BeOpen Software Terms and Conditions
Last Updated: 05/05/2017
This Agreement is between BeOpen NV, Veldkant 33A, 2550 Kontich, Belgium, VAT BE0664.613.118 and you (“Merchant”).
RESTRICTIONS ON USE OF MATERIALS
This service is owned and operated by BeOpen and is based on Odoo Open Source Software. No material from www.beopen.be or any Web Site owned, operated, licensed or controlled by BeOpen may be copied, reproduced, republished, uploaded, posted, transmitted or distributed in any way unless permission has been expressly granted by BeOpen. By accepting the Terms and Conditions of this agreement, the Merchant: (a) represents and warrants that he or she is 18 years old or older; (b) agrees to provide true, accurate, current and complete information about the Merchant as prompted by the Account Registration Form; and (c) agrees to maintain and update this information to keep it true, accurate, current and complete If any information provided by the Merchant is untrue, inaccurate, not current or incomplete, BeOpen has the right to terminate the Merchant's account and refuse any and all current or future use of the Service
DISCLAIMER OF WARRANTIES AND LIABILITIES
The Service and Software are provided on an 'as is' and 'as available' basis without warranties of any kind, either express or implied, including but not limited to warranties and conditions of merchant-ability fitness for a particular purpose and non-infringement. Neither this agreement or any documentation furnished under it is intended to express or imply any warranty, condition or representation that the online store services will be uninterrupted, timely or error-free or that the software will provide uninterrupted, timely or error free service. The security mechanism is the latest and highest incorporated in the software but can have inherent limitations and Merchant must determine that the Software adequately meets its requirements. Merchant acknowledges and agrees that any material and/or data downloaded or otherwise obtained through the use of the service is done at its own discretion and risk and that Merchant will be solely responsible for any damages to its computer system or loss of data that results from the download of such material and/or data. BeOpen and its parents, subsidiaries, affiliates, officers, directors, shareholders, employees and agents, shall not be liable, under any circumstances or legal theories whatsoever, for any loss of business, profits or goodwill, loss of use or data, interruption of business, or for any indirect, special, incidental or consequential damages of any character, even if BeOpen is aware of the risk of such damages, that result in any way from Merchant's use or inability to use the online store services or the software, or that result from errors, defects, omissions, delays in operation or transmission, or any other failure of performance of the online store services or the software. BeOpen's liability to Merchant shall not, for any reason, exceed the aggregate payments actually made by Merchant to BeOpen over the course of the existing Term. Some jurisdictions do not allow the exclusion of certain warranties or liabilities, so some of the exclusions may not apply to you. BeOpen uses an external resource for multiple currency conversions available to most stores as an optional function. BeOpen is not responsible for variations or fluctuations displayed through this currency converter or purchases derived from prices displayed through this currency converter. By using the currency conversion function the merchant accepts the full responsibility of the order and customer.
Should the merchant or any person accessing this Web Site respond with information, feedback, data, questions, comments, suggestions or the like regarding the content of (a) any document in this or any other BeOpen Web Site or (b) any BeOpen Software product, any such response shall be deemed not to be confidential and BeOpen shall be free to reproduce, use, disclose and distribute the response to others without limitation. The merchant agrees that BeOpen shall be free to use any ideas, concepts or techniques contained in the merchants response for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing products incorporating such ideas, concepts or techniques.
2. No compete agreement
By using this Web Site the merchant is gaining knowledge of BeOpen product concepts, and therefore the merchant is agreeing that he/she will not compete with BeOpen products in any way, the merchant is agreeing that he/she will not develop, and have not developed a competing product or similar product to Beopen custom products and services. With custom we mean software that is not standard available in the Odoo Apps Store.
3.1 Payments to BeOpen are required on 1) A yearly payment, 2) A quarterly payment or 3) monthly basis according to the subscription option the merchant has chosen. Non-refundable fixed payments same calendar day as the initial purchase date (after 30 days free trial has ended) for each month or year following and paid in advance at the time of sign up or renewal. Any accrued charges will be due starting from the same calendar day as the initial purchase date of the second calendar month and will be added to the fixed amount due. Monthly and yearly fees are subject to change at any time with notice from BeOpen.
