Terms of Service
Terms of Service
These Terms of Service (“Terms of Service”, “Agreement”) governs Your use of AI GEN’s Service. “You” and “Your” refer to any person who uses Service. If Your organization has authorized or otherwise permits You to use Service for its benefit, “You” also includes Your organization. Additionally, You represent and warrant that You have full legal authority to bind Your employer or such entity to this Agreement and You may only accept this Agreement on behalf of Your employer or said entity or use any AI GEN’s Service if You have such legal authority. The term “use” includes accessing, downloading or utilizing any component of the Service. The following terms and conditions determined herein constitute a valid, legally binding agreement made between You and AI GEN (either of which may be referred to individually as a “Party” or collectively as “Parties”). By clicking the “I Agree” button (or any other similar button) below this Agreement, or by using any of the products and services provided by AI GEN under this Agreement, you shall be deemed as having fully understood and accepted the terms contained herein. If you do not agree to the terms of this Agreement, you may not use products and services provided by AI GEN.
The following definitions shall apply unless otherwise specifically stated. Capitalized terms used in this Agreement that are not defined herein have the meanings given to them in the Service level Agreement (SLA):
1.1. “AI GEN” means AI GEN Company Limited., a Thai company having its principal place of business at 252/280 Muang Thai – Phatra Complex Building, Residence tower, 11th floor, The Garage, Ratchadaphisek Road, Huaykwang, Bangkok 10310 Thailand.
1.2. “AI GEN Partner” means an entity or individual who is authorized by AI GEN to market, promote or resell the Service on behalf of AI GEN.
1.3. “Account” means a collection of data associated with a particular user of the Service. Each Account comprises an Account username and Account user password (“Account Credentials”) and defines various settings for usage of Service.
1.4. “Affiliate” means any individual, partnership, organization, corporation, company or other legal entity that is directly or indirectly Controlled by, under the Control of, under common Control with or Controls one of the parties to this Agreement but constitutes an Affiliate only so long as such Control exists. “Control” and its variants “Controlled by” or “under common Control with” means having more than fifty percent (50%) of the power, directly or indirectly, to vote the outstanding voting securities or partnership interests of the entity, to elect the directors, or otherwise to direct or cause the direction of the entity’s management and policies, whether by voting power, contract, or otherwise.
1.5. “Application” means an interface within the Service that is created by You or on Your behalf under Your Account registered within the Service Management System. The purpose of the Application is to enable Your Solution to access and use the Service. Under Your Account You can create and manage several separate Applications. Each Application comprises an individual Application ID and Application Password (“Application Credentials”).
1.6. “Authorized Users” means individuals who are authorized by You to use the Service, and who have been supplied Account Credentials by You (or by AI GEN at Your request). Authorized Users may include Your employees, consultants, contractors, and agents.
1.7. “CAPTCHA” means a type of challenge-response test used in computing as an attempt to ensure that the response is generated by a person. A common type of CAPTCHA requires the user to type letters or digits from a distorted image that appears on the screen.
1.8. “Confidential Information” means AI GEN’s Confidential Information and Your Confidential Information protected under this Agreement and as per the Data Protection Laws.
1.9. “Code Samples” means the source code of sample applications that use the Service, as may be made available by AI GEN.
1.10. “DPA” means the Data Processor Addendum attached to this Agreement.
1.11. “Data Processing Location” means geographical location where Uploaded Data is processed and stored.
1.12. “Data Protection Laws” means all applicable local, state, national, and foreign data protection, data privacy, electronic communications and data security laws, treaties, or regulations concerning the processing of data relating to natural persons to the extent applicable to performance of Services under or pursuant to this Agreement under Thai act.
1.13. “End User” means a person or a legal entity using Your Solution in accordance with the End User Agreement. You are also an End User in cases where Your Solution is developed for Your own internal use.
1.14. “End User Agreement” means a written agreement between You and End User that governs the rights and obligations of End User’s use of Your Solution.
1.15. “Intellectual Property Rights” means all rights of any nature in patents, registered designs, registered trademarks and service marks, and all extensions and renewals thereof, unregistered trademarks and service marks, business and company names, unregistered designs, internet domain names and email addresses, design rights, topography rights, rights in inventions, utility models, database rights, know-how and copyrights (including moral rights); applications for any of the foregoing and the right to apply for any of the foregoing in any country; rights under licenses, consents, orders, statutes or otherwise in relation to the foregoing; rights of the same or similar effect or nature which now subsist; and the right to sue for past and future infringements of any of the foregoing rights.
1.16. “Order” means an ordering document specifying the Services to be provided to You hereunder that is entered into between You and AI GEN, and includes a description of what is being ordered, Service specifications, quantity, price, Service levels, payment terms, Subscription Term and other terms and conditions. Once signed or otherwise accepted by both You and AI GEN, each Order shall be incorporated by reference and be subject to this Agreement. In case of any discrepancy, this Agreement shall prevail over the Order.
1.17. “Personal Data or “Personal Information” means any data or information included into Uploaded Data that relates to on its own or with other data to identify an individual whether directly or indirectly..
1.18. “Representative” of a party means that party’s employees, contractors, suppliers, agents, Affiliates, or other representatives.
1.19. “Service” means software services provided by AI GEN to the Customer and as fully described under an applicable “Order” and all of AI GEN’s proprietary technology (including software, hardware, services, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information) made available to You by AI GEN, as well as ancillary online or offline services, audio, visual and text information. Subject to AI GEN’s receipt of the applicable Fees (as detailed under an Order) from the Customer, AI GEN will use commercially reasonable efforts to make the Services available to Customer, in compliance with the terms of this Agreement and an applicable Order.
1.20. “Service Fee” means the fees (as specified in each invoice or otherwise) payable by You to AI GEN for the use of the Service.
1.21. “Service Level Agreement” or “SLA” means a certain agreement between You and AI GEN, which is available at https://developer.aigen.online/sla and which defines the general availability of the Service (“Service Level”) and the related terms and conditions. The SLA constitutes the integral part of this Agreement. In case of contradiction between the terms of the SLA and those of this Agreement, the terms of the SLA shall prevail.
1.22. “Service Management System” means a section of the Service available at https://developer.aigen.online that allows You to register Your Account, manage Your Account settings, create Your Applications and see statistics of Your Account and Your Applications.
1.23. “Service Marketing Materials” means picture samples, demo samples, user’s guides, notification texts and other marketing materials made available to You through the Service, https://developer.aigen.online, Service Management System or through email in connection with usage of the Service.
1.24. “Service Software” means the software that operates the Service or its component parts.
1.25. “Service Storage” means software and hardware used by AI GEN for storage of Uploaded Data.
1.26. “Signup Form” means the online form You shall use to create an Account in order to register with AI GEN for the usage of Service.
1.27. “Support and Maintenance Terms” or “SMT” means certain AI GEN terms and conditions for providing technical support, maintenance and upgrade assurance services to You. SMT terms are available at https://developer.aigen.online/support-maintenance-terms and constitute the integral part of this Agreement. In case of contradiction between the terms of SMT and those of this Agreement, the terms of the SMT shall prevail.
1.28. “Subscription Term” means the time period during which You are entitled to use Service and for which you have committed and agreed to pay the Service Fees stated in the Order.
1.29. “Third Party Software” means certain software developed and owned by third parties that may be used from time to time in the Services.
1.30. “Uploaded Data” means any data, information, or material uploaded by You, Authorized Users or End Users to Service.
1.31. “You” or “Your” refer to and include any individual, partnership, organization, corporation, company or other legal entity that is accepting this Agreement and obtained AI GEN’s authorization to use the AI GEN’s Services.
1.32. “Your Data” means any data, information, or material (including but not limited to any images, scanned documents or photos) provided or submitted by You or Authorized Users to Service in the course of registration within Service, or automatically collected by Service about You, Authorized Users, Your Solution, or Your Functionality. Your Data does not include Uploaded Data.
1.33. “Your Functionality” means the set of capabilities that You make available through Your Solution for End Users utilizing Service.
1.34. “Your Solution” means an application software or software service incorporating or using Service, operated by You or Your behalf, that is capable of sharing an account with Service, generally through an application program interface (API).
- Service Scope
2.1. Scope: In consideration of Service Fees paid and subject to the terms and conditions hereof, AI GEN grants to You a limited, non-exclusive, revocable, non-transferable right to use Service in conjunction with Your Solution during Subscription Term. All rights granted hereunder by AI GEN are revocable, by AI GEN in accordance with this Agreement. All rights not expressly and unambiguously granted herein regarding Services are reserved by AI GEN.
