request to upgrade its Subscription Plan. Additional Subscription Fees shall be payable in consideration of the upgrade.
8.7 However, if, before the end of a Subscription Period, the Customer requests for cancellation or a downgrade of the Service, such request shall not be granted until the end of the Subscription Period in which such request is made.
8.8 In all cases, there will be no refunds for Subscription Fees paid.
8.9 We shall have the right to change the Subscription Fees for the Service. In case of such changes, we shall notify the Customer at least thirty (30) days in advance. When the Customer’s subscription renews, the Customer shall be bound by the latest price list published on the last day of the expiring term, unless a fixed service period and/or price has been specifically agreed in a valid Order Form or otherwise.
9 INTELLECTUAL PROPERTY
9.1 Subject to clause 9.2, the title to, and all Intellectual Property Rights in, the Service, the NESTED Website, the NESTED Software and Documentation, including, without limitation to, user interfaces, logos, trademarks, product or service names, and all Underlying Systems, are and remain our property. You shall not contest or dispute our ownership thereof or the validity of our Intellectual Property Rights therein.
9.2 The title to and all Intellectual Property Rights in the Data remains your property. You grant us a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Data for any purpose in connection with the exercise of our rights and performance of our obligations in accordance with these Terms.
9.3 If you provide us with ideas, comments or suggestions relating to the Service or Underlying Systems:
(a) All Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by us; and
(b) We may use or disclose the feedback for any purpose.
10.1 Each party must, unless it has the prior written consent of the other party:
(a) Keep confidential at all times the Confidential Information of the other party;
(b) Effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and
(c) Disclose the other party’s Confidential Information to its personal or professional advisors on a need-to-know basis only, and, in that case, ensure that any personal or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, clauses 10.1a and 10.1b.
10.2 The obligation of confidentiality in clause 10.1 does not apply to any disclosure or use of Confidential Information:
(a) For the purpose of performing a party’s obligations, or exercising a party’s rights, under these Terms;
(b) Required by law;
(c) Which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
(d) Which was rightfully received by a party from a third party without restriction and without breach of any obligation of confidentiality; or
(e) By us if required as part of a bona fide sale of our business (assets or shares, whether in whole or in part) to a third party, provided that we enter into a confidentiality agreement with the third party on terms no less restrictive than this clause 10.
11.1 Each party warrants that it has full power and authority to enter into, and perform its obligations under, these Terms.
11.2 To the maximum extent permitted by law:
(a) Our warranties are limited to those set out in these Terms, and all other conditions, the services are provided "as is." to the maximum extent permitted by applicable law, we disclaim all warranties, express or implied, including any warranty that the services are fit for a particular purpose, title, merchantability, data loss, non-interference with or non-infringement of any intellectual property rights, or the accuracy, reliability, quality or content in or linked to the services; and
(b) We make no representation concerning the quality of the Service and do not promise that the Service will:
(i) Meet your requirements or be suitable for a particular purpose, including that the use of the Service will fulfil or meet any statutory role or responsibility you may have; or
(ii) Be secure, free of viruses, bugs, or other harmful code, uninterrupted or error free.
11.3 Where legislation or rule of law implies into these Terms a condition or warranty that cannot be excluded or modified by contract, such condition or warranty is deemed to be included in these Terms. However, our liability for any breach of that condition or warranty is limited, at our option, to:
(a) Supplying the Service again; and/or
(b) Paying the costs of having the Service supplied again.
12.1 You acknowledge that the Service may link to third party websites or feeds that are connected or relevant to the Service. Any link from the Service does not imply that we endorse, approve or recommend, or have responsibility for, those websites or feeds or their content or operators. To the maximum extent permitted by law, we exclude all responsibility or liability for those websites or feeds.
12.2 Our maximum aggregate liability under or in connection with these Terms or relating to the Service, whether in contract, tort (including negligence), breach of statutory duty or otherwise, will be limited to the amount you paid for the services during the twelve (12) months prior to such claim. The cap in this clause 12.2 includes the cap set out in clause 11.2 (a).
12.3 Neither party is liable to the other under or in connection with these Terms or the Service for any:
(a) Loss of profit, revenue, savings, business, use, data (including Data), and/or goodwill; or
(b) Consequential, indirect, incidental or special damage or loss of any kind.
12.4 Neither party will be responsible, liable, or held to be in breach of these Terms for any failure to perform its obligations under these Terms or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under these Terms, or by the negligence or misconduct of the other party or its personnel.
12.5 Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with these Terms or the Service.
13 TERM, TERMINATION AND SUSPENSION
13.1 We may terminate the contract with immediate effect if the Customer is in material breach of these Terms or any other terms and conditions applicable to the use of the Service. If the contract is terminated for breach, you are not entitled to any reimbursements.
13.2 Provided that the Subscription Fees for the final year prior to termination are fully and satisfactorily paid, within one (1) month before the termination of the Service:
(a) We shall make available to you a function on the Service whereby you shall be able to download all Data stored on the Service under your use thereof. Should any access to the Data be required after the termination date, clause 6.7 (a) shall apply.
(b) You may request deletion of the Data stored using the Service, in which case we must use reasonable efforts to promptly delete that Data, but in no circumstances shall the deletion take place later than twelve (12) months from the termination date.
14.1 Neither party is liable to the other for any failure to perform its obligations under these Terms to the extent caused by Force Majeure.
14.2 Any communication we issue to you under these Terms may be done by email or by posting a notice on the NESTED Website. You agree that this satisfies all legal requirements in relation to written communications. You may give notice to us under or in connection with these Terms by emailing email@example.com.
14.3 These Terms set out everything agreed by the parties relating to the Service, and supersede and cancel anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the Service that is not expressly set out in these Terms, and no such representation, warranty or agreement has any effect from the Start Date.
14.4 You may not assign, novate, subcontract or transfer any right or obligation under these Terms without our prior written consent, whereas that consent shall not be unreasonably withheld. You remain liable for your obligations under these Terms despite any approved assignment, subcontracting or transfer.