General Terms and Conditions – The Pool Agency B.V.
I GENERAL PROVISIONS
In these general terms and conditions (hereafter also referred to as “terms and conditions”), the following definitions apply:
The Pool: The Pool Agency B.V. and any company of which it directly or indirectly holds all shares in the issued capital and which declares these terms and conditions applicable.
Client: the party who provides The Pool with an Assignment or is in discussion with The Pool about it or for whom The Pool has actually started to perform work;
Services: all work that The Pool offers and, as evidenced by the Assignment Confirmation, actually performs or has performed for the Client, such as – among other things – media consulting, strategy, planning, procurement, creation, and Handling
Handling: the administrative handling and invoicing with the media operator, and all activities of The Pool itself related thereto, but not the actual performance of the Media Placement by the Media Operator;
Handling fee: the fee owed by the Client for the Handling;
Materials: all software, equipment, or other materials developed or made available by The Pool under an Assignment, including analyses, designs, documentation, reports, quotations;
Media: printed, audiovisual, auditory and digital media, all in the broadest sense of the word;
Media operator: the company operating Media itself to realize Media Placements;
Media Turnover: The total amount charged by a Media Operator in connection with a Media Placement.
Media Placement: an advertisement or campaign (to be) published in Media for the Client’s benefit;
Assignment: the agreement under which The Pool has committed itself towards the Client to provide Services in the same manner that the Client has committed itself towards The Pool to purchase them;
Assignment Confirmation: the written or electronic confirmation of the Assignment by The Pool.
Procurement: the document in which The Pool has stated the Media Placements to be carried out by the Media Operator;
Reservation: the amount that The Pool reserves based on the risk profile it has drawn up for the Client in question for the unexpected realization of payment and other (pre-financing) risks in connection with obligations that The Pool enters into its own name with third parties but for the Client’s account.
Media Operator Standard Rates: the standard rates for Media Placements charged by a Media Operator from time to time, as reflected in the rate cards used by the Media Operator from time to time;
2.1 These terms and conditions apply to all requests for a quote from The Pool, all offers from The Pool, all Assignments to The Pool, all subsequent or future Assignments, and all other legal relationships affecting The Pool.
2.2 These terms and conditions apply exclusively. Any rejection of these terms and conditions can only be made expressly in writing and will be rejected in advance by The Pool. The Pool rejects in advance any offer to apply the general terms and conditions used by the Client, even if The Pool does not make such rejection separately or explicitly.
2.3 If reference is made to these General Terms and Conditions in an Assignment Confirmation, subagreement, or framework agreement, the provisions of the Assignment Confirmation, sub-agreement, or framework agreement shall take precedence in the event of any conflict with the provisions of these General Terms and Conditions.
3 Offers, realization and content of the Assignment
3.1 An offer or quotation is not binding on The Pool and only serves as an invitation to the Client to issue an Assignment.
3.2 An Assignment becomes effective when The Pool has accepted it in writing or by email, the Client has accepted an Assignment Confirmation, or The Pool starts the actual execution of an Assignment without the Client having immediately protested against it. The rates stated in a mutually accepted Assignment Confirmation are binding on the understanding that the amounts to be charged that do not deviate by more than 10% (in words: ten percent) from the amounts stated in the Assignment Confirmation are deemed to have been accepted by the Client.
3.3 The Pool has the right to draw up a risk profile of the Client in order to estimate the financial risks for The Pool associated with the execution of the Assignment. The risk profile will be reviewed periodically. The Pool is authorized to request data from the Client and third parties for this purpose. The Client is obliged to provide this information (or to have this information provided) to The Pool upon request. If the Client is not prepared to provide The Pool with the data required to draw up the risk profile, The Pool is entitled not to accept the Assignment at its discretion or at least to terminate it without being obliged to compensate the Client for any loss or to impose additional conditions (such as advance payment and/or collateral) on the Client.