2.2. Modification: Service is an evolving service. AI GEN may add or remove features to or from Service, or modify the design of existing features of Service, at any time, at its sole discretion, without notice to You. AI GEN may update Service-related documentation from time to time at its sole discretion without notice to You, and it is Your responsibility to monitor Service-related documentation for updates. AI GEN is under no obligation to make any new features or feature modifications available as part of Service. AI GEN is not liable for any damage arising from the Modification.
2.3. Technical integration: You are solely responsible for the technical integration of Service into Your Solution, the possibility to integrate Service, and all costs associated with the technical integration of Service. Under no circumstances shall AI GEN be liable for any failure to achieve satisfactory or timely technical integration, even if the failure is caused by a software issue, documentation issue or insufficient support by AI GEN.
2.4. Limits: To ensure the efficient and stable operation of Service, AI GEN may impose reasonable limits on Your use of Service, including with respect to maximum size of a file uploaded to Service, maximum download and upload rates, and connection timeouts.
2.5. Resources: Except as otherwise specified in the Agreement and the Data Processing Addendum https://developer.aigen.online/dpa, AI GEN may determine at its sole and reasonable discretion the appropriate AI GEN resources that it will use to provide Service, on an as-available basis. AI GEN sometimes utilizes the services or products of a limited number of third parties, whether companies or individual subcontractors as well as AI GEN Affiliates (“Approved Contractors”) which have been determined by AI GEN to meet its standards. In order to most effectively meet Your needs, AI GEN may assign or subcontract all or part of AI GEN’s performance obligations and rights towards the provision of any portion of Service under this Agreement to Approved Contractor.
2.6. Service users: AI GEN will make Service available to You or Authorized Users. Service may be accessed and used solely for End User’s internal business purposes.
2.7. No title: You acknowledge and agree that nothing herein transfers or conveys to You any right, title, or interest to any Intellectual Property Rights in or to Service and any part thereof or copy thereof. No title to any Intellectual Property Rights is transferred to You unless otherwise provided in this Agreement. You shall further at no time dispute the validity or rightfulness of AI GEN’s right, title, or interest to any Intellectual Property Rights in or to Service and any part thereof or copy thereof or assert the right to use Intellectual Property Rights in Service in any jurisdiction otherwise than as permitted by this Agreement.
2.8. Trial Service
a. Upon Your request, AI GEN grants You and You accept a non-exclusive, non-transferable, non-assignable, royalty-free license to use the trial version of Service solely for the duration of the trial period and solely for the internal evaluation and testing purposes in order to assess the suitability of Service for You or Your internal business needs. You shall be fully liable to AI GEN for all acts and omissions of any Authorized Users / End Users.
b. You shall not use any results or outputs acquired through the usage of the trial Service in regular business activities and/or in a commercial operating environment, including, without limitation, in a way that can generate direct or indirect revenue unless agreed otherwise by both the parties.
c. The trial Service may have limited functionality and Your access to the functionality of the trial Service is restricted in duration and/or a maximum permissible volume of pages for processing, which may vary, unless otherwise agreed by parties. The expiration of time or pages render the trial Service unusable and may render any material prepared using the trial Service inaccessible until You have purchased a Subscription for Service.
d. No maintenance or technical support is provided for the trial Service. The trial Service is provided as a convenience and You agree that AI GEN is not obligated to provide any technical support, phone support, or updates for the trial Service usage. You may, however, request assistance from AI GEN to install and activate the trial Service or help with other questions or problems experienced during the use of the trial Service. AI GEN may, but is not obligated to, respond to such requests.
e. After expiration of the trial period the Service shall immediately stop functioning. In order to continue using Service, You shall have to either get a new trial license for Service, or buy a Subscription to Service provided that AI GEN has made the services commercially available.
g. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE TRIAL IS PROVIDED ON AN “AS-IS” BASIS AND THE TRIAL IS PROVIDED WITHOUT ANY INDEMNIFICATION, SUPPORT, OR WARRANTIES OR REPRESENTATION OF ANY KIND. Further, Trial may be subject to certain additional restrictions, limitations and differing terms all as specified in the corresponding Order. NOTWITHSTANDING ANYTHING CONTAINED HEREIN, FOR PURPOSES OF A TRIAL, THE SERVICE IS PROVIDED “AS-IS” WITHOUT ANY REPRESENTATIONS, WARRANTIES AND/OR INDEMNITIES.
- General Obligations
3.1. General Restrictions: To the fullest extent permissible under applicable law, You will not, and will not permit or authorize third parties, directly or indirectly, to:
a) use Service for any purpose or activity prohibited under applicable law;
b) rent, sublicense, transfer or resell Service;
c) probe, scan or test the vulnerability of Service;
d) circumvent or disable any technical features or security measures of Service;
e) monitor data or traffic on Service;
f) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of Service, such as a denial-of-service attack (DoS) or distributed denial-of-service (DDoS) attack;
g) provide on-line services to third parties through the use of Service, while providing similar functionality to that of Service or developer/user portal available under https://developer.aigen.online.
h) use Service for CAPTCHA breaking;
i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of Service o,r any software (including Service Software), documentation or data related to or provided with Service;
j) transmit to AI GEN or its service providers, or transmit via Service, any software (including Service Software) or materials that contain any viruses, worms, Trojan horses, logic bombs, defects, or other material which is malicious, destructive or technologically harmful;
k) use Service in any way not listed in the online documentation, which is available at https://developer.aigen.online/docs;
l) impersonate any person or entity, falsely state or otherwise misrepresent Your affiliation with any person or entity, or use or provide any fraudulent, misleading or inaccurate information, in connection with Service;
m) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, correct errors in, or create derivative works based on Service or any software (including Service Software) related to or provided with Service or Service Marketing Materials without AI GEN’s prior written approval;
n) use Service Marketing Materials for any purpose other than to use Service in accordance with this Agreement.
o) make it possible for any person not entitled to use Services to access and/or use Service or any software (including Service Software) related to or provided with Service;
p) register with more than one email address for the purpose of receiving additional free pages, or circumventing the terms and conditions of the pricing policy or the terms and conditions of the marketing campaigns; or
q) submit Uploaded Data which is subject to Thailand export control and regulation.
3.2. Code Samples Restrictions: Except as otherwise explicitly provided and specified in this Agreement:
a) Code Samples are the property of AI GEN and shall at all times remain with AI GEN.
b) You may include Code Samples into Your Solution.
c) You may study, modify and provide Code Samples to End Users in binary code as part of Your Solution or provide in-house access to Code Samples, provided that Your Solution uses Code Samples solely for processing the results obtained with Service.
d) Ownership of modifications to Code Samples shall remain with the party making such modifications.
e) If You disclose modifications made to Code Samples by sending them to AI GEN technical support service or by any other means, AI GEN shall be deemed to have been granted an irrevocable, non-exclusive, perpetual, transferable, royalty-free license to make, use, sell, offer to sell, import, license, sub-license, and assign its license to Your modifications to Code Samples, without remuneration due to You. You represent and warrant that the aforementioned rights granted to AI GEN shall be free of any third party rights or encumbrances and that You have obtained all necessary rights to grant the rights to AI GEN and that You have, if applicable, paid all necessary remuneration to the authors of such modifications. If You do not wish to transfer to AI GEN the license to the modifications to Code Samples, You shall not disclose to AI GEN the source code of such modifications.
3.3. Export Compliance: You are solely responsible for the authorization and management of Accounts across geographic locations and agree to comply strictly with all applicable export control laws and other applicable laws. Without limiting the generality of the foregoing sentence, You agree not to export, re-export, transmit, or cause to be exported, re-exported or transmitted, any Service or Service Marketing Materials to any jurisdiction, individual, partnership, organization, corporation, company or other legal entity to which such export, re-export, or transmission is restricted or prohibited under applicable law, including any country, individual, corporation, organization, or entity under sanctions or embargoes administered by the Kingdom of Thailand.
3.4. Actions by Authorized Users: AI GEN will establish during the signup process one set of Authorized User Account information, consisting of Account Credentials. You are solely responsible and liable for all actions and omissions of all Authorized Users and must take all appropriate measures to ensure that Authorized Users only add or remove subscriptions to Service, make payments, request Service functionality, or engage in any other activity in connection with Service with Your prior consent. You are solely responsible and liable for maintaining the confidentiality of all Account Credentials and Application Credentials and for any unauthorized use of any Account Credentials and Application Credentials.
3.5. Unauthorized Use: You shall: (a) immediately notify AI GEN of any unauthorized use of any user name, password or other Account information relating to the Account or any other known or suspected breach of security related to the Service; and (b) report to AI GEN immediately and You must take appropriate steps to protect such data from unauthorized use, disclosure, access, copying or distribution by third parties and use Your best efforts to immediately stop any unauthorized use, copying or distribution of any part of the Service.
