1. Your relationship with Mandala
1.1 Your use of Mandala’ products, services, content and web sites (referred to collectively as the “Service” or “Services” in this document and excluding any services provided to you or your employees by Mandala under a separate written agreement), whereas Mandala platform is owned and operated by Ocean Sky Network Company Limited. Mandala is subject to the terms of a legal agreement between you and Mandala (as defined below in Section 18.1) contained in this document and/or any other document expressly referred to herein. The Services are accessed through Mandala’ proprietary software application(s) (referred to as the “Software” below) hosted at our web platform at www.mandalasystem.com and mandala-analytics.com and consist in a single log-in, centralised web dashboard that enables you to access data, metrics and analytics from social profiles on multiple social networks as well as search engines and public sites. The Services are provided as “Software as a Service (SaaS)” subscription services and we will not be delivering copies of the Software to you as part of the Services. This document explains how the agreement is made up and sets out some of the terms of that agreement. These terms and conditions will not apply if (i) you or your organization (on whose behalf you act pursuant to Section 2.3 and 18.1) have entered into a separate written agreement with us for the Services, such as, for example, a Mandala Binding Order that references other Mandala’ terms of Service, or any other written agreement for the provision of our Services, or (ii) you or your organization have purchased the Services through our authorised reseller.
1.2 Unless otherwise agreed in writing with Mandala, your agreement with Mandala will always include, at a minimum, the terms and conditions set out in this document (the “General Terms”).
1.3 Your agreement with Mandala will also include all subscription rates and payment terms applicable to the Services chosen by you (the “Payment Terms”). The Payment Terms, including any related additional terms applicable to your subscription, are published on Mandala website or are otherwise made available to you either within, or through your use of, the Service you subscribe to.
1.4 The General Terms, together with the Payment Terms, form a legally binding agreement between you and Mandala in relation to your use of the Services. It is important that you take the time to read them carefully. Collectively, this legal agreement is referred to below as the “Terms”.
2.5 The Services are provided by Mandala for consideration. The up-to-date prices applicable to your use of the Services are published on the Services website www.mandalasystem.com and mandala-analytics.com for configurations of the Services eligible for online purchase and by using the Services at a particular moment you agree to the prices published as of that moment.
2.6 You can pay for the Services either by entering your credit card information, or by any other means as published, from time to time, on the Services website. Alternatively, you can contact us to agree on other methods of payment (such as invoicing). If you sign up for the Services online in the user interface for the Service, you agree that you will be charged periodically by Mandala pursuant to the payment conditions specified at checkout. In addition, you expressly acknowledge and agree that the initial price may change if you upgrade or change your subscription plan within the Service. You will always be informed about the price modification prior to making the upgrade or changing your subscription.
2.7 Mandala is not responsible for the payment processing provided by any third party.
2.8 The prices exclude any and all applicable taxes and similar fees (other than taxes solely based on Mandala’ income) now in force or imposed in the future on provision of the Services, including any sales, use or value added taxes, services tax or withholding tax, and you shall be responsible for payment of all such taxes.
4. Provision of the Services by Mandala
4.1 Mandala may have subsidiaries and affiliated legal entities in other countries. At times, these companies or their employees may serve as contact points with respect to the Services provided to you by Mandala. Even where Mandala’ subsidiaries or affiliates are your primary contact points, Mandala as the Services provider will remain ultimately responsible for the provision of Services hereunder.
4.2 Mandala is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Services which Mandala provides may change from time to time without prior notice to you.
4.3 As part of this continuing innovation, you acknowledge and agree that Mandala may permanently or temporarily stop providing the Services (or any features within the Services) to you or to users generally at Mandala’ sole discretion, without prior notice to you.
5. Your use of the Services
5.1 To access the Services, you or your individual end-users may be required to provide identification, contact or similar details) as part of the registration process for the Service or as part of your continued use of the Services. You agree that any registration information you give to Mandala will always be accurate, correct and up to date
5.3 You agree not to access (or attempt to access) any of the Services by any means other than through the interface that is provided by Mandala, unless you have been specifically allowed to do so in a separate written agreement with Mandala.
5.4 You agree that you will not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services).
5.5 Unless you have been specifically permitted to do so in a separate agreement with Mandala, you agree that you will not reproduce, duplicate, copy, sell, trade or resell the Services for any purpose. The Services can be used by you only for your own internal business purposes. You may not use the Services for the benefit of any third parties. You acknowledge that use of the Services in breach of this Section 5.5 will be considered a material breach of these Terms, with all consequences resulting therefrom.
