(Last updated on 09 March 2022)
Article 1 Application of the General Terms and Conditions
1.1. These General Terms and Conditions shall apply to all offers from and all agreements made with ESN/Paddle, even if the customer's documents contain conflicting provisions. The customer accepts the General Terms and Conditions of ESN/PADDLE by placing an order.
Article 2 Offers and quotes – order confirmation
2.1. All offers and quotes provided by ESN/Paddle are without obligation until the moment at which the customer accepts them. The agreement is concluded when the customer signs the selection and returns it to ESN/Paddle. Each order or confirmation of the order made by the customer shall bind the customer to the agreement. The agreement shall replace all previously concluded oral and written agreements. Execution of the order shall start upon receipt of the order.
2.2 All changes regarding the scope or functionality during and after the project shall be carried out at the hourly rate applicable at the time unless otherwise agreed.
2.3 Travel and relocation costs shall always be borne by the customer unless expressly agreed otherwise.
Article 3 Cancellation of the order
3.1. the customer can cancel an order as long as ESN/Paddle has not yet started its activities and upon payment of compensation of 30% of the agreed price, with a minimum amount of EUR 1000.
Article 4 Delivery
4.1. The delivery period shall be extended should the customer fail to submit information, documents, originals or images (promptly) or accept the corrected proofs (on time) or if the customer places additional orders.
Article 5 Risk
5.1. All goods belonging to the customer and held by ESN/Paddle are held there at the client's risk.
Article 6 Methods of payment
6.1. Yearly hosting, maintenance and subscription costs are settled annually. This invoice must be paid within 30 days.
Unless otherwise agreed, invoices from ESN/Paddle are payable in cash. Any disputes should be sent to ESN/Paddle by registered mail within seven working days of sending the invoice. Under no circumstances can an argument justify a delay or suspension of payment.
6.2. All invoices are payable no later than their due date and are to be made by transfer to the account number of ESN/Paddle. Each payment shall be offset against the oldest invoice and in the first instance against the payment interest and costs due. Permitted discounts shall expire in the event of non-compliance with the General Terms and Conditions of Sale.
6.3. If the customer does not pay within eight days after receiving a reminder from ESN/Paddle to that effect, the customer shall owe ESN/Paddle default interest at the interest rate determined in Article 5 of the Law of 02/08/2002 on combating late payment in commercial transactions. The interest due shall be calculated from the date of the reminder until such date as payment is made in full.
Furthermore, ESN/Paddle reserves the right to suspend further execution of its commitments until the customer has paid the overdue invoices. Insofar as no additional subscription fees are paid, or the payment arrears are greater than 30 days, the subscription to all services provided by ESN/Paddle and Paddle CMS shall lapse.
6.4 Web projects put on hold by the customer shall not give rise to a suspension of payment. For those projects that have been put on hold for longer than eight weeks, a restart fee shall be charged in proportion to the time required to restart the project. For planning reasons, it is not possible to suspend online marketing courses.
6.5. ESN/Paddle is entitled to terminate the agreement with immediate effect or to block access to the services (e.g. Paddle CMS), either entirely or in part and temporarily or not, should the customer fail to wholly or in part comply with one or more of his obligations resulting from this agreement (such as a non-payment of the invoice) without it giving rise to the ability of the customer to claim a refund of any prepaid fees or any compensation for damages. ESN/Paddle shall, in any case, inform the customer of this. Furthermore, ESN/Paddle is entitled to terminate the agreement without further notice of default, and by operation of law with immediate effect if the customer is declared bankrupt, the customer has requested or accepted judicial composition, or more generally, the customer finds themselves in a situation involving cessation of payment.
Article 7 Warranty and service provision
7.1 Software from ESN/Paddle is provided "as is"; ESN/Paddle accepts no liability for damage caused by the incorrect use or functioning of the software.