3.6. Data: You shall bear sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, intellectual property ownership, and usage rights for all of Your Data and any data sent by You, Your Authorized Users / End Users to Service. You will abide by and will be solely responsible for any breach of applicable local, state, national, and foreign law, treaty, or regulation in connection with Your Data / Uploaded Data, including those related to data privacy, international communications, and the transmission of technical or Personal Data. Terms and conditions of processing and storage of Uploaded Data are specified in Data Processing Addendum (https://developer.aigen.online/dpa) (“DPA”) to this Agreement and shall apply if and to the extent AI GEN processes Personal Data on Your behalf. The DPA is only applicable if You are domiciled in the Kingdom of Thailand. In the event of a conflict between any provision in the DPA and any provision in the Agreement or its appendices, the DPA shall control. You shall not leave any Personal Data or information on any test devices provided by AI Gen (if any) in such service, otherwise you shall bear any and all legal consequences and liabilities arising out of any Personal Data you left on such test devices.
3.7. Data Processing: To perform the obligations under this Agreement in an efficient manner, AI GEN and its Affiliates may need to process, store, collect, use, disclose and transfer Your Data and Uploaded Data (pursuant to DPA, if applicable). You shall provide to AI GEN, in compliance with the Data Protection Laws, certain information that is reasonably required by AI GEN to provide the Service, including but not limited to the name and email address, of Your relevant personnel and of Authorized Users, and information on when, how and how much of Service functionality You use. You hereby authorize AI GEN to process this subset of Your Data (including but not limited to collecting, systematizing, storing, updating, modifying, using, distributing, transferring, depersonalizing, locking or deleting) in electronic, paper or any other format for the purpose of providing You with the Service. AI GEN guarantees that the data You provide will be stored strictly within AI GEN and AI GEN Affiliates and will not be disclosed to any third parties except as expressly required or permitted by law and/or as necessary for the performance of this Agreement and/or ordered by the court. Except as otherwise provided in this Agreement and all other additional agreement between the Parties (if any) and DPA (if the latter is applicable), AI GEN will not access, review, use, publish, reproduce or disclose any of Your Uploaded Data.
3.8. Email Messages: You hereby authorize AI GEN to send Your designated personnel, agents and Representatives who have expressly consented to receive email messages about AI GEN’s products, services and company news, special offers, products usage advices and other marketing-related information related to AI GEN’s activities. You may remove such personnel’s email addresses from the mailing list at any time by sending an email to [email protected]. You shall also receive from AI GEN e-mail messages with critical information related to Service operation (password-related emails, service notifications, etc.).
3.10. Your Compliance with Laws: You agree that, other than AI GEN’s legal obligations as a processor of certain data stored in Service, You are solely responsible for complying with any laws, treaties, or regulations in connection with collection, uploading, use, transfer and other control of any Uploaded Data or Your Data, including any personal or confidential data, and shall defend, indemnify and hold AI GEN harmless from and against any and all claims, actions, proceedings, expenses, liabilities, damages, losses, costs, and expenses, including attorneys’ fees, associated with and/or arising from such Uploaded Data. If Uploaded Data processing causes failure of Service or leads to an abnormal consumption of computing resources or other exceptional cases adversely affecting the functionality of the Service, You consent to AI GEN’s use of such Uploaded Data for the sole purpose of safeguarding the functionality of the Service.
3.11. Location of Storage for the Services. Uploaded Data will be stored for processing purposes (duration of the storage is subject to section 3.12 of this Agreement) in Singapore.
3.12. Deletion Periods: Except for the case specified herein, AI GEN and its Affiliates will automatically schedule all Processed Uploaded Data for deletion within twenty-four (24) hours after it has been processed by the Service or upon the deletion instruction in accordance with applicable laws, and as soon as reasonably practicable within a period of 30 days.
3.13. End User Agreement Terms: Your End User Agreements shall contain terms in favor of AI GEN that substantially meet the following requirements:
a) statements that Your Solution utilizes Service with a reference to Service’s exact name in it, and that Your Solution contains third party technologies.
b) End User is granted only a non-exclusive, nontransferable right to use Service.
c) AI GEN shall not be liable to End User in anyways, whether directly or indirectly, for any general, special, direct, indirect, consequential, incidental, or lost profits or other damages arising out of or related to Service.
d) End User will not: (i) decompile or reverse engineer Service or Service Software or its component parts; (ii) modify, publish, transmit, license, sublicense, transfer, sell, distribute, reproduce, create derivative or collective works from, or in any way otherwise exploit Service or Service Software or make Service or Service Software available, in whole or in part; (iii) disclose results of any services or program benchmark tests without AI GEN’s prior written consent; (iv) license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make Service available to any third party other than as expressly permitted under the terms of the agreement; (v) transmit files, content, photographs, videos, personal or technical data or any other type of information or data (collectively, “User Content”) that is defamatory or libelous; (vi) transmit any User Content that it has no rights to, or for which transmission would constitute infringement of third-party intellectual property rights; or (vii) transmit any viruses, malicious code, Trojan horses, worms, corrupted files, or any other similar software that may damage the operation of another’s computer, data or property, or transmit any other harmful or code technology.
e) You may not bypass or claim to be able to bypass any content protection systems or data analysis tools provided by AI GEN, or intentionally mislead your End Users into making them believe that they are directly interacting with AI GEN.
- Pricing and Payment
4.1. Prices: Service is partly a paid-for service. Information regarding the prices and payment procedure is an integral part of this Agreement and can be found at https://developer.aigen.online/pricing, as well as in the billing terms located at https://developer.aigen.online/pricing (collectively “Pricing Terms”). In case of any discrepancy between the terms of this Agreement and those of Pricing Terms, the terms of Pricing Terms shall prevail.
4.2. Precautionary Suspension: AI GEN will reserve the right , with its sole discretion, to suspend Your usage of Service if AI GEN reasonably believes that Service is misused or accessed by an unauthorized user. You hereby agree to such suspension of Service usage.
4.3. Price Change: AI GEN may change the prices and payment procedure at any time effective immediately by posting the new pricing terms at https://developer.aigen.online/pricing and/or located at https://developer.aigen.online/pricing, a notification of which shall be given You beforehand. Such revised prices and payment terms will be binding on You following the expiration of Your existing subscription for Service, if, subsequent to the expiration of Your existing subscription for Service, You continue to use Service.
4.4. Non-Refundable Fees: All fees are non-cancellable and are non-refundable, except as otherwise provided for herein and unless cancellable or refundable under the applicable laws.
4.5. Delinquent Payments: If Your Account falls into arrears, delinquent invoices are subject to interest of one and one-half percent (1.5%) per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection.
4.6. Taxes: You will pay AI GEN or Partner all applicable Service Fees, plus all customs duties, if applicable, and sales and use tax, value-added tax (VAT), Goods and Service Tax, Service tax, Business Tax and other similar taxes, whether in existing or in the future, that AI GEN is required under applicable law to charge You or otherwise pay in connection with providing the Service to You (“Indirect Taxes”). If any applicable law requires You to withhold tax amounts from the Service Fee to AI GEN, You shall withhold such an amount of tax from the payments which you are only legally obligated to withhold, taking into consideration all exemptions, reliefs and reductions, at the rate of withholding tax under applicable law or at the rate as a result of applying any double tax treaty in force at the time of Service Fee payment. You will effect such withholding, remit such withheld tax amounts to the appropriate tax authorities and promptly provide AI GEN with tax receipts evidencing the payments of such withholding tax amounts and all other supporting documents as may be required by AI GEN to claim for tax credit in its jurisdiction.
4.7. Invoicing: You will be invoiced for applicable Service Fees and taxes on a regular basis, and all payments are due within 30 (thirty) days of transmission of the invoice. You shall pay all amounts invoiced in accordance with the terms of the invoice by means of electronic transfer. You are responsible for any outgoing bank transfer charges associated with the payments You make hereunder. You may not set off payments due to AI GEN against any amounts AI GEN may owe to You. Service Fees are non-refundable and non-cancellable.
4.8. Moment of Payment Fulfillment: All payment obligations of You shall be deemed fulfilled when the sums due are credited to AI GEN’s or AI GEN Partner’s bank account.
5.1. Confidential Information: Each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). “AI GEN’s Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) consisting of or relating to its technical information, technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, including any written or oral information disclosed by AI GEN in relation to Service, in each case whether or not marked, designated, or otherwise identified as “confidential”. “Your Confidential Information” means any information that You provide to AI GEN which has been marked, designated, or otherwise identified as “confidential”. Notwithstanding the above, Confidential Information does not include information that: (a) was rightfully known to Receiving Party without restriction on use or disclosure prior to such information being disclosed or made available to Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by Receiving Party on a non-confidential basis from a third party that, to Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by Receiving Party without reference to or use of any of the Disclosing Party’s Confidential Information.
