General Terms of Delivery

Topicus General Terms of Delivery Version 2023.1 dated 20 April 2023

I.     GENERAL

Article 1. Definitions and applicability

1.1 In these general terms and conditions of delivery ("Conditions"), the following definitions shall apply:

• a. Service(s): the activities described in more detail in the Agreement, which are provided by Topicus to the Client, and which may include, among other things, the development, parameterisation, installation, implementation, maintenance, the remote or non-remote provision of Software, the provision of user support, advice, project supervision or the provision of consultancy services, all this insofar as agreed.

• b. Defect: an imperfection reproducible by Topicus consisting of the substantial non-compliance of the Software, Products or Services with the (functional or technical) specifications and/or user documentation made known by Topicus in writing.

• c. Licence: the right granted by Topicus to the Client to use the Software.

• d. Client: the natural or legal person with whom Topicus concludes an Agreement.

• e. Agreement: a (further) agreement between the Principal and Topicus, which extends to the delivery by Topicus of certain Software, Products and/or Services.

• f. Products means the equipment (if any) further described in the Agreement, such as hardware, components and other items, including associated user documentation.

• g. Software: the standard and/or customised software (including interfaces) described in the Agreement, including associated user documentation.

• h. Topicus: Topicus.com B.V. and its subsidiaries.

1.2 These Terms and Conditions shall form part of all Agreements and shall apply to all related (legal) acts of Topicus and the Principal. In case of conflict, the Agreement shall prevail over these Terms and Conditions.

1.3 The applicability of general terms and conditions of the Client, however named, are explicitly rejected by Topicus.

1.4 Deviations from these Terms and Conditions and from the Agreement shall only be valid if and insofar as they have been expressly laid down in writing by Topicus and shall only apply once.

1.5 Topicus is at all times entitled to unilaterally amend and/or supplement these Terms and Conditions. Amendments shall be brought to the attention during the term of the Agreement. If the Client uses a Service provided by Topicus and continues to use the Service after these Terms and Conditions have been amended or supplemented, they shall be deemed to be accepted, unless the Client objects to them in writing within thirty days after the notification. If the Client does not agree with the amended or supplemented Conditions, he shall be entitled to terminate the use of the Service, in which case the Service shall continue until the end of the month following the month in which the Client notified Topicus of the termination.

 

Article 2. The formation of Agreements

2.1  All quotations, offers and other expressions of Topicus are without obligation, unless otherwise indicated by Topicus. An Agreement shall only be concluded if and insofar as Topicus confirms this to the Principal in writing, or by the signing of a written document by an officer of Topicus duly authorised to do so.

2.2 The Principal guarantees the correctness and completeness of the data provided by him or on his behalf to Topicus on which Topicus bases its offer. Dimensions and data mentioned in drawings, images, catalogues, websites, offers, advertising material, etc. shall not be binding for Topicus.

2.3 The Principal himself shall ensure the proper selection, use, application and management in his organisation of the Software, Products and Services delivered by Topicus to the Principal. If applicable, it shall also take care itself of necessary Internet and other connections, or other services to be provided by third parties.

Article 3. Execution of Agreements; obligation to cooperate

3.1 Unless the parties have explicitly agreed on a result that is furthermore described with sufficient certainty, Topicus' obligations shall be regarded as an obligation of effort. Topicus cannot guarantee that the Software, Products and Services will always function without limitations, interruptions or failures or that all imperfections or defects can be remedied. Topicus reserves the right to make changes or improvements in the Software, Products or Services as well as in the related documentation and procedures, which Topicus considers useful or necessary.

3.2  The Principal shall be obliged to render all necessary cooperation by Topicus with respect to the execution of the Agreement, including the provision of useful or necessary documentation, information, (computer and telecommunication) facilities and suitable workspaces.

 

Article 4. Price and payment

4.1 All rates to be charged by Topicus shall be in Euros and exclusive of turnover tax and other levies imposed or to be imposed by the government. The Principal shall bear the exchange rate risk in case of payment in foreign currency.

4.2 All pre-calculations and budgets issued by Topicus shall be of an indicative nature only. Unless otherwise agreed upon in writing, the Principal can never derive any rights or expectations from a pre-calculation or budget issued by Topicus.

4.3 Topicus reserves the right to change its rates and fees annually per 1 January in accordance with the CBS consumer price index figure. In addition, Topicus shall at all times be entitled to pass on demonstrable price increases of Topicus' suppliers to the Principal.

4.4 The Client shall pay the amounts invoiced by Topicus, on the date(s) as included in the Agreement. Deductions, discounts or offsets from the invoiced amounts may only be made with the written consent of Topicus. In the absence of an arrangement, payments shall be made within 30 (thirty) days after the invoice date. If the payment term is exceeded, the Principal shall be immediately in default and all claims of Topicus against the Principal, on whatever account, shall be immediately due and payable. Furthermore, as from the day after the due date, the Dutch statutory commercial interest as referred to in Article 6:119a of the Dutch Civil Code shall be due without any reminder or notice of default.

In addition, in the event of late payment, all judicial and extrajudicial costs incurred to collect the amount due shall be borne by the Principal. The extrajudicial collection costs are set at 15% of the principal sum, including VAT, with a minimum of EUR 250.

4.5 The Principal shall not be entitled to suspend any payment obligation towards Topicus without prior consultation with Topicus.

