Annex 4 (Draft) Agreement LMS

AGREEMENT
Learning Management System (LMS)

between
Technische Universiteit Eindhoven
and
[-]
Please note: The (draft) Agreement and its Annex 1, Data Processing Agreement are included in a Dutch
and an English version. The Dutch versions take precedence over the English versions
Eindhoven
Reference: [-]
Date:
© Full or partial copying or reproduction of the content of this document in any way whatsoever without the prior written
approval of the copyright holder is prohibited, subject to the limitations imposed by law. The prohibition includes full or
partial processing.
xx-xx-2015 initials Contractor initials TU/e
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Table of Contents
Article 1. Terms ...................................................................................................................... 6

Article 2. Objectives and intended result ........................................................................... 10
Article 3. Object of the Agreement ...................................................................................... 11
Article 4. Exchange of information ..................................................................................... 13
Article 5. Project organisation............................................................................................. 13
Article 6. Project planning ................................................................................................... 14
Article 7. Specification and scope ...................................................................................... 14
Article 8. Delivery (if applicable): ........................................................................................ 15
Article 9. Installation ............................................................................................................ 16
Article 10. Implementation..................................................................................................... 16
Article 11. Tests & Acceptance ............................................................................................. 17
Article 12. Documentation ..................................................................................................... 19
Article 13. Training ................................................................................................................. 20
Article 14. Deployment by the Client .................................................................................... 20
Article 15. Personnel .............................................................................................................. 20
Article 16. Support ................................................................................................................. 21
Article 17. Maintenance ......................................................................................................... 21
Article 18. Version management ........................................................................................... 22
Article 19. Prices and rates ................................................................................................... 23
Article 20. Less and additional work .................................................................................... 23
Article 21. Invoicing and payment ........................................................................................ 24
Article 22. Guarantee ............................................................................................................. 25
Article 23. Financial penalties ............................................................................................... 26
Article 24. Licences and (intellectual) property rights......................................................... 27
Article 25. Escrow .................................................................................................................. 29
Article 26. Term and termination........................................................................................... 29
Article 27. Liability ................................................................................................................. 31
Article 28. Force majeure....................................................................................................... 32
Article 29. Security ................................................................................................................. 33
Article 30. Privacy - Personal Data Protection ..................................................................... 34
Article 31. Secrecy and Confidentiality ................................................................................ 34
Article 32. Reporting, external audit ..................................................................................... 35
Article 33. Transfer of rights and obligations and subcontracting ..................................... 36
Article 34. Insurance .............................................................................................................. 36
Article 35. Applicable law and disputes ............................................................................... 37
Article 36. General Terms and Conditions ........................................................................... 37
Annex 1. Processor's Agreement ....................................................................................... 39
Annex 2. Request for Proposal (including various Annexes) dated 09-10-2015, ............ 39
Page 2 of 39
Annex 3. Quotation of the Contractor dated [-], reference number:................................. 39
Annex 4. Service Level Agreement ..................................................................................... 39
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THE UNDERSIGNED:
A. …………………, acting in this matter in their capacity of <position> of the legal entity under public law:
TECHNISCHE UNIVERSITEIT EINDHOVEN, with its registered office in Eindhoven, its principal place
of business at Den Dolech 2, 5612 AZ Eindhoven, correspondence address: Postbus 513, 5600 MB
Eindhoven, registered in the Commercial Register of the Chamber of Commerce under number
51278871, duly representing Technische Universiteit Eindhoven,
Technische Universiteit Eindhoven, hereinafter also referred to as the: “TU/e” or the “Client”;
and
B. <name signatory>, as <position> authorised to represent independently <COMPANY>, with its

registered office in <place>, its principal place of business at <address details>, correspondence
address: PO Box <details>, registered in the Commercial Register of the Chamber of Commerce
under number <number>, duly representing <the company>,
<company> hereinafter also referred to as: the “Contractor”
The Client and the Contractor are hereinafter also referred to as: the “Parties”,
WHEREAS:
• A Learning Management System (hereinafter also referred to as: LMS) is a fundamental and business-
critical system at the TU/e, given that it enables students, teachers and various educational-support
functions to work better together, to exchange information and to teach and to be taught, and thereby
has an impact on the primary (education) process.
• There are several Learning Management Systems in use at the TU/e. The primary LMS called
OASE/Studyweb was built by the TU/e and is currently used by most faculties at the TU/e. Additionally,
some faculties use Canvas and Moodle. OASE is not able to offer the desired functionality to support
the educational transformation;
• The preference of the TU/e is to phase out the systems currently in use that have the LMS functionality
and to replace such functionality with a new LMS, provided that this functionality is at least equivalent
or better and, if this is not possible, to link the existing systems to the new LMS;
• The TU/e is looking for an existing (proven technology) full solution from the market that is in line with
the education and the educational support, taking into consideration the IT and information architecture
framework;
• The TU/e has performed a European public procurement procedure in order to select a Contractor that
satisfies the relevant requirements and wishes of the TU/e;
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• The Contractor is a software supplier and is involved, inter alia, in the provision of rights of use to the
Software, the implementation and maintenance of the Software as well as supplementary
Performance, and has in particular specific knowledge of Learning Management Systems;
• The Contractor submitted a valid Quotation on <date> regarding the abovementioned tender
procedure by Quotation dated <date> (Annex 3 of this Agreement), which the TU/e has qualified as
the economically most advantageous Quotation in the context of the requirements and criteria included
in the Request for Proposal (Annex 2 of this Agreement);
• The Contractor has successfully completed an initial pilot / test period via a verification test (as
described in the abovementioned Annex 2), that is to say it has made the proper functioning of the
Software in view of the requirements and criteria arising out of this Agreement, including the Annexes,
sufficiently plausible to the Client.
• The Contractor has given the Client confidence that the Contractor is willing and able to realise the
Objective by means of the Quotation and the abovementioned verification test;
• The Client intends to grant the present Contract to the Contractor on the basis of the above;
• The Contractor has made extensive enquiries concerning the requirements, wishes and Objectives of
the TU/e (see Article 1 of this Agreement) concerning the Software, including the related management
organisation, technology (hardware) and software (as laid down by the Client in, inter alia, Annex 2),
and as a result the Contractor has declared itself willing to carry out the Contract accordingly;
• The Parties wish to lay down the conditions concerning their mutual performance in this Agreement;
DECLARE THAT THEY HAVE AGREED AS FOLLOWS:
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Article 1. Terms
Several terms are defined in this article, which are capitalised in the present Agreement. The definitions used
have the same meaning in the singular and in the plural form, unless the context indicates otherwise.
1.1. Adaptive Maintenance: adjusting the Software if such is necessary as a result of changes in the IT
Infrastructure, within the context of the Contractor's normal version and release policy concerning the
relevant component of the IT Infrastructure as well as adjusting the Software as a result of a change
in circumstances and new developments that occur in the field for which the Software was designed,
such as changes in legislation and regulations.
1.2. Acceptance: the Client's approval of the object of Acceptance on the basis of the Acceptance Test
as described in Article 11 of this Agreement.
1.3. Acceptance Test: a test that is used by the Client to assess on the basis of the agreed acceptance
criteria whether the object of Acceptance, as defined in Article 11 of this Agreement, is satisfactory.
1.4. Delivery: bringing the Software and Documentation under the actual control of the Client or actually
granting the Client access to the Software and Documentation electronically.
1.5. Source Code: a form of representing the Software that is customary for maintaining, improving,
changing and/or expanding the relevant Software.
1.6. Annexes: annexes to this Agreement that form an integral part thereof.
1.7. Conversion: all the measures and activities which are focused on the transition from the present
method of working with respect to data processing to the method of working in which use is made of
the Software.
1.8. Corrective Maintenance: performance by means of which the Contractor ensures that Defects in
the Software are resolved.
1.9. Objective(s): the company objectives the Client aims to achieve with the System and has made
known to the Contractor by means of Functional Requirements.
1.10. Documentation: all descriptions agreed for the management and use of the System.
1.11. External Hosting and Technical Management: Technical management, application management
and maintenance of the System on the Contractor’s infrastructure and under the responsibility of the
Contractor, including interfaces.
1.12. Functional Requirements: the written representation of the functional System requirements (as laid
down, inter alia, in Annex 2).
1.13. Functional Management: The functional, organisation-specific design of the System, such as the
assignment of authorisations.
1.14. Defect: an imperfection in the System, as a result of which the System no longer satisfies the agreed
Functional Requirements or the System is otherwise unsatisfactory.
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1.15. Data: all Data, details, information and any other documents or content that the Client and/or Users
submit, send, place or otherwise process using the System and/or its components in the context of
the Agreement, including personal data.
1.16. User(s): a (natural) person affiliated with the TU/e in any way, including personnel, faculty staff
and/or students, who is authorised by the Client to access (a part of) the System.
1.17. Notice of Completion: the written notification made by the Contractor to the Client that an agreed
object of acceptance can be subjected to an Acceptance Test.
1.18. Recovery Period: the maximum time in Working Hours between the moment a Defect is reported
and the moment of availability of an improved version in which the relevant Defect is resolved or a
Workaround has been offered.
1.19. IT Infrastructure: both the physical and the logical environment (physical space, equipment,
software, network components, etc.) in which the System will become operational and with which the
System will be required to operate.
1.20. Implementation: The Performance consisting of Parameterisation or otherwise structuring, setting

up and preparing the equipment and/or Software, including the Installation and the integration
thereof, for the purpose of taking into use and familiarising the intended administrator(s) of the Client
with the System.
1.21. Impact: the extent of the impact of an Incident on the Client.
1.22. Incident: a disruption in the availability and/or usability of the Service(s) caused by a Defect or
otherwise.
1.23. Installation: the Performance consisting of the installation and configuration of the Software on the
equipment and the (technical) connection of this with the IT Infrastructure.
1.24. Link: Software that enables the mutual exchange of data between specific components of the
System and/or with elements in the IT Infrastructure and/or with third-party systems.
1.25. Custom Link: link in which at least one of the elements between which the exchange of data is
realised by the Link itself has been realised specifically for the benefit of the Client or the third party
in whose infrastructure the element is present.
1.26. Migration: all the measures and activities that are focused on the transition from existing work
processes in the current system to the work processes based on the Software to be implemented by
the Contractor.
1.27. New Version: a changed version of the Software, which expands the functionality by means of
Innovative and/or Adaptive Maintenance.
1.28. Maintenance: the Performance consisting of Adaptive Maintenance, Corrective Maintenance,