5.2. Protection of Confidential Information: As a condition to being provided with any disclosure of or access to Confidential Information, Receiving Party shall:
a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
b) except as may be permitted by and subject to its compliance with this Agreement, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of Confidential Information and the Receiving Party’s obligations under this Agreement; and (iii) are bound by confidentiality and restricted use obligations at least as protective of Confidential Information as the terms set forth herein;
c) safeguard Confidential Information from unauthorized use, access, or disclosure and agrees to adopt necessary and reasonable measures, no less stringent than the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care;
d) promptly notify Disclosing Party of any breach, unauthorized use or disclosure of Confidential Information and take all reasonable steps with Disclosing Party to prevent further unauthorized use or disclosure; and
e) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with the terms set forth herein.
5.3. Trade Secrets: Notwithstanding any other provisions of this Agreement, Receiving Party’s obligations hereunder with respect to any Confidential Information that constitutes a trade secret under any applicable law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under such applicable law other than as a result of any act or omission of Receiving Party or any of its Representatives.
5.4. Compelled Disclosures: If Receiving Party or any of its Representatives is compelled by applicable law to disclose any Confidential Information then, to the extent permitted by applicable law, Receiving Party shall: (a) promptly, and prior to such disclosure, notify Disclosing Party in writing of such requirement so that Disclosing Party can seek a protective order or other remedy; and (b) provide reasonable assistance to Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If Disclosing Party waives compliance or, after providing the notice and assistance required under this section, Receiving Party remains required by applicable law to disclose any Confidential Information, Receiving Party shall disclose only that portion of Confidential Information that Receiving Party is legally required to disclose and, on Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
5.5. Residual Information: It is important for AI GEN to be able to use its skills, experience, expertise, concepts, ideas, and know-how learned or acquired while providing Service for You, itself or any of its clients in the ordinary course of its business. Therefore, You agree that AI GEN is entitled to retain and use without restriction any of the generalized knowledge, techniques, methodologies, practices, processes, skills, experience, expertise, concepts, ideas, and know-how learned or acquired by AI GEN’s personnel in the course of providing Service for You hereunder solely to the extent that they are retained in intangible form in the unaided memory of the personnel of AI GEN without intentionally memorizing such information or using any Your Confidential Information to refresh its recollection (“Residual Information”). Nothing in this Agreement is to be construed as to prevent AI GEN from being able to do so, and further, such retention and use of Residual Information shall not be construed as a breach of this Agreement.
6.1. Technical support for Service will be provided by AI GEN in accordance with AI GEN’s then current SMT terms.
- Term and Termination
7.1. Term and Termination: This Agreement shall be effective upon the earlier of the following: (a) the date You execute the Sign-Up form and accept this Agreement; or (b) the date You first use Service. The first use Service by YOU shall be deemed that YOU have agreed and accepted this Agreement immediately. This Agreement shall continue in effect for as long as You use or access the Service or until this Agreement is terminated in accordance with this section 7.
7.2. Subscription Term: The Subscription Term shall commence on the start date specified in the applicable Order and continue for the term specified therein and any renewals thereto (if any). Subscription will automatically renew for additional periods equal to the expiring Subscription Term as provided in more details in Billing Terms, unless either party gives the other written notice (email shall be deemed acceptable) at least 30 (thirty) days before the end of the relevant Subscription Term.
7.3. Termination for Convenience: AI GEN may terminate this Agreement without any cause with a 90 (ninety) days’ written notice to YOU. In the event AI GEN terminates this Agreement for its convenience, AI GEN will refund to You any payments You had made for pages You were unable to use due to such termination.
7.4. Termination by AI GEN: Without prejudice to AI GEN’s other rights and remedies under this Agreement or applicable law and without liability to You, AI GEN has the right to suspend Service, suspend or terminate the performance of any of its obligations under this Agreement, and terminate this Agreement immediately at any time if any of the following applies:
a) You have failed to pay invoices when due and continue such payment default for 15 (fifteen) days or more after receipt of AI GEN’s written notice of late payment;
b) You become bankrupt or insolvent, or suffer any similar action in consequence of indebtedness or go into voluntary or compulsory liquidation;
c) Your operations are banned by a government authority or applicable laws and/or regulations;
d) You dispute or contest, directly or indirectly, the validity, ownership or enforceability of any Intellectual Property Right of AI GEN or its Affiliates or its licensors, or counsels, procures or assists any other person to do so;
e) AI GEN reasonably determines that You have violated this Agreement or that Your use of Service violates applicable law, misappropriates or infringes Intellectual Property Rights of a third party, or poses a threat to the security or performance of AI GEN’s network or to any of its clients or suppliers;
f) You engage, or encourage others to engage, in any misleading, fraudulent, improper, unlawful or dishonest act relating to this Agreement, including, but not limited to, alteration or falsification of documents, inappropriate use of computer systems or other misrepresentation of facts; or
g) You are subject to a change of Control and it is no longer reasonable to expect AI GEN to adhere to this Agreement due to the change of Control, in which case AI GEN shall not unreasonably delay negotiations for a new Service agreement with the anticipated owner of Your organization.
When reasonably practicable and permitted by applicable law, AI GEN will provide You with written notice of any such suspension or termination. In the event AI GEN terminates this Agreement based on this section
7.4., no refund shall be made to You for pages You have not used due to such termination.
7.5. Termination for Non-Use: AI GEN may also terminate this Agreement without prior notice if You have not made any activities through Your Account for one year. In that case, Your Account will be deleted and payments for purchased Services shall not be refundable.
7.6. Termination by You: You may terminate this Agreement and cease Your use of Service with a 60 (sixty) days’ written notice to AI GEN if AI GEN violates any material provision this Agreement and if such violation is not cured within 30 (thirty) days of AI GEN’s receipt of written notice from You advising it of the alleged violation. The DPA may contain other grounds for termination by You.
7.7. Account deactivation: You may contact AI GEN by e-mail at [email protected] to deactivate Your Account and cease Your use of Service at any time. If Your Account is de-activated, payments for purchased Services will not be refunded. In order to re-activate Your Account, you shall write a request to [email protected]. Account reactivation is solely at AI GEN’s discretion. Account may not be reactivated in case if Service is not available anymore. If Account is not re-activated within 1 (one) year from the deactivation date for whatever reason, this Agreement shall be considered terminated as of the day following the last day of this one-year term for Account reactivation.
7.8. Partners: If You purchased Service directly from a AI GEN Partner, AI GEN Partner may have a right to revoke Service, limit Your access to it or delete some or all Uploaded Data. All disputes between You and such AI GEN Partner, whether or not relating to any information, data or forms available on or through Service, will be settled by and between You and such AI GEN Partner. AI GEN bears no responsibility for resolving such disputes and has no obligation to be involved in any way in any such dispute.
- Consequences of Termination
8.1. Consequences: Upon termination of this Agreement:
a) all rights granted to You hereunder, including any active Subscription, will immediately terminate without giving rise to any right for You to receive or demand any compensation for goodwill, Authorized Users’ expenses, or any other payment of any nature from AI GEN or its Affiliates or Representatives;
b) You shall be required to return (or, with AI GEN’s prior written consent, destroy and certify such destruction in writing) all copies of materials that embody AI GEN’s Intellectual Property Rights and all copies of AI GEN’s Confidential Information provided in connection with this Agreement;
c) AI GEN will invoice You for any outstanding amounts due and payable by You, and You shall pay all such amounts in accordance with this Agreement and the relevant invoice;
d) You shall no longer have access to Your Account;
e) You shall uninstall, delete and destroy any software (including Service Software) delivered to You and copies of such software installed on Your computer(s). You shall then email to AI GEN a confirmation via a letter of destruction signed by Your authorized Representative; and
f) If reasonably possible, AI GEN will inform You in advance and give You the opportunity to export Uploaded Data, if any, from Service.
8.2. Uploaded Data: Upon termination of this Agreement, AI GEN will have no obligation to maintain or forward any Uploaded Data and AI GEN may delete Uploaded Data from Service at its sole discretion. Notwithstanding the foregoing, You authorize AI GEN to retain Uploaded Data on Service following the expiration or termination of this Agreement for as long as necessary for AI GEN to perform its obligations under this Agreement, subject to any obligations under applicable law including Data Protection Laws to retain Uploaded Data for a longer or shorter period of time.
8.3. Account: Upon termination of this Agreement, AI GEN may retain Account for 1 (one) year following such termination except for the cases, when retaining Account for a longer or shorter period of time is necessary for AI GEN in order to perform its obligations under this Agreement, subject to any obligations under applicable law including Data Protection Laws, or is otherwise required under the applicable law.