5.6 You agree that you will not engage in any activity that may amount to the misuse of our Services or that seeks to circumvent the Services’ terms. For example, if Mandala provides you with any portion of a Service for free (as part of a trial, pilot or otherwise), you may not engage in data mining or other excessive use of the Service, beyond what is permitted by the free Service (and as advertised for that free Service at the time of the relevant promotion). Mandala reserves the right to limit your activity on any of its free Services for any reason and without notice.
5.7 You agree that you are solely responsible for (and that Mandala has no responsibility to you or to any third party for) any breach of your obligations under the Terms and for the consequences (including any loss or damage which Mandala may suffer) of any such breach.
5.8 You acknowledge that additional third-party fees (such as internet service provider fee, social media platform fee, fee for boosted or promoted posts, third-party add-on fee or similar) may apply in connection with your use of Mandala’ Services. Selected third party fees are payable by you directly to the relevant third party and the relevant third party receiving such additional fees is responsible for the processing of such fees. You agree that you are solely responsible for payment of such fees or for maintaining appropriate level of funds where applicable. Mandala has no responsibility to you or to any third party for payment of any such fees or for unavailability of Services due to your failure to do so.
6. Your passwords and account security
6.1 You agree and understand that you are responsible for maintaining the confidentiality of passwords associated with any account you use to access the Services.
6.2 Accordingly, you agree that you will be solely responsible for all activities that occur under your account.
6.3 If you become aware of any unauthorised use of your password or of your account, you agree to notify Mandala immediately at info at Mandala dot com.
6.4 Mandala uses Facebook Connect, “Sign in with Twitter”, and other authentication methods for authorization of users. If your Facebook account, Twitter account or any other account used for registration and/or signing in the Services is deleted or non-functional, you may no longer be able to access the Services.
7. Privacy and your personal data
7.1 We are serious about privacy of all individuals who use our Services or whose personal data we process.
7.3 Mandala has implemented and will maintain appropriate technical and organizational measures, internal controls, and information security routines in accordance with good industry practice and having regard to the state of technological development to protect your data against accidental loss, destruction, or alteration; unauthorized disclosure or access (including but not limited to taking reasonable steps to ensure the reliability of employees having access to your data and providing for limited access rights and access controls; authentication; personnel training; regular back up; data recovery and incident management procedures; restrictions on storing, printing and disposal of personal data; software protection of devices on which personal data are stored; etc.); or unlawful destruction.
7.4 Data collected from you or your end-users may be transferred to, and stored and processed in the Kingdom of Thailand, Singapore, and other countries such as the United States or any other country outside of the EEA in which Mandala or its affiliates, or subcontractors, suppliers or vendors maintain facilities, subject to Mandala implementing such appropriate legal mechanisms as required by EU law to ensure an adequate level of personal data protection by the third-party processors, such as the controller-to-processor Standard Contractual Clauses approved by the European Commission (2010/87/EU) or Privacy Shield approved by European Decision (2016/1250) for data transfers from the EU to the USA and/or other third countries.
7.5 You agree that Mandala may use aggregated and anonymised data derived from the data provided by you or collected by the program analytics such as user behaviour and activities for its own statistics, for auditing, for the purposes of product and market research and analytics (which help Mandala to optimise and improve its Services their usability, the range of Services, and to develop new technologies, products and services), and for benchmarks and other analyses. Mandala may publish such anonymised data and share them with third parties outside of Mandala; however, Mandala will not directly or indirectly transfer any data received from you to (or use such data in connection with) any advertising network, advertising exchange, data broker, or other advertising or monetization related toolset.
8. Content in the Services
8.1 You understand that all information such as, without limitation, data files, written text, computer software, music, audio files or other sounds, photographs, and videos or other images (all such information being hereinafter referred to as the “Content”) which you may have access to as part of, or through your use of, the Services are the sole responsibility of the person from which such Content originated.
8.2 You should be aware that Content presented to you as part of the Services, including but not limited to advertisements in the Services and sponsored Content within the Services (if any), may be protected by intellectual property rights owned by the sponsors or advertisers who provide such Content to Mandala (or by other persons or companies on their behalf), and that the Content may include sensitive personal data. You may not modify, rent, lease, loan, sell, distribute or create derivative works based on such Content (either in whole or in part), unless you have been specifically told that you may do so by Mandala or by the owners of that Content, in a separate agreement.
