Data Processing Agreement
Introduction
This Data Processing Agreement is for the Service of Wisesight (Thailand) Co., Ltd. (the “Service Provider”) and the Client under the Quotation, Purchase Order or any other instruments (if any).
Whereas, the Client is using the Software for the social media analytics and/or other services where Wisesight (Thailand) Co., Ltd., is providing to the Client including but not limited to the service of Social listening tools, research which is specific to the group of data as requested by the User, social data analytics which is specific to the group of data as publicly shown and as requested by the Client concerning to the Quotation, Purchase Order or any other instruments (if any) (the “Service” and or “referred Service/Contract”) and for the provision of the Service, the Company is necessary to collect, process, use and disclose the Personal Data which is the Client has the obligations under the relevant personal data protection laws as the ‘data controller’ and the Company is the ‘data processor’; and
1. Term of Agreement
1.1. This Agreement shall be effective as of the the referred Service/Contract is in effect and shall continue until the referred Service/Contract is terminated.
2. Disclosure of Personal Data
2.1. To perform the Services, the User agrees to disclose the Personal Data to the Company and the Company agrees to receive such Personal Data for the purpose to provide the service under the terms and conditions of this Agreement.
For the reference of this Agreement, the “Personal Data” means any information relating to any person, which enables the identification of such a person, whether directly or indirectly, but not including the information of the deceased persons.
3. User's (Client) Representation and Warranties
3.1. Under this Agreement, the User as the Data Controller represents and warrants that it will adhere to its obligations under the Personal Data Protection Law when disclosing Personal Data to the Company to process such the Personal Data for the purpose to provide the Service. These obligations include, but are not limited to, the obligation to inform the relevant data subject in a clear and sufficient manner about the disclosure and exchange of their Personal Data by the User to the Company under this Agreement and/or the obligation to obtain the relevant data subject’s explicit consent.
For the avoidance of doubt, under this Agreement the “Personal Data Protection Law” refers to the Personal Data Protection Act B.E. 2562 (2019), regulations or all of orders applicable to data protection or privacy that are issued by governmental authorities or any organization that has authority, which is currently effective or shall be amended in the future.
3.2. In case that the User disclose the Personal Data to the Company. The Company shall deem that the User represent and warrant that the User have the obligations under the relevant Personal Data Protection Laws to collect, process, use and disclose the Personal Data to the Company as the ‘data processor’. The User also ensure that they have taken all the necessary steps to ensure the rightful disclosure of the Personal Data to the Company under the terms and conditions of this Agreement.
3.3. In case that the User fail to perform the obligations under relevant Personal Data Protection Law which is related to process the personal data by the Company as the data processor, the User acknowledges and agree that
(a) the Company shall not be held liable for any damages or claims under this Agreement or under the applicable laws for the Company’s failure to perform the Services or any obligations under this Agreement due to the User’s default; and
(b) the User shall indemnify and hold the Company harmless from any damages or compensation in any forms incurred; provided that such indemnification shall not prevent the rights that the Company may have under the applicable laws or under this Agreement.
4. Company's Obligation
4.1. The Company acting as the ‘Data Processor’ for the User agree to:
(A) only process the Personal Data for the purpose of delivering the Service and/or other obligations as defined under the conditions defined under this Agreement or pursuant to the written instruction given by the User;
(B) prepare and keep the record of processing activities relating to the Personal Data pursuant to the obligations defined under the Personal Data Protection Law for the audit request by the User, the Personal Data Protection Commission or the relevant data subject;
(C) only disclose the Personal Data on the “necessary basis” solely for the purpose of the Service delivery and ensure that those relevant receiving parties shall also be bound by the obligations under this Agreement;
(D) destroy or return the Personal Data immediately upon the completion of the Services; the termination of this Agreement; or upon the written instruction by the User;
(E) ensure the information security of the Personal Data in strict compliance with the information security standards and notify the User immediately upon the occurrence of the breach of Personal Data and shall provide all the cooperation and documentation to the User in case of such breach;
(F) provide necessary assistance to the User to respond to the request of the relevant data subject that the data subject has under the Personal Data Protection Laws within the relevant period of time defined.
5. Warramty and Indemnification
5.1. In case any Party violate any terms and conditions under this Agreement, the non-defaulting Party shall be entitled to:
(1) terminate this Agreement unilaterally if the defaulting Party fails to remedy such violation within the reasonable period of time defined by the non-defaulting Party; and/or
(2) instruct that the defaulting Party to indemnify any damages that may be incurred from such violation by the defaulting Party in full amount.
6. Confidentiality
6.1. Under the conditions set out in this Agreement, an existence or the contents of the Services including the information and documents that are sensitive the the Parties may acquire concerning the business or affairs of each Parties in the course of delivering the Services (Including but not limited to a Shared personal data, Services Fee, Information contained in the completion of Works) (“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.
6.2. After the Agreement ends, at the request of any party, the other party 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 opposite party harmless for any damages or claims arising from the failure of the party to comply with this obligation under this Agreement. For the avoidance of doubt, the return of the Confidential Information under this Clause shall not release any party from their obligations.
6.3. The obligations of non-disclosure in this Agreement shall survive the termination of this Agreement.
7. Termination
7.1. This Agreement will be terminated aligning with ther services agreement between the Company and the Client.
8. Miscellaneous
8.1. 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
8.2. 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.
8.3. Governing Law and Dispute Resolution.This Agreement shall be governed by and construed in accordance with the laws of Thailand. In the event of any dispute, the court in Thailand shall settle the Dispute.
