These Terms (together with the documents expressly referred to in them) tell you information about Drawy and the legal terms and conditions on which Drawy provides its Customers with the Services described on the Website. These Terms will apply to any subscription or access to Services Drawy
Please read these Terms carefully and make sure that you understand them, before ordering or using any Services from the Website. The Terms contain important clauses which may impact on your legal status such as liability and indemnification clauses, limited warranties, a dispute resolution clause and other important terms.
Please note that when registering, the Customer will be asked to explicitly agree to these Terms. Additionally, by making use of the Website without registration, you explicitly agree to be bound by these Terms where and to the extent relevant.
If the Customer does not agree with any provision set out in these Terms, the Customer cannot access or otherwise use the Services or any information contained in this Website.
PART A – DEFINITIONS AND CONTACT INFORMATION
Capitalized notions used throughout this Agreement have the meaning attributed to them in this clause 1, unless where expressly otherwise stated:
1.1 “Additional Services” means additional services delivered by Drawy that are not within the scope of the Services generally described on the Website but which may be delivered by Drawy at the request of the Customer after mutual written consent, it being understood, for the avoidance of doubt, that Drawy may decide in its full discretion not to render such Additional Services.
1.2 “Agreement” means collectively, these Terms, including all documents, annexes, conditions or other information as referred to in these Terms, and all other documents or agreements which you may have agreed on in relation to the subject matter hereof.
1.3 “Applicable Fees” means the fees payable by the Customer to Drawy for the Services, dependent on the subscription level as selected by the Customer.
1.4 “Confidential Information” means all confidential information of a Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”) in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information shall include: the terms and conditions of this Agreement (including pricing),business and marketing plans, technology and technical information, product designs and business processes. Confidential Information shall not include: (i) information that is, or becomes, generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) information known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) information developed independently by the Receiving Party without breach of any obligation owed to the Disclosing Party; and (iv) information received from a third party without breach of any obligation owed to the Disclosing Party.
1.5 “Creation” means any creation of whatever nature of the Customer, in relation to which the Services are used by the Customer.
1.6 “Customer” means the person so identified on the registration page of the Website.
1.7 “Customer Portal” means the secured website of Drawy via which the Customer (and its designated Users),using its username and password, can use the Services (including for example uploading, timestamping, downloading, selling or purchasing as the case may be) in relation to Creations.
1.8 “Data Protection Legislation” means the current EU Directive 95/46/EC and any national implementations that apply to the Parties’ processing of personal data, including any modifications to and replacements of the EU Directive 95/46/EC, including in particular the EU General Data Protection Regulation of 27 April 2016 (2016/679).
1.9 “Disclosing Party” has the meaning is set out in clause 1.4.
1.10 “Drawy” means the company as identified in clause 2.1 of these Terms.
1.11 “Effective Date” means the date on which the registration process has been fully and duly completed by the Customer.
1.12 “Error” means a substantial, verifiable and reproducible non-conformity of the Services as described.
1.13 “Force Majeure” means any cause beyond a Party’s reasonable control, such as acts of God, acts from authorities, war, fire, flood, explosion or civil commotion, telecom breakdowns (including “denial of service” attacks and similar unavailability of internet connections),strikes, failure of a third party, software bugs in third party software, industrial action, etc. it being understood that Force Majeure cannot be invoked for a delay in payment or non-payment by the Customer of the Applicable Fees.
1.14 “Hosted Data” means any electronic data (including Creations, accounts of Customers, accounts of Users, etc.) stored in a Customer Portal, after being uploaded by the Customer or a User.
1.15 “License” means the license granted to the Customer as described and under the conditions set out in clause 3.1.
1.16 “Log” has the meaning as set out in clause 5.1.
1.17 “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malware, malicious code, files, scripts, agents or programs.
1.18 “Party/Parties” means either Drawy and/or Customer and its Users, as the context may require.
1.19 “Receiving Party” has the meaning as set out in clause 1.4.
1.20 “Services” means the services offered and as further described on the Website and the additional documentation, where relevant, as made available by Drawy, including the use of the Customer Portal where applicable.
1.21 “Term” means the complete term this Agreement is in effect, as calculated from the Effective Date and up until the day of the effective termination of this Agreement in accordance with the terms of this Agreement.
1.22 “Terms” means the present Drawy terms and conditions.
1.23 “User” means an end-user of the Services and who may use the Customer Portal in accordance with the subscription level chosen.
