These General Terms and Conditions apply to all offers and quotes from The POD Partner with respect to Services and are an integral part of every Agreement between The POD Partner and Client. Provisions or conditions imposed by the Client that derogate from, or are not present in, these General Terms and Conditions, are only binding for The POD Partner if The POD Partner expressly accepts these in Writing.
Capitalized terms must be understood as defined in Article 1 of these terms and conditions.
Article 1. Definition of used terminology
In these General Terms and Conditions, the following terms should be understood as defined herewith.1
The POD Partner: The company The POD Partner, established in Hilversum, the Netherlands, registered at the Chamber of Commerce of the Netherlands under 32137936.
Website: the website of The POD Partner, available at https://ThePodPartner.com
Subscription: the Agreement where one or more parties bind their selves for a certain period to provide services continuously (such as a monthly membership).
Account: the right to access to a user interface that Client can use to manage and configure (certain aspects of) the Services, as well as the information stored by Client.
General Terms and Conditions: the provisions in the present document.
Client: the natural or legal person whom The POD Partner concludes the Agreement with, including parties negotiating with The POD Partner to that end, as well as their (authorized) representatives or agents, assignees and heirs.
Services: the products and/or services that The POD Partner shall deliver to Client pursuant to the Agreement.
Materials: all works, such as websites and (web) applications, software, (brand)style guides, logos, flyers, brochures, leaflets, lettering, advertisements, marketing and/or communication plans, concepts, images, texts, sketches, documentation, advices, reports, guides, training and other products of the mind, including preparatory materials thereof and (whether or not coded) files or data carriers on which the Materials are stored.
Agreement: every agreement between The POD Partner and Client on the basis of which The POD Partner delivers Services to Client.
Writing: paper writings, e-mail, communication by fax, to the extent the identity of sender and the integrity of the message can be sufficiently established.
High Risk Applications: applications where errors in the Services may lead to death or severe injuries, severe environmental damage or the loss of (personal) data with very high consequential damage. Examples of High Risk Applications are: transport systems where a mistake can result in trains to derail or planes to crash; medical systems where a mistake can result in a patient to receive no treatment or the wrong treatment; systems on which a substantial part of the population relies for the provision of crucial government services, systems in which (a lot of) medical data or other special categories of data within the meaning of the General Data Protection Act, or otherwise highly sensitive data, are stored.
Article 2. Conclusion of agreements
2.1 Client can request a non-binding offer. The Agreement is regarded as concluded after receipt of acceptance of this offer, provided that it is accepted before the expiration date stated in the offer.
2.2 If Client is a consumer, Client may terminate the agreement free of charge within a period of fourteen days from the moment the order is made.
2.3 The right of termination of the agreement does not apply to the delivery of digital content other than on a material medium, but only if the delivery commenced with Consumer explicit prior agreement, and Consumer declared that this implied his having lost his right of withdrawal.
Article 3.Conclusion and Execution of the agreement
3.1 The Agreement will be deemed to be concluded at the moment Client accepts the offer of The POD Partner subject to the conditions laid down by The POD Partner. After the Agreement is concluded, The POD Partner shall make best efforts and apply sufficient care and craftsmanship to fulfil the agreement.
3.2 The POD Partner shall make efforts to effect qualitatively good and uninterrupted availability of the Services and their associated systems and networks, and to provide the Client with access to data stored therein. However, The POD Partner does not make any warranties on the quality or availability, unless agreed otherwise in the quotation referring to a Service Level Agreement (SLA).
3.3 Any terms stated or provided by The POD Partner for the delivery of Service shall be merely indicative, except for the terms stated in the SLA that can only be regarded as obligations of result.
3.4 The POD Partner is entitled to hire third parties to carry out certain work, if that is necessary for the proper execution of the Agreement. Any unexpected additional costs associated herewith shall be borne by Client only if agreed so in advance and in Writing. These General Terms and Conditions also apply to work carried out by third parties in the context of the Agreement.