3.2 The Merchant is billed under clause 3.1 above to the credit card number given to BeOpen at the time of registration or to such other credit card number which Merchant shall so designate, any changes to credit cards must be provided to BeOpen before the payment date.Credit card payments involve costs; check the transaction costs via https://beopen.be/page/safepay. The owner of the credit card charged is deemed the owner of the account and therefore responsible for payment and access. The Merchant agrees to pay the fee if it uses the services of BeOpen. Fees are deducted automatically from the merchants credit card unless a full thirty (30) days written notice is given to cancel, yearly account fees are automatically renewed and charged unless BeOpen is provided with thirty (30) days written notice.
3.3 Application and Use Fee. Merchant shall pay any applications fees, user fees, including but not limited to monthly fees, any taxes according to the BeOpen's then-applicable fee schedule. Merchant shall pay all amounts due to BeOpen on the same calendar day of the due date each month. If this payment cannot be made within the applicable due date, contact BeOpen and we will decide the action to be taken on the merits of each case in accordance with clause 3.4.
3.4 Late Payments. If Merchant fails to pay any fees by the applicable due date, BeOpen will have the right to; (a) assess late charges in an amount equal to the greater of five percent (5%) per month or the maximum allowable under applicable law; and/or (b) suspend access to any or all of the BeOpen services and/or performance of the services provided by BeOpen hereunder and/or terminate this agreement. Access to the merchants store will be suspended automatically ten (10) days from the due date if the merchant fails to correct fees due to BeOpen. Any such suspension or termination will not relieve Merchant from paying any outstanding fees plus interest and late charges. Merchant will be responsible for any costs associated with collecting such fees including, without limitation, legal costs, attorneys fees, court costs and collection agency fees.
3.5 Taxes. Merchant will pay or reimburse BeOpen for all sales, use, transfer, privilege, excise and all other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the performance by BeOpen under this agreement, excluding, however, income taxes or gross receipts taxes which may be levied against BeOpen. Such taxes may be reflected on Merchant invoices.
3.6 Thirty (30) days free trial period. BeOpen offers a no obligation to purchase after the 30 days trial account period. Within the initial 30 days free trial period with BeOpen, the merchant reserves the right to cancel his/her store at any time without consequence. BeOpen will not ask for or receive credit card or payment information from the merchant to set up a free trial account, however, the merchant can at any time enter credit card payment information to start membership with BeOpen, at this time the merchants billing period will begin.
3.7 BeOpen is a company based in Belgium. All transactions are therefore charged in EURO. Due to the constant fluctuation in exchange rates, this may result in some very small variations in the EURO value that is charged to the customer. BeOpen cannot be held responsible for any variations in International exchange rates that may be imposed by a customer's banking institution including additional fees.
3.8 BeOpen does allow to add modules in the packages. This however could implicate an increase in the monthly/yearly subscription, please visit the modules page for prices. Adding new modules should be done with caution. All modules that are visible on our modules page have been tested and approved. BeOpen will indicate the related costs when assistance with testing and debugging of non approved modules is required.
4.1 Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under this agreement are exclusive of VAT for outside Belgium and inclusive of VAT within Belgium.
4.2 If VAT is payable by BeOpen on any supply made under this Agreement the Merchant will pay to BeOpen an amount equal to the VAT payable on the supply. That amount will be paid at the same time that the consideration for the supply is payable under the Agreement and will be paid in addition to the consideration. BeOpen shall upon receiving that amount from the Merchant provide the Merchant with a tax invoice in respect of the supply.
5. Delivery of Software
BeOpen is not required to deliver a hard copy of any software. BeOpen provides an access code and password to it's internet server and does not require any software downloads. Instantly the Merchant will have access to create and manage the BeOpen online software in accordance with BeOpen's Terms
6. Term and Termination
6.1 This agreement will commence on the date you or a representative on your permission starts a Trial to agree to the terms and conditions and shall continue thereafter on either a yearly basis depending on the package term the merchant signed up to.