1.24 “Website” means www.drawy.eu or any local variation of this URL.
1.25 “Working Day” means all days except Saturdays, Sundays and public holidays in Belgium. Working Days extend from 9:00 to 17:00 CET
2. INFORMATION ABOUT DRAWY
2.1 Drawy operates the Website. Drawy is a company trading under the name Stampy NV, registered in Belgium under company number 0654.838.684 and with registered and main trading office address at Industrielaan 1 Stratenplan, 9800 Deinze, Belgium. Our VAT number is BE 0654.838.684.
2.2 The Customer can contact Drawy via the Contact Us page where all contact details are provided
PART B – REGISTRATION AND ACCESS TO THE SERVICES
3. REGISTRATION AND GRANT OF LICENSE
3.1 Subject to the Customer’s compliance with its obligations under this Agreement, Drawy grants to the Customer a non-exclusive, worldwide, non-transferable right to use the Website and Customer Portal and to enable the Users to access and use the Customer Portal during the Term (“License”). Use by Customer of the Services under the License is limited to the internal, normal professional purposes of the Customer with exclusion of any other use.
3.2 The License granted to the Customer includes the right to sublicense the use of the Services to the Users, and any use of the Customer Portal by the User shall be considered to be on the basis of this sublicense. Any such sublicense granted to a User shall be dependent on, and within the limits of, the License granted to the Customer. The Customer shall properly inform all Users of the provisions and limitations of the Agreement and the Customer shall be fully and wholly liable for any non-compliance with the Agreement by the User. In the event a Customer and/or User does not comply with the terms and conditions of this Agreement, Drawy shall, without prejudice to its other rights and remedies under applicable law and contract, be allowed to prohibit this Customer and/or User the access to and usage of the Services.
3.3 The Customer acknowledges that all copyrights, trade secrets and other right, title and interest in the Services and Customer Portal, are the sole property of and vest in Drawy and that the Customer shall gain no right, title or interest in this by virtue of this Agreement other than the non-exclusive and temporary right of use granted in this clause 3. The Customer specifically acknowledges Drawy’s exclusive right to ownership of any modification, translation or adaptation of the Services and Customer Portal and any other improvement or development based thereon, irrespective of whether it is developed on behalf of, supplied to, installed at or paid for by the Customer.
4. USE OF THE SERVICES
4.1 Without prejudice to other provisions set out in these Terms, the Customer shall use the Services and shall ensure that its Users use the Services in accordance with the terms, conditions and limitations set forth in this Agreement and shall not (and shall ensure that its Users shall not): (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make its Customer Portal and/or the Services available to any third party, unless explicitly allowed by this Agreement; (b) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws (such as laws implementing EU Directive 2002/58/EC); (c) send or store Malicious Code; (d) interfere with or disrupt the integrity or performance of the Services, or the data contained therein; (e) attempt to gain unauthorized access to any of Drawy’s related systems or networks; or (f) in general, act contrary to laws, decrees and other legal instruments applicable to the Customer in the context of this Agreement.
4.2 The Customer shall prevent unauthorized access to, or use of, the Customer Portal, and notify Drawy of any such unauthorized access or use.
4.3 The Customer shall protect the confidentiality of its Drawy username(s) and password(s). The Customer shall be responsible and liable for all uses of its username(s) and password(s) whether or not any such use was authorized by the Customer. Customer ensures to (a) immediately notify Drawy of any unauthorized use of, loss or any other unauthorized exposure of its usernames and/or passwords or any other breach of security, and (b) exit from its account at the end of each session.
4.4 Customers grants and Drawy will receive a worldwide, non-exclusive and permanent (for the validity term of the Hosted Data) right to use the Hosted Data provided by the Customer, regardless of whether such Hosted Data is subject to intellectual and/or industrial property rights, including (but not limited to) the Creations, for the purpose of Drawy’s service delivery. The Customer accepts that such use by Drawy may require small changes to the Hosted Data of the Customer, for example to accommodate technical requirements or space constraints. The Customer warrants that it has all necessary rights and/or licenses to grant Drawy such license, or has acquired such rights and/or licenses.
4.5 Except to the extent expressly permitted by applicable law, Customer shall not (i) modify, copy or create derivative works based on the Services; (ii) reproduce, distribute, reverse engineer, decompile, disassemble, translate or otherwise make the Services or part thereof available to any third party; (iii) build or maintain a product or service that competes with the Services; (iv) build or maintain a product or service that is similar to the Services in any non-trivial way; or (v) copy any ideas, features, functions, templates created by Drawy or graphics of the Services.