8.3 You understand that by using the Services you may be exposed to Content that you may find offensive, indecent or objectionable and that, in this respect, you use the Services at your own risk.
8.4 You agree that you are solely responsible for (and that Mandala has no responsibility to you or to any third party for) any Content that you create, transmit or display while using the Services and for the consequences of your actions (including any loss or damage which Mandala or third parties may incur and including any other legal liability, whether liability under civil, commercial, tort, penal or administrative law or any other legal theory) by doing so. You may not use the Services to intentionally transmit or make public infringing, libelous, or otherwise unlawful or tortious Content or to store, transmit or make public any Content in violation of third party’s intellectual property or similar rights. You shall indemnify and hold Mandala harmless from all claims and all liabilities, costs, proceedings, damages and expenses awarded against, or incurred or paid by Mandala as a result of or in connection with (i) your breach of any third party’s intellectual property or similar rights or (ii) your breach of warranty under Section 11.5 below.
9. Proprietary rights
9.1 You acknowledge and agree that Mandala (or Mandala’ licensors) owns all legal rights, title and interest in and to the Services, including any intellectual property rights which subsist in the Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist). You further acknowledge that the Services may contain information which is designated confidential by Mandala and that you shall not disclose such information without Mandala’ prior written consent.
9.2 Unless you have agreed otherwise in writing with Mandala, nothing in the Terms gives you a right to use any of Mandala’ trade names, trademarks, service marks, logos, domain names and any other distinctive brand features. For the avoidance of doubt, if any reports or similar outputs from the Services (hereinafter “Reports”) generated by you through the use of the Service include Mandala’ trade name, trademark, service mark, logo, domain name or other distinctive Mandala’ brand features, their use in connection with that Report is permitted and Section 9.4 below shall apply.
9.3 Other than the limited license set forth in Section 11, Mandala acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Content that you submit, post, transmit or display on, or through, the Services, including any intellectual property rights which subsist in that Content (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with Mandala, you agree that you are responsible for protecting and enforcing those rights and that Mandala has no obligation to do so on your behalf.
9.4 You agree not to remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) which may be affixed to or contained within the Services.
9.5 Unless you have been expressly authorised to do so in writing by Mandala, you agree that in connection with the Services, you will not use any trade mark, service mark, trade name, logo of any third party company or organisation in a way that is likely or intended to cause confusion about the owner or authorised user of such marks, names or logos.
10. Licence from Mandala
10.1 Mandala gives you a worldwide, royalty-free, non-assignable and non-exclusive right and licence to access and use the Services through the Software, on a subscription basis, for the term and in the scope designated by the Terms. Further, Mandala gives you a worldwide, royalty-free, perpetual and non-exclusive right and licence to access and use, reproduce, display, distribute, and create derivative works of, Reports that you generate through your use of the Services. The licence granted in this Section 10.1 is for the sole purpose of enabling you (end-users within your organization) to use and enjoy the benefit of the Services as provided by Mandala, in the manner permitted by the Terms (in particular Section 5). You may not use the Services for the benefit of any third parties. You acknowledge that this is a SaaS agreement and that (i) the Software is not sold, and (ii) we will not be delivering copies of the Software to you as part of the Services.
10.2 You may not (and you may not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Software underlying the Service or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by Mandala in writing. You may not access and/or use the Service and the underlying Software in order to build a similar or competitive product. You further may not (and you may not permit anyone else to) attempt to gain unauthorized access to the Services, its particular features or third-party content created by or for another Mandala’ customer, interfere with or disrupt the integrity or performance of the Services or third-party content contained therein or perform penetration test, denial of service simulation or automated vulnerability scan of the Services.
10.3 Unless Mandala has given you specific written permission to do so, you may not assign (or grant a sub-licence of) your rights, grant a security interest in or over your rights, or otherwise transfer any part of your rights granted hereunder.
10.4 You acknowledge that any breach of Section 10 by you or your end-users shall constitute a material breach of the Terms, with all consequences arising therefrom.
11. Content licence and permission tokens from you
11.1 You retain copyright and any other intellectual property rights you already hold in Content which you submit, post or display on or through the Services. In case you use Services features that allow you to submit, post or display the Content on or through the Services, you give Mandala a worldwide, royalty-free, and non-exclusive licence to use, reproduce, adapt, modify, and publish (on your behalf and pursuant to your instructions) such Content on social networks. For avoidance of doubt, the licence granted in this Section 11.1 is for the sole purpose of enabling Mandala to display, distribute and promote the Content to your clients and/or social networks users.
