Terms and conditions
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GENERAL TERMS AND CONDITIONS VERSION 20201001
GENERAL
These general terms and conditions (hereinafter: 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 include the hosting of websites (incl. webshops), the registration of domain names, the hosting of mailboxes, and the offering of a framework (Plugins and Extensions) for building websites (division ‘Popeye’), as well as the creation of websites (division ‘Studio Calypso’) (hereinafter: the “Services”). These General Terms and Conditions apply to every agreement you (hereinafter: the “Client”) conclude with POPEYE in the context of these Services (hereinafter: the “Agreement”).
The Agreement is established upon the online ordering of Services by the Client via POPEYE’s website (hereinafter: the “Order”). By placing the Order, the Client expressly agrees to the General Terms and Conditions.
The General Terms and Conditions may be unilaterally amended at any time by POPEYE. However, the General Terms and Conditions in force at the time of the Order remain applicable to the Client’s Agreement.
Only POPEYE’s General Terms and Conditions apply to the Agreement. Any general terms and conditions used by the Client are expressly excluded.
ART 1. PAYMENT
To settle payment for the Order, POPEYE issues one or more invoices to the Client, unless another payment method has been expressly agreed between POPEYE and the Client.
The Client always pays the invoice within fifteen calendar days from the invoice date, in accordance with the payment details stated therein.
In the event of full or partial non-payment within the payment term, interest of 1% (one percent) per month is due 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) of the total invoice amount is also due by operation of law and without prior notice of default, with a minimum of €75.00.
Partial payments are first applied to settle interest, damages, and costs before being deducted from the outstanding principal amounts.
ART 2. AMENDMENTS
If POPEYE needs to purchase services and/or goods from third parties in order to execute the Agreement, POPEYE reserves the right to make amendments to the Agreement in this regard as a result of requirements imposed by these third parties and/or changes in their conditions (including price increases and cancellations). This does not entitle the Client 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 external servers constitutes a violation of copyright protection law and is prohibited by law. The illegal copying and installation of software, plugins, and licenses purchased by POPEYE on external servers likewise constitutes a violation of copyright protection law and is 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 prosecution may be initiated following a report of copyright infringement. To prevent the illegal copying and installation of Popeye software, no FTP access and no access to WordPress plugin management pages will be granted.
ART 4. TERMINATION AND CANCELLATION
Every Agreement relating to the hosting by POPEYE of the Client’s website(s) is an agreement of indefinite duration. This Agreement may be terminated by either POPEYE or the Client at any time, subject to a notice period of three months.
POPEYE may terminate the Agreement immediately, without prior notice of default, without court intervention, and without any obligation to pay compensation, by registered letter to the Client’s address 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 the Client’s bankruptcy or judicial reorganisation.
In the event of termination as provided for in Article 11 of the Agreement, the Client also owes a fixed compensation equal to remuneration for the last three months prior to termination, without prejudice to POPEYE’s right to demonstrate its actual damages. Subscriptions for mailboxes, domain names, hosting, plugins, email marketing, CRM, sales tools, and other products that we prepay annually with our suppliers can only be cancelled on an annual basis.
Every quote, order, or assignment confirmed by the client constitutes a fixed and definitive commitment. In accordance with the provisions of Book 5 of the Civil Code, specifically Article 5.87, the contractor is entitled to compensation for damages resulting from the client’s non-performance of the agreement. In the event of unilateral cancellation of the project by the client, without any fault or shortcoming on the part of the contractor, the contractor is entitled to charge a cancellation fee. This fee covers, among other things, economic loss resulting from lost income, reserved working time, loss of other assignments, and preparatory work already carried out or costs already incurred. For cancellations more than 10 calendar days before the scheduled start of the project, a fixed cancellation fee of twenty percent (20%) of the agreed total amount applies, plus the value of work already performed and expenses incurred. For cancellations fewer than 10 calendar days before the scheduled start of the project, a fixed cancellation fee of thirty percent (30%) of the agreed total amount applies, plus the value of work already performed and expenses incurred. If the cancellation occurs on the planned start date, or if the project is suspended without a concrete resumption date, a cancellation fee of forty percent (40%) applies, plus the value of work already performed and expenses incurred.
ART 5. CLIENT INFORMATION
If POPEYE requires certain information from the Client in order to execute the Agreement, the Client shall provide this information free of charge, in a timely manner, and in the usual format upon POPEYE’s first request. Failure to do so may result in POPEYE being (temporarily) unable to fulfil its obligation(s) under the Agreement, without this entitling the Client to any compensation.