4.6 Customer shall appoint a central point of contact within its organization which will be the first point of contact for Drawy for any matter arising out of this Agreement.
4.7 The Customer shall report any Errors immediately on detection to Drawy. At Drawy’s request, the Customer shall render assistance, as reasonably requested for the diagnosis, the reproduction and correction of the Error.
4.9 The Customer hereby agrees to defend, indemnify and hold harmless Drawy against any and all damage, loss, costs, expenses, third party claims or demands (including claims of Users) arising out of the use by the Customer, its employees, its designees and/or the Users of the Services (including the Customer Portal) in a manner that does not correspond with this Agreement or, in general, all applicable laws, decrees and other legal instruments applicable to it.
4.10 Although the Services are aimed at professionals and not consumers, Drawy does not prohibit Customers to use the Services as a consumer, in which case the following terms apply where a Customer is able to prove it acts as a consumer and not a professional:
4.10.1 the terms and conditions as laid down in these Terms will apply to the fullest extent permitted by law, and where a term of provision (or part thereof) would be considered contrary to mandatory consumer protection laws, the provision or term will be interpreted as closely as lawfully allowed in accordance with the intention of the original term or provision (or part thereof);
4.10.2 Customers can close their account at any time and withdraw from the Agreement. However, Applicable Fees cannot be refunded and a right of withdrawal does not apply to Services for which Applicable Fees are charged and the consumer explicitly agrees that such Services may be executed immediately by Drawy;
4.10.3 the different language options to conclude the Agreement are English, French and Dutch and you accept and acknowledge that your level of the language you select to conclude the Agreement is sufficient to understand your legal rights and obligations as set out in these Terms;
4.10.4 to create an account, the Customer will be asked to provide information such as in relation to identity, company details (where applicable) and credit card details after which the Customer will be able to create an account. The Customer will have the possibility to correct any incorrect information provided during the registration;
4.11 Customers who act as professionals, and not as a consumer, expressly waive, to the maximum extent allowed by applicable law, the provision and receipt of information on the basis of the Europ
5. ACCESS LOG – PROOF
5.1 Drawy registers access to the Services and its Website as part of the Services and so any problems can be detected. Drawy keeps a log up to date in which it stores data relating to the use of the Services (the “Log”).
5.2 Parties agree that the Log can be reproduced on paper or any other type of information medium and that it can provide evidence of access to and particular forms of use of the Services, Website, Customer Portal, Hosted Data (including Creations) or other activity which has been registered in the Log, unless the Customer can prove the contrary.
5.3 Electronic messages, connections, operations on the network and transactions between the Customer and Drawy shall be proven using the logs and transaction files kept electronically by Drawy in the Log. The Customer accepts the evidential value of the Log and accepts that Drawy may use this Log and its evidential value, which shall not be contested, in any dispute between (a) Drawy and its Customers, (b) between Customers, or (c) between Drawy and/or Customers and a third party.
5.4 This capability of proof as set out in this clause 5 does not prevent the parties from each providing their own proof using permitted legal methods.
5.5 Log files in relation to Hosted Data of Customers can be made periodically available to such Customers, upon payment of the relevant Applicable Fees and dependent on the subscription level chosen.
5.6 Customer acknowledges and agrees that:
5.6.1 ticking a checkbox on the Website is considered equivalent to a handwritten signature that meets the requirements of article 1322, paragraph 2 of the Belgian Civil Code, and that this signature in all cases has all legal consequences attributed to it by law. For the avoidance of doubt, Customer acknowledges and accepts the legal validity of the Standard IP Assignment Agreement agreed to by ticking a checkbox. This shall constitute a valid and sufficient proof of Customer’s consent to the existence and content of the Standard IP Assignment Agreement.
5.6.2 documents and messages sent by electronic means have the same probative value as original or paper documents.
PART C – UPLOADING HOSTED DATA
6. CUSTOMER OBLIGATIONS WHEN UPLOADING HOSTED DATA
6.1 Upon payment of the Applicable Fees and in accordance with the provisions set out in this Agreement, Customer can upload Hosted Data via the Customer Portal. Hosted Data uploaded must comply with the technical requirements as further described on the Website.