3.5 If such is agreed, The POD Partner shall provide Client access to an Account. The Account shall be accessible by entering a username and password. Every action through Client’s account or through an Account made by Client shall fall under the responsibility of Client and shall be at Client’s own risk. If Client suspects or should reasonably suspect that an Account is being abused, Client shall report this to The POD Partner in order to be able to take measures.
3.6 The POD Partner shall be available to provide a reasonable level of Client support remotely by e-mail, during normal office hours, unless the applicable SLA states otherwise.
3.7 All changes to the Agreement, either at the request of Client or as a result of changes of circumstances that require a different execution, shall be regarded as additional work, if they come with additional costs. If this results in less work, this will be deducted from the costs. This will be invoiced to Client accordingly.
Article 4. Obligations of Client
4.1 Client shall make best efforts to do whatever it reasonably takes to allow for a timely and correct execution of the Agreement. More specifically, Client shall make sure to provide all data to The POD Partner of which The POD Partner has indicated that they are necessary for the delivery of the Services or of which Client should reasonably know that they are necessary for that purpose. The term in which The POD Partner should execute the agreement shall start only after The POD Partner has received all requested and necessary data.
4.2 If Client knows or expects that The POD Partner should take certain (extra) measures to be able to fulfil its obligations, Client shall notify The POD Partner without delay. For example, this obligation applies where Client knows or should know that an extraordinary peak in the workload of the systems of The POD Partner will occur, that are likely to cause the unavailability of the Services. This applies especially where Client knows that Services are also delivered to other parties through the same systems as The POD Partner uses to deliver Services to Client. After such warning, The POD Partner shall make all efforts to prevent the unavailability of Services. All reasonable additional costs made in this context shall be borne by Client, unless agreed otherwise in Writing.
4.3 On no account may Client use the Services for High Risk Applications.
4.4 If Client needs any permit or other permission from a government agency or third party for the intended use of the Services, it is Client’s responsibility to obtain such permits or authorization. Client guarantees The POD Partner that it has all permits and permissions required for the intended use of the Services by Client.
4.5 To make optimal use of the Services, Client may be required to register using the registration form/the Account sign-in option.
4.6 During the registration process, Client will be asked to choose a user name and password with which he can log in to the Account. Client alone is responsible for choosing a sufficiently reliable password.
4.7 Client must keep its login credentials, user name and password strictly confidential. The POD Partner cannot be held liable for any misuse of the login credentials and is always entitled to assume that the Client who logs on is the party that it professes to be. Client is responsible for and bears the full risk of any and all actions and transactions performed via Client’s Account.
4.8 If Client knows or has reason to suspect that its login details have become available to unauthorized parties, it will be required to change its password as soon as possible and/or to notify The POD Partner accordingly so as to allow The POD Partner to take appropriate measures.
Article 5. Warranty and conformity
5.1 This article only applies if Client is a natural person who is not acting in his or her professional or commercial capacity. If The POD Partner gives a separate warranty on the Services then, without prejudice to the aforesaid, this applies to all types of Clients.
5.2 The POD Partner guarantees that the Services are in conformity with the Agreement, the specifications stated in the offer, the reasonable requirements of reliability and/or usability and with the existing statutory provisions and/or government regulations that are in force from the date of entering into the Agreement.
5.3 If the delivered Services are not in conformity with the Agreement, Client must inform The POD Partner within a reasonable period of time after the Client has discovered this.
5.4 If The POD Partner deems the complaint to be correct, the Services will be replaced or refunded in consultation with Client. The maximum amount of compensation is, having regard to the Article on liability, equal to the price paid by Client for the service or product.
Article 6. Complaints handling procedure
6.1 If Client has any grievances in connection with a Service (in accordance with the article on warranties and conformity) and/or about other aspects of The POD Partner’s Service, it can submit a complaint by email or by post. See the contact details at the bottom of the General Terms and Conditions.
6.2 The POD Partner will respond to the complaint as soon as possible, and in any case within 14 days after having received it. If it is not yet possible for The POD Partner to formulate a substantive reaction to the complaint by that time, The POD Partner will confirm receipt of the complaint within 14 days after having received it and give an indication of the term within which it expects to be able to give a substantive or definitive reaction to Client’s complaint.