The Client must hold the necessary copyrights, licences, and/or other required permissions with respect to the information to be supplied.
POPEYE always treats 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 third parties, except with the Client’s written consent. This confidentiality obligation does not apply to information that was already in POPEYE’s possession at the time of disclosure by the Client, that is or becomes publicly available through the Client, or that has been lawfully obtained from a third party who is entitled to disclose it.
ART 6. SOFTWARE LICENCES
The Client must hold the necessary software licences for the software installed on the various devices within their company.
ART 7. COPYRIGHT
Everything created and/or developed by POPEYE in the context of the Client’s Order remains the property of POPEYE. POPEYE therefore holds the copyright. The Client acquires only a right of use through the Agreement. The Client is thus solely entitled to use the material created and/or developed by POPEYE within the scope for which the material was Ordered. The Client does not acquire any right of sale, nor access to the source files. POPEYE reserves the right to use material created and/or developed in the context of the Agreement with the Client for purposes other than the Agreement with the Client, provided no confidential information of the Client is disclosed in doing so.
The Client must ensure that POPEYE is permitted to use material provided by the Client (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.
ART 8. SERVER MIGRATION
In order to develop websites in a cost-efficient 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 purpose. The POPEYE programming code, Plugins, Extensions, and associated (bulk) licences used are included in the price of the hosting and cannot be transferred to third parties.
ART 9. LIABILITY AND INDEMNIFICATION
Without prejudice to mandatory legislation to the contrary, and except in cases of fraud, intent, or gross negligence on the part of POPEYE, POPEYE is not liable for any damage caused by non-compliance with its own obligations arising from the Agreement, unless this — barring force majeure — would lead to a hollowing out of the agreement.
POPEYE cannot under any circumstances be held liable for violations by the Client of Articles 16, 18, and/or 20 of the General Terms and Conditions. The Client bears full responsibility in this regard and shall fully indemnify POPEYE against all third-party claims in this connection.
The Client shall furthermore fully indemnify POPEYE against all third-party claims arising from unlawful and/or negligent use by the Client of the Services provided by POPEYE.
If POPEYE is temporarily or permanently unable to (properly) fulfil its own obligation(s) due to an external cause and/or force majeure, this results in POPEYE being respectively temporarily or permanently relieved of those obligation(s), and it cannot be held liable for any damage caused by such non-performance.
The risk of the external cause and/or force majeure always lies with the Client, meaning the Client is not relieved of their own obligation(s) in the event POPEYE invokes an external cause and/or force majeure.
The concepts of ‘external cause’ and ‘force majeure’ are interpreted in accordance with the prevailing common law conditions of application.
The Client must submit all complaints relating to the Agreement (including POPEYE’s invoices) in writing or by email to POPEYE within 5 (five) calendar days of the Client becoming aware, or reasonably ought to have become aware, of the facts on which the complaint is based, on pain of forfeiture of any right to claim compensation in respect of those facts.
ART 10. DELIVERY AND EXECUTION DEADLINES
The delivery and execution deadlines provided by POPEYE are indicative only and are not binding on POPEYE under any circumstances, unless expressly agreed otherwise.
ART 11. START-UP COST
If the Client terminates the Agreement with POPEYE within a period of 36 (thirty-six) months, the Client additionally owes POPEYE a start-up cost of €275.00 (indexed annually to the health index, with January 2020 as the base index).
ART 12. VALIDITY
This Agreement constitutes the entire agreement between POPEYE and the Client with respect to the matters regulated in the Agreement and thus supersedes all other agreements and arrangements between the Client and POPEYE in this regard, 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 of the relevant clause or these General Terms and Conditions as a whole. If the validity or enforceability of any provision or clause of these General Terms and Conditions is compromised or seriously threatened, the relevant provision or clause shall be interpreted or replaced such that it can remain lawfully in force, provided that it continues to have substantially the same effects for both POPEYE and the Client and does not negate the cause or balance of the Agreement.
ART 13. APPLICABLE LAW AND JURISDICTION
Belgian law applies to the legal relationship between POPEYE and the Client.
POPEYE and the Client shall endeavour to resolve any dispute amicably. Any attempt at amicable settlement shall be deemed to have failed as soon as one party notifies the other in writing. If no amicable settlement can be reached, the courts of the judicial district of Antwerp, Antwerp division, have jurisdiction over any dispute arising from the Agreement, the Order, and the General Terms and Conditions.