6.2 Where applicable, the Customer can have Hosted Data time-stamped in accordance with the Service offered by Drawy. Customer recognizes and accepts that the time-stamping service is offered by a third party service provider. The terms and conditions applicable to this time-stamping service are incorporated in this Agreement by reference and can be consulted here (referred to as “Timestamping Terms”). For the avoidance of doubt, the Time-stamping Terms take precedence over the present Terms for what its subject matter is concerned and in this regard the present Terms do not entail any additional obligations or responsibilities for Drawy other than those imposed on the third party service provider in accordance with the Time-stamping Terms. We advise you to keep a copy of the Time-stamping Terms. Where the time-stamping Service has been agreed with the Customer, Drawy will keep the records establishing the time-stamp for a period of five (5) years, without guaranteeing the continued validity of the time-stamp during said period, after which:
6.2.1 Parties may prolong the term of the records establishing the time-stamp under conditions to be agreed between the Parties; or
6.2.2 failing agreement in accordance with 6.2.1, Drawy has the right to no longer keep the records establishing the time-stamp.
6.3 The Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Hosted Data.
6.4 When uploading Hosted Data, Customer at all times shall comply with the following:
6.4.1 not upload any Hosted Data that is unlawful, harmful, threatening, abusive, vulgar, harassing, defamatory, obscene, pornographic, profane, indecent, inflammatory, libelous, tortious, hateful, racially, ethnically, socially, politically, legally, morally, religiously objectionable or otherwise objectionable, or invasive of another’s rights including but not limited to rights of celebrity, privacy and intellectual property;
6.4.2 not impersonate any person or entity or falsely state or otherwise misrepresent an affiliation with a person or entity;
6.4.3 not upload any Hosted Data that may infringe any drawing, design, patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party. Customer represents and warrants to be the owner or appropriate rights holder of the Hosted Data and that there are no outstanding disputes in connection with the property rights, intellectual property rights or other rights in the Hosted Data or any parts of the Hosted Data;
6.4.4 not upload any Hosted Data that would constitute or encourage a criminal offense, illegal activity, violate the rights of any party, or that would otherwise create liability or violate any local, state, national, or international law;
6.4.5 not upload or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, or any other form of solicitation;
6.4.6 not upload any Hosted Data that contains Malicious Code;
6.4.7 not upload any Hosted Data that contains false or misleading information;
6.4.8 not disrupt or interfere with the security of, or otherwise abuse, the Website, or any services, system resources, accounts, servers, or networks connected to or accessible through the Website or affiliated or linked websites;
6.4.9 not access, tamper with or use non-public areas of the Website;
6.4.10 not frame the Website within another website or webpage or link to the Website;
6.4.11 not incorporate images or names that would violate a person’s right of privacy or portrait right;
6.4.12 not use a manual or automatic device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the services offered through the Website; or
6.4.13 not harvest or otherwise collect any information (including but not limited to personal data according to Data Protection Legislation) about users, including email addresses, without their consent.
6.5 Drawy will not pre-screen or screen Hosted Data, but Customer acknowledges and agrees that Drawy has the right (but not the obligation) to reject or remove, without prior notice and in its sole discretion, any Hosted Data in the event Drawy is notified or discovers that the Hosted Data violates this Agreement, any applicable law or any rights of third parties or otherwise as it may deem appropriate in its full discretion.
6.6 Customer acknowledges and agrees that Customer is responsible for the creation and compilation of its Hosted Data, and that Drawy does not assume that responsibility. Drawy’s Website depicting Hosted Content does in no way indicate that Drawy approves of the Hosted Data, that the Hosted Data obeys all applicable laws, or that the Customer has complied with its contractual obligations or obligations incumbent on it under whatever law or contractual or other arrangement that may be applicable.
6.7 Customer acknowledges and agrees that Drawy may preserve or store any Hosted Data and may also disclose Hosted Data if required to do so by law or in the good faith belief that such preservation, storage or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce this Agreement; (iii) respond to claims that any Hosted Data violates the rights of third parties; (iv) protect the rights, property, or personal safety of Drawy, its users and the public.
7. PROTECTION OF HOSTED DATA
7.1 Drawy undertakes reasonable industry standard efforts to maintain appropriate administrative, physical, and technical safeguards to protect the Hosted Data against accidental or unlawful destruction, accidental loss, alteration, unauthorized disclosure and unauthorized access. However, Customer is fully responsible to take adequate back-up of its Hosted Data as it sees fit and Customer expressly acknowledges that it is aware and accepts that Drawy involves third party service providers for technical safeguards and that Drawy is bound by the terms and conditions (including limitations) imposed by such third party providers.