Preventive Maintenance and Innovative Maintenance.
1.29. Development: the Performance consisting of the realisation of Custom Links.
1.30. Support: the Performance consisting of the provision of information and advice by the Contractor by
telephone or by e-mail concerning the use of the Software as well as the granting of assistance in
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identifying the causes that obstruct the unimpeded use of the Software and resolving these
problems.
1.31. Training: the Performance consisting of the transfer of knowledge intended to familiarise a select
group of Users and managers with the System and training them in its use, so that they can work
with the System in an adequate manner after it has been taken into use, as is required for their
specific duties.
1.32. Agreement: this Agreement including the related Annexes.
1.33. Parameterisation: the Performance consisting of structuring and setting up the functional
parameters of the System under the responsibility of the Contractor, such as creating master files,
authorisation structures and routing tables.
1.34. Personal Data: any information relating to an identified or identifiable natural person, which will be
processed by the Contractor in any way whatsoever and/or otherwise processed in the System or
will be processed within the framework of the Agreement.
1.35. Performance: the activities to be performed by the Contractor on the basis of this Agreement for the
Client and the performance to be delivered in that connection.
1.36. Preventative Maintenance: performing maintenance intended to guarantee that the Software
continues to comply with the relevant requirements during the term of this Agreement.
1.37. Software: the computer software with related Documentation to be delivered by the Contractor, as
specified in Annexes 2 and 3, in respect of which the Client will acquire a right of use and/or
copyright pursuant to this Agreement.
1.38. Project Group: a body that forms part of the project organisation that regularly meets to discuss
project planning and Implementation issues.
1.39. Response Time: the maximum time in Working Hours between the moment the Defect is reported
and the moment the diagnostics activities are started by the Contractor.
1.40. System: the Software as well as the results of the Parameterisation, both separately and in their
mutual relationship.
1.41. Standard Link: a Link that is not a Custom Link.
1.42. Failure: an interruption in the availability of the object of Support and/or Maintenance or a substantial
reduction of the performance of the object of Support and/or Maintenance. A Failure may be caused
by a Defect.
1.43. Technical Requirements: the technical System requirements (including as set out in Annexes 2
and 3).
1.44. Urgency: the value that is used to indicate to what degree a resolution of an Incident is urgent.
Urgency may be high, medium and low.
1.45. Improved Version: a changed version of the Software with unaltered functionality as a result of
which Defects are remedied and/or the logical correlation or performance of the Software is
improved by Corrective Maintenance and/or Preventive Maintenance.
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1.46. Innovative Maintenance: the adjustment, improvement and/or the expansion of the functionality of
the Software other than by means of Adaptive Maintenance.
1.47. Working Days: calendar days not including weekends and Holidays.
1.48. Working Hours: the hours on Working Days between 8 am and 5 pm.
1.49. Workaround: program diversion or restriction of the use of the object of Maintenance aimed at
avoiding problems that is temporary in nature as a result of which the Client no longer encounters
significant hindrance from the Defect.
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Article 2. Objectives and intended result
2.1. The Client intends to realise at least the following Objectives in this Agreement:
i) To optimally support the vision of TU/e regarding the field of (individual) learning and education
processes now and in the future, and to contribute to the improvement of these processes.
ii) To maximise user satisfaction with the system, resulting in a high adoption rate.
iii) To achieve a balance between the needs of individual users and of user groups, the
manageability of the system for TU/e and a uniform TU/e-wide user experience.
iv) Implementation and setup of the LMS as of 1 September 2016, or as far in advance of this date
as possible.
v) A feasible business case for the Project within the specified prerequisites.
2.2. The intended result is a situation where all educational processes are supported by the LMS
properly. This means:
i) The achievement of the objectives as described under 2.1;
ii) the users experience a well- structured and intuitive support service for the education process;
iii) the basic work processes are the same for everyone in order to provide a consistent service
and positive user experience for students;
iv) it will be possible to carry out tasks easily and efficiently;
v) all the necessary data connections and interfaces have been achieved and the necessary
information is provided in the right place at the right time;
vi) there is a clear function definition from the IT landscape, in line with HORA (Higher Education
Reference Architecture).
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Article 3. Object of the Agreement
3.1. The Client hereby grants the contract to the Contractor and the Contractor hereby accepts the
contract to carry out the Performance as described in the Request for Proposal , which broadly
consists of:
i) issuing rights of use concerning the Software;
ii) arranging the Implementation (design and setup);
iii) conversion of data;
iv) realisation of a number of Custom & Standard Links;
v) providing Training;
vi) carrying out Maintenance and delivering and keeping Documentation up-to-date;
vii) providing Support to the personnel of the Client during Working Hours;
viii) providing backups of all Data in the System; and
ix) performing other Performance as described in this Agreement;
so as to achieve the Objectives and the results referred to above.
3.2. The Client undertakes vis-à-vis the Contractor to accept its Performance, as provided for in this
Agreement, and to provide the cooperation as envisioned in this Agreement.
3.3. The Contractor is aware that several interdependent (IT) projects will be implemented during the
term of the Agreement. The projects which are envisaged at the time of signing of this Agreement
consist of:
i) Student Information System (SIS);
ii) portals;
iii) Identity and Access Management (IAM);
iv) digital testing.
The interdependence of the abovementioned projects is described in the Request for Proposal.
If and insofar as projects are carried out other than those mentioned above during the term of the
Agreement which affect the implementation of the Agreement, the Parties will consult on the
consequences and make further arrangements if required.
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3.4. The Agreement consists of the following (contract) documents:
i) statutory mandatory provisions;
ii) the Agreement;
iii) the Processor's Agreement;
iv) SLA (Service Level Agreement);
v) Request for Proposal consisting of:
a. Memoranda of Information dated .... and ....;
b. Request for Proposal ref. DIZ 2015/153117, dated 09-10-2015;
c. Annexes to the Request for Proposal;
vi) Quotation of the Contractor, consisting of:
a. any information of the Contractor clarifying its Quotation;
b. Quotation of the Contractor.
In the case of any conflict between the abovementioned documents, a higher ranked document will
prevail over a lower ranked document in the abovementioned sequence, unless the nature of the
conflict evidently compels a different ranking and/or a lower ranked document makes higher
requirements of the performance to be carried out by the Contractor on the basis of this Agreement. In
the event of any inconsistency between the Annexes to the Request for Proposal, an Annex with a
lower ranking will prevail over an Annex with a higher ranking, where the abovementioned exception
clause will apply.
In addition, the licence conditions of the manufacturer are applicable to the standard Software to be
provided. The intellectual (property) rights that can be exercised with respect to this standard
Software, the Performance to be carried out and related materials are held by the manufacturer or its
licensors. This does not apply, however, to the Data referred to in Article 24.10 of which the ownership
rights are held by the Client (or its Users) at all times. In the case of conflict between the terms of this
Agreement and the licence conditions of the manufacturer, the licence conditions of the manufacturer
have priority.
3.5. A System involving External Hosting is the basis for the results of the Agreement. The Functional
Management will be performed by the Client.
3.6. The Contractor must first convince the Client, to the satisfaction of Client, of the security and safety
of the Personal Data and other Data in the System.
Furthermore, the Contractor should, insofar as may be reasonably expected of it, inform the Client
about all the other aspects and risks associated with External Hosting that are relevant for the Client .
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To this end, the Contractor must provide a risk analysis where the Contractor offers sufficient
guarantees with respect to the technical and organisational security measures (such as third parties to
be engaged by the Contractor, the location(s) where the (Personal) Datathird-part is stored and
information about the information security, etc.) on the one hand and offers the Client sufficient and
appropriate opportunities to be able to monitor and verify compliance by the Contractor of these
measures during the term of this Agreement on the other hand.
On the basis of the abovementioned risk analysis, a risk classification will be provided regarding the
risk categories used in the Legal Standards Framework Cloud Services Higher Education version 3
April 2014 (Higher Education System of Standards). The Higher Education System of Standards can
be used by the Parties to make further arrangements regarding security measures and the use of
various security levels. The Contractor hereby undertakes to provide all reasonable cooperation which
is required to meet the Higher Education System of Standards.
Article 4. Exchange of information
4.1. The Contractor declares that it has taken note of the Functional and Technical Requirements prior to
the conclusion of this Agreement and that it did not find any peculiarities, incompleteness and/or
inconsistencies that could obstruct the correct operation of the System as offered by the Contractor.
4.2. Before carrying out the Performance, the Contractor has familiarised itself sufficiently with the
Objectives, the organisation of the Client that is relevant for the implementation of this Agreement,
the processes for which the System will be used and the data flows that will be processed therewith.
4.3. The Contractor is fully aware of the use and application options of the System, which will be made
available to the Client, and the impact of the Software on the Client’s organisation and IT
infrastructure.
4.4. The Client will provide all information to the Contractor that is necessary for a proper performance of
this Agreement, at the request of the Contractor and to the extent said information is available.
Article 5. Project organisation
5.1. The Parties acknowledge that their cooperation is very important to the success of the project
provided for in this Agreement and that good communication constitutes an essential condition for
good cooperation.
5.2. The Parties will form a Project Group. The Project Group will meet with a frequency yet to be
determined. Reports of these meetings will be drawn up by the persons who take part in the Project
Group on behalf of the Contractor, which will be adopted by the Project Group at the next progress
meeting.
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5.3. The Parties will designate a contact person and a deputy contact person from the Project Group,
who will maintain the contacts concerning the day-to-day performance of this Agreement. The
contact persons will report to the Project Group with a frequency yet to be determined.
5.4. The Parties will perform an evaluation meeting after this Agreement ends.
5.5. The Contractor will inform the contact person of the Client each month in writing concerning the
number of hours spent if and to the extent no fixed price has been agreed.
5.6. The Parties will bear their own costs for the meetings referred to in this Article, also in the event one
of the Parties demands and/or wishes additional or more frequent consultation.
Article 6. Project planning
6.1. The carrying out of the Performance will take place on the basis of a plan of action that has been
approved by the Client following mutual consultation between the Parties. In each case, this plan of
action will include a time schedule based on the (target) dates referred to in the Request for Proposal
and the Performance to be carried out as stated in the Request for Proposal (Annex 2) and the
guarantees, conditions and measures for the planning included by the Contractor in its
Implementation (plan) and the other contents of its Quotation (Annex 3).
6.2. Changes in the time schedule can only take place in mutual consultation and agreement between
both Parties.
6.3. Several project cycles may be adopted in the plan of action. One project cycle comprises in any
event the components of Implementation, Notice of Completion and Acceptance. All provisions of
this Agreement that apply to the components of a specific project cycle will apply accordingly and in
full to each separate project cycle.
6.4. If the Contractor is unable to or anticipates that it will be unable to deliver and/or Develop (a specific
part of) the Software and/or the System in accordance with this Agreement and/or the Request for
Proposal and/or its Quotation and/or the plan of action, or only with a considerable delay, then the
