TERMS AND CONDITIONS DEFINITIONS

  • Project – An engagement wherein the Client hires the Provider to deliver a scope of work.
  • Deliverables – The outputs and artefacts of the project. Including, but not limited to: documents, designs, websites, landing pages, online advertising campaigns, banners, videos, applications, consultations, etc.
  • Scope of work – All deliverables, features and services included in the project are explicitly written and detailed in the SCOPE OF WORK . Client requests not written into the Scope of work will be considered “above scope”, and cannot be assumed to be included within the project.
    Unless explicitly stated otherwise the Provider’s responsibility does not include copywriting, content creation, translations, hosting, domains, signing up for services, opening of accounts, provision of credit card processing services, cost of imagery, development, warranty, operational support, or anything else not explicitly mentioned.
  • Bug – A behavior of the deliverable that doesn’t match the written, approved and mutually agreed project brief or specification document, excluding cases where this mis-match is brought about by a third party (e.g. release of an updated version of iOS, Android, WordPress, plugins, etc.), or actions taken by the Client without the Provider’s explicit approval.
    3rd party services – Any open source and third party platforms, services and products developed, maintained or provided by vendors other than the Provider.
  • 3rd party services may be integrated into the deliverables, and will be integrated “as they are”, unless explicitly mentioned otherwise in the scope of work.
  • Background IP – During the course of the scope of work, the Provider might use intellectual property the Provider owns or has licensed from a third party, but that does not qualify as “Deliverables.” This is called “Background IP.” Possible examples of background IP are pre-existing code, type fonts, properly-licensed stock photos, and web application tools. The Provider is not giving the Client this Background IP. But, as part of a contract, the Provider is giving the Client the right to use and license (with the right to sublicense) the background IP to develop, market, sell, and support the Client’s products and services. The Client may use this background IP worldwide and free of charge, but it cannot transfer its rights to the background IP. The Client cannot sell or license the background IP separately from its products or services. The Provider cannot take back this grant, and this grant does not end when a contract is over.

GENERAL

  • Independent contractor – The Client is hiring the Provider as an independent contractor. The following statements accurately reflect their relationship: (i)The Provider will use its own equipment, tools, and material to do the work. (ii)The Client will not control how the job is performed on a day-to-day basis. Rather, the Provider is responsible for determining when, where, and how it will carry out the work. (iii) The Client will not provide the Provider with any training. (iv) The Client and Provider do not have a partnership or employer-employee relationship. (v) The Provider cannot enter into contracts, make promises, or act on behalf of the Client.
  • Work for hire – The Provider acknowledges the project is conducted as “work for hire” and that upon completion of all due payments all resulting deliverables shall become the client’s sole property.
  • Rights, titles and interests – The Provider will assign to the Client upon completion of due payments all rights, titles and interests in the deliverables, and any and all related patents, patent applications, copyrights, copyright applications, trademarks and trade names worldwide.
  • Reuse – The Provider will retain a right to reuse deliverables including libraries and source code for development, sale and/or licensing of other software and/or applications incorporating the libraries and/or source code of the deliverable.
  • Portfolio – The Provider will retain a right to showcase deliverables in the provider’s marketing efforts in the provider’s public portfolio, and in other publicly accessible marketing materials.
    Credit – The Provider will retain a right to include a credit mention within the deliverable. E.g. As a footer link on a website, landing page, or newsletter, a link in an “About page” and from the App Store / Playstore description for an app, etc. Client may opt to remove credit for a 9% surcharge on the total cost of the project.
  • Expansion of scope – The Client may request to expand the project scope in which case the Provider shall advise the Client of the additional costs and time needed, and the Client may, at their discretion, elect to approve the updated costing and schedule, or withdraw their request.