7.2 The Customer acknowledges that Drawy’s responsibility set out in clause 7.1 does not extend to any of the Customer’s data that is hosted outside the Customer Portal. Accordingly, the Customer shall bear sole responsibility for the adequate security, protection and backup of any such data.
7.3 The Customer accepts that (i) Drawy qualifies as a “hosting provider”, as defined by article 14 of the EU E-commerce Directive (2000/31/EC) (as may be amended or replaced from time to time); (ii) Drawy does not have the obligation to monitor the Hosted Data; (iii) Drawy has the right to remove at any moment and without prior warning any Hosting Data which, in Drawy’s reasonable opinion, is illegal or infringes (or is likely to infringe) upon the rights of third parties or is otherwise not in line with this Agreement or applicable law; (iv) Drawy has the right to remove at any moment and without prior warning any Hosting Data at the request of competent authorities; (v) Drawy does in no way endorse, guarantee, claim, or otherwise makes statements on the existence or validity of intellectual property rights claimed on Hosted Data.
8. INTELLECTUAL PROPERTY RIGHTS INFRINGEMENTS
8.1 Customer agrees that Drawy, without prejudice to its other rights set out in this Agreement, may suspend (in whole or in part) and/or terminate this Agreement with any Customer who infringes or appears to infringe the copyright or other intellectual property rights of others.
8.2 If any person believes that its protected materials have been subject to an intellectual property right infringement, that person can contact Drawy at firstname.lastname@example.org and provide the following information (“Notice”):
8.2.1 an electronic or physical signature of the person authorized to act on behalf of the owner of the intellectual property right;
8.2.2 a description of the protected material claimed to have been infringed;
8.2.3 a description of where the claimed infringing Hosted Data is located on the Website;
8.2.4 contact details of the claiming party;
8.2.5 a statement by the claiming party that it has a good faith belief that the disputed use is not authorized by the owner or by applicable law.
PART E – COMMERCIAL TERMS AND TERM OF THE AGREEMENT
9. FEES AND INVOICING
9.1 The Customer shall pay to Drawy the Applicable Fees. All payment obligations are non-cancelable and Applicable Fees paid are non-refundable whatever the cause of termination of this Agreement.
9.2 The Applicable Fees can be changed by Drawy at any time, subject to Drawy communicating the change to the Customer at the latest three (3) months before the change would become effective. If the Customer does not agree with the proposed change, the Customer can terminate this Agreement for convenience, by terminating its account. The Parties agree that the one-off registration fee that is already paid in advance by the Customer (and which is in no event refundable), will not be impacted by the increase as set forth in this clause 12.2.
9.3 The Applicable Fees shall be automatically increased by 5% at each renewal of the Agreement.
9.4 Subject to the Customer’s consent, any other expenses incurred by Drawy shall be invoiced to and paid separately by the Customer. Drawy shall provide the Customer with proof of such expenses.
9.5 Except as otherwise provided, all fees are quoted and payable in EUR, and do not include any sales, use, excise, import or export, value added or similar tax (collectively “taxes”). Customer is responsible for paying all taxes associated with its purchases hereunder, excluding taxes based on Drawy’s net income or property. If Drawy has the legal obligation to pay or collect taxes for which Customer and/or User is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer and/or User, unless Customer and/or User provide Drawy with a valid tax exemption certificate authorized by the appropriate taxing authority.
9.6 Any financial obligation of the Customer under this Agreement not immediately executed by debit or credit card is immediately payable as from the receipt of the invoice. In case of late payment, a monthly interest of 1% will be charged automatically and without prior notice and Drawy, without in any way affecting its other rights hereunder, can suspend the provision of any Services and/or the License, until all outstanding invoices have been paid.
9.7 Complaints concerning invoices must be submitted within eight (8) days upon receipt of the invoice. After this eight day period, the invoice will be deemed accepted.
9.8 The Customer accepts that Drawy has the possibility to send invoices electronically. The Customer acknowledges that it is responsible for the appropriate storage of the electronic invoices and for the fulfilment of all other legal requirements with respect to receiving electronic invoices.