11.2 If you provide, as part of your use of Mandala’ Services or as part of the Content which you submit, post or display on or through the Services, any photograph or other materials protected by personality or privacy rights, you specifically agree that Mandala may use such photograph or other materials for the sole purpose of providing the Services.
11.3 You understand that Mandala, in performing the required technical steps to provide the Services to you, may (A) transmit or distribute your Content over various public networks and in various media; and (B) make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media. You agree that this licence shall permit Mandala to take these actions.
11.4 You acknowledge that provision of Mandala’ Services (or particular features within the Services) may be conditioned upon and subject to (A) you giving Mandala appropriate access level to your social media content by providing respective social media platform access permissions; and (B) you having appropriate user permissions or roles within the respective social media platform. As a result, when using Mandala’ Services, you may be required to grant Mandala certain permissions (through a dedicated permission token or a similar permission mechanism) to allow the Services access specific information and perform the requested actions.
11.5 You confirm and warrant to Mandala that you have all the rights, power and authority necessary to grant the above licence, access and permissions to Mandala.
11.6 If any permission granted by you results in Mandala obtaining access to a private layer of data available through the respective social media platform, Mandala will keep such information confidential at all times, except where legally compelled to disclose the relevant information. Such obligation will not, however, apply to any information that (i) was publicly known and made generally available in the public domain prior to grating the permission to Mandala; (ii) becomes publicly known and made generally available after granting the permission to Mandala other than as a result of a violation of this Section 11.6 by Mandala; (iii) is already in the possession of Mandala at the time of granting the permission; (iv) is obtained by Mandala from a third party without a breach of the third party’s obligations of confidentiality; or (v) is independently developed by Mandala without the use of your confidential information. If a separate non-disclosure agreement stipulating similar confidentiality obligations is in place between you and Mandala, the stricter of the confidentiality obligations shall apply.
12. Ending your relationship with Mandala
12.1 The Terms will continue to apply during the term of your original online subscription specified within the Services and during any renewed (extended) term as specified in Section 12.5 below, or until terminated by either you or Mandala as set out in Section 12.2 and 12. 3 below.
12.2 If you purchase the Services continuously on a monthly “pay as you go” basis online, you may stop using the Services and so terminate your legal agreement with Mandala at any time, without the need to notify Mandala.
12.3 Mandala may at any time, by sending a notice, terminate its legal agreement with you embodied in the Terms if (A) you have breached any provision of the Terms and failed to cure the breach (where such breach is capable of being cured) within a reasonable cure period provided by the other party, or have acted in a manner which clearly shows that you do not intend to, or are unable to comply with the provisions of the Terms; or (B) Mandala is required to do so by law (for example, where the provision of the Services to you is or becomes unlawful); or (C) the partner with whom Mandala offered the Services to you, or whom Mandala uses or whose cooperation Mandala needs in order to offer the Services to you (such as the social media platforms), has terminated its relationship with Mandala or ceased to offer its APIs, data, programs, application or services that are essential for the Services; or (D) Mandala is transitioning to no longer providing the Services to users in the country in which you reside or from which you use the Services; or (E) the provision of the Services to you by Mandala is, in Mandala’ opinion, no longer commercially viable. In the event you terminate the agreement for a material breach by Mandala as described in (A) above, or if Mandala ceases to provide any part or all of the Services during the agreement term for reasons stipulated in (C), (D) or (E) above, you shall not be required to make any payments for Services beyond the date of when you terminated the agreement or when Mandala ceased to provide the Services (as applicable). In the event you prepaid the Services, Mandala shall in such cases refund the pro-rata proportion of the pre-paid monthly fee.
12.4 Nothing in this Section 12 shall affect Mandala’ rights regarding provision of Services under Section 4 of the Terms. Nothing in this Section 12 shall affect your early termination rights granted to you under the applicable law.
12.5 If you do not purchase the Services continuously on a monthly “pay as you go” basis, and provided the agreement has not been terminated early either by Mandala or you as stipulated in the previous sections, then the following will apply: Your legal agreement with Mandala embodied in the Terms shall automatically renew (i.e. be extended, repeatedly) for another term corresponding to your original (preceding) subscription term, unless you or Mandala provide notice to the other of (y)our intent to terminate the agreement within the last thirty (30) days before the end of the then current term. You will be notified of the upcoming renewal and may notify Mandala of your intention not to renew by unsubscribing from the automatic renewal within the user interface for the Services.