8.4. Survival: The termination of this Agreement shall not have any effect on provisions that are expressed to operate or to be in force after termination, or any right of action already accrued to AI GEN in respect of any breach by You. Without limiting the generality of the preceding sentence, the following provisions will survive any expiration or termination of this Agreement: sections 1, 3.1, 3.13, 3.2, 3.3, 3.5, 3.6, 3.10, 5, 7, 8, 9, 10, 11, and 12 as well as any other indemnification obligations.
8.5. Consequences for a Subscription Termination: Upon termination or expiration of a particular Subscription, You shall have no right to use Service unless You purchase a new Subscription. In case of a Subscription termination or expiration, this Agreement shall remain in full force and effect unless duly terminated by any of the parties.
8.6. Refund or Payment upon Termination: If this Agreement or any active Subscription is terminated by You before the Subscription expiration date, You shall, to the extent permitted by applicable law, pay AI GEN any unpaid fees covering the remainder of Subscription Term. If any discounts were applied to Your Subscription, You shall also pay AI GEN an amount equivalent to the sum of such discount. The provisions of this section 8.6 shall not apply if the termination is based on the section 7.6 above.
- Ownership of Intellectual Property Rights
9.1. Ownership: You acknowledge Service and Service Marketing Materials are owned, controlled or licensed by or to AI GEN, are and remain the proprietary information of AI GEN and its Affiliates, suppliers and licensors, and are protected by applicable law. You acknowledge that all Intellectual Property Rights relating to Service and Service Marketing Materials (other than Uploaded Data) are, as between You and AI GEN, solely and exclusively owned by AI GEN. All modifications, enhancements or changes to Service and Service Marketing Materials are and shall remain the property of AI GEN and its licensors and suppliers, without regard to the origin of such modifications, enhancements or changes. No ownership rights in Service or Service Marketing Materials are granted, and AI GEN reserves all right, title and interest therein and thereto. Use of Service or Service Marketing Materials does not grant You a license to any Intellectual Property Rights or other rights of AI GEN or its Affiliates or licensors or any third parties, whether express, implied, by estoppel or otherwise, or grant You the right to make or have made any products, or to use Service or Service Marketing Materials beyond the scope of this Agreement. You will not challenge the ownership or rights in and to Service or Service Marketing Materials, including without limitation all copyrights and other proprietary rights. Nothing in this Agreement limits AI GEN’s ability to enforce its Intellectual Property Rights.
9.2. Feedback: If You provide to AI GEN comments regarding Service or ideas on how to improve it (“Feedback”), please note that by doing so, You also hereby assign all right, title, and interest worldwide in Feedback to AI GEN and agree to assist AI GEN, at AI GEN’s expense, in perfecting and enforcing AI GEN’s rights thereto and ownership thereof. You acknowledge and agree that AI GEN may use and incorporate Feedback into Service or for other business purposes without compensation to You and without restriction.
9.3. Use of Your Organization’s Name: AI GEN may identify You in its advertising and marketing materials as a customer of Service, and may use Your trademarks, trade names, service marks, and logos in such materials subject to Your reasonable guidelines. Furthermore, AI GEN may disclose to the public some or all of the Service features that You are using.
9.4. Third-Party Software: Service may contain components of other Third-Party Software, which are the property of their respective owners.
9.5. Dispute with Third Parties: All disputes between You and third parties, whether relating to any information, data or forms available on or through the Service, will be settled by and between You and such third parties. AI GEN bears no responsibility for resolving such disputes and has no obligation to be involved in any way in any such dispute.
- Limited Warranty and Disclaimers
10.1. No Infringement of Laws: Each party represents and warrants to the other that it has the legal authority to enter into this Agreement with the other, and its execution and delivery of this Agreement does not violate applicable law or any other agreement to which it is a party or by which it is otherwise bound.
10.2. Internet Delays: AI GEN shall not provide You or Authorized Users / End Users with an Internet connection or with any hardware and software required to connect to the Internet, and AI GEN is not liable for the quality of Your or Authorized Users’ / End Users’ Internet connection or the quality of the hardware and software that You or Authorized Users / End Users use to access the Internet. AI GEN is not liable for any malfunction or other problems in telephone networks or services, computer systems, servers, providers, computer hardware, software, or telecoms equipment, or for any malfunction in the operation of email and scripts, howsoever caused, or other damage resulting from such problems. AI GEN shall not be liable for any delay, malfunction, missed or late delivery, removal or loss of any of Your information provided to AI GEN, including but not limited to Uploaded Data, resulting from the situations described in this section 10.2.
10.3. Loss of information: You acknowledge that You may be transmitting information over a public computer network and that AI GEN shall not be liable for any loss of information transmitted in this manner.
10.4. No warranties for Third-Party Software: AI GEN makes no warranties for any Third-Party Software products.
10.5. Warranty disclaimer. EXCEPT FOR ANY WARRANTY, CONDITION OR EXPRESS REPRESENTATIONS STATED IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AI GEN MAKES NO REPRESENTATION, WARRANTY, CONDITION, OR GUARANTEE, EITHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, OF ANY KIND, INCLUDING WITH RESPECT TO THE MERCHANTABILITY, RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY, FITNESS FOR ANY PURPOSE, OR COMPLETENESS OF THE SERVICE OR ANY DATA, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. ADDITIONALLY, AI GEN DOES NOT REPRESENT OR WARRANT THAT:
a) THE USE OF SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA;
b) ANY STORED DATA OR UPLOADED DATA WILL BE OR REMAIN ACCURATE OR RELIABLE;
c) THE RESULTS OBTAINED BY USING SERVICE ARE ACCURATE, COMPLETE OR USEFUL;
d) THE OPERATION OF SERVICE OR THE PROVISION AND AVAILABILITY OF SERVICE WILL BE CONTINUOUS AND/OR UNINTERRUPTED OR FREE FROM ERROR;
e) SERVICE, THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH SERVICE WILL MEET YOUR OR END USER’S REQUIREMENTS OR EXPECTATIONS;
f) ERRORS OR DEFECTS WILL BE CORRECTED; OR
g) SERVICE OR THE SERVER(S) THAT MAKE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
10.6. AS IS. SERVICE AND ALL DATA ARE PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS.
10.7. Service Level Claims. Service levels are solely specified by AI GEN. You hereby agree that AI GEN may unilaterally amend or change the Service levels.
10.8. Your Warranties. You warrant that You are the exclusive owner of all rights to Your Solution and that Your Solution does not infringe any third party’s Intellectual Property Rights.
- Limitation of Liability and Indemnification
11.1. Limitation of Liability
a) IN NO CASE SHALL AI GEN, ITS AFFILIATES, AND ITS AND THEIR REPRESENTATIVES BE LIABLE FOR INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, EXEMPLARY, TREBLE, CONSEQUENTIAL OR SPECIAL DAMAGES (INCLUDING THE LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL) WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY.
b) IN NO EVENT SHALL AI GEN’S TOTAL AND CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY YOU UNDER THIS AGREEMENT FOR SERVICE, IN EITHER CASE EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN CASE IF YOU HAVE OBTAINED A LICENSE TO USE THE TRIAL VERSION OF SERVICE, AI GEN’S TOTAL AND CUMULATIVE LIABILITY TO YOU UNDER THIS AGREEMENT SHALL BE LIMITED TO THE SUM OF ONE THOUSAND THAI BAHT (THB 1,000) OR THE TOTAL AMOUNT YOU PAID FOR THE TRIAL SERVICE, WHICHEVER IS GREATER.
c) THESE LIMITATIONS SHALL APPLY DESPITE THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PROVISIONS OF THIS SECTION 11.1 ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN AI GEN AND YOU. AI GEN’S PRICING REFLECTS THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THIS LIMIT ON LIABILITY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT AND THAT AI GEN WOULD NOT BE ABLE TO PROVIDE SERVICE WITHOUT SUCH LIMITS. THIS SECTION SHALL NOT BE SUBJECT TO ANY DISCLAIMER OR PROVISION SET FORTH IN THIS AGREEMENT.
11.2. Defense of Claims. You shall indemnify, defend and hold harmless AI GEN and its Affiliates and Representatives, and each of its and their respective Representatives, officers, directors, successors, and assignees (each, an “AI GEN Indemnitee”) from any and all claims, losses, liabilities, damages, expenses and costs, including without limitation attorneys’ fees and court costs that directly or indirectly arises out of or relates to any of the following (individually, a “Claim”, and collectively, the “Claims”):
a) any information that You provide to AI GEN, including any processing of Uploaded Data by or on behalf of AI GEN in accordance with this Agreement;
b) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on Your behalf or any Authorized User, including AI GEN’s compliance with any specifications or directions provided by or on behalf of You or any Authorized User to the extent prepared without any contribution by AI GEN;
c) Your breach of any of Your representations, warranties, covenants, or obligations under this Agreement; or
d) any act or omission by You, any Authorized User / End User, Your Representatives, or any third party on Your behalf, including any negligent acts or omissions, willful misconduct, or strict liability thereof.