Article 7. Personal details
7.1 The POD Partner will process the Client’s personal details in accordance with the privacy statement, which can be found here.
Article 8. Domain name transfers
8.1 Parties shall perform all acts necessary to register Client as the holder of the domain name in the electronic domain name register (hereafter referred to as “the Registry”).
8.2 More specifically, Client shall make available all tokens required by the Registry to enable the change of the domain name holder as referred to in the previous paragraph. Furthermore, Client shall fill out all forms required by the Registry and provide all information that Client reasonably requires to effectuate the registration as referred to in the previous paragraph.
8.3 Client shall designate a registrar that will perform the actual relocation of the Domain Name and link the Domain Name to the server(s) under Client’s administration.
8.4 In case transfer to another Registry is prohibited due to a transfer lock, The POD Partner will transfer the domain name to a separate account with the current Registry in name of the Client. Once a transfer lock has been lifted, Client has the option to transfer the domain name to the preferred Registry without assistance from The POD Partner.
Article 9. Rules of conduct and Notice and Takedown
9.1 Client is prohibited to use the Services to violate Dutch or other regulation that Client or The POD Partner is subject to, or to violate rights of others.
9.2 The POD Partner prohibits that the Services are used to publish or disseminate Materials (whether they are lawful or not) that:
- a) are evidently intended to support others to violate rights of third-parties, such as websites containing (exclusively or predominantly) hack tools or explanations of cybercrimes that is evidently intended to enable the reader to execute the described criminal activities (and not to defend himself against such);
- b) are evidently libelous, slanderous, abusive, racist, discriminatory or inciting hatred;
- c) contain child pornography or bestiality pornography or are evidently intended to help other find such materials;
- d) constitute a violation of the privacy of third parties, which also includes the dissemination of personal data of third parties without any permission or necessity and the approaching of third parties with unsolicited communication;
- e) contain hyperlinks, torrents or references to (places containing) materials that evidently infringe copyrights, neighboring rights or portrait rights;
- f) contain unsolicited commercial, charitable or idealistic communication;
- g) contain malware such as viruses or spyware.
9.3 The dissemination of pornographic Materials using the Services is prohibited.
9.4 Client shall refrain from hindering other Clients and internet users or harming the systems or networks of The POD Partner or other Clients. Client is prohibited to execute processes or programs, whether or not through the systems of The POD Partner, of which Client knows or should reasonably know that these may cause damage or hindrance to The POD Partner, its Clients or internet users.
9.5 If according to The POD Partner hindrance, damage or other dangers arise to the functioning of the systems or networks of The POD Partner or third parties and/or service delivery through the internet, The POD Partner shall be entitled to take all measures that it reasonably deems necessary to ward off or prevent such danger. More specifically, such danger may exist of excessive transmission of e-mails or other data, denial-of-service attacks, poorly secured systems or activities of viruses, Trojans or similar software. The POD Partner may recoup the costs reasonably associated with these measures from Client, if Client can be reproached with the cause.
9.6 If The POD Partner receives a complaint on violation of this Article by Client, or if The POD Partner establishes that there is such violation, The POD Partner shall notify Client of such complaint or violation as soon as possible. Client shall respond as soon as possible, after which The POD Partner shall decide how to deal with it. In exceptional cases, where the complainer has requested not to forward the complaint to Client or The POD Partner established that the violation is evident, The POD Partner is not obliged to forward the complaint.
9.7 If The POD Partner establishes that there is a violation, it shall remove the Material(s) concerned, without being obliged to make a backup (to which The POD Partner is entitled). The POD Partner shall make efforts to not affect other Materials in that process. The POD Partner shall notify Client on the taken measures as soon as possible.
9.8 At all times, The POD Partner shall be entitled to report any detected illegal activities. The POD Partner is also entitled to provide the name, address and other identifying information of Client to any third party that complains that Client violates their rights or these General Terms and Conditions, to the extent that the accuracy of the complaint is reasonably admissible and that the third party has an evident interest in obtaining such information.
9.9 Although The POD Partner aspires to act in the most reasonable, careful and adequate way after complaints about Client, The POD Partner shall never be obliged to compensate any damages resulting from the measures taken in the context of this Article.