3.4 An Assignment is always valid for an indefinite period unless explicitly agreed otherwise in writing. An Assignment that has been tacitly continued for a definite period after its expiry will be deemed to have been continued indefinitely. These principles are not affected by the actual invoicing in periods or the actual execution of assignments in parts. The Media Placements and/or periods included in Procurements never apply as an Assignment for a definite period but only reflect the actual execution of a part of the Assignment. The budget provided by The Pool to the Client within the context of an Assignment only applies to the activities stated in the budget and/or for the period stated in the budget.
3.5 In the Assignment Confirmation, the Pool and the Client will record which of The Pool’s Services fall under the Assignment. The Assignment Confirmation is always deemed to be complete and clear. Services other than those mentioned therein or more far-reaching obligations than those apparent from the Assignment Confirmation never fall under the Assignment due to practical action or silence.
3.6 Any deviation, addition, or extension of the Assignment must be explicitly agreed upon in writing in advance, or it will not be considered binding. This can also be done by email, provided that an authorized signatory of The Pool has given prior approval. The Client is responsible for monitoring this and checking the Procuration before the Client signs it for approval. In the event of a full or partial cancellation of a Media Placement made under the Assignment, such cancellation is only permitted if and insofar as the Media Operator allows this and under the conditions set by the Media Operator. The Pool may always charge any costs associated with changes and any additional costs to the Client. The Client undertakes to pay these (additional) costs to The Pool upon the first request.
3.7 The Client guarantees that the persons who actually communicate with The Pool on its behalf are mandated to make binding agreements with The Pool. The Client guarantees that the communication to The Pool is always timely, complete, and correct. The Client further guarantees that all supplies, such as but not limited to advertising materials and broadcasting instructions, for the performance of Services will always be supplied by The Pool in a timely, complete and correct manner and that the Client is the rightful owner of those supplies and that they do not infringe any third-party rights.
3.8 The Client further guarantees not to have any direct contact with Media Operators or third parties regarding the Services that are part of the Assignment. If the Client nevertheless makes direct contact and concludes agreements, for example, with Media Operators, this does not affect the fact that the Client cannot pass these agreements or the financial consequences thereof on to The Pool in a disadvantageous manner and that the Client is always exclusively obliged towards The Pool to fulfill the obligations in respect of the Assignment. The Client guarantees that it will reimburse The Pool for all financial consequences of acting in violation of this provision (such as, for example, increased costs of the purchased Media Placement or lost fees and commissions by The Pool) upon the first request.
3.9 The Pool only has an obligation to make the best efforts and will carry out the Assignment as a good contractor. Guarantees on any result of Services for the Client must be explicitly agreed as such in writing and set out in the Assignment Confirmation. They are otherwise not valid. Therefore, they cannot be accepted by the Client by default under the Assignment.
3.10 Indications such as ‘the number of GRPs,’ ‘the number of spots,’ ‘number of seconds of broadcasting time,’ etc., and indications of quality or quantity, are always target values that are not guaranteed by default unless explicitly agreed otherwise in writing and a separate rate and budget for this has been agreed with the Client in order to be able to effectuate the guaranteed value.
3.11 Statements in email texts, made during presentations or (by telephone) and suchlike, never form part of the Assignment and are only binding on The Pool if they are set out in an Assignment Confirmation that The Pool and the Client have signed for approval.
3.12 The Pool is always entitled to cancel the Assignment up to one week after receipt of the content of or the material for the Media Placement to be realized by The Pool, without stating any reasons, in which case The Pool will only refund any advance payment already made by the Client after deduction of reasonable costs for the efforts made by The Pool.
3.13 Each Assignment is only deemed to have been given to The Pool and not to any other (auxiliary) person working for it unless The Pool itself is allowed to decide to do so within its group of companies. The Pool may engage third parties at its own initiative in the execution of the Assignment. The Pool is always authorized to negotiate, contract, and, if necessary, reach settlements with Media Operators on behalf of the Client in the context of the execution of Services under the Assignment, whereby The Pool always has full mandate to do so at its own discretion and based on its experience. Unless explicitly agreed otherwise in writing.
