GENERAL TERMS AND CONDITIONS VERSION 20201001

 

 

GENERAL

These general terms and conditions (hereinafter referred to as the "Terms and Conditions") are handled by:

 

BV POPEYE
Cuylits Street 73
2018 Antwerp
VAT BE0806.945.671
hello@popeye.cloud
+32 3 290 04 04

 

Hereinafter referred to as "POPEYE"

 

POPEYE's services include hosting websites (including web shops), registering domain names, hosting mailboxes and offering a framework (Plugins and Extensions) to build websites (division 'Popeye') as from the creation of websites (division 'Studio Calypso') (hereinafter referred to as the "Services"). These Terms and Conditions apply to any agreement that you (hereinafter referred to as the "Customer") concludes with POPEYE in connection with these Services (hereinafter referred to as the "Agreement").

The Agreement is established from the Customer's online order of Services through POPEYE's website (hereinafter referred to as the "Order"). By placing the Order, the Customer expressly agrees to the Terms and Conditions.

The General Terms and Conditions may be unilaterally modified at any time by POPEYE. However, the General Terms and Conditions in force at the time of the Order remain applicable to the Customer's Agreement.

Only POPEYE's General Terms and Conditions apply to the Agreement. Any general terms and conditions used by the Customer are expressly excluded.

 

 

ART 1. PAYMENT

In payment of the price for the Order, POPEYE delivers one or more invoices to the Customer, unless another method of payment has been expressly agreed upon between POPEYE and the Customer.

The Customer always pays the invoice at the latest within fifteen calendar days counting from the invoice date according to the payment details stated therein.

In the event of full or partial non-payment within the payment period, interest of 1% (one percent) per month shall be payable by operation of law and without prior notice of default.

In the event of full or partial non-payment within the payment period, a lump-sum compensation of 10% (ten percent) on the total invoice amount, with a minimum of EUR 75.00, shall also be payable by operation of law and without prior notice of default.

Partial payments shall first be used to discharge interest, damages and expenses before being deducted from the outstanding principal amounts.

 

 

ART 2. AMENDMENT

If POPEYE needs to purchase services and/or goods from third parties in order to execute the Agreement, POPEYE reserves the right to make changes to the Agreement in this regard as a result of the requirements set by these third parties and/or due to changes in their terms and conditions (including in terms of rate increases and cancellations). This does not entitle the Customer to terminate the Agreement.

 

 

ART 3. ILLEGAL COPYING AND INSTALLATION OF POPEYE SOFTWARE 

The illegal copying and installation of POPEYE™ software, plugins and licenses on remote servers is an infringement of the law protecting copyrights and prohibited by law. The illegal copying and installation of software, plugins and licenses purchased by POPEYE on remote servers is an infringement of the law protecting copyrights and prohibited by law. In addition to a fine of up to €87,000, the court may impose a prison sentence of up to four years. Criminal charges can be brought after reporting the copyright infringement. To prevent illegal copying and installation of Popeye software, no FTP access and no access to the WordPress plugin management pages can be given.

 

ART 4. TERMINATION AND DISSOLUTION

Any Agreement relating to the hosting by POPEYE of the Customer's website(s) is an open-ended agreement. This Agreement may be terminated at any time by either POPEYE or the Customer upon three months' notice.

POPEYE may terminate the Agreement immediately without prior notice of default, without court intervention and without being liable for any form of compensation, by registered letter sent to the Customer's address in the event of non-performance of the commitment(s) arising from the Agreement on the Customer's part or in the event of the Customer's bankruptcy or judicial reorganization.

In the event of termination as provided in Article 11 of the Agreement, the Customer shall also be liable for liquidated damages equal to a fee for the period of the last three months prior to termination, without prejudice to POPEYE's right to prove its actual damages. The subscriptions for mailboxes, domain names, hostings, plugins, email marketing, crm, sales tools and other products that we prepay annually with our suppliers are only terminable annually.

 

 

ART 5. CUSTOMER INFORMATION

If POPEYE requires certain information from the Customer for the execution of the Agreement, the Customer shall transmit this information to POPEYE free of charge, in a timely manner and in usual format upon its first request, failing which POPEYE may be unable to (temporarily) fulfill its obligation(s) under the Agreement, without giving the Customer any right to compensation.

The Customer must have the necessary copyrights, licenses and/or other required permissions relating to the information to be supplied.

POPEYE always treats the business, commercial, financial and/or technical information communicated by the Customer in the execution of the Agreement as confidential and does not disclose this information to third parties, except with the written agreement of the Customer. This obligation of confidentiality does not apply to information already in POPEYE's possession at the time of communication by the Customer to POPEYE, already publicly available or made publicly available by the Customer or legally obtained by a third party who has the right to disclose such information.