4.6 Complaints regarding an invoice shall be submitted in writing to Topicus within 14 (fourteen) days after the invoice date. After this period, complaints will no longer be considered and the right of complaint of the Principal shall lapse.

 

Article 5. Processing of personal data and confidentiality

5.1 If Topicus will process personal data of third parties in the execution of the Agreement, Parties shall enter into a Processor Agreement. This processor agreement will comply with the conditions set out in Article 28(3) of the General Data Protection Regulation.

5.2 If Topicus processes personal data by order of the Client, the Client warrants to Topicus that such processing will not infringe any right of a third party.

5.3  The Client shall be obliged to observe total confidentiality with respect to all information of which he knows or should reasonably know that it is of a confidential nature. Confidential information shall in any case mean all data of Topicus or third parties engaged or designated by Topicus, including financial data, which become known to the Principal pursuant to the execution of the Agreement, the Software and all data provided by Topicus to the Principal in the context of the use of the Software, Products and/or Services (such as access codes, passwords, etc.). The Client shall agree on the same confidentiality obligation with its staff members and/or third parties working for it, who may actually gain access to the data referred to in the paragraph above, and guarantees towards Topicus that its staff members and/or third parties will comply with it.

Article 6. Retention of title and rights, creation of property and suspension

6.1 All Products and other items delivered to the Client shall remain the property of Topicus until all amounts due by the Client to Topicus pursuant to the Agreement concluded between the parties have been paid to Topicus in full.

6.2 Rights, including any Licences, are granted to the Client under the condition that the Client has paid all fees due under the Agreement concluded between the parties. If, for the granting of a Licence, the parties have agreed on a periodic payment obligation on the part of the Client, the Licence will accrue to the Client as long as the Client fulfils its periodic payment obligation in time and in full.

6.3 Topicus may retain or (if applicable) deny access to the goods, Products, Software, property rights, data, documents, data files and (interim) results of Topicus' Services received or generated in the context of the Agreement, until the Principal has paid all amounts due to Topicus. Topicus also reserves the right to temporarily put the provision of the Services out of operation at any time if it deems this necessary for the sake of the security and integrity of the relevant Service, the performance of necessary (preventive) maintenance, the repair of Defects, and the remedying of malfunctions or the adjustment and improvement of Topicus' computer systems. Topicus shall as much as possible arrange such shutdowns outside office hours and notify the Client of a planned shutdown as soon as possible. Topicus shall never be held liable for any indemnification towards the Principal due to such shutdown.

 

Article 7. Intellectual property rights and Licence

7.1 All intellectual property rights on the Products, Software, Services, websites, data files, hardware or other materials, such as analyses, (functional and technical) designs, documentation, reports, offers, as well as preparatory materials thereof, developed or made available to the Client on the basis of an Agreement, shall exclusively rest with Topicus, its licensor or its supplier(s). The Principal shall exclusively acquire the user rights granted by these Conditions, the Agreement and the law are expressly granted. Any right of use granted to the Customer is non-exclusive, non-transferable to third parties and non-sublicensable.

7.2  If Topicus is willing to undertake to transfer a right of intellectual property, this shall have to be explicitly agreed upon in writing. If the parties agree in writing that a right of intellectual property with respect to Software, websites, data files, hardware or other materials specifically developed for the Client, shall be transferred to the Client, this right shall not affect the possibility of Topicus to use and/or exploit the parts, general principles, ideas, designs, algorithms, documentation, works, programming languages, protocols, standards and suchlike underlying that development for other purposes without any restriction. Nor does the transfer of an intellectual property right affect the right of Topicus to make, for its own benefit or for the benefit of a third party, developments similar or derived from those made or to be made for the benefit of the Client.

7.3 If the Principal provides Topicus with equipment, software, material intended for websites, data files or other materials for the purpose of use, processing, installation and incorporation by Topicus, the Principal guarantees that no rights of third parties oppose the provision thereof to Topicus and the use, processing, installation and incorporation thereof by Topicus. The Principal shall indemnify Topicus against any claim of a third party, based on the processing that such provision, use, adaptation, installation or incorporation infringes any right of that third party.

 

Article 8. Deadlines and delivery dates

8.1 All (delivery) periods and delivery dates indicated or agreed by Topicus shall always be target dates, unless parties have explicitly agreed in writing on a fatal period or delivery date for specific cases. Exceeding of a (delivery) term or delivery date indicated by Topicus or agreed upon between the parties, not being a fatal term or fatal delivery date explicitly agreed upon in writing, shall not cause Topicus to be in default. Topicus shall only be in default after the Client has given Topicus written notice of default, which notice of default shall contain a deadline that reasonably allows Topicus to still comply and which is formulated in such a complete and detailed manner that Topicus has the opportunity to respond adequately.

 

Article 9. Duration and termination of the Agreement

9.1 The (initial) term of the Agreement is specified in the Agreement. If no term is specified therein, the Agreement shall have a term of one (1) year.

9.2 Unless otherwise stipulated in the Agreement, the term of the Agreement shall be automatically extended by one year each time after the initial term has expired, unless the Agreement has been timely and lawfully terminated. Termination shall be effected in writing and only by the end of the (extended) term of the Agreement and with due observance of a notice period of at least three (3) months. A different method of termination by the Customer and/or premature termination of Agreements entered into for a definite period is not possible.

9.3 Topicus may fully or partially terminate the Agreement in writing with immediate effect if the Client: (i) is granted suspension of payments or bankruptcy, whether provisional or not, (ii) if the enterprise of the Client is liquidated or terminated other than for the purpose of reconstruction or merger of enterprises, or (iii) if the decisive control over the enterprise of the Client changes.