3.14 The execution of an Assignment by The Pool takes place based on the circumstances applicable at the time of entering into it and, insofar as dependent on the performance of third parties, based on data provided to The Pool by those third parties. Unless otherwise agreed, The Pool will only be obliged to commence work after obtaining a Purchase Order number from the Client.
3.15 The Pool is never responsible for the communication or services provided by its suppliers, such as Media operators or other third parties. Such communication and services by third parties do not fall under the Services for which The Pool can be held liable within the Assignment and are considered force majeure for The Pool in relation to the Client.
3.16 The assignment is not a brokerage agreement. Furthermore, the effect of articles 7:402 paragraph 2, 403-405, 407 paragraph 2, 408 paragraph 1 and 2, 409-411, 415-424 of the Civil Code is excluded.
4.1 All of The Pool’s prices – also defined as rates – are presented in euros and exclusive of turnover tax. Unless expressly agreed otherwise, all levies, taxes, or additional costs (shipping and transport costs, postage) charged with regard to Services will be borne by the Client. Urgent assignments are subject to a surcharge of at least 25% of the applicable standard hourly rate. Travel and consultation time shall be charged to the Client at the standard rates, increased by the aforementioned percentage in case of urgency.
4.2 If The Pool charges the Client a Reservation, the Client is required to pay that Reservation to The Pool. The Pool has the right to offset against the Reservation any costs it incurs or damages it suffers if any risk to which the Reservation applies materializes. Under no circumstances is The Pool obliged to refund and/or credit (any part of) the Reservation and/or any part of the prices charged by The Pool to the Client and/or the fee to which The Pool is entitled, also (and in particular) when none of the risks materializes.
4.3 If the Client is unwilling to provide (or have it provided) the information required to draw up the risk profile in connection with the Reservation and/or if the Client is unwilling to pay the Reservation to The Pool, the Client is obliged, upon The Pool’s first request, to pay The Pool all estimated external costs in connection with the Assignment, increased by at least 15% on account of non-estimated costs, as an advance payment. The Pool will then be authorized to set off against the advance all external costs, additional costs due to changes that the Client may require, and the costs of additional work to be performed by The Pool as a result. The foregoing does not affect the Client’s obligation to refund the aforementioned costs in full to The Pool if the costs exceed the amount of the advance. The unused portion of the advance will be refunded to the Client or reserved by The Pool after the Assignment has ended. The advance does not bear interest.
4.4 Any change in factors affecting the price of The Pool, including prices of third parties (such as Media Operators or suppliers), fees (such as, for example, commissions) paid by those third parties to The Pool, currency exchange rates, insurance rates, circumstances leading to a change in the Client’s risk profile drawn up by The Pool and other levies or taxes, may be passed on directly by The Pool to the Client. The Pool is also entitled to make an annual correction (such as inflation correction or rate changes) to the rates applied with effect from 1 January. The Pool may also do this during the year with retroactive effect up to 1 January of that year, if the Assignment was already awarded in the previous year.
4.5 In the case of Media Placements outside the Netherlands, The Pool will charge a surcharge of at least € 50,00 excluding VAT per Media Placement, unless otherwise agreed in writing.
4.6 If a Media Operator charges a higher price with regard to a Media Placement than budgeted in advance by The Pool or the Media Operator, or imposes a fine or additional assessment with regard to that Media Placement, this price increase, fine or additional tax, whether or not imposed due to failure to spend a minimum Media Turnover, will be at the expense of the Client.
4.7 If, in the absence of agreement on the rates applicable to certain Media Placements, The Pool carries out Media Placements for the Client at a provisional rate, The Pool will not be liable towards the Client for any differences between the provisional rate and the final rate charged for those Media Placements. The Client is obliged to reimburse The Pool for the final rate for the Media Placements.