Contractor will inform the Client thereof forthwith. In that case, the Parties will consult about the
consequences of this. Such consultations will not affect the rights of the Client under this Agreement,
including but not limited to the right to terminate this Agreement.
Article 7. Specification and scope
7.1. During the discussions in the Project Group, as stated under Article 5, further detailing of the
specification and scope will take place within the limits of this Agreement if and to the extent that the
Parties deem this necessary. These further details will be based on the information provided in the
Request for Proposal (Annex 2) and the Quotation (Annex 3).
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7.2. If, due to a lack of functionalities (including links) in the System which were required or desired by
the Client and offered by the Contractor, then Development will take place by the Contractor only
after the Parties have identified in consultation which missing functionalities should be taken into
consideration as customisation for Development. The Contractor guarantees that Development will
take place in accordance with this Agreement and the (acceptation) procedures set out therein,
whereby the provisions of the Request for Proposal will be used as the starting point (Annex 2).
7.3. The cost of Development and any other adjustments to the System, Software, equipment and/or
otherwise will only be for the expense of the Client if and insofar these qualify as additional work in
the sense of Article 20 of this Agreement, for which a further contract must therefore be provided by
the Client.
7.4. If the Client wishes to adjust the Functional Requirements and/or Technical Requirements during the
term of the Agreement, it will discuss this with the Contractor. The Contractor will provide a written
estimate of the impact of the desired changes on the completion time and the budgets of the
Development. The requested changes will only take place following written approval of the
consequences arising from the changes for the completion time and budgets of the Development by
the Client.
Article 8. Delivery (if applicable):
8.1. The Contractor will Deliver the Software to the Client after the award of the contract, including the
related materials and Documentation. If physical Delivery takes place, then it will be based on
Delivery Duty Paid (Incoterms 2010) + loading and unloading.
8.2. If physical Delivery takes place, the place of Delivery will be coordinated between the Parties in a
timely manner. In any event, the Contractor will enquire at the Client in due time about the place of
Delivery.
8.3. The Client will ensure in due time that the place of Delivery and/or the IT Infrastructure is ready for
the Delivery in its opinion. The Contractor will inform the Client in due time, in writing and in full
concerning the specific requirements and any changes in this respect.
8.4. At the place of Delivery, the Contractor will remove the packaging from the Software, if necessary or
applicable, and arrange for the disposal and processing thereof in an environmentally-friendly
manner.
8.5. The costs of Delivery (including, if applicable, the unloading of the means of transportation and the
transport within the campus to the Client's relevant areas) will be for the account of the Contractor.
8.6. If physical Delivery takes place, the Contractor will have the Client sign a proof of Delivery after
Delivery has taken place.
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Article 9. Installation
9.1. Assuming External Hosting, the Software will be deemed to be installed before Delivery takes place.
9.2. As part of the Installation and subject to the other provisions of this Agreement, including the right of
the Client to perform an Acceptance Test in accordance with Article 11, the Contractor will perform a
test which is intended for the Contractor to determine for itself whether the Software functions
properly as regards the individual components and as a whole.
9.3. The Contractor will inform the Client in writing as soon as the Contractor considers that the
Installation has been completed. This notification will not prejudice the provisions of this Agreement
concerning Acceptance and guarantee.
Article 10. Implementation
10.1. The Implementation takes place in accordance with the time schedule and (predetermined financial
and other) conditions and includes the Performance and results of this as included in the plan of
action, the Request for Proposal (Annex 2) and the Quotation (Annex 3) and should take place with
optimum deployment of the necessary personnel of the Parties. The Contractor will inform the Client
in due time, in writing and in full concerning the specific requirements with respect to the
equipment/infrastructure of the Client. If, in the opinion of the Contractor, adjustment of the
equipment/infrastructure of the Client is required for Implementation, the Client will not commence
adjustment until it has been informed of this in writing by the Contractor.
10.2. Implementation also includes an instruction, which is not a Training session, intended to familiarise
the Client and its personnel that will be responsible for the management with the use of the Software.
The instruction will be provided by experts who are qualified and suitable for this purpose. The
instruction will be provided as much as possible by the experts who are involved in the
Implementation.
10.3. The Parties have the right to perform multiple tests as part of the Implementation, on the basis of
which the Parties can determine whether the Software works well both in terms of the various
components and as a whole, and that it complies with the relevant requirements and criteria as set
out in the Request for Proposal (Annex 2) and the Quotation (Annex 3). Whether or not this right is
used will not affect the other provisions of this Agreement, including the provisions regarding the test
procedures, Acceptance and guarantees.
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10.4. If and to the extent Conversion or Migration takes place during the Implementation, the Contractor
will assess to what extent and how the data from the Client's existing software can be converted or
migrated to the System. The Client will use the existing formats and tools of the Contractor for
Conversion and/or Migration as much as possible. If, however, the abovementioned investigation
shows that it is necessary that Conversion/Migration software should be Developed, the Contractor
will present the specifications for such Conversion/Migration software to the Client for approval. The
cost of such Conversion/Migration software will only be for the expense of the Client if and insofar
this qualifies as additional work in the sense of Article 20 of this Agreement, for which a further
contract must therefore be provided by the Client.
10.5. The Contractor will send the Client a Notice of Completion as soon as the Contractor considers that
the Implementation has been completed. The Client will confirm receipt of this notification to the
Contractor in writing without delay. The date of confirmation by the Client will apply as the date of the
Notice of Completion. This Notice of Completion will not prejudice the provisions of this Agreement
concerning Acceptance and guarantee.
Article 11. Tests & Acceptance
11.1. As soon as possible after the Notice of Completion as provided for in Article 10.5, the Parties will
proceed to perform the Acceptance Test in respect of the delivered, installed and implemented
Performance (hereinafter: "the subject of acceptance").
11.2. The Acceptance Test will take place on the basis of a test plan, an acceptance plan and acceptance
criteria prepared in mutual consultation by the Parties and approved by the Client, after the Parties
have been convinced of the correct operation of the System, whether or not by means of the various
tests. The Client also has the right to have an attack and penetration test conducted by a duly
certified company at (the Client’s) own expense. The Contractor will lend its full cooperation.
The Acceptance test and other tests will be carried out in accordance with the time schedule and
conditions, and include the Performance and results thereof as included in the plan of action, the
Request for Proposal (Annex 2) and the Quotation (Annex 3).
11.3. The Contractor will assist the Client during the Acceptance Test at the Client's request and provide
all necessary cooperation.
11.4. The Client will send the Contractor a dated report of the Acceptance Test within five (5) Working
Days after the Acceptance Test took place. In this report, the Client will indicate whether or not it will
accept the Performance and any identified Defects will be set out in this report and it will indicate
whether the whole functions properly and it will also mention whether the subject of acceptance has
been accepted or not.
11.5. Minor Defects, which include Defects that will not reasonably impede putting into business use as a
result of their nature and/or number, will not be grounds for withholding Acceptance, without
prejudice to the Contractor's obligation to repair such Defects free of charge as referred to in the
following paragraph of this article of this Agreement.
11.6. The Parties will determine the period(s) by mutual consultation, during which the Contractor will
repair the Defects ascertained in the report for its own account. If the Parties fail to agree on the
period within which a defect will be repaired (or if the agreed time limit is exceeded), the Client will
decide reasonably by prescribing a period acceptable to it and recording this in writing. The Client is
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hereby entitled to consider this period (whether through a notice of default or otherwise) as a final
deadline, on the grounds of which the Contractor will be in default if it exceeds this final deadline. If
the Contractor is in default, the Client will have the right to dissolve this Agreement extra-judicially,
conditionally or partially, with immediate effect by operation of law, without any demand for
performance or notice of default being required. In such cases, the Contractor will be liable for the
damage sustained or to be sustained by the Client. The provisions of Article 26.5 to 26.7 of this
Agreement apply mutatis mutandis with respect to the consequences of the dissolution.
11.7. If the Contractor fails to comply in a timely manner with its obligation to repair the Defects, the Client
will have the right, without prejudice to the provisions of the previous paragraph and its other rights,
to recover the reasonable expenses of correcting the Defects by itself of by third parties following
prior written notification from the Contractor. The Contractor will be obliged to cooperate in this and
to provide the information required for correcting the Defects upon first demand.
11.8. The Client has the right to have a third party inspect the subject of acceptance following a prior
written notification before approving the subject of acceptance. The Contractor will be obliged to
cooperate in this, but it will have the right to demand that the third party declares in advance that it
will comply with the duty of confidentiality as referred to in Article 29 of this Agreement. The
Contractor will have the right to charge the reasonable costs incurred in connection with cooperating
with the inspection to the Client.
11.9. If the Client has not accepted the subject of acceptance during the first implementation of the
Acceptance Test, the Acceptance Test will be repeated within at most ten (10) Working Days after
the identified Defects were corrected, unless the Parties agree on another time period. The
provisions of this article apply mutatis mutandis.
11.10. If the subject of acceptance was again not accepted by the Client following the second (or the
following) Acceptance Test, the Client will (always) have the right to dissolve this Agreement extra-
judicially, conditionally or partially if applicable, without requiring a demand for performance or notice
of default. In such cases, the Contractor will be liable for the damage sustained or to be sustained by
the Client. The provisions of Article 26.5 to 26.7 of this Agreement apply mutatis mutandis with
respect to the consequences of the dissolution.
11.11. If the subject of acceptance is accepted by the Client, the date on which the relevant report was
signed by the Client will apply as the date of Acceptance.
11.12. If no or only a partial Acceptance Test takes place, to be decided by the Client, which decision it will
notify to the Contractor in writing in due time, and the Client takes the matters reported as complete
into use in its production environment, the matters reported as complete that have been taken into
use will be deemed to have been accepted if it has been in use for more than twenty (20) Working
Days. Taking into use does not prejudice the rights under the guarantee.
11.13. The Client has the right to subject the Software, Performance and/or Documentation provided within
the context of a specific project cycle to a provisional Acceptance Test in the manner provided for in
this article, on the understanding that the date of delivery in working order is the date on which the
Software, Performance and/or Documentation provided within the relevant project cycles should be
completed. The Client reserves the right at all times to perform an acceptance test of all matters
delivered by the Contractor following the provisional acceptance tests.
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Article 12. Documentation
12.1. The Contractor will provide the Client with at least one (1) full set of Documentation. The
Documentation must be such that:
i) it provides an accurate and complete description of the Software delivered by the Contractor and
its functionalities;
ii) the Users are able to use all options of the Software in a simple manner;
iii) the Functional Management can take place efficiently;
iv) it can be transferred in the broadest sense of the word;