11.3. Indemnification by You: You shall indemnify, defend and hold harmless each AI GEN Indemnitee against any damages, liabilities, assessments, losses, costs, and other expenses (including reasonable attorneys’ fees and legal expenses) incurred by that AI GEN Indemnitee relating to any Claim, including:
a) all damages, liabilities, assessments, losses, costs, and other expenses (including reasonable attorney fees and legal expenses) finally awarded against an AI GEN Indemnitee in any proceeding relating to any Claim;
b) all out-of-pocket costs (including reasonable attorneys’ fees) incurred by an AI GEN Indemnitee in connection with the defense of any Claim (other than attorneys’ fees and costs incurred without Your consent after You have accepted defense of such Claim); and
c) if any Claim is settled between You and the third party, all amounts agreed to by You as part of such settlement.
11.4. Process: AI GEN shall give You reasonable notice of each Claim for which it wants indemnity, except that failure to provide such notice will not release You from any obligations hereunder except to the extent that You are materially prejudiced by such failure. AI GEN will also give You its reasonable cooperation in the defense of each Claim, at Your expense. You may not use any counsel that would have a conflict of interest in representing AI GEN’s interests to defend any Claim. An AI GEN Indemnitee may participate in the defense of a Claim at its own expense. You will not settle any Claim without the relevant AI GEN Indemnitees’ prior written consent, which may not be unreasonably withheld. You shall ensure that any settlement You make of any Claim is made confidential, except where not permitted by applicable law. Your duty to defend is independent of Your duty to indemnify.
11.5. Indemnification by AI GEN: Subject to section 11.1, AI GEN shall indemnify You from and against losses incurred by You that arise out of or result from, or are alleged to arise out of or result from any claim that Service violates the Intellectual Property Rights of a third party in the Kingdom of Thailand. If any portion of Service is, or in AI GEN’s opinion is likely to become, the subject of an Intellectual Property Rights infringement claim, then AI GEN, at its sole option and expense, will either: (A) obtain for You the right to continue using Service under this Agreement, or (B) replace Service with products that are substantially equivalent in function, or modify Service so that it becomes non-infringing and substantially equivalent in function; or (C) refund You the portion of Service Fees paid to AI GEN for the portion of Subscription Term during which You may no longer use Service. THE FOREGOING SETS FORTH AI GEN’S EXCLUSIVE OBLIGATION AND LIABILITY FOR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, INCLUDING THE INDEMNIFICATION OBLIGATIONS STATED IN THIS SECTION.
12. Miscellaneous Provisions
12.1. Assignment. AI GEN may assign and transfer its rights and obligations hereunder (or any part thereof) to a third party at any time without notice to You or Your consent. You may not assign or transfer any of the duties, rights or responsibilities, in whole or in part, set forth herein without the express written consent of AI GEN, and any purported attempt to do so shall be deemed null and void. To submit a request for AI GEN’s consent to assignment, please email: [email protected]
12.2. Dispute Resolution: The following procedure shall be observed to resolve any dispute arising between You and AI GEN under this Agreement or otherwise. If You have reason to believe that Your rights and interests have been violated in connection with Your use of Service, You may send a complaint to AI GEN at [email protected]. AI GEN shall seek to respond to the complaint within 20 (twenty) business days of receipt of the complaint. The response shall be sent to Your email address as indicated in the complaint. If the parties fail to resolve the dispute in this manner, the dispute shall be resolved in accordance with this Agreement. AI GEN is not obligated to respond to anonymous complaints or complaints from users who cannot be identified with the data they provided to register.
12.3. Waiver: The failure of either party to enforce compliance with any provision of this Agreement shall not constitute a waiver, present or future, of such provision unless accompanied by a clear written statement that such provision is waived. A waiver of any default hereunder or any of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but shall apply solely to the instance to which such waiver is directed. Except as expressly provided herein to the contrary, the exercise of any right or remedy provided in this Agreement shall be without prejudice to the right to exercise any other right or remedy provided by law or equity.
12.4. Severability: If any part of this Agreement is found to be or should become illegal, unenforceable, or invalid, the remaining portions of the Agreement will remain in full force and effect. If any material limitation or restriction on the grant of any rights to You under this Agreement is found to be illegal, unenforceable, or invalid, the right granted will immediately terminate.
12.5. Interpretation: The headings appearing at the beginning of any sections contained in the Agreement have been inserted for identification and reference purposes only and must not be used to construe or interpret the Agreement. Whenever the singular number is used in the Agreement and when required by the context, the same will include the plural and vice versa, and the masculine gender will include the feminine and neuter genders and vice versa. The words “include,” “includes” and “including” will be deemed to be followed by “without limitation.” Each party to the Agreement acknowledges that it has had the opportunity to review the Agreement with legal counsel of its choice, and there will be no presumption that ambiguities will be construed or interpreted against the drafter. All the terms and periods herein are calculated as calendar periods, unless otherwise expressly specified.
12.6. No partnership or agency: Nothing in the Agreement or any circumstances associated with it or its performance give rise to any relationship of employment, agency or partnership between You and AI GEN.
12.7. Entire Agreement: The Agreement is the final and complete expression of the agreement between these parties regarding Your usage of Service. This Agreement supersedes all previous oral and written understandings and communications regarding these matters, including any marketing materials or documentation provided by AI GEN prior to the execution of this Agreement, unless specifically referred to and incorporated in this Agreement. No employee, agent, or other representative of AI GEN has any authority to bind AI GEN with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter this Agreement. All of this Agreement applies both to the Service as a whole and to any of the Service’s separate parts. Any translation is provided as a courtesy to You, and in the event of a dispute between the Thai or English version, the Thai version of this Agreement shall govern, to the extent not prohibited by local law in Your jurisdiction.
12.8. Contact Us: Should You have any questions concerning this Agreement, or if You desire to contact AI GEN for any reason, please contact Your AI GEN sales representative or AI GEN Partner.
12.9. Notices: Any notices or communications required or permitted to be given by this Agreement must be (a) given in writing and (b) personally delivered or mailed, by prepaid, certified mail or overnight courier, or transmitted by electronic mail transmission, to the party to whom such notice or communication is directed, to the mailing address or regularly-monitored electronic mail address of such party (in Your case, this shall be the electronic mailing address provided on registration or any subsequently update thereto). Notice shall be deemed to have been given, if by post, on the date that the notice is delivered to this AI GEN address: 252/280 Muang Thai – Phatra Complex Building, Residence tower, 11th floor, The Garage, Ratchadaphisek Road, Huaykwang, Bangkok 10310 Thailand, and if by email, when the recipient acknowledges having received that email by return email sent to the email address of the sender or by another method, with an automatic “read receipt” constituting acknowledgement of an email for the purposes of this section. In the case of change of address, the party whose address has changed shall provide written notification to the other party in respect of such change and communicate the new address to the other party. Additionally, You consent to receive notices by email and agree that any such notices that AI GEN sends You electronically will satisfy any legal communication requirements and deemed as conclusive evidence in the event of a dispute between you and AI GEN.
You agree to receive emails and messages sent by AI GEN and its Affiliates, including but not limited to messages about your rights and interests. You may contact AI GEN’s Customer Service to inform AI GEN of your objection to the sending of further messages to you only for the matters concerning marketing and promotional emails.
12.10. Calculation of Terms: All the terms and periods herein are calculated as calendar periods, unless otherwise expressly specified.
12.11. Index: AI GEN may list and publish in different materials and on the Internet Your name and in an index of clients/products that use technology developed by AI GEN.
12.12. Amendment to this Agreement: AI GEN may unilaterally change this Agreement effective as of any time, including immediately, where such changes: (a) are required to comply with applicable law; or (b) do not: (i) result in a violation of Your rights hereunder; or (ii) otherwise have a material adverse impact on Your rights under this Agreement, as reasonably determined by AI GEN. Otherwise, AI GEN may unilaterally change this Agreement by notifying You with at least 30 (thirty) days’ prior notice before the changes will take effect by either: (a) e-mail; or (b) alerting You via Service interface. If You object to any such change, You must terminate Account(s) and stop using Service. AI GEN is not required to notify You about editorial changes.