12.6 When your legal agreement with Mandala comes to an end, all of the legal rights, obligations and liabilities that you and Mandala have benefited from, been subject to (or which have accrued over time whilst your legal agreement with Mandala has been in force) and/or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of Section 18.7 shall continue to apply to such rights, obligations and liabilities indefinitely.
12.7 Further, you understand and agree that the terms and conditions contained in the Terms (including the Payment Terms) will continue to apply to any renewed (extended) term pursuant to Section 12.5 above, as well as to any other continued use of the Services beyond the pre-paid subscription term, as they applied to the original subscription term, and you undertake to pay for the use of the Services by you or your end-users of the Services in accordance with the Payment Terms. You expressly and irrevocably authorise Mandala to debit your credit card for the settlement of such Mandala’ consideration.
13. Exclusion of Warranties
13.1 The Services are provided “as is” and Mandala, its subsidiaries and affiliates, and its licensors give you no warranty with respect to them. Services features that interoperate with social media networks depend on the continuing availability of those social media network’s APIs, data, application, programs and services for use with the Service. If any social media network ceases to make its APIs, data, application, programs or services available on reasonable terms for the Service, Mandala may cease providing such Service features upon reasonable prior written notice to you pursuant to Section 12.3 (C). Mandala is not liable or responsible for the quality, accuracy or truthfulness of services or information obtained from social media networks and used within the Services or for interruption of access to such information caused by downtime or unavailability of the social media networks. Social media network content is not created or edited by Mandala. Mandala expressly disclaims and has no responsibility or liability for any social media network content that may be collected, received or created by you or your end-users in use of the Service.
13.2 In particular, Mandala, its subsidiaries and affiliates, and its licensors do not represent or warrant to you that (A) your use of the Services will meet your requirements; (B) your use of the Services will be uninterrupted, timely, secure or free from error; (C) any information obtained by you as a result of your use of the Services will be accurate or reliable; and (D) that defects in the operation or functionality of any Software used to provide the Services will be corrected.
13.3 No conditions, warranties or other terms (including any implied terms as to satisfactory quality, fitness for purpose or conformance with description) apply to the Services except to the extent that they are expressly set out in the Terms.
13.4 Nothing in the Terms shall affect those statutory rights which you are always entitled to as a consumer and that you cannot contractually agree to alter or waive.
14. Limitation of liability
14.1 Nothing in the Terms shall exclude or limit Mandala’ liability for losses which may not be lawfully excluded or limited by applicable law.
14.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WHATEVER THE LEGAL BASIS FOR THE CLAIM, MANDALA WILL NOT BE LIABLE FOR ANY INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES), DAMAGES FOR LOST PROFITS OR REVENUES, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH THE TERMS, THE SERVICES, MATERIALS, OR THE FAILURE TO PERFORM OUR OBLIGATIONS.
14.3 Subject to overall provision in Section 14.1 above, Mandala, its subsidiaries and affiliates, and its licensors shall not be liable to you for any indirect or consequential losses which may be incurred by you. Indirect and consequential losses shall include (A) any loss of profit (whether incurred directly or indirectly), loss of goodwill or business reputation, or any loss of data suffered by you; (B) loss or damage which may be incurred by you as a result of (i) any reliance placed by you on the completeness, accuracy or existence of any advertising, or as a result of any relationship or transaction between you and any advertiser or sponsor whose advertising appears on the Services; (ii) any changes which Mandala may make to the Services, or for any permanent or temporary cessation in the provision of the Services (or any features within the Services); (iii) the deletion of, corruption of, or failure to store, any Content and other communications data maintained or transmitted by or through your use of the Services; (iii) your failure to provide Mandala with accurate account information; (iv) your failure to keep your password or account details secure and confidential.
14.4 The limitations of Mandala’ liability to you in Section 14.3 above shall apply whether or not Mandala has been advised of or should have been aware of the possibility of any such losses arising.
14.5 Mandala’ liability for damage incurred by you as a result of or in connection with the Services shall be limited to direct damages up to the amount you paid to Mandala for the Services giving rise to that liability during the last three months before the occurrence of Mandala’ liability (or amount corresponding to a three-month Service fee, as applicable). Mandala and you agree that this limitation reflects the damage that can be foreseen at the time of conclusion of this legal agreement between you and Mandala, taking into account all circumstances the parties know or should know while exercising due care and that can arise from a breach of Mandala’ obligations under the Terms. To the extent permitted by applicable law, Mandala accepts no liability in relation to your use of any Services provided free of charge.