v) the data structure is described in such a manner by means of entities, entity relations and
attributes, that the Client can use the query possibilities by defining the desired overviews and
the Client is able to adapt certain functionalities within the limits of the Functional Management
to the needs of the User.
12.2. The Contractor will ensure that the Documentation is ready at the latest on the date of the Notice of
Completion. The Contractor will make said Documentation available to the Client in the agreed
numbers following Acceptance.
12.3. The Contractor will ensure, during the term of this Agreement and for the time the Software is
maintained by the Contractor, that the Documentation delivered by it is replaced, amended or
adjusted for its account as quickly as possible, but in any event within two (2) weeks, if it should
become clear at any time that the Documentation contains incorrect information or that the
Documentation is otherwise incomplete, insufficient, unclear or outdated.
12.4. The intellectual property rights concerning the Documentation that has been developed specifically
for the Client will be transferred to the Client, which transfer is hereby accepted by the Client. As
regards the Documentation concerning the Software, the Contractor grants the Client a licence for
the duration of this Agreement that is non-exclusive and that is non-transferable.
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Article 13. Training
13.1. The Contractor is willing and able, during the term of this Agreement and for the period the
Contractor performs the maintenance of the Software, to provide adequate Training to the personnel
of the Client for the purpose of using the Software delivered by the Contractor.
13.2. The Contractor will provide the Training in accordance with the Request for Proposal (Annex 2) and
the Quotation (Annex 3) and at the rates as referred to in Annex 3.
Article 14. Deployment by the Client
14.1. At the request of the Contractor and to the extent such is necessary in the opinion of the Contractor
for the proper performance of this Agreement, the Client will make available to the Contractor free of
charge:
i) a safe workspace;
ii) user facilities on computer systems; and
iii) telecommunications facilities with sufficient capacity.
14.2. The necessary efforts on the part of the Client must be made with sufficient quality and timeliness.
This applies to the support to be provided by the contact persons and to the planned deployment of
personnel within the project activities to be performed.
Article 15. Personnel
15.1. The Contractor will only deploy competent personnel for the performance of this Agreement.
15.2. If and insofar as personnel of the Contractor will work on the campus of the TU/e for the
implementation of this Agreement, the Contractor undertakes that it will instruct its personnel to
comply with the house rules that apply on site. The Client will make these house rules available in
advance so that they can be studied and any questions may be posed.
15.3. The Contractor will make every effort to have the activities performed by or under the responsibility
and supervision of one designated person so that the knowledge of the project and situation at the
Client can be used optimally.
15.4. If the Client considers that the Contractor's personnel do not perform adequately, or are not willing or
able to perform the activities properly, the Client will have the right, based on substantiated reasons,
to demand that these personnel are replaced.
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15.5. If such personnel are replaced, the Contractor will be required to make replacement personnel
available following consultation with the Client, which personnel are of at least the same level as
regards expertise, level of education and experience as the personnel who were originally deployed.
The rates that applied for the original personnel may not be increased in the event they are replaced.
The costs of familiarising the new personnel with the activities will be for the account of the
Contractor.
Article 16. Support
16.1. The Contractor will perform support in accordance with the provisions of the Agreement. The service
level of the support is included in Annex 4 to this Agreement.
16.2. Support includes in any event reporting Defects and Incidents to and resolving Defects and Incidents
by the help desk. The help desk is also available for questions and for reporting Software changes.
Article 17. Maintenance
17.1. The Contractor will perform Maintenance in accordance with the provisions of this Agreement, the
content of the Request for Proposal (Annex 2) and the Quotation (Annex 3). The service level of the
Maintenance is included in Annex 4 to this Agreement. The Contractor will ensure that the activities
falling under this Maintenance will commence and be completed without delay. The Contractor
guarantees that, if necessary by direct involvement of the creator(s) of the Software, it has sufficient
personnel, knowledge and tools to carry out the Maintenance properly.
17.2. All Maintenance will be carried out continuously and within the shortest possible time at the site of
the Client.
17.3. The Parties will make further agreements in mutual consultation and record these in the SLA with
regard to the work connected to the installation of New or Enhanced versions of the Software.
17.4. The Client will, if and insofar as this is necessary for carrying out the Maintenance, grant the
Contractor access to the equipment, Software and data files for the purpose of the Maintenance free
of charge during a number of consecutive hours to be agreed by the Parties. The Contractor will
inform the Client in due time of the use of equipment, Software and/or data files. Per reported Defect,
the equipment, Software and/or data files will be used during a number of consecutive hours to be
agreed by the Parties in order to correct the Defect. If and to the extent the repair takes more time,
the Parties may extend the abovementioned time of use in mutual consultation.
17.5. The Contractor will take such measures as may be expected within reason in order to prevent
damage from arising during the performance of the work on Software and/or data files referred to in
this Agreement.
17.6. At least one expert officer of the Client must be present during the performance of the maintenance
activities, unless the Maintenance is of such an urgent nature that this is not possible.
17.7. The Contractor will deploy sufficiently qualified personnel when performing the relevant activities for
the purpose of this Agreement.
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17.8. The Contractor will report in writing to the Client why a Defect reported as such does or does not
quality for recovery and/or a program bypass.
17.9. In cases of emergency, the Contractor will also perform Maintenance outside office hours in order to
guarantee the continuity of the Client's business operations. It will be determined in mutual
consultation whether and to what extent the activities must be performed outside office hours.
Article 18. Version management
18.1. It will always be possible to upgrade the Software (New version). Notwithstanding the foregoing,
during the term of this Agreement, the Contractor will provide the Client with a New version as often
as necessary, but not until after the Contractor has informed the Client concerning the (potential)
consequences/impact of the New version and it has obtained the written approval of the Client for
this purpose.
18.2. Without prejudice to the provisions of paragraph 1, the Contractor will be obliged to adjust the
functionality in due time if it concerns statutory obligations or sectoral guidelines that are necessary
from the perspective of good governance. This will also require the prior, written approval of the
Client.
18.3. The Improved versions delivered by the Contractor will be deemed to form part of this Agreement
from the day on which they are added to the Software.
18.4. The Client will not be obliged to follow the Contractor's policy concerning New versions and
Improved versions.
18.5. The Contractor is obliged to take account of the developments surrounding operating software,
database software and the Client's IT Infrastructure in its policy concerning New versions and
Improved versions.
18.6. Changes and/or additions to the Software that has been provided, or replacement by new Software,
including New versions and Improved versions, will never lead to a limitation of the performance
and/or applications or possibilities for using the Software in connection with the Client's IT
Infrastructure that is being used.
18.7. If a New version or an Improved version imposes additional requirements on the Client's IT
Infrastructure, the Client will have the right to continue to use the current version, whereby the
Contractor will ensure that the Support of this version will be maintained until the end of the agreed
maintenance period.
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18.8. The Contractor guarantees the compatibility of the New and Improved versions of the Software
delivered by it with the IT Infrastructure used by the Client. The Client will keep the Contractor fully
informed in a timely manner of changes to its IT Infrastructure.
18.9. It will not be necessary to change or convert applications or utilities present at the Client if a New
version or an Improved version of the Software is released. The applications and utilities will
furthermore continue to operate under the New version or the Improved version without loss of
functionality.
Article 19. Prices and rates
19.1. The prices and rates of the Software and Performance are listed in Annex 3. All prices and rates are
exclusive of turnover tax (VAT), but inclusive of all other costs that are related to the performance of
the Agreement.
19.2. Unless otherwise provided for in this Agreement, the agreed prices and rates are fixed and constant
until the time at which this Agreement ends. The Contractor nevertheless has the right to adjust the
prices and rates each year, for the first time on 1 January 2018, in accordance with the Consumer
Price Index figure published by Statistics Netherlands (non-derived, total spending, 2006 = 100, year
mutation for the month of October). Price and rate changes must be notified by the Contractor to the
Client, in writing and provided with reasons, at least two (2) months before the commencement date,
failing which an intended price and rate change is not possible. If the price or rate change amounts
to more than 5%, the Client will have the right to terminate this Agreement as of the date the notified
increase will enter into force.
Article 20. Less and additional work
20.1. If the Contractor is of the opinion that additional work will be necessary, it will inform the Client
concerning the alleged reason for this in writing as quickly as possible.
20.2. Additional work does not include activities foreseen or unforeseen that are necessary in order to
deliver the agreed Software on the basis of the Functional Requirements elaborated in advance as
yet in accordance with the originally agreed requirements. Additional work therefore does not include
additional activities that could or should have been anticipated by the Contractor.
20.3. Before commencing additional work, the Contractor will issue a written offer with respect to the
extent of the additional work expected by the Contractor and the related costs. The Client will decide
as quickly as possible on the proposed additional work. The Contractor will only perform additional or
less work pursuant to a written instruction from the Client. Additional work that is not based on an
instruction in writing issued in advance by the Client in accordance with this article will never be set-
off and is performed entirely for the account and risk of the Contractor.
20.4. The Client may subject additional work to an Acceptance Test as described in Article 11 of this
Agreement.
20.5. The Contractor declares that the Functional and Technical Requirements in this Agreement
constitute a full and consistent description of the whole that is to be delivered, which will serve to
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realise the objectives announced by the Client. All provisional sums and estimated amounts are
designated as such in this Agreement.
Article 21. Invoicing and payment
21.1. The Contractor will indicate the date, specification, the amount owed in Euros and other statutory
data or data announced in writing by the Client to the Contractor on the invoices it sends to the Client
to the extent such may be expected of the Contractor within reason.
21.2. Invoicing will take place as follows.
21.2.1. Licence fees will be invoiced monthly in advance on the basis of one/twelfth of the annual rate
offered by the Contractor per User (as stated on the Price Form of the Quotation in Annex 3 under
B.) x the number of Users registered as Users in the System on the first calendar day of the
respective month.
21.2.2. Fees for External Hosting or other costs will be invoiced monthly in advance on the basis of
one/twelfth of the annual rate offered by the Contractor for Hosting or Other costs (as stated on the
Price Form of the Quotation in Annex 3 under B.).
21.2.3. One-time and occasional costs (including Installation, Implementation, Conversion and Migration) as
mentioned on the Price Form of the Quotation in Annex 3 (under A.) will be invoiced monthly in
arrears on the basis of actually Performance carried out, which will be specified in the relevant
invoice.
21.2.4. Fees for Service and Maintenance will be invoiced annually in advance at the annual rate offered by
the Contractor for Service and Maintenance (as stated on the Price Form of the Quotation in Annex 3
under B.).
21.3. In the case of substantive correctness of the amounts and properness of the performance delivered,
the Client will pay the amounts it owes under this Agreement to the Contractor within thirty (30) days
after receipt of the relevant invoice.
21.4. Invoices should be sent to the following address:

Technische Universiteit Eindhoven
Attn. DFEZ
PO Box 513
5600 MB Eindhoven, The Netherlands
21.5. If the Client exceeds the payment period on the basis of substantive incorrectness of the invoice, or
because the Contractor sends the invoice to the wrong address or because the invoiced
performance was defective, such will never give the Contractor the right to suspend or end its
performance.
21.6. The Contractor will invoice additional work in a separate invoice following completion of the
additional work and acceptance thereof by the Client. The nature and extent of the additional work
that has been performed will be specified explicitly in the invoice with reference to the Client's written
approval.
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21.7. Settlement of less work will take place by means of deduction from the agreed sum. The Client will
indicate when making payment what part is deducted in connection with less work. Deduction will
take place after the Client has notified the forfeited amount to the Contractor and has sent or drawn
up an invoice in this connection.
Article 22. Guarantee
22.1. The Contractor guarantees with respect to the Software or the System during the term of this
Agreement that:
i) this contains the agreed characteristics, as set out in this Agreement, and complies with the
specifications as included in Annexes 2 and 3;
ii) this has been written efficiently, soundly and in a mutually coherent manner;
iii) this is suitable for the Objective for which the Client has indicated that it has purchased it;
iv) this satisfies the customary technical standards;
v) this contains no security measures or functions or elements foreign to the Software other than
those referred to in the Documentation;
vi) all measures have been taken to prevent this from containing viruses;
vii) this as a whole is and will remain maintainable for at least ten (10) years also in connection with
possible expansions, changes or adjustments and such for a term of two (2) years after the
Software has been declared End of Life by the manufacturer.
22.2. The Contractor guarantees that Performance and Training will be provided in an expert manner and
that:
i) the results thereof will comply with the agreed qualifications;
ii) its personnel will remain sufficiently qualified for the duration of this Agreement.
22.3. The provision of temporary solutions to problems to circumvent the relevant Defect forms part of the
recovery activities if this proves necessary. Temporary solutions or workarounds will not be
implemented by the Contractor until after it has obtained the written approval of the Client.
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22.4. If the Contractor does not commence correction of the Defects in an expeditious manner which it is
obliged to do, the Client will have the right, without prejudice to its other rights, to correct these
Defects itself or have them corrected by third parties for the account of the Contractor following
written notification to the Contractor. The Contractor will be obliged to cooperate in this and to
provide the information required for this upon first demand.
22.5. The offered Software will be configured such that the Contractor guarantees adequate performance
to the Client, as determined in the Request for Proposal (Annex 2), the Quotation (Annex 3) and the
SLA (Annex 4), as a result of which the Response Times when using the Software will remain within
the agreed standards. This performance guarantee will apply during the term of this Agreement.
Article 23. Financial penalties
23.1. If the Contractor owes a penalty pursuant to this Agreement, the Client is entitled to deduct the
penalty from the fees payable by the Client to Contractor pursuant to this Agreement, irrespective of
whether the demand for payment of the fees has been transferred to a third party.
23.2. The penalties included in the Agreement are due to the Client without prejudice to any other rights or
demands of the Client, including but not limited to: the demand for compliance; the right to
compensation to the extent that the damage exceeds the amount of the penalty; and/or the right to
dissolve this Agreement.
23.3. Every year, up to three (3) Key Performance Indicators (KPIs) are designated by the Client as a
basis for the penalty regime. The Performance Indicator 'availability' and the Performance Indicator
'response time’ (= loading time for various Web pages and requests for various functions) form an
integral part of this. Availability, unless the Client and the Contractor agree otherwise, is at least 99.5%,
calculated per month (= 11 hours breakdown per quarter starting from 13 weeks with a certainty of 24
hours per day). KPI(s) are determined by the Client prior to the Acceptance and thereafter in the annual
consultations as specified in the SLA. The Contractor reports quarterly regarding the KPIs. The way in
which this report is prepared, will be determined prior to the Acceptance between the Client and the
Contractor and recorded in the SLA.
23.4. If the Contractor does not meet one of the selected KPIs for the first time, based on a quarterly
period, then the Contractor will receive a Written notification from the Client. The Contractor will
analyse the cause of the under-performance and propose appropriate measures to bring the
services back to the agreed level. These measures will be implemented as soon as possible and at
the expense of the Contractor, without negatively affecting the SLA.
23.5. If the Contractor fails to comply with any of the selected KPIs for a second time in the same contract
year, the Contractor will owe the Client a penalty as set out in the SLA.
23.6. If the Contractor fails to comply with any of the selected KPIs for a third or subsequent time in the
same contract year, the Contractor will owe the Client a penalty as set out in the SLA.
23.7. The penalties referred to in this article are due to the Client without prejudice to the other rights or
demands of the Client, including but not limited to:
23.8. the demand for compliance with the agreed obligation for the implementation of the Agreement;
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23.9. the right to dissolve the Agreement; and/or
23.10. the right to compensation to the extent that the amount of the compensation exceeds the amount of
the penalty.
Article 24. Licences and (intellectual) property rights
24.1. The starting point is that all licenses that are required for the proper implementation of the
Agreement by the Contractor are provided and are included in the licence fees as referred to in
Article 19 and Article 21. In addition, the standard licence conditions of the manufacturer are
applicable to the standard Software to be provided. In the case of conflict between the terms of this
Agreement and the licence conditions of the manufacturer, the licence conditions of the
manufacturer have priority.
24.2. The Contractor hereby grants the Client a non-exclusive and non-transferable licence to all Software
as included in Annex 2 for the duration of the Agreement. The license has no geographical
restrictions on use by the Users. The Contractor cannot terminate the licence, notwithstanding the
provisions of Article 26 of this Agreement.
24.3. The Client has the right to make and use as many copies of the Software as is reasonably necessary
within the context of normal use on the part of the Client. The Client also has the right to make and
use a copy for the testing environment and the acceptance environment. If the Software that has
been delivered also contains the Source Code of the relevant Software, the normal use on the part of
the Client will be deemed to include changes, improvements and/or expansions of the relevant
Software (or causing these to be implemented).
24.4. All rights of use acquired from the Contractor are also acquired for the benefit of all faculties, Users
and services of the Client. The Client will also have the right to transfer the relevant rights of use to
third parties, in whole or in part, within the context of reorganisations, restructuring operations and/or
expansion of its activities.
24.5. All intellectual property rights with respect to Software developed specifically for the Client that can
or will be exercised, at any time and at any place, are held by the Client. These rights are transferred
by the Contractor to the Client on the basis of this Agreement or, if such should prove necessary,
each time by means of a separate deed following Acceptance. The Contractor authorises the Client
in advance to do all that is necessary to make such a transfer possible.
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24.6. In the event of a change to or improvement of the Software, the intellectual property rights
concerning the changed or improved Software will be vested in the Party that holds the intellectual
property rights to the original Software. If the Contractor wishes to reuse the changes, improvements
and/or expansions, the Parties will agree the financial and other conditions in respect thereof in
mutual consultation and lay these down in a separate agreement.
24.7. The Contractor indemnifies the Client against third-party claims on the basis of an infringement of
copyrights. Only the Contractor will have the right to perform all acts that are necessary to terminate
the continuation of such infringements and the Contractor will assume the costs of the defence
against such a claim and compensate all costs and/or damage to the Client that are ultimately
granted by the courts. The Contractor will not indemnify the Client, however, against such costs and
damage if the infringement results from:
i) the use of the Service and/or Software or part thereof in combination with materials, hardware,
software or other property not delivered or to be delivered by the Contractor;
ii) the use of the Service and/or Software in a manner other than for the purpose for which it was
created;
iii) changing the Service or Software or part thereof in a manner other than for the purpose for
which it was created;
iv) failure on the part of the Client to change the Service or Software or part thereof on the
instructions of the other party, which could have ended or prevented the infringement.
24.8. The Client indemnifies the Contractor against all third-party claims resulting from or in relation to the
Performance carried out under the supervision and management or directions of the Client, or
against the use by the Client of the Performance or the Software as described in Article 24.7 under i)
to iv) of this Agreement.
24.9. If the Agreement is dissolved on the basis of the fact that the Contractor ceases its business
operations as a result of bankruptcy, liquidation, termination or otherwise, the Client will have the
right to demand all source codes and technical documentation which the Client needs to perform the
maintenance of the Software or to have said maintenance performed. At such times, the Client will
also have the right to have the Software changed, supplemented and further developed within the
context of its own use and maintenance. The provisions of Article 26 of this Agreement will continue
to apply in full.
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24.10. The Client or the User is and remains the owner of all the Data generated and/or stored in the
implementation of the contract, as well as those Data that are involved in the Conversion and/or
Migration, as well as those Data that occur and/or are retrieved from other systems of the Client with
which links for the System are established. Notwithstanding the foregoing, the Data should be
accessible to the Client without limitation at all times. The Contractor is only permitted to use these
Data to achieve the required Performance and to provide the required reports, as set out in this
Agreement. The Contractor is not permitted without the express prior written consent of the Client to
use this Data for itself in any way, other than for the implementation of the Contract, and/or to
provide these to third parties, whether or not in anonymous form.
Article 25. Escrow
25.1. The Contractor is obliged to always store the latest version of the Source Code and to ensure the
availability in such a way that the Client is able to obtain the Source Code in case of termination, in
accordance with Article 26.4 under ii).
Article 26. Term and termination
26.1. This Agreement enters into effect the moment it has been signed by both Parties.
26.2. This Agreement has an initial term of four (4) years. After this initial term, the Client will have the
unilateral option of extending this Agreement for two further terms of 24 (twenty-four) months. The
aforementioned initial term of four (4) years will commence after the Acceptance Test has been
approved by the Client. The Client will announce whether this option to extend will be exercised at
most three months before the expiry of the term, possibly on the basis of an evaluation. After these
two renewal options have been exercised by the Client, the Agreement may be extended by the
mutual consent of the Parties by a period of twelve (12) months each time. The Parties will have to
reach agreement on this matter no later than three months before the expiry of the periods regarding
the use of such extension option, failing which the Agreement will terminate by operation of law after
the period referred to above lapses.
26.3. This Agreement will end in any event if both Parties have complied with all obligations arising from
this Agreement and the option to extend the Agreement has not been exercised on the grounds of
the previous paragraph.
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26.4. Apart from the other provisions of this Agreement:
i) one Party will have the right to terminate this Agreement by means of a registered letter
addressed to the other Party, if the other Party fails to comply with its obligations arising from
this Agreement and continues to fail to comply with its obligations after it has been served with a
notice of default in which the other Party has been afforded a reasonable term to comply with its
obligations as yet, unless a strict deadline has already been exceeded as a result of which the
other Party is in default by operation of law and the first Party has the right to terminate pursuant
to this provision immediately after this default has arisen;
ii) one Party will have the right, without requiring any demand for performance or notice of default,
to terminate this Agreement extra-judicially by means of a registered letter if the other Party
applies for or is granted a suspension of payments; the bankruptcy of the other Party is applied
for or the other Party is declared bankrupt; the business of the other Party is liquidated or
terminated for reasons other than for the purpose of the merging of businesses; an attachment is
levied against a significant part of the assets of the other Party or the Software, or the other
Party must be deemed on reasonable grounds to be no longer able to comply with the
obligations arising from this Agreement.
26.5. If the Client terminates this Agreement on the basis of the provisions of paragraph 3 of this article,
the Client will have the right upon first demand to continue to use the Software for a period of two (2)
years, all of the above against a reasonable fee to be further determined.
26.6. If this Agreement is terminated on the basis of the provisions of Article 26.4 of this Agreement, the
Contractor will transfer ownership (including the intellectual property rights) of the Software
specifically designed for the Client, including work in progress, and any information carriers, to the
Client at its first demand. The Client will compensate the Contractor for the costs incurred so far by
the Contractor in connection with this Software on the basis of the provisions of this Agreement,
unless it concerns termination by the Client on the basis of an attributable failure on the part of the
Contractor.
26.7. In the case of a ground for dissolution under Article 26.4 under ii), the Contractor will furthermore be