WARRANTIES

  • Provider will comply with laws – The Provider warrants that the manner in that it will complete the scope of work, and any background IP it uses comply with applicable Thai and foreign laws and regulations.
  • No infringement – Provider – The Provider warrants that deliverables will not infringe upon any copyright, patent, trade secret or other intellectual property interest of any third party.
    No infringement – Client – The Client may provide the Provider with materials to incorporate into the Deliverables, the Client promises these materials do not infringe on any copyright, patent, trade secret or other intellectual property interest of any third party.
  • Warranty period – Deliverables are provided with a 6 month warranty for Bugs only. These will be fixed at no extra charge to the client. This warranty period is extended by 6 months for every USD 36,000 of project value.
  • Deliverables not maintained by the Provider- In such cases where the provider has delivered the client with a deliverable, and the client has chosen not to engage the provider for ongoing maintenance of the deliverable, the provider will not be responsible for issues that arise with the client’s deliverables which are not classified as Bugs, or which are identified outside the warranty period. This includes, but is not limited to loss of data, deletion of files, hacks, service outages, etc.
  • No warranty for hosting issues – The provider does not provide hosting and will not be held liable for performance and availability issues related to the client’s hosting.
  • Warranty voided – Modifications by the Client, or any third party, to servers, code, files, configurations, or editable deliverables of any type which the Provider has handed over, or is currently working on, will void all warranties immediately. Excluded from the aforementioned are editable deliverables for which the Client has received training from the provider.

SUPPORT AND SERVICE LEVELS

  • Training – The Provider will deliver to the Client such training and consultations needed to operate their deliverables from time to time for 3 months after acceptance. The scope of training provided to the client at no additional costs shall be calculated as 4 hours for every USD 12,000, or part of, of the project’s value. Training shall be conducted at such locations and times as are mutually agreed. The Client may elect to purchase further training from the Provider.
  • Service hours – Unless explicitly stated otherwise in the scope of work, the Provider’s working hours are from Monday to Friday between the hours of 9am and 6pm, excluding all Thai public holidays.
  • Provider project manager – The Provider will assign a single project manager to serve as the client’s point of contact for all deliverables, communications and other matters relating to the agreed scope of work. The Provider’s project manager will work to ensure the agreed scope of work is delivered in full, and in a timely and orderly fashion. The Provider’s project manager will contact with the Client on a weekly basis to update the Client regarding progress on the scope of work, and receive such feedback and inputs as may be needed from the client
    The Provider may change their assigned project manager as required but must notify the Client of the change via email a week in advance.
  • Updates – Every week , for the duration of their project, the Client is entitled to one hour long conference call with their assigned project manager. To be conducted over Skype, Whatsapp, Line, Wechat, Google Hangouts, or similar services agreed between the Provider and the Client.
  • Client project manager – The Client will assign a single project manager to serve as the Provider’s point of contact for all deliverables, communications and other matters relating to the agreed scope of work. Communications by client staff who are not the designated project manager may be ignored. Client may change their assigned project manager as required but must notify the Provider of the change via email a week in advance.
  • Client will review work – The Client promises to review the Deliverables and be reasonably available to the Provider if the Provider has questions regarding the scope of work, and to provide timely feedback and decisions during the duration.
  • Support requests – Client may request support by emailing the Provider. A support request email will be considered valid from the moment it is received by the provider and will be responded to by the Provider within 24 business hours, or less, of the Provider receiving the Client’s request.
  • Additional service levels & meetings – The Client may request meetings and service levels support above the scope listed above, in which case the Provider shall advise the Client of the additional costs incurred, and the Client may, at their discretion, elect to approve the updated costing, or withdraw their request.
  • Additional maintenance & support services – Client may opt to extend their warranty and purchase maintenance and support services for their deliverables at such rates as are mutually agreed between the parties.

PRICING AND PAYMENTS

  • Schedule – The project’s estimated schedule is included in the scope of work.
  • Payments – A payment schedule based on project milestones and deliverables is included in the scope of work.
  • Change requests – Client may request changes to the agreed scope of work. In the event the client makes such requests, the provider will make efforts to implement requested changes at no additional expense, and without delaying delivery.
    In the event the proposed change will, in the Provider’s reasonable opinion, require a delay in delivery or result in additional expenses, the Provider shall advise the client of the additional costs and time needed, and the Client may, at their discretion, elect to approve the updated costing and schedule, or withdraw their request.
  • Quotation validity – Quotation prices are valid for 30 days from the day the quotation was sent by the Provider and may be amended at any time by the Provider. Client may confirm pricing by providing a written confirmation of the proposal and paying the agreed deposit. Payment of a deposit for any scope of work serves as confirmation the Client has agreed to the terms and conditions listed here.
  • Taxes – All prices quoted are pre-tax and may be subject to VAT and Withholding Tax as required.
  • No refunds – Payments made are non-refundable under any condition.
  • Invoices – Unless specified and agreed otherwise invoices are issued 14 days before their due date. A payment not made within 14 days, or another mutually agreed timespan, of the date it was sent to the Client, will be considered late.
  • Payment failure – Failure on the Client’s part to make a payment may result in the Provider stopping work on the Client’s scope of work.
  • Handover and deployment – Handover and deployment of any and all deliverables within the Client’s scope of work is subject to completion of all payments.
  • Late fees – Payments overdue for over 30 days will be subjected to 1.25% interest per month – The maximum monthly interest rates allowed by Thai law.
  • Breach of contract – Payments over 45 days late are a breach of contract and may lead to the Client’s project terminated without compensation and no deliverables will be provided or deployed.