9.10 Client is prohibited to resell the Services.
Article 10. Storage and data limits
10.1 The POD Partner is entitled to set a maximum to the storage capacity or monthly data traffic that Client may or can use in the context of the Services.
10.2 In case Client exceeds the applicable limits and after at least one warning to Client about such exceedance, The POD Partner may charge Client with additional costs per data unit (such as MB or GB) that has exceeded the limits, according to the applying amounts in the pricelist.
10.3 The POD Partner shall not be liable for any consequences of the inability to send, receive, store or change data in case the applicable limit for storage capacity or data traffic is exceeded by Client.
10.4 If excessive use of data traffic is the effect of an external cause (such as in the case of a denial-of-service attack), The POD Partner shall be entitled to charge Client with the reasonable costs for such use.
Article 11. Intellectual property rights
11.1 All intellectual property rights developed or made available by The POD Partner in the context of the Agreement shall be vested exclusively in The POD Partner or its licensors.
11.2 Client only has the user rights or other rights that are granted under these General Terms and Conditions or the Agreement, or those that are otherwise explicitly granted in Writing. In other cases, Client shall not reproduce the Materials or make the Materials available to the public. The foregoing does not apply where it is evident that The POD Partner has mistakenly refrained from granting Client such rights explicitly. However, access to or sharing of source codes of Materials shall always be subject to an explicit license.
11.3 Unless agreed otherwise in Writing, Client is not allowed to remove or modify any notice of copyrights, trademarks, trade names or other intellectual property rights in these Materials, including indications of the confidential nature and secrecy of the Materials.
11.4 The POD Partner is allowed to take technical measures to protect its Materials. If The POD Partner has protected its Materials through such technical measures, Client is prohibited to remove or circumvent such measures, except where mandatory law provides otherwise.
Article 12. Prices
12.1 Unless specified otherwise, and unless Client is a consumer, all prices stated by The POD Partner exclude VAT and other levies imposed by the government.
12.2 If a price is based on data provided by Client and these appear to be incorrect, The POD Partner is entitled to adjust the prices accordingly, even after the Agreement is concluded.
12.3 If the Agreement is a Subscription, The POD Partner is entitled to modify the prices at any time.
12.4 Price changes are subject to the same conditions and procedures as changes in the Services and in these General Terms and Conditions.
Article 13. Payments
13.1 Client shall pay the amounts due to The POD Partner in accordance with the ordering procedure and any payment methods indicated. The POD Partner is free to offer any payment method of its choice and may change these methods at any time.
13.2 The POD Partner can upon request invoice the payable amounts to Client. The POD Partner may issue electronic invoices. The POD Partner is entitled to invoice amounts that are due periodically prior to the delivery of Services.
13.3 The payment term for an invoice is equal to the term stated in the invoice, unless agreed otherwise in Writing.
13.4 If Client has not paid an invoice for non-digitally delivered Services within fourteen days after the payment term has lapsed, Client is automatically in default.
13.5 If Client is in default, this shall have the following consequences:
- - A statutory interest is due on the outstanding invoice, or 2% per month if that is higher;
- - Client has to pay 15% of the principal amount of collecting costs, or €40.00 is that is higher than 15% of the main amount;
- - On top of the payable amount and interest, Client is obliged to full compensation for extrajudicial costs and judicial collection costs, including costs for attorneys, lawyers, bailiffs and collection agencies;
- - Websites and other Materials hosted by Client may, without further warning, be made inaccessible until the outstanding amounts, interest and other payable amounts are paid.
13.6 Client is not allowed to invoke suspension, set-off or deduction, unless Client is a consumer.
13.7 If Client fails to comply with any of the obligations in the Agreement, The POD Partner is, without sending Client a notice of default, entitled to take back delivered goods in addition to the delivered Services, without prejudice to the right of The POD Partner to compensation for damage, lost profits and interest.
Article 14. Liability
14.1 In the context of the conclusion and execution of the Agreement, The POD Partner is not liable except for the cases stated below, and limited to the maxima stated therewith.