9.9 The Customer expressly waives its right to set-off claims of whatever kind and nature they may have, against Drawy’s claims for payment under the Agreement.
10. TERM AND TERMINATION
10.1 This Agreement comes into force on the Effective Date, and is concluded for a term corresponding to the Applicable Fees effectively paid.
10.2 Customer can terminate this Agreement at any time by closing its account.
10.3 Without prejudice to its other rights under this Agreement and applicable law, Drawy can terminate and/or suspend this Agreement (in whole or in part) with immediate effect without intervention of a judge by written notice to the Customer, if (a) the Customer commits a breach of this Agreement (including, but not limited to exceeding the scope of the License) and — in the case of a breach capable of remedy — fails to fully remedy it within four (4) calendar days of receipt of a notice from Drawy, (b) Drawy has reason to believe Customer has entered in any kind of insolvency procedure or has or likely will have difficulties in fully complying with its payment obligations under this Agreement, (c) at any time (for termination only), by providing prior written notice of ten (10) days to Customer.
10.4 Upon suspension of this Agreement by Drawy in accordance with the provisions of this Agreement, (i) the Customer’s access and license rights (including any sublicenses) with respect to the Services shall be temporarily terminated, during the period of the suspension; and (ii) the Applicable Fees will continue to accrue.
10.5 After termination of this Agreement: (a) all rights granted by Drawy hereunder shall be terminated; (b) each Party shall return or destroy (or provide a certificate of having destroyed) the other Party’s Confidential Information, save where Drawy is allowed under this Agreement or applicable law to maintain that information; (c) the Customer shall remove all copies of all software provided or owned by Drawy from the Customer’s systems.
10.6 Termination shall not relieve the Customer of the obligation to pay any fees accrued or payable to Drawy prior to the effective date of termination.
PART F – GENERAL LEGAL OBLIGATIONS
11.1 Drawy warrants that:
11.1.1 it will perform the Services in a good and workmanlike manner, it being understood that all Services and all obligations of Drawy under this Agreement are obligations of means, not obligations of result;
11.1.2 the Services shall function substantially in accordance with their description on the Website, it being understood that small deviations will not constitute a breach of this warranty. The Customer recognizes, however, that all software (on which the Services are based) contains errors; and
11.1.3 it shall use reasonable efforts to maximize the availability of the Services. The Customer however recognizes, and therefore agrees not to hold Drawy responsible on whatever ground, that this availability is subject to a variety of interdependent factors (such as the availability of telecommunication links, the interaction between software of various parties, network congestion on the Internet, etc.), which are substantially out of the control of Drawy.
11.2 If the Services do not perform as warranted, Drawy shall undertake to correct the Errors. However, Drawy does not warrant that the Services will be error free or will perform in an uninterrupted manner. Drawy cannot guarantee that the Services will meet the Customer’s specific expectations, objectives or requirements.
11.3 The Customer acknowledges that the access to and use of the Services may be suspended from time to time due to unanticipated or unscheduled downtime. To the extent possible, Drawy shall schedule planned downtime outside Working Days.
11.4 In addition to the other provisions set out in this Agreement (including but not limited to clause 13.3), Drawy may suspend the (access to the) Services without involvement of a judge and without liability if (i) it reasonably believes that the Services are being used in breach of the Agreement; (ii) there is an internal or outside attack on Drawy’s IT systems; (iii) Drawy is required by law to suspend the Service delivery; or (iv) there is another event for which Drawy reasonably believes that the suspension of the Services is necessary to protect its IT systems or customers. Drawy will use commercially reasonable efforts to give the Customer advance notice of such suspension, unless it determines, in its reasonable commercial judgment, that a suspension on shorter or contemporaneous notice is necessary to protect Drawy or its other customers from imminent and significant operational or security risk.
11.5 Drawy’s warranties do not cover interventions not assignable to Drawy such as, but not limited to: (a) Errors resulting from erroneous, improper, non-authorized or unsupported use of the Services; (b) Errors resulting from a fault of the Customer (including its Users); (c) Errors resulting from the interfacing of the Services with other software from third parties, unless approved in writing by Drawy.
11.6 Without the approval of nor prior notification to Customer, Drawy shall have the right at any moment to (i) activate a new or improved version of the Services; (ii) add additional functionality to or remove functionalities from the Services; (iii) modify internal or external functioning of the Services; or (iv) move its servers or networks to other locations or data centers, within or outside the European Union. Drawy shall undertake reasonable efforts to ensure when performing such actions, that the impact on the use for Customer and its Users is limited.