4.8 If the Client requires more checking copies than those provided free of charge by the Media Operator, The Pool will request these additional checking copies from the Media Operator and provide them to the Client – if these can be provided by the Media Operator the client will be liable for the associated costs.
4.9 Additional work will be charged at the usual rate, whereby the most recently charged rate is indicative.
5.1 The Client owes a fee for the provision of Services in accordance with the rates as determined by The Pool from time to time. All rates are exclusive of VAT. The Pool is always authorized to change these rates.
5.2 The Assignment indicates which Services will be provided by The Pool at which rates. This may also be apparent from The Pool’s rate card.
5.3 The Pool is entitled to a fee. This fee consists of either:
- a) compensation based on the hours worked and the applicable hourly rate;
- b) a Handling fee;
- c) the financial benefit, by whatever name (such as, inter alia, ‘Handling fee’, ‘kickback fee’, ‘avb’, ‘agency commission’, etc), which has been or will be paid to The Pool by Media Operators and/or other;
- d) the Reservation as referred to in Article 4.2 of these terms and conditions, if and insofar as no costs are incurred by The Pool in return;
- e) a combination of the items mentioned in a), b), c) and d) above.
5.4 The Pool is always and exclusively entitled to receive and retain all commissions for itself. It is immaterial whether the commissions can be attributed to or are related to the expenditure that the Client has made through The Pool with Media Operators and/or other third parties. This is only an exception if and insofar as it explicitly appears from the Assignment that a certain percentage of the commission that The Pool receives directly for the Client’s Media Turnover accrues to the Client; this so-called return commission is returned to the Client as a discount on the invoicing of the Media turnover if this has been explicitly agreed.
5.5 However, all commissions, discounts, rate reductions and other financial benefits that The Pool enjoys because of, for example, its reputation, (customer) value for Media Operators, the volume of all media placements by The Pool in any given period, etc., always benefit the Pool exclusively.
6.1 Unless stipulated otherwise, a payment term of 30 days applies to the Client. Invoices can be sent from the day of confirmation of an Assignment or from the day on which the execution of an Assignment is started or on the placement date. The invoice the Client received to charge an advance within the meaning of Article 4.3 of these terms and conditions has a payment term equal to the payment term stated on that invoice.
6.2 All payments will be made to The Pool without discount, deduction, suspension or off-setting.
6.3 If at any time The Pool has reasonable doubts about the creditworthiness of the Client, or if The Pool of the opinion that they will incur significant costs for the execution of the Assignment, The Pool is always entitled, before performing (further) performance, to require advance payment of the amount owed or to provide proper security.
6.4 The Client is immediately in default once the payment term has expired, without notice of default being required. In that case, The Pool’s claims against the Client for whatever reason are immediately due and payable.
6.5 Without further notice of a default being required, the Client owes the statutory commercial interest plus 5%, with a minimum of 15% in total, on all amounts that have not been paid on the last day of the payment term. Reminders or statements of outstanding invoices expressed in principal sums sent to the Client in the meantime, will never lead to the processing of rights in respect of default interest and/or costs – not even if invoices have been paid in principal and they no longer appear as such in the reminders or overviews referred to.
6.6 Regardless of any statement to the contrary, payments by the Client are deemed to have been made on debts in the following order: interest, (extra-)judicial collection costs, principal amounts owed (the older for the more recent ones).
7 Force majeure
7.1 If The Pool is unable to fulfill its obligations towards the Client due to force majeure (including the failure to provide services by suppliers as determined in Article 3.15 of these terms and conditions), those obligations will be suspended for the duration of the force majeure situation.
7.2 If the force majeure situation has lasted for one (1) month, both parties have the right to dissolve the Assignment in whole or in part by registered letter. In the event of force majeure, the Client is not entitled to any (damage) compensation, not even if The Pool was allowed to benefit from any advantage as a result of the force majeure. The legal basis for performances already performed by The Pool will remain in force despite the dissolution, just as the Client’s payment obligation in return will not lapse as a result of the dissolution.