15.1 Some of the Services, in particular free Services, may be supported by advertising revenue and may display advertisements and promotions. These advertisements may be targeted to the content of information stored on the Services, queries made through the Services or other information.
15.2 The manner, mode and extent of advertising by Mandala on the Services are subject to change without specific notice to you.
15.3 In consideration for Mandala granting you access to and use of the Services, you agree that Mandala may place such advertising on the Services.
16. Other content
16.1 The Services may include hyperlinks to other web sites or content or resources. Mandala has no control over any web sites or resources which are provided by companies or persons other than Mandala.
16.2 You acknowledge and agree that Mandala is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.
16.3 You acknowledge and agree that Mandala is not liable for any loss or damage which may be incurred by you as a result of the availability of those external sites or resources. In addition, you acknowledge and agree that Mandala is not liable for any damage which may be incurred by you as a result of any reliance you may have placed on the completeness, accuracy, or existence of any advertising, products, or other materials on, or available from, such web sites or resources.
17. Changes to the Terms
17.1 Mandala may make changes to the General Terms from time to time. When these changes are made, Mandala will make a new copy of the General Terms available at https://www.mandalasystem.com/terms_and_conditions.
17.2 You understand and agree that if you use the Services after the date on which the General Terms have changed, Mandala will treat your use as acceptance of the updated General Terms.
18. General provisions
18.1 “Mandala” or “we” means Mandala a.s., whose principal place of business is in Bangkok, Kingdom of Thailand, 846/6 Summer Lasalle Unit A5, 2nd Floor, Lasalle Road, Bangna Tai, Bangna, Bangkok 10260, Thailand. “You” means the individual that is entering in to the legal agreement for the Services with us in a manner anticipated in Section 2.2 above, or that is using the Services, or who is registered with Mandala. Equally, “you” means any entity on whose behalf Mandala’ Services were purchased by an authorized individual.
18.3 The Terms constitute the whole legal agreement between you and Mandala and govern your use of the Services (excluding any services which Mandala may provide to you under a separate written agreement), and completely replace any prior agreements between you and Mandala in relation to the Services.
18.4 You agree that Mandala may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Services website.
18.5 The parties agree that if one of them does not exercise or enforce any legal right or remedy which is contained in the Terms (or which such party has the benefit of under any applicable law), this will not be taken to be a formal waiver of such party’s rights and that those rights or remedies will still be available to it.
18.6 If any court of law, having the jurisdiction to decide on this matter, rules that any provision of the Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms. The remaining provisions of the Terms will continue to be valid and enforceable.
18.7 The Terms, and your relationship with Mandala under the Terms, shall be governed by Thai law. You and Mandala agree to submit to the jurisdiction of the courts of the Kingdom of Thailand to resolve any legal matters arising from the Terms and the venue of the court of first instance shall be Thailand or the Municipal Court in Thailand, as applicable. Notwithstanding this, you agree that Mandala shall still be allowed to apply (A) for payment orders (or otherwise enforce payment for Services provided under the Terms) in the jurisdiction in which you have your registered seat or principal place of business, and (B) for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
Annex 1 – Data processing agreement
This Annex 1 – Data processing agreement shall only apply if Mandala provides to you Services or Services’ features within which we only have access to certain personal data because you give us your permission, authorization, token or other mechanism that allows us to access, collect or otherwise process such data, and thereby instruct us to process such personal data on your behalf; for example:
- Customer care feature of our Service “Community” which involves the access by Mandala to, and storing and management of, communication between you and your clients (or any other data subjects, as may be applicable, such as your followers or other persons interacting with you through your social media profiles) affected via your social network pages (e.g. Facebook messages); or
- Any other similar Services or Services’ features that you may activate and that would require Mandala to access and process any personal data associated with your social network profile, page or account which we cannot access directly from social networks (via API) without your permission and with respect to which you are the data controller; or
- Any other personal data that you entrust to us for processing on your behalf, by written instruction, where such processing is necessary for us to provide you our Services.