9.4 Topicus shall never be held to refund monies already received or to any other compensation due to termination by the Principal. In case of termination by Topicus for whatever reason, Topicus shall never be held to pay damages.

9.5 Each of the parties shall only be authorised to dissolve the Agreement on account of an attributable failure in the performance of the Agreement if the other party is attributably in breach of essential obligations under the Agreement. This power also only comes into effect if it is preceded by a notice of default in writing that is as detailed as possible and in which a reasonable term is set for performance and that term has lapsed without the essential failure being rectified.

9.6 Payment obligations of the Customer and all other obligations to cooperate by the Customer or third parties to be engaged or engaged by the Customer shall always count as essential obligations under the Agreement. 

9.7  If, at the moment of dissolution as referred to in the first paragraph of this article, the Client has already received performances in execution of the Agreement, these performances and the related payment obligation shall not be subject to cancellation, unless the Client proves that Topicus is in default with respect to the substantial part of those performances.

9.8  Amounts that Topicus has invoiced prior to the dissolution in connection with what it has already duly performed or delivered in execution of the Agreement, shall, with due observance of the provisions in the previous sentence, remain fully due and shall become immediately payable at the moment of dissolution.

 

Article 10. Liability Topicus

10.1 The total liability of Topicus shall be limited to compensation of direct damage up to the amount of the price stipulated for that Agreement (exclusive of VAT). If and insofar as the Agreement is mainly a continuing performance agreement with a duration of more than one (1) year, the price stipulated for the Agreement shall be set at the total of the fees (exclusive of VAT) stipulated for one (1) year.

10.2 Topicus' liability is excluded for all indirect damage; consequential damage; loss of profit; lost savings; reduced goodwill; damage due to business stagnation; damage resulting from claims of customers of the Principal; damage related to the use of items, materials or software of third parties prescribed by the Principal to Topicus; damage related to the engagement of suppliers prescribed by the Principal to Topicus; damage due to mutilation, destruction or loss of data or documents of the Principal or third parties and all other forms of damage than those mentioned in paragraphs 1 and 2.

10.3 Should the limitations of liability mentioned in the preceding paragraphs of this article be deemed by the court to be contrary to reasonableness and fairness under certain circumstances, the liability of Topicus, for whatever reason, shall never exceed the amount to which the liability insurance taken out by Topicus gives entitlement, to be increased by the excess amount that shall be borne by Topicus in the given case.

10.4 The limitations of liability mentioned in the preceding paragraphs of this article shall cease to apply if and insofar as the damage is the result of an intentional act or gross negligence of Topicus' management.

10.5  The exclusions and limitations of Topicus' liability as described in the preceding paragraphs shall be without prejudice to Topicus' other exclusions and limitations of liability under these Terms and Conditions.

10.6  The liability of Topicus shall in all cases only arise if the Principal immediately and appropriately gives Topicus notice of default in writing, whereby a reasonable period to remedy the failure is set, and Topicus continues to fail imputably even after that period. The notice of default shall contain a description of the default that is as complete and detailed as possible, in order to enable Topicus to respond adequately.

10.7  The Principal shall only acquire a right to compensation of damage if it reports the damage to Topicus in writing as soon as possible after its occurrence. Any claim for compensation against Topicus shall expire if it has not been instituted against Topicus within twelve (12) months after the occurrence of the claim.

10.8  The provisions of this article, as well as all other limitations and exclusions of liability mentioned in these Terms and Conditions, shall also apply in favour of all (legal) persons which Topicus engages in the execution of an Agreement.

10.9  The limitations on liability referred to in this article shall apply to all claims of the Client, on whatever grounds, and shall also apply to warranty and indemnity obligations issued by Topicus, implicitly or explicitly.

10.10  The Client shall indemnify Topicus against all claims of third parties, on whatever account, including the costs to be incurred in connection therewith, which directly or indirectly arise from or are related to the Services of Topicus for the benefit of the Client.

 

Article 11. Force majeure

11.1 Neither party shall be held to fulfil any obligation under an Agreement, including any warranty obligation agreed upon between the parties, if he is prevented from doing so due to force majeure. Force majeure shall include, inter alia: (i) force majeure of Topicus' suppliers, (ii) failure to properly fulfil obligations of suppliers, which have been assumed by the Principal to Topicus, and (iii) failure to properly fulfil obligations of suppliers that have been assumed by the Principal to Topicus. prescribed, (iii) defectiveness of items, equipment, software or materials of third parties, the use of which has been prescribed to Topicus by the Principal, (iv) government measures, (v) power failure, (vi) failure of internet, computer network or telecommunication facilities beyond the control of Topicus, (vii) war, (viii) labour occupation, (ix) strike, (x) general transport problems and (xi) the unavailability of one or more staff members who cannot reasonably be replaced, taking into account their specific knowledge and skills.

11.2 If a situation of force majeure lasts longer than thirty (30) days), either party has the right to terminate the Agreement. What has already been performed under the Agreement shall in that case be settled proportionally, without the parties owing each other anything in addition.

 

Article 12. Changes and additional work

12.1  In case a change occurs in external factors (such as legislation and regulations) during the term of this agreement, which affects (the operation of) one or more provisions of these terms and conditions and/or individual agreements, and/or affects (the operation of) the agreed Service(s), Topicus shall be entitled to make known, by means of a written notification, the changes it deems necessary and the impact thereof. Parties shall then reasonably agree on the handling of the changes and the impact on the terms and conditions, agreements, rates and Service(s).