 

 

ART 6. SOFTWARE LICENSES

The Customer must have the necessary software licenses for the software installed on the various devices within his/her company.

 

 

ART 7. COPYRIGHTS

Everything POPEYE creates and/or develops in the context of the Customer's Order remains the property of POPEYE. POPEYE thus holds the copyright. The Customer only acquires a right of use through the Agreement. The Customer thus only acquires the right to use the material created and/or developed by POPEYE within the framework for which the material was Ordered. The Customer does not acquire a right to sell or access the source files. POPEYE reserves the right to use the material created and/or developed within the framework of the Agreement with the Customer for purposes other than the Agreement with the Customer, insofar as no confidential information of the Customer is disclosed in the process.

The Customer must ascertain that POPEYE may use material provided by the Customer (images, slogans, brand names, music, videos, etc.) in the context of POPEYE's performance of its Services and that such use is not prohibited under copyright protection.

 

 

ARTICLE 8. SERVER MIGRATION

To develop websites in a cost-effective manner, POPEYE works with the building blocks of the POPEYE framework of which Wordpress forms the basis. An active POPEYE hosting subscription is required for this. The POPEYE programming code, Plugins, Extensions, and associated (bulk) licenses used are included in the price of hosting, and cannot be transferred to third parties.

 

 

ART 9. LIABILITY AND INDEMNIFICATION

Without prejudice to differing mandatory laws and except in the case of fraud, willful misconduct or gross negligence on the part of POPEYE, POPEYE shall not be liable for any damages caused in the failure to comply with its own commitments arising from the Agreement, unless this would, except in cases of force majeure, lead to an erosion of this Agreement.

POPEYE can under no circumstances be held liable for violation(s) along the Customer's side of Articles 16, 18 and/or 20 of the General Terms and Conditions. The Customer bears full responsibility for this and shall therefore fully indemnify POPEYE with respect to all third party claims in this regard.

Furthermore, the Customer shall indemnify POPEYE in full with respect to all third party claims arising from any unlawful and/or careless use by the Customer of the Services provided by POPEYE.

If POPEYE cannot (properly) fulfill its own commitment(s) temporarily or permanently due to any extraneous cause and/or force majeure, this shall have the effect of temporarily or permanently releasing POPEYE from such own commitment(s), respectively, and it cannot be held liable for any damage caused by such non-performance.

The risk of extraneous cause and/or force majeure always lies with the Customer, which does not free the Customer from his/her own obligation(s) in the event POPEYE invokes extraneous cause and/or force majeure.

The terms "extraneous cause" and "force majeure" are interpreted in accordance with the prevailing common law conditions of application.

The Customer must address all complaints regarding the Agreement (including POPEYE's invoices) to POPEYE in writing or by email within 5 (five) calendar days after the Customer became aware or should reasonably have become aware of the facts on which the complaint is based under penalty of forfeiting any claim for compensation regarding these facts.

 

 

ART 10. DELIVERY AND EXECUTION TERMS

Delivery and execution deadlines specified by POPEYE are only indicative and cannot bind POPEYE in any case, unless expressly agreed otherwise.

 

 

ART 11. START-UP COSTS

If the Customer terminates the Agreement with POPEYE within a period of 36  (thirty-six) months, the Customer shall additionally owe POPEYE a start-up cost of 275.00 EUR (to be indexed annually to the health index, with January 2020 as the base index).

 

 

ART 12. VALIDITY

This Agreement constitutes an entire agreement between POPEYE and the Customer with respect to that which is governed by the Agreement and thus supersedes all other agreements and understandings between the Customer and POPEYE hereunder, if any.

The invalidity, nullity or unenforceability of any provision or clause of the General Terms and Conditions shall not result in the invalidity, nullity or unenforceability, respectively, of the relevant clause or these General Terms and Conditions as a whole. If the validity or enforceability of any provision or term of these Terms and Conditions is compromised, or seriously threatened, the provision or term in question shall be construed or replaced in such a manner that the provision or term may lawfully remain in force, provided that in such manner the provision or term continues to have substantially the same effects for both POPEYE and the Customer and that in such manner the provision or term does not destroy the cause or balance of the Agreement.

 

 

ART 13. APPLICABLE LAW AND JURISDICTION

The legal relationship between POPEYE and the Customer is governed by Belgian law.

POPEYE and the Customer shall endeavor to settle any dispute amicably. Any attempt to settle amicably shall be deemed to have failed as soon as one of the parties notifies the other in writing. If no amicable settlement can be reached, the courts of the judicial district of Antwerp, Antwerp Division, shall be competent for any dispute arising from the Agreement, the Order and the General Terms and Conditions.

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