11.7 This clause 14constitutes Drawy’s only warranty concerning the Services and is made expressly in lieu of all other warranties. Except as otherwise provided in this clause and to the fullest extent permissible under applicable law, Drawy makes no warranties, express or implied, regarding any matter, including fitness for a particular purpose, merchantability and/or non-infringement.
11.8 Customer represents and warrant that this Agreement (and executing this Agreement)
11.8.1 has been duly and validly executed and delivered by Customer and constitutes a legal, valid and binding obligation, enforceable against Customer in accordance with its terms, and
11.8.2 that the execution, delivery and performance by Customer of this Agreement
18.104.22.168 are within its legal capacity and power,
22.214.171.124 have been duly authorized by all requisite action in Customer’s part,
126.96.36.199 require the approval or consent of no other persons, and
188.8.131.52 neither violate nor constitute a default under the (i) provision of any applicable laws and regulations, or (ii) the terms of any other agreement, document or instrument applicable to Customer or binding upon the Customer.
12. PROCESSING OF PERSONAL DATA
12.1 Each Party shall comply with its respective obligations under Data Protection Legislation, and shall not undertake any action that would cause the other Party to breach any of the Data Protection Legislation obligations. In particular, the Customer shall ensure that: (i) all instructions given by it to Drawy in respect of the Hosted Data will be in compliance with applicable Data Protection Legislation; (ii) it has obtained all rights and permissions to process the Hosted Data outside the European Union and (iii) it has all required consents, licenses and approvals to use, disclose and/or transfer the personal data included in the Hosted Data.
13.1 The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.
13.2 Each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own confidential information of like kind (but in no event using less than reasonable care).
13.3 If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
14. RISK ALLOCATION
14.1 Drawy’s total aggregate (i.e. not calculated per event giving rise to liability) liability under this Agreement, whether for breach of contractual obligations or on an extra-contractual basis, or on the basis of any other legal theory on liability that may be applicable, shall be limited to an amount equal to the total payments made by Customer to Drawy for use of the Services (and for the avoidance of doubt, excluding any and all other payments made by the Customer to Drawy for whatever reason) during the three (3) months period prior to the event giving rise to the liability, or in case of multiple events giving rise to such liability the event that occurred first, or in case no three (3) have elapsed since such event giving rise to the liability, during the entire period prior to the event giving rise to the liability, or in case of multiple events giving rise to such liability the event that occurred first.
14.2 Drawy shall in no event be liable for any indirect, punitive or consequential damages of any kind (such as, without limitation, loss of profits, loss of use, loss of customers, business interruption, loss of data, cost of cover, etc.), regardless of the form of action whether in contract, third party claims, extra-contractual liability or otherwise, even if it has been advised of the possibilities of such damage.
14.3 Nothing in this Agreement shall exclude or limit either Party’s liability for fraud or willful misconduct.
15. INTELLECTUAL PROPERTY RIGHTS INDEMNIFICATION
15.1 Subject to the limitations set forth in clause 17, Drawy shall hold harmless and defend the Customer against any claim lodged against the Customer on the basis that the Services (but expressly excluding any content pertaining to the Customer, including the Hosted Content and Creations) infringe any author rights held by a third party in any country that is a signatory to the Berne Convention for the Protection of Literary or Artistic Works.
15.2 The Customer undertakes that Drawy shall be given prompt notice of any alleged infringement claim that is made against the Customer. Drawy shall have the right to defend any such claims and make settlements thereof at its own discretion and the Customer shall give such assistance as Drawy may reasonably require to settle or oppose such claims.
15.3 In the event that any such infringement occurs or may occur, Drawy may, at its sole option and expense, (i) procure for the Customer the right to continue using the Services or any infringing part thereof; or (ii) modify or amend the Services (or the infringing part thereof), so that the same becomes non-infringing; or (iii) replace the Services (or the infringing part thereof) by other services of similar capability; or (iv) reimburse to the Customer the applicable pro-rate share of the Applicable Fees.
16. CUSTOMER INDEMNIFICATION
16.1 Customer agrees to defend, indemnify and hold Drawy harmless from all judgments, awards, losses, liabilities, costs and expenses, including but not limited to reasonable attorney’s fees, expert witness fees, and costs of litigation arising out of or based on (a) Hosted Data Customer submits through the Website and Customer Portal, (b) Customer’s use of the Website and/or Services, (c) Customer’s connection to the Website and/or Services, (d) Customer’s violation of the Agreement or (e) Customer’s violation of any rights of a third party.
