GroupDraw Terms of Business

 

Last updated: 8 August 2014

 

These terms of business (the “Terms“) govern your access to and use of the Services. These Terms apply in addition to the Terms of Use and the Privacy Policy. Any terms and conditions of the Customer that are contrary to these GTC or deviate from them are hereby revoked and shall only be valid, expressly acknowledged by GroupDraw in writing.

1. Key Terms

The following terms have the following meanings in the context of these Terms, unless their context indicates otherwise:

  • Account“: an account associated with a valid e-mail address which has been registered by you for the use of the Services
  • Billing Period“: the billing period in respect of which the fees are payable, as selected by you and as set out on the Site or otherwise agreed in writing.
  • Contract“: the contract created between you and GroupDraw on the date on which you purchase a subscription to the Services, and which incorporates these Terms as may be amended from time to time and any other documents incorporated by reference
  • Customer” or “you“: the person or entity that purchase Services and is responsible for one or several Accounts, and for the Users linked to that Account
  • Customer Data“: means all electronic data or information submitted by you or the Users in relation to the Services
  • GroupDraw“: Swiss Marine Consulting GmbH
  • IP Rights“: trademarks, copyrights, data base rights, trade secrets, know-how, and any other property rights and any other legal protection (such as the protection granted through unfair competition legislation), in each case whether registered or not and including any applications for registration
  • Services“: the online web-based application and platform to be provided by GroupDraw via the Site, including associated APIs, the Site and any data or information on the Site other than Customer Data, and any other product or service provided by GroupDraw under the Contract, as set out on the Site
  • Site“: the GroupDraw website at www.GroupDraw.com and any successor or related site designated by GroupDraw
  • User“: an individual authorized by you to use the Services, for whom subscriptions to the Services have been purchased and who has been supplied user identifications and passwords

2. Free Trial

GroupDraw may make one or more Services available on a trial basis free of charge. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into the Contract by reference and are legally binding.

A trial account with no activity (login) for 90 days or more will be deactivated.

Any Customer Data entered onto the Site and any communications made via the Services by or for you during the free trial will be retained for sixty (60) days only following the end of the free trial, after which it will be permanently lost, unless you purchase a subscription to the Services.

3. Account

To access the Services, you must register an Account with us. By registering an account with us (“User Account“),

  • you agree that these Terms form a legally binding and valid Contract;
  • you represent and warrant that you are permitted and able to enter into binding contracts under the laws applicable to you, and if you are accessing or otherwise using the Services on behalf of an entity, such as the company you work for, that you have legal authority to bind that entity to these Terms;
  • you represent and warrant that all information contained therein is truthful, accurate, and complete, and that you will keep all such information current, including billing information. You agree not to allow unauthorized use of your password, user identification or the Services and to inform us immediately of abuse (send your notice to support@GroupDraw.com);
  • you agree to bear full responsibility for all risks arising out of the use of the Services by you and any other person using your user identification or password, and by all of your Users and anyone using the user identification and password of a User.

4. Services

GroupDraw does not make any representations or warranties and provides no guarantees of any kind, whether express or implied, regarding the availability, merchantability or fitness for a particular purpose of the Services to the maximum extent permitted by applicable law.

GroupDraw reserves the right at any time to change the Service temporarily or permanently (or any part thereof). If GroupDraw changes the Services in a manner which removes or disables a feature or functionality on which you materially rely, GroupDraw, at your request, shall use commercially reasonable efforts to substantially restore such functionality. In the event that GroupDraw is unable to substantially restore such functionality, you may terminate the Contract and receive a pro-rata refund of the fees paid under the Contract for the terminated portion of the Billing Period. You acknowledge that GroupDraw reserves the right to discontinue offering the Services at the conclusion of your then current Billing Period. You agree that GroupDraw shall not be liable to you nor any third party for any changes to the Services other than as described in this Section 4.

5. Provision of the Services

GroupDraw will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for planned downtime (of which GroupDraw shall give reasonable advance notice), unavailability caused by circumstances beyond GroupDraw’s reasonable control and legal or regulatory restrictions imposed on GroupDraw which prevent GroupDraw from providing the Services.

The Services may be subject to limitations, for example to limits on disk storage space, number of projects per Billing Period, number of drawings per Billing Period, or limits on the number of users, as specified on the Site.

6. Support

GroupDraw will provide basic support to you for the Services at no additional charge.

7. Fees and Payments

You are responsible to pay all applicable fees for the selected number of Users in the Billing Period set out on the Site when registering an Account. Fees are based on the Services purchased and not actual usage. The number of User subscriptions purchased cannot be decreased to take effect during any Billing Period.