6.2 Termination by BeOpen. BeOpen shall have the right, upon notice to Merchant, to terminate this Agreement.
6.3 Termination by Merchant. The merchant can cancel without notice or consequence at any time within the 30 days trial period. Once the merchant has commenced with BeOpen on a subscription basis, the merchant will have the right, (via the provided store closure process under the 'my account' section in the admin), to terminate this for any reason at any time. The remaining monthly or yearly payment will be forfeited by the merchant in full and used to keep the store open for the remaining period paid for. No refunds will be given unless an incorrect amount has been charged based on the chosen plan by Marchant. If you are unsure if your software has successfully closed without further payments to be taken, please contact a representative to confirm this. We do not take responsibility for unsuccessful closures if the full process was not undertaken by the Merchant via the admin.
6.4 Obligations upon Termination or Expiration and Non-Renewal. Upon the expiration and non-renewal or termination of this Agreement for any reason, except for non-payment: (a) Merchant's access to, and use of, the BeOpen Services will terminate; (b) Merchant can download Merchant data and other materials stored by Merchant on the BeOpen Server; and (c) each party shall return any and all Confidential Information in its possession to the party that disclosed such Confidential Information and provide written verification of same.
6.5 Deletion of Information. Upon termination, BeOpen reserves the right to delete from its servers, after Merchant has downloaded his information no later then 2 months after Termination or Expiration and Non-Renewal, any and all information contained in Merchant's account, including but not limited to order processing information, mailing lists, and any Web pages generated by the Software, without liability for any loss, costs, expense or damage suffered by Merchant.
7. Merchant Obligations
7.1 The Merchant acknowledges and agrees that it shall be responsible for all goods and services offered at the Merchant's Store, all materials used or displayed at the Store, and all acts or omissions that occur at the Store or in connection with the Merchant's account or password. Certain Stores may be subject to additional requirements.
7.2 The Merchant agrees to display in the Store the Merchant's contact information, including but not limited to Merchant's company name, address, telephone number, fax number and e-mail address. The Merchant also agrees to update such information to keep it true, accurate, current and complete. BeOpen will not be held responsible for incorrect billing information issued due to the Merchants inaccurate information supplied to BeOpen.
7.3 The Merchant represents and warrants that it has full power and authority under all relevant laws and regulations:
(a) to offer and sell the goods and services offered at the Store, including but not limited to holding all necessary licenses from all necessary jurisdictions to engage in the advertising and sale of the goods or services offered at the Store;
(b) The Merchant represents and warrants that it will accurately describe all goods and services it is proposing to sell in it's Store.
(c) To provide for credit card payment or any other offered payment method and delivery of goods or services as specified at the Store
7.4 The Merchant represents and warrants that it will not engage in any activities:
(a) that constitute or encourage a violation of any applicable law or regulation, including but not limited to the sale of illegal goods or the violation of export controls or obscenity laws;
(b) that defame, impersonate or invade the privacy of any third party or entity;
(c) that infringe the rights of any third party, including but not limited to the intellectual property, business, contractual, or fiduciary rights of others; and,
(d) that are in any way connected with the transmission of 'junk mail', 'spam' or the unsolicited mass distribution of e-mail, or with any unethical marketing practices. If the merchant is found to be connected in the transmission of 'spam' and/or 'junk mail' using BeOpen's email accounts and mail server, BeOpen will take legal action against the merchant and heavy fines will be applied.
(e) Due to BeOpen's restrictions on the content of material displayed, the merchant agrees not to display any form of adult material (pornography)
7.5 BeOpen reserves the right to refuse to host or continue to host any Store which it believes, in its sole discretion: (1) offers for sale goods or services, or uses or displays materials, that are illegal, obscene, vulgar, offensive, dangerous, or are otherwise inappropriate; (2) has substantially changed its goods or services or other material aspects of the Store from the time it was accepted; (3) has received a significant number of complaints for failing to be reasonably accessible to Customer or timely fulfil customer orders or adequately deal with customers' warranty or service requirements; (4) has become the subject of a government complaint or investigation; or (5) has violated or threatens to violate the provisions or intent of BeOpen.