As a data controller with respect to any personal data that you instruct us to process in the context of the Services, you are responsible for the lawfulness of such processing, including the requisite legal titles (consents or other, as may be applicable) for processing. Further, if you instruct Mandala to make your data available to, or share your data with, your other service providers, for example by connecting your Mandala account with the accounts you have with your other service providers, you remain responsible for implementing the requisite legal measures (such as a data processing agreement between you and your other service provider) for the processing of the data you instruct us to furnish to your other service provider. Mandala is not liable for any misprocessing of data that could occur by your provision of the data to Mandala or your instruction to Mandala to process such data on your behalf.
“CCPA” means the California Consumer Privacy Act of 2018, Civil Code sections 1798.100 et seq.;
“DPA” means the data processing agreement included in this Annex 1;
“GDPR” means the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation);
“Services” means, for the purpose of this Annex 1, all Services Mandala provides to you under the Terms as your data processor, as specified in the Preamble of this DPA;
“Terms” means the Terms to which this Annex 1 is appended to.
The terms “personal data”, “processing” and “data subject” shall have the meaning ascribed to them in the GDPR. The term “personal data” includes “personal information” as defined in the CCPA; the term “data subject” includes “consumer” as defined in the CCPA.
2. Object / Scope of the processing
The object/scope of this DPA is the processing of personal data in connection with the provision of the Services specified in this DPA, in particular its Exhibit A.
The duration of this DPA shall correspond to the term of your subscription to Mandala’ Services.
4. Specification of Processing (nature, purpose, type of personal data and categories of data subjects)
4.1 The nature and purpose of the intended processing are defined in the Terms and correspond to the provision of the Services defined in this DPA.
4.2 Each and every transfer of personal data beyond the EU / EEA shall only take place if the specific conditions as laid down in Art. 44 et seq. GDPR have been fulfilled. When transferring personal data to a country outside of the EU/EEA, we ensure that our sub-processors are bound by the standard contractual clauses or, in case of US companies, are certified under the Privacy Shield.
4.3 The types of personal data processed under this DPA and categories of data subjects are specified in Exhibit A hereto. The scope of personal data is determined and controlled by you in your sole discretion, and may include, without limitation:
- Any personal data that your clients (or any other data subjects, as may be applicable, such as your followers or other persons interacting with you through your social media profiles) decide to submit to you via your social media pages, using direct messages (e.g. Facebook messages), which will be administered by Mandala as a data processor within the customer care feature of Mandala’ Service “Community” (or other Service features, as may be applicable). Such personal data may include, without limitation, data subjects’ contact information (such as name, address, company, email, telephone), identification data (date of birth, birth number), and other information relating to the data subjects’ activities; and
- Information about data subjects’ behaviour on Mandala’ platform and/or on social media.
The exact scope of personal data processed will always depend on the specific Service you use.
5. Technical and Organizational Measures
1. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, we are obliged to implement appropriate technical and organizational measures in such a manner that the processing of personal data will meet the requirements of applicable data protection laws, in particular the GDPR and this DPA.
2. We have implemented technical and organisational measures as specified in the Security Policies and Practices available at: https://www.mandalasystem.com/security. You hereby acknowledge and agree that these measures are appropriate and sufficient to conform to the applicable data protection laws. Further, Mandala has implemented information security management in accordance with the requirements of information security standard ISO 27001.
6. Rectification, restriction, access and erasure of data
6.1 We will only erase or block personal data upon instruction issued by you. In case of requests regarding the rectification, restriction or the erasure directly addressed to us by a data subject, we will inform you about such request without undue delay.
6.2 Where appropriate we will assist and support you in fulfilment of your obligations under the GDPR and/or CCPA to respond to requests for exercising the data subject’s right, in particular the ‘right to be forgotten’, rectification, restriction, data portability, information and access rights.
6.3 You hereby agree that Mandala shall not be liable if you do not take action on the data subject’s request, or if you do not respond correctly or in a timely manner.
7. Our obligations
7.1 We undertake to:
- Process the personal data within the Services specified in this DPA only on documented instructions from your and only for the specific purpose of providing the Services under the Terms unless processing is required by applicable laws to which we are subject to, in which case we shall, to the extent permitted by applicable laws, inform you of that legal requirement before the relevant processing of that personal data. We shall not retain, use or disclose the personal data processed on your behalf for any purpose other than for the specific purpose of providing the Services;
- Inform you if we consider that an instruction violates data protection laws or regulations. We shall then be entitled to suspend the execution of the relevant instructions;
- Keep the personal data confidential and ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
- Taking into account the nature of the processing, assist you by implementing and maintaining appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of your obligation to ensure an appropriate level of security and to respond to requests for exercising the data subject’s rights;
- Assist you in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of processing and the information available to us;
- Notify you without undue delay after becoming aware of a personal data breach in relation to the personal data processed on your behalf;
- Not sell, as defined in the CCPA, the personal data processed on your behalf;
- At your choice, delete or return all the personal data to you after the end of the provision of Services relating to processing, and delete existing copies unless applicable law requires storage of the personal data;
- Make available to you information necessary to demonstrate our compliance with the obligations laid down in this DPA.