GroupDraw will issue you with an invoice fourteen (14) days before the start of each Billing Period. Credit card payments will be processed on the first day of the Billing Period. Invoices must be paid by the first day of the Billing Period.

Subject to refunds after payment of an invoice issued incorrectly by GroupDraw, all fees paid are non-refundable. If you believe that GroupDraw has incorrectly invoiced you, you must contact GroupDraw in writing within thirty (30) days of the date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.

You may not withhold payment of any sum by reason of any set-off of any claim or dispute with GroupDraw whether relating to the quality or performance of the Services or otherwise.

The amount of the fees is subject to change upon fourteen (14) days’ notice from GroupDraw. Your continued use of the Services after expiry of the notice period indicates your acceptance of the change in fees.

8. Third Party Content

Third party content, such as applications provided by third parties, may be made available directly to you by other entities or individuals under separate terms and conditions, including separate fees and charges. The use of any third party content by you is at your sole risk. GroupDraw is not required to screen or test such content.

9. Customer Responsibilities

You must ensure and are responsible for compliance by the Users linked to his Account with the Contract. If you become aware of any violation of the Contract by a User, you shall immediately terminate such User’s access.

You shall use reasonable efforts to prevent unauthorized access to or use of the Account, the Services or any other security breach, and shall contact GroupDraw immediately of any such unauthorized access or use. GroupDraw shall not be liable for any losses or damages that you may incur as a result of any such unauthorized access.

You must not

  • use any Services other than as permitted by the Contract;
  • access or use the Services for fraudulent or illegal purposes
  • send or store malicious code
  • interfere with or disrupt the integrity or performance of the Services or the data contained herein
  • license, sell, lease, transfer or otherwise exploit or make the Services available to any third party other than to Users linked to its Account
  • modify, copy, or create derivative works based upon the Services
  • reverse engineer, disassemble, decompile or otherwise attempt to decipher any code in connection with the Services, except to the extent permitted by mandatory applicable law.

10. Customer Data

You shall have sole responsibility for the legality and of all Customer Data. You acknowledge that GroupDraw has no control over the Customer Data and does not purport to monitor your Customer Data or data submitted by other customers, and therefore does not warrant for the accuracy, integrity or quality of any such data.

You shall not upload to, transmit through or otherwise post or share through the Services any Customer Data that in GroupDraw’s sole discretion is illegal, threatening, pornographic, defamatory or otherwise objectionable or an infringement of the IP Rights or personality rights of a third party. GroupDraw reserves the right to delete, move, or edit any such Customer Data.

11. IP Rights

GroupDraw reserves all rights, including IP Rights, in and to the Services. You shall not obtain any rights in or to the Services other than as follows. GroupDraw hereby grants to you and your Users a non-exclusive, non-sublicensable, non-transferrable license for the Term to access and use the Services solely in accordance with the Contract.

As between you and GroupDraw, you own all rights including IP Rights in and to the Customer Data. You consent to the use by GroupDraw of the Customer Data to provide the Services to you and any Users.

If you purchase the right to have the Services customized (branded), you hereby grant to GroupDraw a non-exclusive, non-transferable, royalty-free license for the Term to use all applicable logos, trademarks, trade names and other distinctive elements that you may adopt and designate from time to time in connection with the branding of the Services.

12. Privacy and Data Security

The Parties acknowledge and agree that in relation to personal data you act as a data controller, and GroupDraw shall, to the extent that it processes such personal data on your behalf:

  • process all personal data in accordance with Swiss data protection law;
  • only process personal data in accordance with your instructions and to the extent reasonably necessary for the performance by GroupDraw of its obligations towards you;
  • promptly refer to you any request, notices or other communications in respect of personal data, and which have been received from data subjects, any applicable data protection authority or any other law enforcement, regulatory or governmental authority;
  • provide such reasonable assistance and information to you as it may reasonably require to allow you to comply with its obligations as data controller under applicable data protection law;
  • erase, anonymise or, if either of these options is not possible, block all access to, all personal data within a reasonable period of time after it ceases to be necessary for GroupDraw to process such personal data in order to perform its obligations towards you.

To process personal data, GroupDraw may transfer it to subcontractors, including in countries outside the European Economic Area. GroupDraw is responsible for ensuring that the personal data continues to be adequately protected during the course of any such transfer.

GroupDraw shall have in place, appropriate technical and organisational measures to protect the Customer Data against accidental or unlawful destruction or accidental loss or alteration or unauthorized disclosure or access and against all other unlawful forms of processing.