7.3 Force majeure on the part of The Pool is understood to mean any circumstance beyond The Pool’s control, as a result of which the fulfillment of its obligations towards the Client is wholly or partially prevented or as a result of which the fulfillment of its obligations cannot reasonably be expected of The Pool, regardless of whether that circumstance was foreseeable at the time of concluding the Assignment. These circumstances also include the refusal of or the incorrect, overdue or different execution of the Media Placement by a Media Operator, other shortcomings of the Media Operator, digital problems such as, among other things, power failures and virus infections and malfunctions on the internet, and any circumstance independent of The Pool’s and the Client’s control which means that the Services under the agreement or the Media Placement cannot be delivered, not in a timely manner and/or not fully.
7.4 The parties will inform each other as soon as possible of a (possible) force majeure situation.
8.1 The Pool’s liability with regard to the performance of an Assignment is limited to a maximum of the invoice amount charged to the Client with regard to that part of that Assignment in which The Pool has failed imputably with regard to the individual Media Placement.
8.2 The Pool’s liability in respect of events covered by its business liability insurance is limited to the amount payable according to the insurrance of the case in question. If desired, The Pool will provide the Client with further information about the policy conditions.
8.3 In fact, The Pool’s liability towards the Client is excluded, barring intent or gross recklessness on the part of The Pool.
8.4 The Client indemnifies The Pool against all third-party claims, in any form whatsoever, in connection with (the execution of) an Assignment.
8.5 The Pool is never liable for any consequential damage or loss of profit, nor for any damage suffered by the Client or third parties as a result of the misleading, insulting, immoral or otherwise incorrect and/or unlawful nature of the form and content of the Media Placement commissioned by Client. Any costs of rectifying a Media Placement will be borne entirely and in full by the Client.
8.6 The Client is liable towards The Pool for costs (to be) incurred when changing and/or canceling an Assignment or Media Placement.
9 Termination of Assignments
9.1 Assignments are always deemed to have been issued for an indefinite period of time, and can only be terminated by the Client or The Pool by means of written notice with due observance of a notice period of one (1) month. As long as the Assignment has not yet ended, the termination does not affect all existing obligations of the Client, including any agreed volume guarantees.
9.2 If the Client does not properly or not timely fulfill any obligation that may arise for it from the Assignment, the Client is immediately in default and The Pool is entitled, without notice of default or judicial intervention:
- to suspend the execution of the Assignment until sufficient security has been provided with regard to the said obligation, such as payment; and/or
- to dissolve the Assignment with the Client in whole or in part;
always at the sole discretion of The Pool and without prejudice to other rights of The Pool, such as claiming compensation and/or fines, and without The Pool being obliged to pay any compensation.
9.3 If The Pool makes use of its power to dissolve as referred to in Article 9.2, The Pool is authorized to set off any amount to be refunded to the Client against compensation for work already performed as well as compensation for loss of profit.
9.4 In the event of bankruptcy, (provisional) suspension of payments, shutdown, liquidation or attachment of one or more assets of the Client or if the Client knows that one of these situations will occur, the Client is obliged to notify The Pool accordingly as soon as possible.
9.5 In the event of a situation as referred to in Article 9.4 – which always applies as a shortcoming attributable to the Client – all current Assignments with the Client will be legally dissolved as of the date on which that situation arises, unless The Pool informs the Client within a reasonable time that is wishes to fulfill (part of) the relevant Assignment nevertheless. In the latter case, The Pool is entitled without notice of default:
- to suspend the execution of the relevant Assignment until payment has been sufficiently secured; and/or
- to suspend all its possible payment obligations towards the Client;
This is always at the sole discretion of The Pool and without prejudice to any other rights of The Pool and without The Pool being obliged to pay any compensation or to reimburse the amounts received from the Client.
9.6 In the event of a situation as referred to in Article 9.4, all claims of The Pool against the Client are immediately due and payable in full as of the date on which the situation referred to therein arose.