obliged to surrender the Source Code that belongs to the Software to the Client at the Client's first
request, as well as all other data that are required to use, maintain or further develop the Software,
all of the above against a reasonable fee, to the extent these matters have not already been paid for
by the Client.
26.8. Obligations that are intended by their nature to also continue to exist after termination of this
Agreement will continue to exist after termination of this Agreement. Termination of this Agreement
expressly does not release the Parties from the provisions concerning confidentiality, liability,
intellectual property, takeover, applicable law and the competent court.
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26.9. If the Agreement ends for any reason whatsoever, at the first request of the Client, the Contractor will
do all that is reasonably necessary free of charge to ensure that a successor Contractor or the Client
itself can take over the implementation of the Agreement and/or can carry out a similar Performance
for the Client without impediment. The Contractor will also promptly return to the Client all the
documents, books, records and other property (including data and information carriers) made
available by the Client to it. The functionality must, subject to the provisions of paragraph 5 of this
Article, including Maintenance, be made available to the Client as long as the Client so desires,
under identical conditions and quality. In addition, the Contractor will also ensure that (at the choice
of the Client) all or certain Data made available by the Client will be destroyed at all locations, (ii) all
or certain Data made available by the Client will be made available to a successor service provider,
or (iii) the Client and/or the Users will be given the opportunity to remove their Data or certain Data
determined by the Client from the System/External Hosting. The Client can, if necessary, impose
further requirements on the manner of disposal, including requirements for the file format or
destruction.
26.10. The Contractor will safeguard the data portability of the Data described in the previous paragraph at
all times, so that there is no loss of functionality or of (part of) the Data.
Article 27. Liability
27.1. If the Contractor attributably fails to comply with its obligation(s), the Contractor will be liable towards
the Client to compensate the damage sustained or to be sustained by the Client.
27.2. Liability for an attributable failure to comply with an obligation pursuant to this Agreement is limited to
an amount equal to the total contract value per event or series of connected events.
Damage that is eligible for reimbursement includes:
27.3. damage to Software and data files as a result of physical damage, defective or non-functioning,
reduced reliability and increased vulnerability to breakdowns;
27.4. damage to other property of the Client and/or third parties;
27.5. the costs of necessary changes to and/or adjustments of Software, specifications, materials or
Documentation, implemented to limit or repair damage;
27.6. the cost of emergency facilities such as using other computer systems, or hiring third parties;
27.7. the costs of necessarily keeping the old system or systems operational for longer and the related
facilities;
27.8. the reasonable costs incurred to prevent or limit damage that could be expected as a result of the
event on which liability is based;
27.9. the reasonable costs incurred to determine the cause of the damage, liability, damage and the
manner in which the damage is to be repaired;
27.10. the damage sustained by the Client because it purchased Software from a third-party supplier that
cannot be used for the purpose for which the Software was purchased as a result of a failure in the
performance of this Agreement on the part of the Contractor; and
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27.11. the reasonable costs incurred to obtain an out-of-court settlement.
27.12. The Client's aggregate liability in connection with this Agreement is limited per contract year to an
amount equal to the total contract value for the relevant contract year.
27.13. The limitations of liability included in paragraphs 2 and 3 of this article cease to exist:
i) in the event of third-party claims for compensation in connection with death or injury;
ii) if intent or gross negligence exists on the part of the Contractor, including its personnel and the
third parties it has engaged;
iii) in the event of infringement of third-party rights, which results or could result in third-party claims
against the Contractor such as intellectual property rights.
27.14. The liability of the Contractor or the Client on the basis of a failure to comply with this Agreement
does not arise until the Client has given the Contractor notice of default, or vice versa, unless a strict
deadline has been exceeded or compliance with the relevant obligations has already become
permanently impossible, in which case the Contractor or the Client is immediately in default by
operation of law. Notice of default must be given in writing (including by e-mail), whereby the
Contractor or the Client will be given a reasonable term within which to still comply with its
obligations. The abovementioned term will have the nature of a strict deadline.
Article 28. Force majeure
28.1. Neither of the Parties will be obliged to comply with any obligation if it is prevented from doing so as
a result of force majeure. Force majeure shall never include: illness on the part of personnel, lack of
personnel, strikes, late delivery or unsuitability of materials, and/or liquidity or solvency problems on
the part of the Contractor. Nor will force majeure include an attributable failure to comply with its
obligations on the part of a third party engaged by the Contractor.
28.2. The Parties can only invoke force majeure towards each other if the relevant Party notifies the other
party in writing of such an invocation of force majeure as soon as possible, while submitting the
necessary items of evidence.
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28.3. If the situation of force majeure on the part of the Contractor lasts for more than thirty (30) Working
Days or it can be foreseen that it will last for more than thirty (30) Working Days, the Client will in any
event have the right to terminate this Agreement extrajudicially with immediate effect by means of a
registered letter, without the Parties owing each other any compensation.
28.4. Article 28.3 does not apply if compliance with the obligations has already become permanently
impossible, in which case the Client will have the right to terminate this Agreement with immediate
effect.
28.5. The provisions of Articles 26.5 to 26.7 of this Agreement apply mutatis mutandis with respect to the
consequences of termination.
Article 29. Security
29.1. The Contractor acknowledges that the System is regarded by the Client as critical for business and
that the System will contain confidential to highly confidential data files of the Client and/or the Users.
The Contractor must arrange for the careful, ethical and secure management of all relevant data
information of this Contract, including all associated management systems used to provide the Client
with information efficiently and effectively, and organises its procedures and working methods so that
the Client is able to continue to meet its fixed/prescribed level of security and level of protection of
personal data.
29.2. The System will contain an authorisation framework that is good and easy to use. The System will
contain support for the definition of authorisation roles, which can be used in the context of the
Functional Management to be performed by the Client. A close-knit authorisation of application
functionality is assigned to these roles. It is impossible for unauthorised Users to access the Data
and/or to perform mutations during the exchange of information between the components of the
system.
29.3. The System must log all services and all acts performed by the Users in the System and the System
must be able to track the number of simultaneous Users in the System. On request, the log books
will be made available to the Contractor gratuitously.
29.4. The Contractor will take appropriate measures to ensure the adequate physical and logistical
security of the System against loss or damage and to prevent any form of unauthorised access,
change and disclosure of Data or otherwise unlawful processing of Data. These measures guarantee
a level of security appropriate to the risks represented by the processing and the nature of the Data
to be protected, taking into account the state of the art and the cost of its implementation. The
measures are also aimed at avoiding the unnecessary collection and further processing of such
Data. The Contractor will record the measures in writing and will ensure that the security referred to
in this subsection complies with the security requirements pursuant to, inter alia, the Personal Data
Protection Act.
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29.5. The Contractor will immediately inform the Client if it has become aware of a suspected or actual
unauthorised inspection, change or disclosure of Data; (ii) loss of Data; or (iii) breach of the security
measures. The Contractor will take all necessary measures at its own expense to secure the Data
and to remedy the shortcomings in the security measures to prevent any further unauthorised
access, change and disclosure, without prejudice to any right of the Client to damages or other
measures. The Contractor will cooperate in informing the competent authorities and those concerned
at the request of the Client.
29.6. On request, the Contractor will provide the Client promptly with written information regarding the
(organisation of the) processing and security of Data.
Article 30. Privacy - Personal Data Protection
30.1. Insofar as the Contractor processes Personal Data in the context of the implementation of this
Agreement for the Client, the Client must be regarded as a data controller and the Contractor as the
processor for the purposes of the Personal Data Protection Act (hereinafter: Wbp).
30.2. The Contractor will process the Personal Data in accordance with the Processor’s Agreement in
Annex 1.
Article 31. Secrecy and Confidentiality
31.1. The Parties will keep confidential all Data which they are aware or can reasonably suspect is
confidential in nature and which has been communicated or provided to them in the context of the
implementation of this Agreement, and will not divulge these Data further internally or externally
and/or disclose to third Parties, except to the extent that:
a) publication and/or distribution of these Data is necessary in the context of the implementation of
this Agreement;
b) any mandatory statutory regulation or court ruling compels the Parties to publish and/or disclose
such Data or information, whereby the Parties will first inform the other party of this;
c) publication and/or disclosure of such Data will take place with the prior written consent of the
other party; or
d) it concerns information that was already lawfully published in some other way than by the acts
or omissions of any party.
31.2. For each violation of their confidentiality obligation, the Parties will pay an immediately due and
payable penalty of EUR 25,000.00 per violation, without prejudice to the other rights to compensation
of the other party.
31.3. The Parties will contractually oblige the persons working for them (including employees) who are
involved in the processing of confidential Data, to maintain the confidentiality of such confidential
Data.
31.4. At the request of the other party, the Parties will provide their cooperation in the exercise of
supervision by or on behalf of the other Party regarding the storing and use of confidential Data by
the other party.
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31.5. The Parties will provide any Data that they are entrusted with in the context of the implementation of
the Agreement, including any copies thereof, to the other party upon the first request.
31.6. Each party will inform the other party immediately if it becomes aware of a suspected or actual
breach of confidentiality; (ii) loss of confidential data; or (iii) breach of the security measures. The
defaulting party will take all necessary measures at its own expense to secure the confidential Data
and to remedy the shortcomings in the security measures to prevent any further unauthorised
access, change and disclosure, without prejudice to any right of the discovering party to damages or
other measures. The defaulting party will cooperate in informing those concerned at the request of
the other party.
31.7. The Parties will also observe strict confidentiality concerning the information about each other's
organisation, the operation of the files and the Software to the extent the information has been
clearly designated as such or in cases in which this should be clear on the basis of the nature of the
information.
31.8. If and to the extent applicable, the Parties will bring and keep the archive documents in their
possession in a good, orderly and accessible state in accordance with the Public Records Act 1995
and ensure that the archive documents that qualify for destruction are destroyed with due
observance of the relevant provisions of this Act.
31.9. The personnel of the Contractor who are involved in the performance of activities will be required to
comply with security procedures applied by the Client to the extent these activities are performed at
the Client.
Article 32. Reporting, external audit
32.1. The Contractor is required to have an investigation with regard to the organisation of Contractor
undertaken periodically but at least once a year by an independent EDP auditor or expert appointed
by it, in order to determine that:
a) the Contractor fulfils the provisions regarding the protection of Data (which also includes
Personal Data) contained in this Agreement;
b) the Contractor will comply with the provisions of this Agreement, with respect to confidentiality,
integrity, continuity, effectiveness and efficiency of the System made available by the
Contractor and related services.
The Contractor is obliged to make the findings of the EDP auditor or expert available to the Client, in
the form of a TPM statement, following a request in this respect.
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32.2. If the Client has a reasonable suspicion of non-compliance with provisions of this Agreement, the
Client may request the Contractor to perform a quality review as referred to in the preceding
paragraph. The cost of the quality review will be for the account of the Client, unless it appears from
the findings of the review that the Contractor has not complied with the provisions of the Agreement.
In that case, the costs will be for the account of the Contractor. This provision will not prejudice any
other rights of the Client, including the right to damages.
32.3. If the investigation as stated in the preceding paragraphs shows that the processes of the Contractor
do not provide the guarantees as required by the Agreement, the Contractor will submit an
improvement plan to the Client within three months. This improvement plan will be discussed with
the Client and the Contractor will actually carry out the improvement plan after approval by the
Client. The improvement plan must describe measures that will remove the objections arising from
the results of the aforementioned investigations. The costs of implementation of the improvement
plan are for the account of the Contractor, unless otherwise agreed.
32.4. The Contractor will provide a report on security management each monthly within five working days
after the start of the following month, which includes at least the following components:
a) number, status, progress and analysis of incidents in connection with Article29.5;