PART G – MISCELLANEOUS
17.1 Entire Agreement– The Agreement constitutes the entire agreement between Customer and Drawy, and supersedes all other communications, written or oral, with regard to the subject matter herein, the Website and Services. For the avoidance of doubt, Customer’s general, specific or other standard business terms, as the case may be, will not apply to this Agreement, notwithstanding any provision to the contrary.
17.2 Force Majeure– Neither Party shall be liable to the other for any delay in, or failure of, the performance of its obligations under this Agreement arising from Force Majeure. The Party affected by Force Majeure shall as soon as practicable, send to the other a written notice setting out the circumstances of the event and its anticipated effect, and shall use all reasonable endeavors to minimize the effect of any such circumstances. If any delay or stoppage arising out of an event of Force Majeure continues for a continuous period of six (6) months, either Party may terminate this Agreement with immediate effect on giving written notice to the other, and neither Party shall be liable to the other for such termination.
17.3 Waiver– A failure or delay of any Party to enforce at any time any of the provisions hereof, or the failure to exercise any right which is provided therein or to require at any time performance of any of the provisions thereto, shall in no way be construed to be a waiver of such provisions of this Agreement by such Party in the event of a continuation or repetition of the circumstances which gave rise to such right.
17.4 Enforceability– Should any clause (or part thereof) of this Agreement be found to be invalid or unenforceable, such clause (or part thereof) shall be deemed severed from this Agreement, and the other clauses thereof shall remain in full force and effect, as if this Agreement had been executed without the invalid or unenforceable clause appearing. In such a case, the Parties shall negotiate in good faith to agree alternative or amended valid, legal and enforceable clauses with the same economic effect as intended by the parties hereto.
17.5 Interpretation– Any heading, caption or section title contained in this Agreement is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof.
17.6 Assignment– This Agreement is personal to the Customer and neither this Agreement nor any of the Customer’s rights or obligations hereunder shall be assigned, sublicensed, sold or otherwise transferred by the Customer without the prior written consent of Drawy, unless as otherwise provided explicitly in the Agreement. Drawy reserves the right to assign all or part of this Agreement at any time to any of its affiliates that can sufficiently execute the obligations under this Agreement.
17.7 Relationship of the Parties– The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship.
17.8 References and logo– During the Term and a period of five (5) years after the Term, Drawy may use the Customer’s name and logo on its website and in press releases, brochures, financial reports and other promotional materials in any media indicating that Customer is or was a customer of Drawy.
17.9 Notices– All notices under this Agreement shall be in writing, and shall be deemed to have been given upon: (i) personal delivery; (ii) the third day after mailing; (iii) the third day after sending by facsimile confirmed by a letter; or (iv) the first day after sending by email provided a valid proof of delivery can be provided. Notices to Drawy shall be addressed to the attention of its indicated contact person. Notices to Customer shall be addressed to Customer’s signatory of this Agreement and/or to the Customer Portal.
17.10 Links– The Website may provide links to other websites or resources. Drawy is not responsible for the availability of such sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources.
17.11 Survival– Those conditions of the Agreement whose intention and scope are designed to remain in existence, will also survive the termination, expiry, fulfillment or cancellation of the Agreement.
17.12 Governing law and jurisdiction – This Agreement and all respective rights and obligations of the Parties shall be governed by and shall be construed in accordance with the laws of Belgium (excluding its conflicts of laws rules). Should any dispute arise between the Parties out of or in connection with this Agreement, the Parties will endeavor to resolve the dispute in good faith by senior level negotiations (save where the Customers acts as a consumer). If the dispute is not resolved within thirty (30) days through such negotiations, each Party shall have the right to submit the unresolved issue to the Ghent (Belgium) courts, which shall have exclusive jurisdiction to settle any such dispute, controversy or claim which may arise in connection with this Agreement. This clause is without any prejudice to the legal rights of consumers.
17.13 Changes to the Agreement– Drawy has the right to change this Agreement (including these Terms), and will inform Customer thereof by (i) e-mail; (ii) or via a message on the Website or the Customer Portal; and/or (iii) in any other way deemed appropriate by Drawy.
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