10 Intellectual Property Rights
10.1 All intellectual or industrial property rights to Materials rest exclusively with The Pool and/or, if applicable, with its suppliers, regardless of the data carriers on which they are recorded. The Client only acquires the rights of use and powers that are expressly granted in these terms and conditions or otherwise.
10.2 The Client is aware that the Materials may contain confidential information and trade secrets of The Pool and/or its suppliers. The Client undertakes to keep this confidential information and trade secrets secret, not to disclose it to third parties or make it available to them and to use the Materials only for the purpose for which they were made available to the Client within the context of the Assignment. Third parties within the meaning of this paragraph also include all persons working in the Client’s organization who do not necessarily need to use the Materials.
11 Other rights and obligations
11.1 The Pool is allowed to transfer the rights and obligations it has towards the Client pursuant to an Assignment to a third party of its choice.
11.2 The Client is not authorized to set off any claim against The Pool (whatever) without the prior written consent of The Pool or to pledge or transfer such claim to a third party or to encumber that claim in favor of a third party, nor to invoke such a claim to suspend all or part of the payment obligations towards The Pool. This provision has both contract law and property law effect.
11.3 In the event of bankruptcy or insolvency of The Pool, all amounts offered by it to the Client under the Assignment are immediately due and payable. These will then be deemed to include compensation for the purchasing efforts and/or media reservations carried out or to be performed by The Pool and/or the pre-financing by third parties obtained for this or in connection therewith by or on behalf of The Pool. This applies without prejudice if the Media Operator has not broadcast the Media Placement or has not broadcast it in full and/or has placed it in the relevant Media. The Pool will under no circumstances owe compensation to the Client in this regard.
12.1 All rights of action, claims and other powers of the Client vis-à-vis The Pool, whether on account of a shortcoming in the fulfillment of an Order by The Pool, or on account of a wrongful act by The Pool, or on any other ground, expire as soon as a period of one (1) year has elapsed after the day on which the Client became aware or could reasonably have become aware of the existence of those rights, entitlements and powers.
12.2 The expiry period referred to in Article 12.1 also applies from the time of the conclusion of any agreement to which these Terms and Conditions apply for all rights of action, claims and other powers of the Client against The Pool, which the Client is aware of or could have reasonably been aware of at that time.
During the term of the Assignment, the Client is not entitled, without prior written consent of The Pool, to have services performed by anyone other than The Pool that are equal to or similar to the Services to be provided by The Pool for the Client within the context of the Assignment, or to perform them themself. In the event of violation of these conditions, the Client forfeits in favor of The Pool an immediately claimable non-settable fine of €10,000.00 and furthermore of €1 for each further violation, 500.00 excluding VAT per day or part of a day that the violation continues, without prejudice to The Pool’s right to also claim full compensation in this regard.
14 Applicable law, competent court
14.1 These terms and conditions, as well as all Assignments and disputes relating thereto and/or ensuing therefrom, are exclusively governed by Dutch law.
14.2 All disputes will be subject to the judgment of the competent court in Amsterdam, insofar as the Act does not stipulate otherwise.
15 Quadrilateral clause and conversion
15.1 The Assignment, together with these terms and conditions, is deemed to correctly reflect the full content of the agreements existing between the parties and replaces any agreements previously made between the parties, unless The Pool and the Client have explicitly agreed otherwise in writing.
15.2 If and insofar as any provision of these general terms and conditions cannot be invoked on the basis of the Act, the relevant provision will in any event have a meaning that corresponds to it as far as possible in terms of content and purport that the relevant provision can rightly be appealed, as far as possible with the remaining conditions in force.
16 Amendment to these terms and conditions
These terms and conditions may be changed from time to time by mere notice from The Pool to the Client. The Pool will post the amended terms and conditions on the websites of its companies. In the absence of a written protest by the Client within two (2) weeks of notification by The Pool, the amended general terms and conditions will apply immediately from the day of notification and will apply to Assignments that are already running at that time.