7.2 The presence of errors (bugs) in the software shall never entitle the customer to reject it in whole or in part. ESN/Paddle cannot be held responsible for this. ESN/Paddle may attempt to correct these errors in a subsequent software version.
7.3 ESN/Paddle guarantees that the software it provides shall be made available to the customer and that a password will be provided once registration has taken place. Insofar as ESN/Paddle has agreed to perform services for the customer, i.e. consultation, guidance, development, etc. ESN/Paddle guarantees that it shall provide these professionally and commercially.
7.4 A guarantee does not cover the restoration of damaged or lost data. The warranty shall not apply if the software from ESN/Paddle has been modified by a party other than ESN/Paddle without its prior written consent or as a result of improper or unauthorised use. ESN/Paddle shall charge the cost of repair at all times.
7.5 Insofar as the software from ESN/Paddle is used in combination with defective hardware, the customer cannot claim any warranty.
7.6 The warranty for software previously ordered and delivered by ESN/Paddle within the scope of a subscription shall not be extended by any software from ESN/Paddle that is collected and delivered at a later date. Insofar as orders are added to a subscription for which the guarantee has already expired, the subsequent warranty shall not restart.
7.7 The customer is obliged to indemnify and hold ESN/Paddle harmless against all claims for damages that third parties may file against ESN/Paddle for damage caused by or with the delivered software.
7.8 ESN/Paddle makes use of third party programs (for example, Google Analytics, UitInVlaanderen, Google Maps). If you do not have these programmes and/or subscribe to them, it is possible that not all of the functions in ESN/Paddle will work as envisaged.
Article 8 Liability – General
8.1. ESN/Paddle undertakes to exercise due care and attention in carrying out all services to be provided. All ESN/Paddle services are carried out under the best endeavours obligation. ESN/Paddle shall not be liable for errors in the execution due to insufficient or erroneous input by the customer. A guarantee period of 4 weeks after delivery is provided during the development to deal with any technical bugs. The delivery is deemed to be provisional acceptance by the customer. Without written notification to the contrary, this provisional acceptance shall become final after four weeks.
8.2. ESN/Paddle cannot be held liable for any error (even a gross error) on its own part or that of its employees, except in the case of fraud. Irrespective of the cause, form or subject matter of the claim in which the liability is invoked, ESN/Paddle shall in no event be liable for any consequential damages such as a loss of expected profits, a decrease in sales, increased operational costs, loss of clientèle, that the customer or third parties may suffer as a result of any fault or negligence on the part of ESN/Paddle or any agent.
8.3. ESN/Paddle's liability concerning the services provided to the customer shall, in any event, be limited – at the choice of ESN Paddle – to either once more performing the services or offering a refund of the price paid by the customer. The total liability of ESN/Paddle shall never exceed the price paid by the customer to ESN/Paddle for the services that gave rise to the claim.
8.4. Regarding services provided by third party suppliers, ESN/Paddle shall not accept any liability that is greater than or different from the level of harm that the third party suppliers are prepared to take in respect of their products or services.
8.5. ESN/Paddle cannot be held responsible for using photographs or digital material that has been supplied or approved by the customer.
Article 9 Software liability
9.1. Without prejudice to Article 8, the following shall apply to software: the error-free operation of a computer configuration (the entirety of hardware and software) can never be fully guaranteed due to external factors (power failure or malfunction, lightning strike, etc.) and due to factors that are specific to the computer configuration (defects, network failures, undiscovered errors in system and application software, etc.), meaning that the unexpected loss of (all) data may occur. The customer shall install appropriate mechanisms to deal with the security, preservation and restoration of data.
Article 10 Intellectual property rights
10.1. Intellectual Property Rights shall be understood to mean: all intellectual, industrial and other property rights (whether registered or not), including, but not limited to, copyrights, related rights, trademarks, trade names, logos, drawings, models or applications for registration as a drawing or model, patents, applications for patents, domain names, know-how, as well as rights to databases and computer programs.