14.2 The total liability of The POD Partner for damages suffered by Client arising from attributable shortcomings by The POD Partner in complying with the obligations of the Agreement is limited, per event or series of coherent events, to an amount equal to the total payable amounts (excluding VAT) that Client has paid under the Agreement until the moment the damage has occurred or, if the Agreement is concluded for a term longer than three months, to an amount equal to the payments that Client has made in the last three months. The aforementioned shortcomings also include each shortcoming in complying with the warranty agreed with Client, or any wrongful action by The POD Partner, its employees or hired third parties. In no case shall the total compensation for direct damages amount to more than €2,500 (Twenty Five Hundred Euro’s) excluding VAT.
14.3 The POD Partner is explicitly not liable for:
- a) damages arising from measures taken by The POD Partner in good faith, but that has nevertheless appeared to be wrongly imposed;
- b) damages arising from unavailability of the Services, loss of data or breaches of technical or organizational security measures, and
- c) indirect damages, consequential damages, lost profits, lost savings and damages arising from business interruptions.
14.4 The liability of The POD Partner for attributable shortcomings in complying with the Agreement only arises if Client puts The POD Partner in default without delay and in Writing, giving a reasonable term to redress the shortcomings, and if the attributable shortcomings of The POD Partner remain after this term. The POD Partner shall receive the notice of default within fourteen days after the damage has been discovered.
14.5 The exceptions to and limitations of liability as stated in this Article shall lapse if the damages is the result of intention or deliberate recklessness of the management of The POD Partner.
14.6 Client is liable to The POD Partner for damages arising from attributable errors or shortcomings by Client. Client indemnifies The POD Partner against claims concerning the use of the Services by Client or with its permission in a manner not complying with the rules of conduct in these General Terms and Conditions. This indemnification also applies to persons who are not employees of Client, but who nevertheless use the Services under the responsibility of or with permission of Client.
Article 15. Force majeure
15.1 Parties cannot be bound to any obligation in the Agreement in case of force majeure reasonably renders the compliance with an obligation reasonably impossible, if such circumstance was not or should not have been foreseeable at the time the Agreement was concluded.
15.2 Force majeure must be understood to include (but shall not be limited to): interruptions of public infrastructure normally available to The POD Partner on which the delivery of Services depend, but which are beyond the factual or contractual control of The POD Partner, such as the functioning of IANA, RIPE or SIDN, and all networks in the internet that The POD Partner has not a contractual relation with; interruptions in the infrastructure and/or Services of The POD Partner caused by cybercrimes, such as (D)DOS attacks or (un)successful attempts to circumvent the protection of networks or systems; shortcoming of suppliers of The POD Partner, that The POD Partner could not foresee and where The POD Partner cannot hold the supplier liable, for example because there was a case of force majeure; defects in things, equipment, programs or other source materials which the Client has prescribed to use; unavailability of personnel (because of illness or other causes); measures taken by the government; general problems in traffic/transport; strikes; war; terrorist attacks; forces of nature and domestic disturbances.
15.3 If a case of force majeure continues for more than three months, each party is entitled to terminate the Agreement in Writing. In such case, any performance already made on the basis of the Agreement shall be paid in proportion to the performance, without the parties being obliged to pay any other amount.
Article 16. Secrecy
16.1 The parties shall treat confidentially any information that they provide to each other before, during or after performance of the Agreement if said information is marked as confidential or if the receiving party knows or should reasonably suspect that the information was intended to be confidential. The parties shall also impose this obligation on their employees and on any third party they engage with for performance of the agreement.
16.2 The POD Partner shall make efforts to prevent that it takes notice of data that Client stores or disseminates through its hardware or software in relation to the Services, unless this is necessary for a proper performance of the agreement or The POD Partner is required to pursuant to a statutory provision or court order. In such case, The POD Partner shall make efforts to restrict the notice of such data as much as possible, to the extent this is within its power.
16.3 The obligations of this article will continue to exist after the agreement has ended for any reason whatsoever and for as long as the providing party can reasonably claim the confidentiality of the information.