12.13. Force Majeure: If the performance of the provisions of this Agreement or any obligation herein is prevented, restricted or interfered with by reason of circumstances beyond the reasonable control of the party obliged to perform it, the party so affected, upon giving prompt notice to the other party and use its best efforts to mitigate and remedy the negative effects thereof, shall not be liable for any delay or failure to perform the provisions of this Agreement or any obligations herein to the extent of such prevention, restriction or interference, but the party so affected shall use its best efforts to avoid or remove such causes of non-performance and shall resume the performance of the provisions and obligations as soon as possible after such causes are removed or diminished. For the purposes of this Agreement, a “Force Majeure” means (1) acts of God, lightning strikes, earthquakes, floods, droughts, storms, blizzards, snowstorms, mudslides, water erosion, explosions, fires, epidemics and other natural disasters; (2) act of government, act of war, act of public enemy, terrorist activities, riots, commotions, and strikes, excluding labor disputes.
12.14. Law and Construction: This Agreement shall be governed by and construed in accordance with the laws of Thailand, without regard to or application of its conflicts of law principles. Any action or proceeding arising out of or relating to this Agreement shall be brought in a court of Thailand and You consent to the exclusive personal jurisdiction of such courts for such purpose.
Data Processor Addendum
Data Processor Addendum
“Affiliate” means an entity that directly or indirectly Controls, is Controlled by or is under common Control with an entity.
“Agreement” means AI GEN’s Terms of Service/Terms and Conditions, which govern the provision of the Services to Customer, as such terms may be updated by AI GEN from time to time.
“Control” means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests then outstanding of the entity in question. The term “Controlled” shall be construed accordingly.
“Customer Data” means any Personal Data that AI GEN processes on behalf of Customer as a Data Processor in the course of providing Services, as more particularly described in this DPA.
“Data Subject” means the identified or identifiable person to whom Personal Data relates.
“DPA” means this Data Processor Addendum including any updated version (if any).
“Data Protection Laws” means all data protection and privacy laws applicable to the processing of Personal Data under the Agreement.
“Data Controller” means an entity that determines the purposes and means of the processing of Personal Data.
“Data Processor” means an entity that processes Personal Data on behalf of a Data Controller.
“Group” means any and all Affiliates that are part of an entity’s corporate group.
“Personal Data” means any information relating to (i) an identified or identifiable natural person and, (ii) an identified or identifiable legal entity (where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws and Regulations), where for each (i) or (ii), such data is Customer Data.
“Processing” has the meaning given to it in the GDPR and “process”, “processes” and “processed” shall be interpreted accordingly.
“Security Incident” means any unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Customer Data
“Services” means any product or service provided by AI GEN to Customer pursuant to the Agreement.
“Sub-processor” means any Data Processor engaged by AI GEN or its Affiliates to assist in fulfilling its obligations with respect to providing the Services pursuant to the Agreement or this DPA. Sub-processors may include third parties or members of the AI GEN Group.
“Supervisory Authority” means an independent public authority which is established by an EU Member State pursuant to the GDPR.
2. Relationship with the Agreement
2.1 The parties agree that DPA shall replace any existing DPA the parties may have previously entered and/or commenced into in connection with the Services.
2.2 Except for the changes made by this DPA, the Agreement remains unchanged and in full force and effect. If there is any conflict between this DPA and the Agreement, this DPA shall prevail to the extent of that conflict.
2.3 Any claims brought under or in connection with this DPA shall be subject to the terms and conditions, including but not limited to, the exclusions and limitations set forth in the Agreement.
2.4 Any claims against AI GEN or its Affiliates under this DPA shall be brought solely against the entity that is a party to the Agreement. In no event shall any party limit its liability with respect to any individual’s data protection rights under this DPA or otherwise. Customer further agrees that any regulatory penalties incurred by AI GEN in relation to the Customer Data that arise as a result of, or in connection with, Customer’s failure to comply with its obligations under this DPA or any applicable Data Protection Laws shall count toward and reduce AI GEN’s liability under the Agreement as if it were liability to the Customer under the Agreement.
2.5 No one other than a party to this DPA, its successors and permitted assignees shall have any right to enforce any of its terms.
2.6 This DPA shall be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement, unless required otherwise by applicable Data Protection Laws.
3. Scope and Applicability of this DPA
3.1 This DPA applies where and only to the extent that AI GEN processes Customer Data that originates from Thailand and/or that is otherwise subject to Data Protection Law on behalf of Customer as Data Processor in the course of providing Services pursuant to the Agreement
4. Roles and Scope of Processing
4.1 Role of the Parties: As between AI GEN and Customer, Customer is the Data Controller of Customer Data, and AI GEN shall process Customer Data only as a Data Processor acting on behalf of Customer.
4.2 Customer Processing of Customer Data: Customer agrees that (i) it shall comply with its obligations as a Data Controller under Data Protection Laws in respect of its processing of Customer Data and any processing instructions it issues to AI GEN; and (ii) it has provided notice and obtained (or shall obtain) all consents and rights necessary under Data Protection Laws for AI GEN to process Customer Data and provide the Services pursuant to the Agreement and this DPA.
4.3 AI GEN Processing of Customer Data: AI GEN shall process Customer Data mainly for the purposes described in this DPA and Agreement. The parties agree that this DPA and the Agreement set out the Customer’s complete and final instructions to AI GEN in relation to the processing of Customer Data and processing outside the scope of these instructions (if any) shall require prior written agreement between Customer and AI GEN.
4.4 AI GEN will immediately inform the Customer if, in AI GEN’s opinion, any given instruction infringes on or violates the Data Protection Laws.
4.5 Details of Data Processing:
a. Subject matter: The subject matter of the data processing under this DPA is the Customer Data.
b. Duration: As between AI GEN and Customer, the duration of the data processing under this DPA is until the termination of the Agreement in accordance with its terms
c. Purpose: The purpose of the data processing under this DPA is the provision of the Services to the Customer and the performance of AI GEN’s obligations under the Agreement (including this DPA) or as otherwise agreed by the parties.
d. Nature of the processing: AI GEN provides a digitization API and other related services, as described in the Agreement.
e. Categories of data subjects: Any individual accessing and/or using the Services through the Customer’s account (“Users”); third parties with whom Customer or Customer’s Users have a commercial or business relationship (“Third Parties”).
5.1 Authorized Sub-processors: Customer agrees that AI GEN may engage Sub-processors to process Customer Data on Customer’s behalf in connection with the provision of the Services.
5.2 Appointment of Sub-processors. Customer acknowledges and agrees that (i) AI GEN’s Affiliates may be retained as Sub-processors; and (ii) AI GEN and AI GEN’s Affiliates respectively may engage third party Sub-processors in connection with the provision of the Services. AI GEN or a AI GEN Affiliate has entered into a written agreement with each Sub-processor containing data protection obligations not less protective than those in this Agreement and applicable law with respect to the protection of Customer Data to the extent applicable to the nature of the Services provided by such Sub-processor.
6.1 Security Measures: AI GEN shall implement and maintain appropriate technical and organizational security measures (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Customer Data), to protect Customer Data from Security Incidents and to preserve the security and confidentiality of the Customer Data, in accordance with AI GEN’s security standards
6.2 Customer Responsibilities: Customer agrees that except as provided by this DPA, Customer is responsible for its secure use of the Services, including securing its account authentication credentials, protecting the security of Customer Data when in transit to and from the Services and taking any appropriate steps to securely encrypt or backup any Customer Data uploaded to the Services.
7. Security Reports and Audits
7.1 AI GEN shall provide written responses (on a confidential basis) to reasonable requests for information made by Customer, including responses to information security and audit questionnaires that are necessary to confirm AI GEN’s compliance with this DPA, provided that Customer shall not exercise this right more than once per year. Depending on the volume of request, a certain lead time is to be expected.
7.2 Upon Customer’s request, and subject to the confidentiality obligations set forth in the data processing addendum, AI GEN shall make available to Customer that is not a competitor of AI GEN (or Customer’s independent, third party auditor that is not a competitor of AI GEN) information regarding AI GEN’s compliance with the obligations set forth in the DPA and AI GEN shall make available to Client information reasonably requested by Client to demonstrate AI GEN’s compliance with its obligations in this Paragraph and submit to audits and inspections by Client (or Client directed third parties) in accordance with a mutually agreed process designed to avoid disruption of the Services and protect the confidential information of AI GEN and its other clients. As required by applicable law, AI GEN shall inform Client if, in AI GEN’s opinion, any Client audit instruction infringes upon any applicable Data Protection Law. Client shall be solely responsible for determining whether the Services and AI GEN’s security measures as set forth in Paragraph 3 of this Exhibit and the applicable SOW will meet Client’s needs, including with respect to any Data Protection Laws. Customer shall reimburse AI GEN for any time expended by AI GEN or its third party Sub-processors for any such onsite audit at AI GEN’s then current professional services rates, which shall be made available to Customer upon request. Before the commencement of any such onsite audit, Customer and AI GEN shall mutually agree upon the scope, timing, and duration of the audit in addition to the reimbursement rate for which Customer shall be responsible. All costs will be documented, and reimbursement rates shall be reasonable, taking into account the resources expended by AI GEN, or its third party Sub-processors. Customer shall promptly notify AI GEN with information regarding any noncompliance discovered during the course of an audit. This procedure may be instigated a maximum of once per year and with a minimum of ninety (90) days prior notice to AI GEN.