12.2  If Topicus, at the request or with the prior consent of the Principal, has performed work or other performances that fall outside the content and/or scope of the Agreement, such work or performances shall be compensated by the Principal according to the agreed rates and, in the absence thereof, according to Topicus' usual rates. Topicus shall never be obliged to comply with a request for additional work and it may require that a separate Agreement be concluded for that purpose. The Client accepts that additional work may affect the agreed or expected time of completion of the Services by Topicus and the mutual responsibilities of the Client and Topicus. The fact that (the demand for) additional work occurs during the execution of an Agreement shall never be a ground for dissolution of the Agreement by the Principal.

Article 13. Service level agreement

13.1  Any agreements concerning a certain service level with respect to one or more Services to be provided by Topicus (including the maintenance of Software and/or the remote provision of Software) shall be laid down in a written SLA (Service Level Agreement). In conformity with this SLA, Topicus shall inform the Client about the Service and its availability. If arrangements have been made about availability, this availability will be measured without the prior announced shutdown due to maintenance and with circumstances beyond the control of Topicus and taking into account the Services as a whole as described in the SLA, during the duration of the Agreement. Subject to evidence to the contrary, an availability measured by Topicus shall constitute full proof.

 

Article 14. Applicable law, dispute resolution and other general provisions

14.1 These Conditions as well as the Agreements are governed by Dutch law. The application of the Vienna Sales Convention 1980 is excluded.

14.2 Disputes that may arise between Topicus and the Principal as a result of an Agreement, or as a result of other agreements resulting therefrom, shall be settled by arbitration in accordance with the Arbitration Regulations of the Foundation for the Settlement of Automation Disputes (Stichting Geschillenoplossing Automatisering), The Hague, the Netherlands. The foregoing is without prejudice to the parties' right to request a summary arbitral award and without prejudice to the parties' right to take precautionary legal measures.

14.3  Before commencing arbitration proceedings as referred to in paragraph 2 of this article, the most diligent party shall commence a procedure of ICT-mediation in accordance with the ICT-Mediation Regulations of the Foundation for the Settlement of Automation Disputes in The Hague. Parties are free to terminate the ICT-mediation procedure at any time after a first joint discussion between mediators and Parties.

14.4 Notwithstanding the provisions of paragraphs 2 and 3, Topicus shall be entitled to submit a dispute between parties to the District Court of Overijssel.

14.5  Topicus is entitled to transfer the rights and/or obligations under an Agreement to a third party. The Client shall cooperate in this respect. The Principal shall not be entitled to transfer its rights and/or obligations under an Agreement to a third party without prior consent. written consent of Topicus. Topicus shall not refuse such consent on unreasonable grounds, but shall be entitled to attach conditions thereto.

14.6  Failure to invoke any provision of these Terms, the Agreement or laws and regulations applicable to the relationship of the Parties shall not constitute a waiver of any right to which Topicus is entitled.

 

II.     SOFTWARE LICENCE

Article 15. Applicability

15.1  The provisions of this Chapter shall also apply if and insofar as Topicus makes Software available to the Client for use on the basis of a licence.

 

Article 16. Licence and restrictions on use

16.1  Topicus shall make the Software described therein available to the Client for the duration of the Agreement and shall grant the Client a Licence under the conditions set out in these Terms and Conditions and the Agreement. The Client shall at all times strictly comply with the restrictions applicable between the parties with respect to the Licence. The Client is aware that violation of a restriction on use constitutes both a material breach of the Agreement with Topicus and an infringement of the intellectual property rights of the Software creator.

16.2  Unless otherwise agreed, Licences are always non-exclusive, non-transferable and non-sublicensable. A Licence is granted for the term as specified in the Agreement, failing which a term of one (1) year) applies. The licence commences on the day the Software is made available to the Client. The duration of the Licence is always tacitly renewed for the duration of the original term, unless the Client or Topicus terminates the Agreement in writing with due observance of a notice period of three (3) months before the end of the relevant period.

16.3  Immediately after the end of a Licence, the Client shall cease and desist all use thereof and (if applicable) immediately remove all reproductions thereof from its systems. Unless otherwise agreed, Topicus shall be entitled to terminate a Licence not obliged to provide Client with assistance in view of any data conversion, recording of information (status), or any other activity desired by Client.

16.4  Only if and insofar as agreed in writing, the source code of the Software and the technical documentation created during the development of the Software shall be made available to the Client, in which case the Client shall be entitled to make changes to this Software. If Topicus is judicially ordered to make the source code and/or technical documentation available to the Client, Topicus may demand a reasonable compensation.

16.5  Unless otherwise agreed in writing, Topicus shall not be obliged to make available the auxiliary software and program or data libraries required for the use and/or maintenance of the Software. If, in deviation from the above, Topicus also needs to make auxiliary software and/or program or data libraries available, this shall take place at the usual rates and Topicus may require the Principal to enter into a separate written agreement for that purpose.

16.6  Unless otherwise agreed in writing, Topicus' performance obligations do not include the maintenance of the Software and/or providing support to the users of the Software. If, contrary to the above, Topicus is required to provide maintenance and/or support, this shall take place at the usual rates and Topicus may require the Principal to enter into a separate written agreement.