8.1 We shall engage another processor (i. e. a sub-processor) only in accordance with this DPA. The mechanism hereby stipulated shall be considered a general written authorisation from you pursuant to Article 28 par. 2 of the GDPR.
8.2 If we engage another processor for carrying out specific processing activities on your behalf, the same obligations as set out in this DPA shall be imposed on that other processor by way of a written contract.
8.4 If you have a reasonable basis to object to our use of another new processor, you shall notify us promptly in writing within 5 days after being notified. For the avoidance of doubt, you hereby agree that if you are not able to show evidence that the new processor provides an unacceptable risk to the protection of personal data (e.g., the other processor has a history of security breaches) or is your direct competitor, it would be unreasonable for you to object if the other processor has passed our vendor security evaluation.
8.5 Notwithstanding the foregoing, if you object to the engagement of another processor and your objection is not unreasonable, the parties will come together in good faith to discuss an appropriate solution. We may in particular choose not to use the intended processor, or engage the processor only after we take the corrective steps and / or measures requested by you.
8.6 Certain components of or add-ons to our Services may allow you to interconnect the direct messaging feature with third-party CRM or help desk tools that you use, and thus help you effectively manage communication with your clients or other persons interacting with you through your social media profiles. If you interconnect the direct messaging or other similar features, the third-party vendor application will have access via APIs to data from Mandala Community direct messaging or similar feature. In such cases, the third-party vendors with whom data are shared shall not be considered our sub-processors engaged by us according to this Section 8; the processing of the shared data shall be subject to a separate data processing agreement or a similar contractual arrangement concluded directly between you and your relevant third-party vendor.
Subject Matter and Nature of Processing
The subject matter of the processing of personal data is set out in the Terms.
The nature of the processing means any operation that Mandala may perform on personal data or on sets of personal data when providing Services, which may include in particular collection, recording, organisation, structuring, storage, adaptation, retrieval, consultation, disclosure by transmission or otherwise making available, alignment or combination, erasure or destruction of data (whether or not by automated means).
Purposes of processing
Provision of Mandala’ Services (SaaS) consisting in data analytics and social media management (including, where applicable, “Community” and “customer care” management) for marketing on social media.
Categories of data
As a data controller you may submit or allow access to personal data within the customer care feature of Mandala Service “Community” or other Service, the extent of which is determined and controlled by you in your sole discretion, and which may include, but is not limited to the following categories of personal data:
The exact scope of personal data processed will always depend on the specific Service or Service feature then available and used by you.
Categories of data subjects
As a data controller you may submit or allow access to personal data within the customer care feature of Mandala’ Service “Community” or other Service, the extent of which is determined and controlled by you in your sole discretion, and which may include, but is not limited to personal data relating to the following categories of data subjects:
Location of processing operations
9. Audit rights
9.1 Upon reasonable advance notice of at least 90 days and in order to ensure and review compliance with the technical and organizational security measures and the obligations laid down in this DPA, we shall permit you to conduct periodic audits or to have them carried out by an auditor mandated by you. We shall, at your written request and within a reasonable period of time, submit to you any and all information, documentation and other factual evidence necessary for the audit. The audit result shall be documented appropriately.
9.2 Audits shall be conducted during reasonable times, shall be of reasonable duration, and shall not unreasonably interfere with our day-to-day operations. In the event that you conduct an audit through a third-party independent contractor, such independent contractor shall be required to enter into a non-disclosure agreement. Additionally, such independent contractor must not be our direct or indirect competitor, nor a person who can reasonably be considered by us unfit (from professional, experience and historic reasons) to perform such audit.
10.1 Unless otherwise stipulated herein, the provisions of the Terms shall apply, including any exclusions and limitation of warranties and liabilities provided therein. Provisions in this DPA shall have precedence over any provisions of the Terms relating to the processing of personal data by Mandala in the position of a data processor, if any.