Article 17. Term and termination
17.1 The term of the Agreement is equal to the time span necessary to deliver the Services. If the Agreement is a Subscription, it is concluded for an indefinite period.
17.2 If parties agree on a fixed term for the Subscription, parties may not terminate the Agreement early, unless there are special grounds as defined in this Article. Each of the parties may terminate an Agreement, concluded for indefinite period, observing a notice period of one calendar month.
17.3 Before the Subscription expires, Client shall receive a request for renewal for a term stated by The POD Partner. Only if Client accepts such request, the Agreement will be renewed.
17.4 The POD Partner may terminate or suspend the Agreement immediately if one of the following special grounds applies:
- a) Client is in default concerning a substantial obligation;
- b) Client has filed for bankruptcy;
- c) Client has applied for a moratorium;
- d) Activities of Client are being terminated or liquidated.
17.5 If The POD Partner suspends the fulfilment of obligations, it retains the entitlements arising from the law and the Agreement, including the right of payment for the Services that are suspended.
17.6 If the Agreement is terminated, the claims of The POD Partner against Client are immediately due and payable. In case of termination or dissolution of the Agreement, outstanding invoices remain due and payable, without any obligation to cancel or nullify such invoices. In case of termination or dissolution by Client, Client may only terminate that part of the Agreement that has not yet been executed by The POD Partner. If dissolution can be attributed to Client, The POD Partner is entitled to claim damages arising directly or indirectly therefrom.
Article 18. Procedure after termination
18.1 After the Agreement has ended as a consequence of termination or dissolution, the Account of Client and data stored for Client shall be available to Client to download for one (1) week, unless stated otherwise. After this period, all data of Client shall be removed, whether or not Client has downloaded these.
18.2 The POD Partner shall remove data it has stored for Client without specific measures to make removal irreversible.
Article 19. Precedence and changes of conditions
19.1 The POD Partner reserves the right to change or complement these General Terms and Conditions applying to its Services. Changes also apply to agreements already concluded, subject to a notice period of 30 days.
19.2 Changes shall be announced on the Website of The POD Partner, by e-mail to Client, or by means of any other channel for which The POD Partner can prove that the announcement has reached Client. Non-substantive changes of minor importance may be made without any announcement.
19.3 If Client refuses to accept a change, Client shall inform The POD Partner thereof in Writing accompanied by its reasons within two weeks after the announcement of the changes. The POD Partner may then reconsider the change(s) concerned. If The POD Partner does not revoke the change(s) concerned, Client may terminate the Agreement from the date the new conditions will enter into effect.
19.4 Provisions related to specific Services shall take precedence over general provisions related to all Services. Further arrangements between The POD Partner and Client shall only take precedence over these General Terms and Conditions if agreed so explicitly in Writing, or if that is evidently the intent of both parties.
Article 20. Other provisions
20.1 The Agreement is subject to Dutch law.
20.2 All disputes arising from the Agreement between The POD Partner and Client shall be submitted to the competent Dutch court for the district in which The POD Partner is established.
20.3 If a provision in the Agreement turns out to be void, this shall not affect the validity of the Agreement as a whole. In such cases, parties shall establish (a) new provision(s) as a replacement, which shall be drafted in a way that meets as much as possible the intent of the original Agreement and these General Terms and Conditions.
20.4 Information and announcements, including price indications, on the Website of The POD Partner are subject to programming and typing errors. In case of any inconsistence between the Website and the Agreement, the Agreement prevails.
20.5 Log files and other, whether or not electronic, administration of The POD Partner constitute full proof of statements of The POD Partner and any (electronic) communication or stored version thereof received by The POD Partner shall be deemed to be authentic, subject to evidence to the contrary to be provided by Client.
20.6 Parties shall notify one another without delay in writing regarding any changes of name, postal address, e-mail address, telephone number, VAT number or bank account number.
20.7 Parties are only entitled to transfer their rights and obligations under this Agreement to third parties with prior permission from the other party in Writing. Such permission is not required in the case such transfer is part of a company takeover or the acquisition of a majority of shares in the party concerned.
Contact details for The POD Partner
The POD Partner
Buisweg 12 - 1222GC
Hilversum - The Netherlands