16.7  The Customer shall never (cause to be) removed or (cause to be) circumvented technical provisions intended to protect the Software.

16.8 Unless explicitly agreed otherwise in writing in advance, the Client shall never decompile, decode, reverse engineer or otherwise discover, make visible, (re)use or modify the underlying code in any way whatsoever. Topicus shall always be entitled to refuse consent or to attach conditions to its consent, including with respect to the manner and quality of the changes desired by the Principal. If Topicus grants such permission, all actions or changes carried out by the Principal and consequences for the (operation of) the Software shall be at his expense and risk.

16.9  Unless otherwise agreed in writing, the Customer may only use the Software in and for its own business or organisation and only for the use intended therewith by Topicus.

16.10 Unless otherwise agreed in writing, the Customer shall not use the Software to process data for the benefit of third parties, such as by means of 'time-sharing', 'application service provision (ASP)', 'software as a service (SaaS)' , 'outsourcing', 'cloud computing' or in any other construction whatsoever.

16.11 The Customer shall not be allowed to sell, lease, alienate or create limited rights to the Software, the data carriers on which the Software is recorded or the certificates of authenticity furnished by the Customer when the Software is made available, or make them available to a third party in any way or for any purpose. Nor shall the Customer give a third party access to the Software - whether remotely or not - or place the Software with a third party for hosting, not even if the third party in question uses the Software solely for the benefit of the Customer.

16.12  Upon request, the Client shall forthwith fully cooperate with an investigation to be conducted by or on behalf of Topicus regarding the compliance by the Client with the agreed usage restrictions.

 

Article 17. Delivery and installation of Software

17.1  Topicus shall deliver the Software in a manner to be determined by Topicus in the manner agreed in the Agreement.

17.2  Only if agreed in writing between the parties, Topicus shall install, implement and/or parameterise the Software at the Client's premises. Unless otherwise agreed in writing, Topicus shall not be obliged to perform data conversion.

17.3  The provision of user documentation shall take place in paper or digital form with a content to be determined by Topicus. Unless otherwise agreed in writing, Topicus shall decide on the form, language, scope and depth of the described subjects in which the user documentation is provided.

 

Article 18. Acceptance test and acceptance

18.1       If the parties have not agreed that an acceptance test will be conducted, the Customer shall accept the Software in the condition it is in at the time of delivery ('as is'), hence with all visible and invisible Defects in the Software, without prejudice to Topicus' obligations under the warranty provisions of Article 19.

18.2  If an acceptance test has been agreed in writing between the parties, the following shall apply in any case:

• a.  The test period shall not exceed fourteen (14) days after delivery of the Software or, if an installation to be carried out by Topicus has been agreed in writing, after completion of the installation. During the test period, the Client shall not be entitled to use the Software for productive or operational purposes. The Client shall carry out the agreed acceptance test on the Software with sufficiently qualified personnel and with sufficient scope and depth. The Client shall report the test results to Topicus in writing, clearly and comprehensibly.

• b. The Client shall be obliged to test under his full and sole responsibility whether the delivered Software complies with the functional or technical specifications made known in writing by Topicus and, in case the Software is fully or partly custom-made software, with the functional or technical specifications agreed in writing between the parties. Unless otherwise agreed in writing, the assistance provided by Topicus in performing the acceptance test shall be entirely at the risk of the Client.

• c. If, during the performance of an agreed acceptance test, it becomes apparent that the Software contains Defects, the Principal shall inform Topicus thereof at the latest on the last day of the test period by means of a written and detailed test report. Topicus shall make every effort to remedy said Defects to the best of its ability within a reasonable period of time, whereby Topicus shall be entitled to implement temporary solutions, program bypasses or problem-avoiding restrictions in the Software.

18.3       In all cases, the Software shall be deemed to be accepted:

• a. as soon as the Software is put into use for productive or operational purposes; or

• b. on the first day after the test period, then;

• c.  if Topicus receives a test report from the Client as referred to in paragraph 2 of this article before the end of the test period: at the moment that the Defects in the Software mentioned in that test report have been repaired, without prejudice to the presence of Defects that do not prevent acceptance according to the provisions of paragraph 4 of this article.

18.4  Acceptance of the Software may not be withheld on grounds unrelated to the specifications expressly agreed between the parties and furthermore not on account of the existence of minor Defects, being Defects that do not reasonably prevent the operational or productive commissioning of the Software. Acceptance may furthermore not be withheld due to aspects of the Software that can only be assessed subjectively, such as aesthetic aspects and aspects concerning the design of user interfaces.

18.5  If the Software is delivered and tested in stages and/or parts, non-acceptance of a particular stage and/or part shall not affect any acceptance of an earlier stage and/or another part.

 

Article 19. Warranty

19.1 Topicus does not warrant that the Software made available to or developed by order of the Client is suitable for the actual and/or intended use by the Client.

19.2  Topicus shall, to the best of its ability, endeavour to remedy any Defects in Topicus' Software within a reasonable period of time if these have been reported in detail to Topicus in writing within a period of three (3) months after delivery or, if an acceptance test has been agreed between the parties, within three (3) months after acceptance. Such repair shall be carried out free of charge, unless (i) the Software has been developed by order of the Client other than for a fixed price or (ii) in case of user errors or incompetent use of the Client or other causes not attributable to Topicus or (iii) if the Defects could have been detected during the execution of the agreed acceptance test, in which cases Topicus shall charge the costs of repair according to its usual rates. The recovery obligation shall lapse if the Client has made changes (or has had changes made) to the Software without Topicus' written consent.