OWNERSHIP AND LICENSES

  • Client’s ownership of Deliverables – The Provider will grant the Client all of its rights, titles, and interests in and to the Deliverables once the Client has completed the agreed payments for the Deliverables. Once all payments are completed the Client will be the sole owner of the Deliverables and will be solely responsible for whatever use they make of them.
  • Provider’s Use Of Deliverables – Once the Provider gives the Deliverables to the Client, the Provider will have no rights to the Deliverables, except those the Client explicitly gives the Provider above in sections [1.3] & [1.4].
  • Provider’s help in securing ownership – The Client may need the Provider’s help to prove the Client owns the Deliverables they have paid for in full. For example, the Provider may have to sign a patent application.
  • The Provider agrees to support the Client with these efforts as can be reasonably expected, and the Client agrees to pay the Provider’s required fees and the expenses involved.
  • If the Client can’t find the Provider, after making a reasonable effort to find them, the Provider agrees the Client can act on the Provider’s behalf to accomplish the proof of ownership and the Provider hereby irrevocably designates and appoints the Client as the Provider’s agent and attorney-in-fact, which appointment is coupled with an interest, to act for the Provider and on the Provider’s behalf to execute, verify, and file the required documents and to take any other legal action to accomplish the purposes of paragraph (Client Owns All Deliverables).
  • Provider’s right to use Client’s IP – The Provider may need to use the Client’s intellectual property to do its job. For example, if the Client is hiring the Provider to build a mobile application or website, the Provider may have to use the Client’s logo. The Client agrees to let the Provider use the Client’s intellectual property and other intellectual property that the Client controls to the extent reasonably necessary to do the Provider’s job. Beyond that, the Client is not giving the Provider any intellectual property rights, unless specifically stated otherwise in a contract or in a written scope of work.

NON-SOLICITATION

  • While the Client and the Provider have a contractual agreement the Provider won’t: (a) encourage Client employees or service providers to stop working for the Client; (b) encourage Client customers or clients to stop doing business with the Client; or (c) hire anyone who worked for the Client over the 12-month period before the contractual agreement ended. The one exception is if the Provider puts out a general ad and someone who happened to work for the Client responds. In that case, the Provider may hire that candidate.

TERM AND TERMINATION

  • Termination – Should the parties enter a contractual agreement either party may end it for any reason by sending an email or letter to the other party, informing the recipient the sender is ending the contract and that the contract will end in 7 days from receipt of the message. The contract officially ends once that time has passed.
  • Cessation of work on termination – The Provider must immediately stop working on the scope of work once they receive a termination notice, unless the notice says otherwise.
  • Payments on termination – The Client will pay the Provider for the work done up until the completion of the contract, and will reimburse the Provider for any agreed-upon, non-cancellable expenses.
  • Survivability of sections – The following sections survive termination of contracts: [Ownership and Licenses]; [Non-Solicitation]; [Confidential Information]; [Limitation of Liability]; [Indemnity]; and [Miscellaneous].

CONFIDENTIAL INFORMATION

  • Overview – When the Provider and Client enter a contractual agreement it imposes special restrictions on how the Client and the Provider must handle confidential information. These obligations are explained in this section.
  • The client’s confidential information – While working for the Client, the Provider may come across, or be given, Client information that is confidential. This is information like customer lists, business strategies, research & development notes, statistics about a website, and other information that is private.
  • Treatment of information – The Provider promises to treat this information as if it is the Provider’s own confidential information. The Provider may use this information to do its job under contract, but not for anything else. The one exception to this is if the Client gives the Provider written permission to use the information for another purpose, the Provider may use the information for that purpose, as well. The Provider promises it will not share confidential information with a third party, unless the Client gives the Provider written permission first.
  • Survivability of the responsibility for care of confidential information – The Provider must continue to follow these obligations, even after a contract ends. The Provider’s responsibilities only stop if the Provider can show any of the following: (i) That the information was already public when the Provider came across it. (ii) The information became public after the Provider came across it, but not because of anything the Provider did or didn’t do. (iii) The Provider already knew the information when the Provider came across it and the Provider didn’t have any obligation to keep it secret. (iv) A third party provided the Provider with the information without requiring that the Provider keep it a secret. (v) The Provider created the information on its own, without using anything belonging to the Client. (vi) 24 months or more have passed since the end of a contract.
  • Third-Party Confidential Information. It’s possible the Client and Provider each have access to confidential information that belongs to third parties. The Client and the Provider each promise that it will not share with the other party confidential information that belongs to third parties, unless it is allowed to do so. If the Client or the Provider is allowed to share confidential information with the other party and does so, the sharing party promises to tell the other party in writing of any special restrictions regarding that information.

