GENERAL TERMS AND CONDITIONS VERSION 20201001

 

 

GENERAL

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

 

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

 

Hereinafter referred to as "POPEYE".

 

POPEYE's services consist of hosting websites (incl. webshops), registering domain names, hosting mailboxes and providing a framework (Plugins and Extensions) to build websites (division 'Popeye') and creating websites (division 'Peace of Cake') (hereafter referred to as: the "Services"). These Terms and Conditions apply to any agreement that you (hereinafter referred to as the "Customer") enter into with POPEYE within the scope of these Services (hereinafter referred to as the "Agreement").

The Agreement is concluded from the online ordering of Services by the Client through POPEYE's website (hereafter referred to as: the "Order"). By placing the Order, the Client expressly agrees to the General Terms and Conditions.

The General Terms and Conditions may be modified unilaterally by POPEYE at any time. However, the Terms and Conditions in force at the time of the Order shall continue to apply to the Client's Agreement.

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

 

 

PAYMENT

In payment of the price for the Order, POPEYE shall provide the Client with one or more invoices, unless another method of payment has been expressly agreed between POPEYE and the Client.

The Customer shall always pay the invoice at the latest within fifteen calendar days from the invoice date and in accordance with the payment details stated therein.

In the event of full or partial non-payment within the term of payment, 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 term, a fixed 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 cover interest, damages and costs before they are deducted from the outstanding principal amounts.

 

 

AMENDMENT

In the event that POPEYE needs to purchase services and/or goods from third parties for the execution of the Agreement, POPEYE reserves the right to make changes to the Agreement in this regard due to the requirements set by these third parties and/or due to changes in their terms and conditions (i.e. concerning tariff increases and cancellations). This does not give the Client the right to terminate the Agreement.

 

 

TERMINATION AND DISSOLUTION

Any agreement concerning the hosting by POPEYE of the Customer's website(s) is an agreement of indefinite duration. This Agreement can be terminated at any time by both POPEYE and the Client subject to three months notice.

POPEYE may terminate the Agreement immediately without prior notice, without recourse to the courts and without owing any form of compensation, by registered letter to the address of the Client in the event of non-compliance with the obligation(s) arising from the Agreement on the part of the Client or in the event of bankruptcy or judicial reorganisation of the Client.

In the event of termination as provided for in Article 13 of the Agreement, the Client shall furthermore owe a lump-sum compensation equal to the compensation for the period of the last three months prior to termination, without prejudice to POPEYE's right to prove its actual damages.

 

 

CUSTOMER INFORMATION

In the event that POPEYE requires certain information from the Client in order to execute the Agreement, the Client shall provide POPEYE with this information free of charge, in a timely manner and in a customary format upon its first request, failing which POPEYE may not be able to (temporarily) fulfil its obligation(s) under the Agreement, without this giving the Client any right to compensation.

The Customer must have the necessary copyrights, licences and/or other required permissions with regard to the information to be provided.

POPEYE always treats the business, commercial, financial and/or technical information communicated by the Client during the execution of the Agreement as confidential and does not disclose this information to any third parties, except with the written consent of the Client. This obligation of confidentiality does not apply to information which is already in POPEYE's possession at the time of notification by the Client to POPEYE, which is already publicly available or which is made publicly available by the Client or which was validly obtained by a third party who has the right to disclose this information.

 

 

SOFTWARE LICENCES

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

 

 

COPYRIGHTS

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

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

 

 

SERVER MIGRATION

In order to develop websites in a cost effective way, POPEYE works with the building blocks of the POPEYE framework of which Wordpress is 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 hosting price, and cannot be transferred to third parties.

 

 

LIABILITY AND INDEMNITY

Without prejudice to any other mandatory legislation and except in the case of fraud, wilful misconduct or gross negligence on the part of POPEYE, POPEYE shall not be liable for any damage caused in the non-fulfilment of its own obligations arising from the Agreement, unless this would, except in the case of force majeure, lead to an erosion of this Agreement.

POPEYE shall under no circumstances be held liable for any violation(s) on the part of the Client of articles 16, 18 and/or 20 of the General Terms and Conditions. The Client bears full responsibility for this and shall therefore indemnify POPEYE in full against all claims from third parties in this regard.

Furthermore, the Customer shall fully indemnify POPEYE against all third party claims arising from unlawful and/or negligent use by the Customer of the Services provided by POPEYE.

In the event that POPEYE cannot (properly) fulfil its own commitment(s) due to a foreign cause and/or force majeure, this shall result in POPEYE being temporarily or permanently released from these own commitment(s) respectively and shall not be held liable for any damage caused by this non-fulfilment.

The risk of the extraneous cause and/or force majeure shall always lie with the Customer, as a result of which the Customer shall not be released from his/her own obligation(s) in the event that POPEYE invokes an extraneous cause and/or force majeure.

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

The Customer shall address all complaints regarding the Agreement (including POPEYE's invoices) 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 in writing or by e-mail to POPEYE on penalty of forfeiting any claim for compensation regarding these facts.

 

 

DELIVERY AND EXECUTION TERMS

The delivery and execution periods indicated by POPEYE are only indicative and cannot bind POPEYE in any way, unless explicitly agreed upon otherwise.

 

 

START-UP COSTS

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

 

 

WORKING HOURS IN CONTROL

If Client requests support or wants to have some adjustments made, he can choose for the rate of working hours under direction. In this rate, working hours are charged per quarter of an hour started. The hourly rate is €75 per working hour for project management and first-line development (page building + low end CSS) and €150 per working hour for second-line development (high end CSS & PHP).

 

 

CUSTOMISED PROGRAMMING

Popeye BV offers WordPress, WooCommerce, themes and a number of plugins as a basis. For functionality that isn't present and isn't available as extension through a plugin, there's the possibility to have custom programming performed on it. Popeye BV works through recognized networks with the most experienced and educated programmers, who write high quality code compatible with the latest available versions of WordPress, WooCommerce, themes and plugins. Unlike plugins that are kept up to date by the manufacturer, this is not the case with custom code. The advantage is that there is no monthly charge to keep the code compatible with the latest versions of the underlying systems. The disadvantage is that if, after the delivery of your customised code, an adjustment is made to the underlying systems as a result of which your customised code is no longer compatible, this cost is payable by the customer who commissioned the customised programming. While most developers offer a warranty period of 3-5 days for found bugs, the programming network Codeable that Popeye BV cooperates with, has a leading warranty period of 28 days.

 

 

VALIDITY

This Agreement constitutes an entire agreement between POPEYE and the Customer with respect to the subject matter of the Agreement and thus supersedes all other agreements and understandings between the Customer and POPEYE in this regard, if any.

The invalidity, nullity or unenforceability of any provision or clause of these General Terms and Conditions shall not result in the invalidity, nullity or unenforceability of the relevant provision or clause in its entirety. If the validity or enforceability of any provision or clause of these General Terms and Conditions is impaired or seriously threatened, the provision or clause in question shall be interpreted or replaced in such a way that it can continue to be valid in a lawful manner, provided that in this way the provision or clause continues to have substantially the same effects for both POPEYE and the Customer and that in this way the provision or clause does not destroy the cause or balance of the Agreement.

 

 

 

APPLICABLE LAW AND JURISDICTION

The legal relationship between POPEYE and the Client shall be governed by Belgian law.

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

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