19.3  Topicus shall never be obliged to repair mutilated or lost data. Topicus shall not be obliged to repair Defects reported after the expiry of the guarantee period referred to in paragraph 2 of this Article.

 

Article 20. Supplier software

20.1 If and insofar as Topicus makes Software of third parties available to the Client, their (license) terms and conditions shall apply, setting aside the deviating provisions as included in these Conditions. The Client accepts in advance the said terms and conditions of third parties. These terms and conditions are available for inspection by the Principal at Topicus and will be sent free of charge upon request of the Principal. If and insofar as the said terms and conditions of third parties are deemed not applicable or declared inapplicable to the relationship between the Principal and Topicus for whatever reason, the provisions of these Terms and Conditions shall apply in full.

 

III.       SOFTWARE DEVELOPMENT

Article 21. Applicability

21.1  The provisions of this Chapter shall also apply if and insofar as Topicus develops Software specifically for the benefit of the Client.

 

Article 22. Software development

22.1  Topicus' development work shall always be performed on the basis of an obligation of effort, unless and insofar as Topicus has explicitly promised a result in the Agreement and the result concerned has furthermore been described with sufficient certainty.

22.2 If it has been agreed that the development of the Software will take place in phases or if Topicus uses a development method that assumes a phased implementation, Topicus shall be entitled to postpone the commencement of the Services belonging to a phase until the Principal has approved the results of the preceding phase in writing.

22.3  Topicus shall not be obliged to follow instructions given by the Client in the execution of the development work in Topicus' view in a untimely and irresponsible manner.

22.4  If the Software development Agreement has been entered into with a view to execution by one or more specific persons, Topicus shall always be entitled to replace these persons by one or more other persons with the same qualifications, after consultation with the Client.

 

Article 23. Specifications of Software to be developed

23.1 If agreed, Topicus shall develop Software for the Client with due observance of the specifications or design of that Software and - where applicable - with due observance of the agreed Client in writing agreed project organisation, methods, techniques, agreements and/or procedures. Prior to commencing the development work, Topicus may require the Client to fully and unconditionally agree in writing with the specifications or design. Topicus shall be entitled to suspend the work until the moment when the Principal fully and unconditionally agrees in writing with the specifications of the design.

23.2 Topicus shall be entitled, but not obliged, to examine the correctness, completeness and consistency of the data, specifications and designs made available to it and, upon observation of any imperfections, to suspend the agreed work until the Principal has removed the imperfections in question.

23.3  If the parties use a development method characterised by the premise that the design and/or development of parts of the Software is subject to a further prioritisation to be determined during the performance of the Agreement with regard to the specifications, this prioritisation will always be established in proper consultation between the parties.

23.4  In the absence of said specifications, Topicus' understanding, principles and method(s) of operation shall be recognised by the Principal as sufficient and adequate.

 

Article 24. Payment for development work

24.1  In the absence of an agreed billing schedule, all amounts relating to the development of Software shall be due in arrears each calendar month.

24.2  Unless otherwise agreed in writing, the fee for developing the Software shall not include a fee for the auxiliary software and program or data libraries required by the Customer, any installation services and any Software modifications and/or maintenance. Nor does the user fee include the provision of support to users of the Software. If applicable, these activities and Services shall be charged separately at Topicus' usual rates.

IV.    MAINTENANCE AND SUPPORT

Article 25. Applicability

25.1  The provisions of this chapter shall also apply if and insofar as it has been agreed between the parties that Topicus will carry out maintenance on the Software and support (users of) the Client in the use of the Software.

 

Article 26. Content of the maintenance obligation

26.1  Topicus shall carry out the maintenance of the Software stipulated in the Agreement. Unless otherwise agreed, the maintenance obligation shall exclusively comprise the repair of possible Defects in the Software and the support of users of the Client by providing a helpdesk and - also if agreed in writing - the provision of new versions of the Software.

26.2   Maintenance and any other agreed Services shall be performed from the day the Agreement is entered into, unless otherwise agreed.

26.3  Further descriptions and agreements on the level of the Service, the availability of personnel, working methods to be followed, making and keeping backups, etc., will be laid down in a separate Service Level Agreement (SLA).

26.4 Topicus is not obliged to perform maintenance on the Software that results from or is related to:

• a. errors of use or improper use of the Software including, inter alia, errors in data input or in the data itself;

• b. modification of the Software other than by or on behalf of Topicus;

• c.  the use of the Software in violation of the conditions applicable for it or in violation of the instructions in the user documentation;

• d. changes in or errors, defects or imperfections in equipment or Software other than that covered by Topicus' maintenance;

• e. the Customer's failure to have the Software maintained in a timely manner;

• f.  the use of an old version of the Software that is no longer maintained by Topicus;

• g.  the restoration of mutilated or lost data;

• h.  consequences of unauthorised access by third parties (so-called 'hacking');

• i.  other causes not attributable to Topicus.

26.5 If Topicus performs maintenance or other work in connection with the provisions of paragraph 4 of this article, Topicus may charge the costs thereof according to its usual rates. Any agreed service levels shall not apply here.

 

Article 27. Execution of maintenance obligation

27.1  Topicus shall endeavour to execute the Agreement with due care, where appropriate in accordance with the arrangements and procedures laid down in writing with the Client in any agreed SLA.