10.2. Both parties accept that the design of a website (in particular the structure of the website pages, main navigation) shall, in principle, not be protected under intellectual property rights. The customer can find a similar system in other sites developed by ESN/Paddle.
10.3. Intellectual property rights that relate to the visual design of the website that ESN/Paddle creates are transferred to the customer after payment has been made. This transfer shall be valid to the fullest extent in respect of all operating modes and forms and shall be good for the entire duration of the relevant right and in respect of the world as a whole. However, should the website include photos or drawings that were not provided by the customer but were taken by ESN/Paddle from a website that offers online photos and illustrations, irrespective or not of whether this was subject to a fee, then the usage subscription obtained by the customer in respect of these photos and drawings shall depend on the terms and conditions set out on the website of this online library. In general, this user licence shall not be exclusive. ESN/Paddle provides no warranties regarding these photographs and illustrations.
10.4. The intellectual property rights linked to the ESN/Paddle software belong exclusively to ESN/Paddle or a third party with whom ESN/Paddle has agreed in this respect. Subject to the payment of an annual subscription fee as set out in the quote provided by ESN/Paddle and under the suspensory condition that the price is paid in full, the customer shall obtain a non-exclusive, non-transferable licence to use this software during the period specified in the quote. The customer shall be prohibited from granting sublicenses to third parties or making the software available or communicating it to third parties in any way, or using the software for the benefit of third parties, or from commercialising it.
10.5. The customer shall at all times respect the intellectual property rights of ESN/Paddle and shall make all reasonable efforts to protect such rights. The customer shall immediately inform ESN/Paddle of any infringement by third parties of the intellectual property rights of ESN/Paddle of which he becomes aware.
Article 11 Right of use
11.1 ESN/Paddle only grants a right to use the software provided by ESN/Paddle against payment of a fee. This right of use is non-exclusive and non-transferable by the customer.
11.2 The customer cannot install and copy software provided by ESN/Paddle for backup. If you hold a multi-user subscription, you are permitted to have the number of listed users.
11.3 The customer cannot transfer or provide copies of ESN/Paddle software to third parties.
Article 12 Transferability
12.1 Without the written permission of ESN/Paddle, the right of use is not transferable and cannot be sublicensed. The customer shall not be permitted to rent, lease, sublicense, sell, dispose of, grant, transfer as security or hand over the software to third parties under any title – irrespective or not of whether this is free-of-charge – and for any purpose whatsoever. They shall not be permitted to allow third parties to use it.
12.2 Should the customer, by violating the provisions of the preceding paragraph, provide a third party with the unauthorised use of the software the customer shall be liable, in addition to a said third party, for the payment of the subscription and maintenance fees about the relevant software as of the date of registration of the customer and without prejudice to the right of ESN/Paddle to recover in full from the CUSTOMER any damage that has been suffered as a result of the violation of the preceding paragraph.
12.3 If the customer is a legal entity or partnership, the software may be used by employees of the customer within their work.
Article 13 Hosting services
13.1. ESN/Paddle works with a specialised hosting partner to provide hosting services. A description of the hosting services and the liability of this partner is included in the Service Level Agreement (SLA) for this hosting partner. This SLA can be adapted or modified by the hosting partner. At the customer's first request, ESN/Paddle shall provide the customer with a copy of the current version of the SLA.
13.2. ESN/Paddle shall provide the hosting services to the customer based on a calendar year and subject to payment being made by the customer of the fee due. Should the customer wish to cancel this service, he must give notice as per the notice period of 3 months and send this notice by registered letter. In late cancellation, the customer shall owe the fee for the following calendar year.
Article 14 Domain name
14.1. If the customer orders a domain name through ESN/Paddle, the rights associated with this domain name shall belong exclusively to the customer. In their role as agent, ESN/Paddle shall be responsible for managing the domain name to the extent that the customer shall pay the annual fee due for this purpose to ESN/Paddle. This management agreement shall last indefinitely and may be terminated by registered letter no later than three months before the anniversary of the date upon which the domain name was registered.