8. International Transfers
8.1 Data center locations: AI GEN may transfer and process Customer Data anywhere in the world where AI GEN, its Affiliates or its Sub-processors maintain data processing operations. AI GEN shall at all times provide an adequate level of protection for the Customer Data processed, in accordance with the requirements of Data Protection Laws.
9. Additional Security
9.1 Confidentiality of processing: AI GEN shall ensure that any person who is authorized by AI GEN to process Customer Data (including its staff, agents and subcontractors) shall be under an appropriate obligation of confidentiality (whether a contractual or statutory duty).
9.2 Security Incident Response: Upon becoming aware of a Security Incident, AI GEN shall notify Customer directly without undue delay and shall provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by Customer.
10. Changes to Sub-processors
10.1 Appointment of Sub-processors.
Customer expressly acknowledges, agrees and authorizes AI GEN to engage third party sub-processors, in connection with the provision of Services, provided that each sub-processors shall be bound by substantively similar data protection obligations as set out in this DPA. Any such sub-processor will be permitted to obtain Personal Data only to deliver the services Customer has retained AI GEN to provide, and they are prohibited from using Personal Data for any other purpose.
10.2 List of Current Sub-processors and Notification of New Sub-processors
Upon Customer prior written request, AI GEN shall make available to Customer the current list of Sub-processors for the Services.
Upon Customer prior written request, AI GEN shall provide notification of a new Sub-processor(s) before authorizing any new Sub-processor(s) to process personal data in connection with the provision of the applicable Services.
Customer requests must be sent to [email protected].
10.3 Objection Right for New Sub-processors.
Customers may object to AI GEN’s use of a new Sub-processor by notifying AI GEN promptly in writing within five (5) business days after receipt of AI GEN’s notice in accordance with the mechanism set out in Section 10.2. In the event that Customer objects to a new Sub-processor, as permitted in the preceding sentence, AI GEN will use reasonable efforts to make available to Customer a change in the Services or recommend a commercially reasonable change to Customer’s configuration or use of the Services to avoid processing of personal data by the objected to new Sub-processor without unreasonably burdening the Customer. If AI GEN is unable to make available such change within a reasonable period of time, which shall not exceed ninety (90) days, Customer may terminate the applicable Agreements with respect only to those Services which cannot be provided by AI GEN without the use of the objected to new Sub-processor by providing written notice to AI GEN.
11. Return or Deletion of Data
11.1 Upon termination or expiration of the Agreement, AI GEN shall (at Customer’s election) delete or return to Customer all Customer Data (including copies) in its possession or control, save that this requirement shall not apply to the extent AI GEN is required by applicable law to retain some or all of the Customer Data, or to store Customer Data it has archived on backup systems, which AI GEN shall securely isolate and protect from any further processing, except to the extent required by applicable law.
12. Rights of data subjects
12.1 Data Subject Requests: AI GEN shall, to the extent legally permitted, promptly notify Customer if AI GEN receives a request from a Data Subject to exercise the Data Subject’s right of access, right to rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, object to the Processing, or its right not to be subject to an automated individual decision making (“Data Subject Request”). Taking into account the nature of the Processing, AI GEN shall assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to a Data Subject Request under Data Protection Laws and Regulations. In addition, to the extent Customer, in its use of the Services, does not have the ability to address a Data Subject Request, AI GEN shall upon Customer’s request provide commercially reasonable efforts to assist Customer in responding to such Data Subject Request, to the extent AI GEN is legally permitted to do so and the response to such Data Subject Request is required under Data Protection Laws and Regulations. To the extent legally permitted, Customer shall be responsible for any costs arising from AI GEN’s provision of such assistance.
13.1 The nature of the Services provides the Customer with the opportunity to retrieve Customer Data, which Customer may use to assist it in connection with its obligations under the GDPR, including its obligations relating to responding to requests from data subjects (as set out in Section 12.1) or applicable data protection authorities.
13.2 If a law enforcement agency sends AI GEN a demand for Customer Data (for example, through a subpoena or court order), AI GEN shall attempt to redirect the law enforcement agency to request that data directly from Customer. As part of this effort, AI GEN may provide Customer’s basic contact information to the law enforcement agency. If compelled to disclose Customer Data to a law enforcement agency, then AI GEN shall give Customer reasonable notice of the demand to allow Customer to seek a protective order or other appropriate remedy unless AI GEN is legally prohibited from doing so.
13.3 To the extent AI GEN is required under Data Protection Law, AI GEN shall (at Customer’s expense) provide reasonably requested information regarding the Services to enable the Customer to carry out data protection impact assessments or prior consultations with data protection authorities as required by law.
Support and Maintenance Terms
Support and Maintenance Terms
This AI GEN Support and Maintenance Terms (“SMT“) accompanies the AI GEN Subscription Terms of Service, available at Terms of Service or a successor URL (the “Agreement“) entered into between you (“Customer“) and AI GEN. Capitalized terms used in this Support Policy that are not defined herein have the meanings given to them in the Agreement.
AI GEN offers support services for the Service (“Support “) in accordance with the following terms:
Support is provided 9-hour (09:00 – 18:00) x 5 days a week (Mon – Fri).
Incident Submission and Customer Cooperation
Customer may report errors or abnormal behavior of the Service (“Incidents“) by contacting AI GEN via email at [email protected]. Customer will provide information and cooperation to AI GEN as reasonably required for AI GEN to provide Support. This includes, without limitation, providing the following information to AI GEN regarding the Incident:
- Aspects of the Service that are unavailable or not functioning correctly
- Incident’s impact on users
- Start time of Incident
- List of steps to reproduce Incident
- Relevant log files or data
- Wording of any error message
Except for the Force Majeure event, AI GEN’s Support personnel will assign a priority level (“Priority Level“) to each Incident and seek to provide responses in accordance with the table below.
|Target Response Times
|Operation of the Service is critically affected (not responding to requests or serving content) for a large number of users; no workaround available.
|Service is responding and functional but performance is degraded, and/or Incident has potentially severe impact on operation of the Service for multiple users.
|Non-critical issue; no significant impact on performance of the Service but user experience may be affected.
The Target Response Times may delay if there is any Force Majeure event occur. AI GEN is not responsible for this delay.
AI GEN will have no obligation to provide Support to the extent an Incident arises from: (a) use of the Service by Customer in a manner not authorized in the Agreement or the applicable Documentation; (b) general Internet problems, force majeure events or other factors outside of AI GEN’s reasonable control; (c) altered or modified Software, unless altered or modified by AI GEN; (d) any version of the Software for which Support and Maintenance services have been discontinued by AI GEN; (e) Customer’s equipment, software, network connections or other infrastructure; or (f) third party systems, acts or omissions.
Service Level Agreement
Service Level Agreement
This AI GEN Service Level Agreement (“SLA”) accompanies the AI GEN Subscription Terms of Service, available at Terms of Service or a successor URL (the “Agreement”) entered into between you (“Customer”) and AI GEN. Capitalized terms used in this SLA that are not defined herein have the meanings given to them in the Agreement.
AI GEN will use commercially reasonable efforts to make each Service available with an uptime of 99% of each calendar month (“Target Availability”).
The calculation of uptime will not include unavailability to the extent due to: (a) use of the Service by Customer in a manner not authorized in this Agreement or the applicable Documentation; (b) general Internet problems, force majeure events or other factors outside of AI GEN’s reasonable control; (c) Customer’s equipment, software, network connections or other infrastructure; (d) third party systems, acts or omissions; or (e) Scheduled Maintenance or reasonable emergency maintenance.
“Scheduled Maintenance” means AI GEN’s scheduled routine maintenance of the Services for which AI GEN notifies Customer at least twenty-four (24) hours in advance. Scheduled Maintenance will not exceed eight (8) hours per month. AI GEN typically performs Scheduled Maintenance once per month.
Remedy for Failure to Meet Target Availability
If there is a verified failure of a Service to meet Target Availability in two (2) consecutive months, then Customer may terminate the applicable Subscription Term by sending written notice of termination within thirty (30) days after the end of the second such month, in which case AI GEN will refund to Customer any fees Customer has pre-paid for use of such Service for the terminated portion of the applicable Subscription Term. This termination and refund right is Customer’s sole and exclusive remedy, and AI GEN’s sole and exclusive liability, for AI GEN’s failure to meet the Target Availability.