27.2 The Client shall report detected Defects in the Software in detail. After receipt of the report, Topicus shall make every effort to remedy those Defects and/or make improvements in later new versions of the Software to the best of its ability.

27.3  The results thereof shall be made available to the Client in the manner and on the term determined by Topicus, depending on the urgency. Topicus shall be entitled to implement temporary solutions, program bypasses or problem-avoiding restrictions in the Software. In the absence of explicit agreements in this respect, the Client shall install, organise, parameterise and tune the corrected Software or the new version of the Software made available and, if necessary, adapt the used hardware and user environment. If Topicus performs the maintenance remotely (online), the Client shall ensure a proper infrastructure and telecommunication facilities. Topicus shall be entitled to set requirements in this respect and may decide to suspend or limit the maintenance if the infrastructure and/or telecommunication facilities of the Principal do not meet the requirements set by Topicus.

27.4  Topicus shall provide support to the Client which obligation shall be limited to advising by telephone or e-mail on the use and functioning of the Software mentioned in the Agreement. Topicus may impose conditions on the qualifications and the number of contact persons eligible for support. Topicus shall deal with properly substantiated requests for support within a reasonable time in accordance with its usual procedures. Unless otherwise agreed support will only be provided on working days during Topicus' usual business hours.

27.5 The Client shall provide all the cooperation required by Topicus for the maintenance. This shall include the temporary cessation of the use of the Software by the Client, if this is necessary in the opinion of Topicus. In the absence of the desired cooperation, Topicus may suspend the maintenance.

27.6  If the maintenance relates to software that has not been delivered to the Principal by Topicus, the Principal shall, if Topicus reasonably considers this necessary, make the source code and the technical (development) documentation of that software available. The Client guarantees that it is entitled to such provision and that no rights of third parties oppose it. The Client grants Topicus the right to use and modify that software, including the source code and technical (development) documentation, within the scope of the execution of the agreed maintenance. The Principal shall indemnify Topicus against all claims of third parties in respect of the provision and use made by Topicus in the context of the maintenance of the provided software. Topicus shall keep the data provided in this provision confidential.

27.7 The Service(s) to be performed by Topicus shall not affect the Principal's own responsibility for the management of the Software, including control of the settings, the use of the Software and the manner in which the results of the use of the Software are deployed. The Customer shall also be responsible for the instruction to and use by users, regardless of whether these users are in a relationship of authority with the Customer. In the absence of express agreements in this regard, the Customer itself shall install, set up, parameterise and tune (auxiliary) software and, if necessary, adjust the hardware, other software and user environment used in this connection, and achieve the interoperability desired by the Customer.

 

Article 28. New or improved versions of the Software

28.1  If agreed, Topicus shall make new or improved versions of the Software available to the Client from time to time.

28.2 Three (3) months after a new or improved version has been made available, Topicus is no longer obliged to remedy any Defects in the previous version and to provide support and/or maintenance in respect of a previous version, unless otherwise agreed.

28.3  Topicus may require the Client to enter into a new written Agreement with Topicus for the provision of a new version with new features and functionalities, and to pay a new fee for the provision. Topicus may take over the Software functionality unchanged from a previous version, but does not guarantee that each new version contains the same functionality as the previous version. Topicus is not obliged to maintain, modify or add certain Software features or functionalities specifically for the Client.

28.4  Topicus may require the Client to adapt its system (hardware, software, etc.) if this is necessary for the proper functioning of a new version of the Software.

 

Article 29. Maintenance allowance

29.1 In the absence of an expressly agreed billing schedule, all amounts relating to Software maintenance, user support for its use and any other Services stipulated in the Agreement shall be due in advance each calendar month.

29.2  Amounts relating to the maintenance of the Software and any other Services stipulated in the Agreement shall be due from the start of the Agreement. The fee for maintenance and any other Services stipulated in the Agreement shall be payable regardless of whether the Customer has (taken) the Software into use or makes use of the possibility of maintenance.

 

V.   SOFTWARE AS A SERVICE AND CLOUD COMPUTING

Article 30. Applicability

30.1  The provisions of this chapter also apply if and insofar as it has been agreed between the parties that Topicus will make Software available to the Client as a Remote Service, such as by means of software as a service (SaaS), cloud computing or other name for such service arrangements.

 

Article 31. Content of the Service

31.1  Unless the Parties have explicitly agreed in writing on an obligation to achieve a result, which is furthermore described with sufficient certainty, Topicus shall be subject to an obligation of effort to make and keep the Software as a service available to the Client, as specified in the Agreement, in accordance with the written agreements made between the Parties.

31.2  Topicus may, for reasons of its own, make changes in the content or scope of the Service(s). If such changes result in a change of the procedures applicable at the Client, Topicus shall inform the Client thereof as timely as possible. Any costs of this change shall be borne by the Client. In case of substantial costs, Topicus and the Principal shall enter into consultation. The outcome of this consultation may be that the Client terminates the Agreement in writing by the date on which the change will enter into force, which possibility does not exist if this change is related to changes in relevant laws and regulations or other rules issued by competent authorities. The other outcome of these consultations may be that Topicus will bear all or part of the costs reasonably related to the change in the procedures in force at the Client.

31.3 If the Agreement includes this, Topicus shall install the Software indicated in the Agreement on the infrastructure indicated by Topicus. Topicus is not responsible for the acquisition and/or proper functioning of the infrastructure of the Client or that of third parties.