Article 15 Maintenance contract
15.1 As soon as ESN/Paddle grants the customer access to the software from ESN/Paddle, the subscription period shall begin and work shall continue under a maintenance/service contract. The agreement shall be valid for one year unless otherwise agreed. A description of the maintenance contract/service agreement is included in the ESN/Paddle Service Level Agreement (SLA). At the customer's request, ESN/Paddle shall provide a copy of the current version of the SLA.
Article 16 Termination of the agreement
16.1. Should the customer be guilty of a severe contractual breach that is not remedied by the said customer within eight days after receipt of a registered notice, ESN/Paddle shall be entitled to either (i) suspend the agreement until the customer fulfils his commitments, or (ii) terminate the agreement with immediate effect. The non-payment of one or more invoices by their due date shall always be deemed a severe contractual breach.
16.2. If the agreement is terminated early, the customer shall pay for all services and subscriptions provided by ESN/Paddle as well as any costs of ESN/Paddle arising from this termination, increased by a fixed fee of 30% of the amount that ESN/Paddle could still have invoiced to the customer if the agreement had been fully executed. Any advance payment that is made shall, in any case, remain with ESN/Paddle. Furthermore, ESN/Paddle reserves the right to claim more damages if it determines that its actual damages are more significant than the fixed fee damages provided above.
16.3. In terminating the subscription, the customer shall notify ESN/Paddle at least three months before the end of the subscription period.
16.4. If ESN/Paddle terminates the subscription, ESN/Paddle shall inform the customer of this at least three months before the end of the subscription period so that the customer may have the necessary time to look for a new website.
16.5. Nevertheless, each party accepts that they shall grant the other party a reasonable period to rectify any shortcomings and always seek first to find an amicable solution.
Article 17 Employment
17.1 The customer undertakes not to employ or attempt to employ, whether directly or indirectly,
any ESN/Paddle member of staff on any other basis, irrespective of whether that is on a full-time or part-time basis, as of the start date of the cooperation until 24 months after the partnership has ended. The term "staff" refers to all permanent and freelance employees of ESN/Paddle.
17.2 Should the customer violate this article, the customer shall be liable to pay damages in the amount equal to the gross annual salary of the person in question.
Article 18 Obligation of confidentiality
18.1. The parties undertake to keep confidential any commercial and technical information and business secrets that they have learned from the other party, even after the termination of the agreement, and to only use them to execute the deal.
Article 19 Processing of personal data
19.1. Insofar as the customer processes personal data on the server of ESN/Paddle, ESN/Paddle shall act as a data processor. The customer is the data controller within the meaning of the Personal Data Protection Act. The customer declares that they have fully complied with the obligations of a data controller as set out within this law.
19.2. As part of the services provided to the customer, ESN/Paddle shall process the personal data of contact persons that have been provided by the customer. The contact details for these people are processed for "customer management", i.e. to enter into contact with the customer regarding the services. The contact persons have a right of access to and correction of their data.
Article 20 Reference
20.1. The customer agrees that the work carried out by ESN/Paddle for the customer will be included in the reference portfolio of ESN/Paddle.
Article 21 Force majeure
21.1. Situations of force majeure such as strikes, public unrest, administrative measures, and other unexpected events that are beyond the control of ESN/Paddle shall relieve ESN/Paddle of its commitments for the duration of the incident of force majeure and within its scope, without giving rise to any right to a reduction in price or compensation for the customer.
Article 22 Nullity
22.1. Should any provision of these General Terms and Conditions be invalid, the remaining provisions will remain in full force, and ESN/Paddle and the customer will replace the invalid provision with another provision as close as possible to the purpose and intent of the invalid provision.
Article 23 Applicable law – competent court
23.1. Belgian law applies to the agreements of ESN/Paddle. Any dispute about this agreement's conclusion, validity, execution or termination shall be settled by the competent court in Brussels.