These Terms of Service (“Terms”) form a contract between
(1) Nested Co., Ltd., and
(2) the company or other legal entity accepting these Terms (“Customer”)
that governs the Customer’s access to and use of the ERP solution ("Service") provided by NESTED. These Terms apply equally to any software that is used to provide the Service or made available to the Customer in order to facilitate the Service (“Software”).
1 APPLICATION OF TERMS
1.1 These Terms apply to your use of the Service (as that term is defined below). By setting up an account
(a) you agree to these Terms; and
(b) where your access and 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; and
(c) 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
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 by email or by posting a notice on the Website. Unless stated otherwise, any change takes effect from the date set out in the 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: NESTED Software means the software owned by us (and our licensors) that is used to provide the Service.
Primary contact person : One person, as identified on the Order Form for the Service, will be the primary contact person for all communication in relation to the Service. You are responsible for updating NESTED of reassignment of this role, and/or any changes in email, phone, or address information.
Our Confidential Information includes Intellectual Property owned by us (or our licensors), including the NESTED Software.
Your Confidential Information includes the Data. Data means all data, content, and information (including personal information) owned, held, used or created by you or on your behalf that is stored using, or inputted into, the Service.
Force Majeure means an event that is beyond the reasonable control of a party
4 PROVISION OF THE SERVICE
4.1 We must use reasonable efforts to provide the Service:
(a) in accordance with these Terms and Thailand law;
(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 must use reasonable efforts to ensure the Service is available during normal business hours in Thailand on a 24/7 basis. However, it is possible that on occasion the Service may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure. We must use reasonable efforts to publish on the Website and/or notify you by email advance details of any unavailability.
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 that 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 are not entitled to any refund, discount or other compensation.
4.5 The Service includes access to Technical Support via web based ticket system. Technical Support is available to the primary contact person. Technical Support shall use reasonable efforts to respond to all support tickets as soon as possible. You are responsible for channeling support requests as described in this provision and for escalating any support incidents to us through the primary contact person, we shall not be responsible for handling any support requests submitted to us by other persons than the primary contact person.
4.6 We reserves the right, at its sole discretion, to make necessary unscheduled deployments of changes, updates, or enhancement to the Service at any time. We may add or remove functionalities or features, and suspend or stop a Service.
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 Software;
(b) modify, create derivative works from or redistribute the Software in any way;
(c) reverse engineer (except if and to the extent permitted by law), decompile, disassemble, or otherwise attempt to derive the source code related to the 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 not attempt to view, access or copy any material or data 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 neither use the Service in a manner, nor transmit, input or store any Data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading.
5.3 A breach of any of these Terms by your personnel is deemed to be a breach of these Terms by you.
5.4 You are responsible for procuring all licences, authorisations and consents required for you and your personnel to use the Service, including to use, store and input Data into, and process and distribute Data through, the Service.
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 but subject to clause 9, we may authorise a member or members of our personnel to access the Data for this purpose.
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 Data and information about your and your end users’ use of the Services to generate anonymised and aggregated statistical and analytical data (Analytical Data); and
(ii) use 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;
(b) our rights under clause 6.3(a) above will survive termination of expiry of the Agreement; and
(c) title to, and all Intellectual Property Rights in, Analytical Data is and remains our property.
6.4 You acknowledge and agree to obtain all necessary consents from the relevant individual to enable us to collect, use, hold and process that information in accordance with these Terms.
6.5 We stores the your data in accordance with best industry practices and applicable information security laws and regulations, and keeps at least 3 copies of the Customer’s Content and data to protect from data loss. If the Service is cancelled, NESTED may store the Customer’s Content and data for up to 90 days before it is permanently deleted from all NESTED’s systems.
While we will take standard industry measures to backup all Data stored using the Service, you agree to keep a separate backup copy of all Data uploaded by you onto the Service.
6.6 You agree that we may store Data (including any personal information) in secure servers in overseas territories and may access that Data (including any personal information) in overseas territories and Thailand from time to time.
6.7 You indemnify us against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by our solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Data is Objectionable, incorrect or misleading.
7 SUBSCRIPTION FEES
7.1 An annual subscription plan (“Annual Plan”), to be paid in advance. The subscription period will be one year, and will automatically renew each year unless the Customer cancels its plan prior to the renewal date. The customer can upgrade the additional Services at anytime. However, the Customer is not entitled to cancel or downgrade the Service until the anniversary of an Annual Subscription. There will be no refunds for Annual Plan payments.
7.2 We shall have the right to change the prices for the Service by at least 30 days’ notice to the Customer. When the Customer’s subscription renews, the Customer shall be bound by the last published price list 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.
8 INTELLECTUAL PROPERTY
8.1 Subject to clause 8.2, title to, and all Intellectual Property Rights in, the Service, the Website, Software and Documentation, including without limitation to user interfaces, logos, trademarks, product or service names, and all Underlying Systems is and remains our property. You must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.
8.2 Title to, and all Intellectual Property Rights in, the Data (as between the parties) 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.
8.3 To the extent not owned by us, you grant us a royalty-free, transferable, irrevocable and perpetual licence to use for our own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by us in the provision of the Services.
8.4 If you provide us with ideas, comments or suggestions relating to the Service or Underlying Systems (together feedback):
(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.
8.5 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.
9.1 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 9.1a and 9.1b.
9.2 The obligation of confidentiality in clause 9.1 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 9.
10.1 Each party warrants that it has full power and authority to enter into, and perform its obligations under, these Terms.
10.2 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.
10.3 Where legislation or rule of law implies into these Terms a condition or warranty that cannot be excluded or modified by contract, the 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.
11.1 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 11.1 includes the cap set out in clause 10.2a.
11.2 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.
11.3 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.
11.4 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.
12 TERM, TERMINATION AND SUSPENSION
12.1 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.
12.2 At any time prior to one month after the date of termination, you may request:
(a) a copy of any Data stored using the Service, provided that you pay our reasonable costs of providing that copy. On receipt of that request, we must provide a copy of the Data in a common electronic form. We do not warrant that the format of the Data will be compatible with any software; and/or
(b) deletion of the Data stored using the Service, in which case we must use reasonable efforts to promptly delete that Data.
13.1 Neither party is liable to the other for any failure to perform its obligations under these Terms to the extent caused by Force Majeure.
13.2 If we need to contact you, we may do so by email or by posting a notice on the 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 firstname.lastname@example.org.
13.3 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.
13.4 You may not assign, novate, subcontract or transfer any right or obligation under these Terms without our prior written consent, that consent not to be unreasonably withheld. You remain liable for your obligations under these Terms despite any approved assignment, subcontracting or transfer.