II SPECIFIC PROVISIONS REGARDING SOFTWARE DEVELOPMENT
The provisions included in this chapter apply in addition to the general provisions (chapter I) if and insofar as The Pool develops software for the Client (computer programs with accompanying documentation and materials that The Pool has developed on behalf of the Client or for which The Pool has granted or grants the Client right of use, hereinafter referred to as “Software”) or grants the Client a standard software license. In the event of conflict, the specific provisions take precedence over the general provisions.
17 Nature of the developmental work and right of use
17.1 Unless a functional description and deadline have been expressly agreed upon, between The Pool and the Client, The Pool will carry out the developmental work based on the available budget and the objectives agreed to for each developmental phase (“Sprint”).
If an acceptance test has been agreed to, the test period is 14 days of delivery of the Software. If it has been agreed that The Pool will take care of the installation of the Software, the test period will commence after The Pool has completed the installation and has notified the Client as such. If it appears during the performance of the agreed acceptance test that the Software does not meet the specifications agreed to between the parties, the Client will inform The Pool accordingly by means of a written and detailed test report no later than the last day of the test period. The Pool will make every effort to repair any defects that come to light during the test period (which only means deviations from the agreed specifications) as quickly as possible. If no acceptance test has been agreed to, the Software will be considered accepted by and at the time of delivery by The Pool.
17.2 After completion of the developmental work and making the Software available to the Client, The Pool grants the Client an exclusive right to use the Software. The right of use is non-transferable. Unless otherwise agreed in writing, the right of use will commence the moment the Client has fully fulfilled its payment obligations towards The Pool due to the developmental work. The Client may only use the Software within its own company in the exercise of and to support normal business for a certain number or type of users or connections for which the right of use has been granted.
17.3 The Client may not make the Software or parts thereof public, copy or otherwise reproduce or change them, except insofar as this is necessary for the use of the Software that has been agreed to, in writing, between the parties.
17.4 Except to the extent permitted by law, the Client is not entitled to decompile the Software, to reproduce the code or otherwise subject the code to reverse engineering or to change the (code of the) Software. If and insofar as The Pool has taken technical measures to protect the Software, the Client is not permitted to circumvent or remove those measures.
17.5 Upon termination of the right of use, the Client will immediately permanently discontinue the use of the Software, remove the Software from its systems as far as necessary and return copies of the Software to The Pool or destroy them at its request while providing proof to The Pool of this destruction.
17.6 The Pool does not guarantee that the Software will always function without interruption, that it will be free of errors, that all errors will be repaired and that the Software will be suitable for the objectives that the Client has with regard to the Software and its application. A guarantee to this effect is only valid if it has been expressly agreed to in writing.
III SPECIFIC HOSTING PROVISIONS
The provisions included in this chapter apply in addition to the general provisions (chapter I) if and insofar as The Pool provides hosting services for the Client. In the event of inconsistency, the specific provisions take precedence over the general provisions.
18 Hosting services
18.1 Hosting services exist if The Pool stores data (including personal data) for the Client and makes it accessible to the Client on the internet. The Pool will make every effort to ensure that access to its hosting services is as smooth as possible. The Pool will regularly check and maintain its equipment and systems, so that the hosting services can be provided as free of disruptions as possible. The Pool does not guarantee that its systems will function uninterruptedly, will be available, nor that they will always be accessible..
18.2 If and insofar as The Pool deems it necessary, The Pool will be free to suspend access to the hosting services, make its systems inaccessible and/or put it out of use if this is necessary for the purpose of maintenance, the implementation of improvements or to guarantee the security of the hosting services as much as possible.
18.3 The Pool is not obliged to make backups of all data stored by the Client on The Pool’s systems. The Client itself must take care of making backups with the frequency deemed suitable by the Client. The Pool’s liability for damage as a result of the loss of data is excluded.