b) measures taken in the area of security management following incidents;
c) general measures taken in the area of data security.
Additionally, the Client has the right to have an attack and penetration test conducted by a duly certified
company no more than twice per calendar year at (the Client’s) own expense. The Contractor is obliged
to provide its cooperation. The provisions of the preceding paragraph will apply mutatis mutandis to the
attack and penetration test resulting from the findings.
Article 33. Transfer of rights and obligations and subcontracting
33.1. Each Party can only transfer rights and obligations arising from this Agreement to third parties
following written approval from the other Party. Conditions may be attached to such approval.
33.2. If the Contractor wishes to use the Performance of third parties in carrying out this Agreement, either
as subcontractors or by temporarily hiring personnel, it will only have the right to do so after having
first obtained the written approval of the Client, which will not withhold its approval on unreasonable
grounds. The approval granted by the Client will not prejudice the Contractor's responsibility and
liability for compliance with its obligations arising from this Agreement and its obligations as an
employer arising from tax and national insurance legislation. In this connection, third parties does not
include businesses that are part of the group to which the relevant Party belongs.
33.3. Without the written approval of the other Party, neither of the Parties will employ an employee of the
other Party who is involved in the performance of this Agreement for a period of one (1) year after
said involvement ends. This clause ceases to exist if one of the Parties is declared bankrupt or
applies for a suspension of payments.
Article 34. Insurance
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34.1. The Contractor has taken out insurance in the normal manner which is appropriate according to
prevailing norms and will continue to be insured for legal liability and professional and business
liability. This insurance provides coverage of an amount of at least
€ 1,000,000 excluding VAT per incident and € 2,000,000 excluding VAT per event.
34.2. The Contractor will provide on request at any time during the term of the Agreement and without
delay a certified copy of its insurance policy or proof/certificate of insurance to the Client.
34.3. The Contractor is entitled to change its professional and business liability insurance, provided that
the required coverage set out in Article paragraph 1 is not affected and it continues to comply with
the other conditions referred to in this Agreement.
Article 35. Applicable law and disputes
35.1. This Agreement and further agreements related to this Agreement are governed by Dutch law,
including but not limited to the Personal Data Protection Act (Wbp).
35.2. Any dispute concerning the formation, interpretation or the implementation of this Agreement that
may arise therefrom, as well as any other dispute concerning or related to this Agreement, whether
legal or actual, will without exception be submitted for adjudication to the appropriate competent
court of the District Court in East Brabant, with the hearing location in 's-Hertogenbosch.
35.3. The provisions of Article 35.2 of this Agreement do not prejudice the Parties' obligation to make
every effort to settle disputes related to the performance of this Agreement as much as possible in
mutual consultation.
Article 36. General Terms and Conditions
36.1. The Contractor's general terms and conditions of delivery and payment or any other general or
special terms and conditions explicitly do not apply to this Agreement.
36.2. Oral announcements, commitments or agreements concerning the performance of this Agreement
will not have legal force unless they have been confirmed in writing by the relevant Party.
36.3. Changes or further additions to this Agreement will be effective only if these are agreed in writing
and signed for agreement by both Parties.
36.4. The failure of one of the Parties to demand compliance with any provision within a term referred to in
this Agreement, will not prejudice the right to demand compliance as yet, unless the relevant Party
has agreed explicitly to the non-compliance in writing.
36.5. If one of the provisions of this Agreement is void or otherwise loses its validity, the other provisions of
this Agreement will continue to apply and the Parties will consult to agree a replacement provision
whereby the content and purport of the provision that was declared void or otherwise lost its validity
will be maintained as much as possible.
36.6. If and to the extent there exist inconsistencies between this Agreement and the Annexes that are
part of this Agreement, the provisions of this Agreement will prevail.
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36.7. If and to the extent there exist inconsistencies between the Annexes, the provisions of the Annex
with the lowest number will prevail.
Laid down and signed in duplicate, whereby one copy is intended for the Client and one copy for the
Contractor.
On behalf of the Client On behalf of the Contractor
......................... (date) ......................... (date)
......................... (place) ......................... (place)
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Annex 1. Processor's Agreement
Included as a separate file.
Annex 2. Request for Proposal (including various Annexes) dated 09-