7.6 Non-solicitation. Customer acknowledges and agrees that the employees and consultants of BeOpen are a valuable asset to BeOpen and difficult to replace. Accordingly, Customer agrees that, during the term of this Agreement and for a period of twelve (12) months after the expiration and non-renewal or termination of this Agreement, Customer will not solicit or attempt to solicit any employee or consultant of BeOpen.
8. BeOpen Will
8.1 Keep all information received from the customer in its possession and treat all information as confidential regardless of when disclosed.
8.2 Not use the information in any way adverse to the customer’s wishes or employ any of the customer’s information in any way which would be harmful to or against the interest of the customer.
8.3 Limit access of the customer’s information to the employees and legal and financial advisors of BeOpen and will require all employees and advisors given access to the customer’s information to sign a written binder of secrecy and non use.
8.4 Not be responsible for any breach of the above terms and conditions through no fault of its own or through matters that are outside of its control (as, for example, but not limited to, “hacking” by third parties) and in this respect the customer
(i) releases BeOpen, its directors, officers and employees from any claims, losses, damages, expenses and liabilities arising out of (directly or indirectly) or in connection with the said breaches and
(ii) indemnifies BeOpen, its directors, officers and employees in respect of all claims, losses, damages, expenses and liabilities which arise as a consequence of or in connection with the said breaches.
8.6 To the best of it's ability, provide a working software to the merchant under the chosen package with features included in chosen package. The software is not bug free and new bugs may appear at times. Once BeOpen has been made aware of a bug, it will attempt to rectify and correct the bug to the best of its ability. BeOpen cannot place a time frame on bug fixes or confirm that it is possible to be fixed. All bugs will be listed in order of priority and will be worked through in that order. Priority is given to bugs related to affecting sales
9. Proprietary Rights
9.1 Software License. BeOpen hereby grants Merchant a non-exclusive, non-transferable licence to use the Software in object code form only on a server controlled by BeOpen for the sole purpose of creating and maintaining Stores on such server. Merchant is not being granted any right to copy the Software or to use it on computers other than a server controlled by BeOpen. Merchant may not use Web pages or parts of Web pages generated by means of the Software, other than content that originates from and is proprietary to the Merchant, on any server other than the servers controlled by BeOpen without BeOpen's express written agreement. The Merchant also acknowledges and agrees that the Software is intended for access and use by means of web browsing software, and that BeOpen does not commit to support any particular browsing platform. BeOpen reserves the right at any time to revise and modify the Software, release subsequent versions thereof and to alter features, specifications, capabilities, functions, and other characteristics of the Software, without notice to the Merchant. If any revision or modification to the Software materially changes Merchant's ability to conduct business, Merchant's sole remedy is to elect to not renew the BeOpen account.
9.2 BeOpen Intellectual Property. The Merchant acknowledges and agrees that content available from BeOpen or the Service, including but not limited to text, software, music, sound, logos, trade marks, service marks, photographs, graphics, or video, is protected by copyright, trade mark, patent, or other proprietary rights and laws, and may not be used in any manner other than on the same restricted basis as specified for the Software in Section 7.1 above and for the purposes of this Agreement.
9.3 BeOpen maintains control of the Copyright tag on all storefronts/accounts as part of the template. The Copyright tag advertising BeOpen is delivered as part of the service and cannot be removed or hidden when subscribed to the Free Website. The Copyright Tag will remain for the full term of an active account.
10. Maintenance and Support
10.1 Merchant, excluding those subscribed to the Free Website, can obtain assistance with technical difficulty that may arise in connection with the availability of the Software by email http://www.beopen.be/page/contactus. BeOpen reserves the right to establish limitations on the extent of such support, and the hours at which it is available.
10.2 Merchant is responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for its access to and use of the Software and online Store Services and Merchant shall be responsible for all charges related thereto.
10.3 BeOpen makes all attempt to keep software up to date with all integrations, however, as external companies can make changes at any time, BeOpen will not be held responsible for updating integrations in a timely manner although all attempts will be made to schedule upgrades at earliest convenience.
11. Changes to this Agreement