LIMITATION OF LIABILITY

  • Should the Client and Provider enter a contractual agreement neither party will be liable for breach-of-contract damages that the breaching party could not reasonably have foreseen when it entered the contract.

INDEMNITY

  • Overview – This section transfers certain risks between the parties if a third party sues or goes after the Client or the Provider or both. For example, if the Client gets sued for something that the Provider did, then the Provider may promise to come to the Client’s defense or to reimburse the Client for any losses.
  • Client indemnity – In contracts, the Provider agrees to indemnify the Client (and its affiliates and its and their directors, officers, employees, and agents) from and against all liabilities, losses, damages, and expenses (including reasonable attorneys’ fees) related to a third-party claim or proceeding arising out of: (i) The work the Provider has done under contract. (ii) A breach by the Provider of its obligations under contract.
  • Provider indemnity – In contracts, the Client agrees to indemnify the Provider (and its affiliates and its and their directors, officers, employees, and agents) from and against liabilities, losses, damages, and expenses (including reasonable attorneys’ fees) related to a third-party claim or proceeding arising out of a breach by the Client of its obligations under contract.

MISCELLANEOUS

    • Assignment – Contracts between the Provider and the Client apply only to the Client and the Provider. The Provider cannot assign its rights or delegate its obligations under contracts to a third-party without first receiving the Client’s written permission. In contrast, the Client may assign its rights and delegate its obligations under contracts without the Provider’s permission.
    • Arbitration – Any dispute or controversy arising under, out of, or in connection with contracts between Client and Provider shall be resolved by binding arbitration before a single arbitrator. Any such arbitration shall be conducted in Bangkok, and all fees resulting shall be shared between Provider and Client. Judgment upon any award may be entered in any Thai court of competent jurisdiction. The arbitrator shall be designated by mutual agreement of the parties or, if the parties cannot agree on an arbitrator within ten (10) days after a request for arbitration hereunder, each party shall designate one (1) arbitrator and the arbitrators so designated shall designate a third arbitrator who shall conduct the arbitration. The decision of the arbitrator shall be binding and conclusive upon the parties.
    • Modifications – Changes to contracts must be agreed to in writing by the Client and the Provider.
    • Notices – Over the course of contracts, one party may need to send a notice to the other party. For the notice to be valid, it must be in writing and delivered in one of the following ways: personal delivery, email, or certified or registered mail (postage prepaid, return receipt requested). The notice must be delivered to the party’s listed address, or to another address that the party has provided in writing as an appropriate address to receive notice.
    • Notice reception – The timing of when a notice is received can be very important. To avoid confusion, a valid notice is considered received as follows: (i)If delivered personally, it is considered received immediately. (ii) If delivered by email, it is considered received upon acknowledgement of receipt. (iii) If delivered by registered or certified mail (postage prepaid, return receipt requested), it is considered received upon receipt as indicated by the date on the signed receipt. If a party refuses to accept notice or if notice cannot be delivered because of a change in address for which no notice was given, then it is considered received when the notice is rejected or unable to be delivered. If the notice is received after 5:00pm on a business day at the location specified in the address for that party, or on a day that is not a business day, then the notice is considered received at 9:00am on the next business day.
    • Severability – If a portion of a contract is found to be unenforceable , the unenforceable portion will be changed to the minimum extent necessary to make it enforceable, unless that change is not permitted by law, in which case the portion will be disregarded. If any portion of a contract is changed or disregarded because it is unenforceable, the rest of a contract is still enforceable.
    • Governing law – The laws of Thailand govern the rights and obligations of the Client and the Provider under contracts, without regard to conflict of law principles of that state.