31.4  Unless otherwise agreed in the Agreement or SLA, the Client is responsible for making back-ups of its documents, data and information. Topicus is only obliged to dispose of a fall-back centre or other fall-back facilities if such has been explicitly agreed upon in writing.

31.5 Further descriptions and agreements on the level of the Service, availability of personnel, working methods to be followed, making and keeping backups, etc, are laid down in the a separate Service Level Agreement (SLA).

Article 32. Implementation of the Service

32.1  Topicus shall only perform the Service by order of the Client. If Topicus, pursuant to a request or authorised order of a government authority or in connection with a legal obligation, performs activities with respect to data of the Client, its employees or users, all related costs shall be charged to the Client.

32.2  Topicus may temporarily put the Service fully or partially out of operation for preventive, corrective or adaptive maintenance. Topicus shall not allow the decommissioning to last longer than necessary, if possible outside office hours and, depending on the circumstances, commence after notifying the Principal.

32.3  Topicus is not responsible for checking the accuracy and completeness of the results of the Service and the data generated using the Service. The Client shall regularly and demonstrably check the results of the Service and the data generated using the Service itself.

32.4  Based on the information provided by Topicus regarding measures to prevent and limit the consequences of breakdowns, Defects in the Service, mutilation or loss of data or other incidents, the Client shall make an inventory of the risks for his organisation and, if necessary, take additional measures. At the request of the Client, Topicus declares itself willing to reasonably cooperate with further measures taken by the Client under (financial) conditions to be set by Topicus.

32.5  Topicus does not guarantee in advance that the Software to be provided and kept available to the Client within the framework of ASP and/or SaaS will be adapted in a timely fashion to changes in relevant legislation and regulations.

 

Article 33. Guarantee

33.1  Unless the Parties have explicitly agreed on a result that is furthermore described with sufficient certainty, Topicus' Services are to be regarded as a best-efforts obligation.

33.2  Without prejudice to the other provisions regarding maintenance, Topicus shall endeavour to repair any Defects in the Software or Service within a reasonable period of time if and insofar as it concerns Software developed by Topicus and the relevant Defects have been reported in detail to Topicus in writing.

33.3 Topicus is entitled to offer temporary 'workarounds', which workarounds will be accepted by the Client.

33.4  Where appropriate, Topicus may postpone the repair of the Defects until a new version of the Software is put into use.

33.5  Topicus does not warrant that Defects in Software not developed by Topicus itself will be remedied. If the Software has been developed or modified by order of the Client, Topicus may charge the Client for the costs of repair according to its usual rates.

 

VI.    CONSULTANCY, ADVICE AND PROJECT MANAGEMENT

Article 34. Applicability

34.1 The provisions of this chapter shall also apply if and insofar as Topicus performs consultancy, advisory and project management services for the benefit of the Client.

 

Article 35. Implementation

35.1 As the lead time of the assignment to perform the services referred to in 34.1 usually depends on various factors and partly depends on efforts of the Client, Topicus will not want to commit itself to a certain end date of an assignment.

35.2  Topicus shall be entitled to suspend its Services, if their continuation depends on efforts yet to be made by the Principal. Furthermore, if a project is divided into certain phases, Topicus shall be entitled to suspend its work for the benefit of a subsequent phase, until the Client has approved the results of a previous phase.

35.3  If agreed in writing, Topicus shall comply with timely and responsible instructions given by the Client in the execution of its Services. Topicus shall not be obliged to do so, if such instructions result in a change or supplement to the content or scope of the agreed Services. However, if Topicus does so, such work shall be remunerated in accordance with Topicus' usual rates.

35.4 If it has been agreed that the Services will be performed by a certain person, Topicus is nevertheless entitled - after consultation with the Client - to replace this person by another person with similar qualifications.

35.5  If the Services are performed on the basis of data to be supplied by the Client, these data shall be supplied by the Client in conformity with the conditions set by Topicus. The Client guarantees that all materials, data, software, hardware, procedures and instructions made available are complete and correct and that they comply with Topicus' specifications.

35.6  Unless the Parties have agreed otherwise in writing, the use made by the Client of the advice issued by Topicus shall always be at the expense and risk of the Client.

 

Article 36. Accountability

36.1  Topicus shall account for the performance of the Services in the manner agreed between the Parties in writing. In doing so, the Client shall inform Topicus in advance about the subjects it wishes to be informed about and the manner in which. The Client is responsible for the further distribution of the information provided by Topicus to the persons involved within the organisation of the Client.

36.2  When an employee of Topicus participates in a project or steering group, in which one or more employees of the Client also participate, information shall be provided in accordance with the procedure prescribed for that group. Decisions taken in such a group shall only bind Topicus if such decision has been taken in conformity with the written arrangements made about it by Parties. In the absence of such agreements, such decisions shall only bind Topicus if it has accepted the decision in writing. Topicus shall only be obliged to do so, however, if this is compatible with the content of the Agreement.

36.3  Client guarantees that the persons appointed by it who are part of the steering or project group are entitled to take decisions that are binding on Client.

36.4  The reports and advice provided by Topicus in the context of its work for the Client are exclusively intended for the Client. Without the prior written consent of Topicus, the Principal shall not be permitted to provide the advice and reports to a third party or otherwise disclose them.

Article 37. Payment and invoicing

37.1 Unless a different billing schedule is agreed upon, the work performed by Topicus will be invoiced to the Client on a monthly basis in arrears.

37.2  Topicus shall, in its usual manner, periodically provide insight into the work performed, time expenditure and costs incurred.