13. Suspension

GroupDraw may at any time immediately suspend your right or the right of any User to access or use any portion or all of the Services, without liability to you and in addition to any other rights and remedies of GroupDraw, if GroupDraw determines that:

  • the access or use by you or a User of the Services (i) poses a material security risk to GroupDraw or any third party; (ii) may have a material adverse impact on the Services or data of any other GroupDraw customer; or (iii) may subject GroupDraw or any third party to material liability;
  • GroupDraw has reasonable grounds to suspect that you and/or any of the Users has engaged in fraudulent activity in connection with the Services;
  • you, or any User, is in breach of these Terms, including any payment obligations for more than fifteen (15) days.

If GroupDraw suspends your right to access or use any portion or all of the Services, you shall remain responsible for all fees that are payable during the period of the suspension. GroupDraw shall not delete any Customer Data as a result of the suspension, except in accordance with these Terms.

14. Term and Termination

The term of the Contract will commence on the date on which the Customer or a User uses the Services. Unless terminated earlier, the Contract shall continue for the Billing Period. Thereafter, the Contract shall automatically renew for further terms of the same length as the Billing Period unless the Contract is terminated earlier in accordance with this Section 14. If you sign up for a free trial period and does not purchase a subscription to the Services before the end of that period, the Contract will terminate at the end of the free trial period.

Either party may terminate the Contract at any time with immediate effect by written notice to the other party if the other party commits a material breach of any term of the Contract and such breach is not capable of remedy or, if capable of remedy, is not remedied within a period of thirty (30) days of being notified in writing to do so; or if the other party becomes insolvent.

GroupDraw may terminate the Contract at any time with immediate effect by written notice to you if any act or omission by Customer or any User results in a suspension described in Section 13; or in order to comply with applicable laws, government regulations or the request of a law enforcement, regulatory or governmental authority.

Either party may at any time terminate the Contract with effect from the end of the current Billing Period as follows:

  • the Customer amends the profile of the Customer in the Registered Account; and
  • GroupDraw notifies the Customer in accordance with Section 17.

You may request a copy of the Customer Data before the expiry or termination of the Contract within its profile on the Site, and GroupDraw will make the Customer Data available to you. GroupDraw shall have no obligation to maintain or provide any Customer Data with effect from thirty (30) days after the date of expiry or termination of the Contract (as applicable). Thereafter, unless and to the extent legally prohibited, GroupDraw shall delete all the Customer Data on the Site or otherwise in the possession or under the control of GroupDraw. Any additional post-termination assistance from GroupDraw is subject to mutual agreement by you and GroupDraw.

15. Limitation of Liability

To the largest extent permitted by law, GroupDraw excludes any liability (i) in connection with the Services, with (ii) the use of or inability to use the Site (whether arising in contract, tort or otherwise), in particular any liability for indirect and consequential damages, including (but not limited to) loss of profits, loss of goodwill, loss of data, unrealized savings, business interruptions, additional costs and expenditures, and third party claims, and (iii) any liability for auxiliaries. Notwithstanding the above, nothing in these excludes or limits the liability of GroupDraw party for death or personal injury, or fraud or fraudulent misrepresentation.

16. Indemnity

You shall indemnify and hold GroupDraw harmless from and against any losses incurred by GroupDraw in respect of any third party claims in relation to the use by you or any of the Users of the Services or to any Customer Data.

17. Notices

GroupDraw may provide any notice to you under the Contract by posting a notice on the Site, by posting a message to the profile menu of the Account, or by sending an email to your registered email address, and such notice shall be effective upon posting or sending the email (as appropriate).

To give GroupDraw notice under the Contract, you shall contact GroupDraw by email to support@GroupDraw.com and such notice shall be effective upon sending the email.

18. Changes

GroupDraw reserves the right to update and change these Terms at any time. Your continued use of the Services after we have notified you or an update indicates your acceptance of such update.

19. Miscellaneous

GroupDraw may refer to you as a key customer and GroupDraw may use your name and logo on the Site and in other marketing materials, unless you notify GroupDraw in writing otherwise.

If a provision of these Terms is invalid or unenforceable, then the remaining provisions will remain unaffected, and the invalid or unenforceable provision(s) will be deemed replaced by valid and enforceable terms that most nearly achieve the economic purpose of the invalid provision(s). This rule applies by analogy to contractual omissions, intended or unintended. If you believe that you have other or further rights than those set out in these Terms based on mandatory law, then you must inform us of such right(s) as soon as practicable so that we may in our sole discretion provide an alternative remedy for the situation.

You shall not assign the Contract, or delegate or sublicense any of your rights under the Contract, without the prior written consent of GroupDraw.

The Contract and any dispute or claim arising out of or in connection with it shall be governed by the substantive laws of Switzerland. The parties irrevocably submit to the exclusive jurisdiction of the courts of Zurich, Switzerland, regarding any dispute or claim arising out of or in connection with the Contract.