10-2015
(known to and in the possession of both Parties)
Annex 3. Quotation of the Contractor dated [-], reference number:
(known to and in the possession of both Parties)
Annex 4. Service Level Agreement
to be determined by the Parties
Page 39 of 39

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AGREEMENT

Learning Management System (LMS)

Technische Universiteit Eindhoven

xx-xx-2015 initials Contractor initials TU/e

Article 1. Terms ...................................................................................................................... 6

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B. <name signatory>, as <position> authorised to represent independently <COMPANY>, with its

<company> hereinafter also referred to as: the “Contractor”

xx-xx-2015 initials Contractor initials TU/e

DECLARE THAT THEY HAVE AGREED AS FOLLOWS:

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1.20. Implementation: The Performance consisting of Parameterisation or otherwise structuring, setting

1.21. Impact: the extent of the impact of an Incident on the Client.

1.28. Maintenance: the Performance consisting of Adaptive Maintenance, Corrective Maintenance,

1.29. Development: the Performance consisting of the realisation of Custom Links.

xx-xx-2015 initials Contractor initials TU/e

1.32. Agreement: this Agreement including the related Annexes.

1.41. Standard Link: a Link that is not a Custom Link.

xx-xx-2015 initials Contractor initials TU/e

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i) The achievement of the objectives as described under 2.1;

iv) it will be possible to carry out tasks easily and efficiently;

xx-xx-2015 initials Contractor initials TU/e

i) issuing rights of use concerning the Software;

ii) arranging the Implementation (design and setup);

iii) conversion of data;

iv) realisation of a number of Custom & Standard Links;

viii) providing backups of all Data in the System; and

ix) performing other Performance as described in this Agreement;

so as to achieve the Objectives and the results referred to above.

i) Student Information System (SIS);

iii) Identity and Access Management (IAM);

iv) digital testing.

xx-xx-2015 initials Contractor initials TU/e

i) statutory mandatory provisions;

ii) the Agreement;

iii) the Processor's Agreement;

iv) SLA (Service Level Agreement);

v) Request for Proposal consisting of:

a. Memoranda of Information dated .... and ....;

b. Request for Proposal ref. DIZ 2015/153117, dated 09-10-2015;

c. Annexes to the Request for Proposal;

vi) Quotation of the Contractor, consisting of:

a. any information of the Contractor clarifying its Quotation;

b. Quotation of the Contractor.

xx-xx-2015 initials Contractor initials TU/e

Article 4. Exchange of information

Article 5. Project organisation

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Article 6. Project planning

Article 7. Specification and scope

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Article 8. Delivery (if applicable):

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Article 10. Implementation

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Article 11. Tests & Acceptance

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iii) the Functional Management can take place efficiently;

iv) it can be transferred in the broadest sense of the word;

xx-xx-2015 initials Contractor initials TU/e