Art 0: Definitions
Unless explicitly defined otherwise, within the scope of this document and any dependent documents the following definitions apply:
- ATOMIKOS will be used to denote Atomikos BVBA, Belgium
- PARTNER will be used to denote the other party implied by this document and as identified in any dependent document(s)
- CUSTOMER will be used to denote any clients of PARTNER, i.e. third parties with which PARTNER conducts or has conducted business
- END USER will mean – within the context of a particular piece of software – the legal owner of the machine on which the software is installed
Art 1: General
The present general conditions apply to all legal relationships between ATOMIKOS and PARTNER, also labeled "parties" in the following text. PARTNER’s general conditions do not apply, even if of a more recent date, unless ATOMIKOS accepted them explicitly, in writing, either totally or partially. Any amendments to the present general conditions are only possible if specified in a contract signed by both ATOMIKOS and PARTNER. The present general conditions as well as any amendments thereto that have been explicitly accepted in writing by ATOMIKOS, supersede all previous contracts between ATOMIKOS and PARTNER, either oral, in writing or tacit, and they do constitute the only documents that apply to the legal relationships between ATOMIKOS and PARTNER.
ATOMIKOS delivers services and/or products only for the benefits of PARTNER.
PARTNER will take every reasonable effort to protect ATOMIKOS from any obligations towards PARTNER’s CUSTOMERS or END USERS. To the extent possible by law, any obligations from ATOMIKOS that arise out of this document or any dependent documents will be obligations towards PARTNER only, not to any CUSTOMERS of PARTNER.
If one or more of the provisions of these general conditions or any dependent documents are declared null and void or unenforceable, this will not affect the validity or the enforceability of any other provisions thereof, which will remain in full force.
Any failure of either party to enforce one of its rights or prerogatives under these present general conditions, or any failure of a party to react to a default or breach by the other party of all or any parts of the provisions of the present general conditions, shall not constitute a waiver by such party of any of its rights under these present general conditions.
Art 2: Formation of contracts and terms of contracts
Any contract between ATOMIKOS and PARTNER is deemed to have been entered into either when it is duly signed by both parties.
Contracts are entered into for an indefinite period of time, unless it follows from their contents, their nature or their characteristics that they are entered into for a limited period of time, or unless this has been explicitly agreed upon in writing.
Art 3: Information put at ATOMIKOS’ disposal by PARTNER
It is PARTNER’s liability to provide ATOMIKOS in due time with correct, complete and reliable data and documents, even if these data and/or documents originate from third parties. Unless explicitly specified in writing, ATOMIKOS is not obliged to verify the data and documents it has been provided with by PARTNER. PARTNER must keep a copy of all data of which it provided ATOMIKOS with the original copy.
Art 4: Performance of the assignment
ATOMIKOS decides on how and by whom the assignment will be performed. In case PARTNER wants to involve third parties in the performance of the assignment, it may only do so after having entered into an contract with ATOMIKOS on this issue. During the performance of the assignment, the approach, the working method or the scope of the assignment and/or of the work resulting thereof can be amended or expanded in mutual consultation. In case such an amendment or expansion would result in additional work or would influence in any other way the costs or fees agreed upon, ATOMIKOS will inform PARTNER accordingly. Unless otherwise explicitly agreed upon in writing, the performance of the assignment does not authorise ATOMIKOS to represent PARTNER. Such representation authority requires a specific power of attorney, in writing, given by PARTNER to ATOMIKOS, and accepted by ATOMIKOS.
Except where explicitly mentioned otherwise, in no event will either party be liable for any damages whatsoever including – but not restricted to – lost revenue or profits or other direct, indirect, special, incidental, cover, or consequential damages, even if advised of the possibility of such damages, except to the extent applicable law, if any, provides otherwise.
Art 5: Confidentiality
Each party shall treat as confidential all information of confidential nature put at its disposal, unless in case of a legal or a professional duty to disclose, or unless the other party would request it to disclose such information. A party is not entitled to use the information put at its disposal by the other party for any other purpose than for the one the information was provided. This obligation of non-disclosure does not apply in case a party is involved, in its own name and for its own account, in any disciplinary, civil or criminal proceedings for which the confidential information may be relevant. Neither does the non-disclosure obligation apply in case the confidential information meanwhile entered into the public domain, or in case it was rightfully received by third parties.
Art 6: Payment
Unless otherwise explicitly agreed upon in writing, any payments by PARTNER are to be made in EURO, without discount, deduction or set-off, and within the delay listed on the invoice, but by no means later than thirty days after PARTNER's receipt of the invoice.
Any overdue payment will entitle ATOMIKOS by force of law and without any default notice to an interest equaling the interest rate used by the European Central Bank for basic finance transactions, as fixed by the Directive 2000/35/EG, to be increased with 7 percent points unless explicitly agreed otherwise in writing.
Art 7: Suspension and termination
In case PARTNER does not fulfil its obligations, or in case it does not adequately fulfil them or does not fulfil them in due time, ATOMIKOS is entitled to suspend the performance of its obligations until PARTNER fully complied with its obligations. ATOMIKOS is entitled to suspend the performance of its obligations, even if these obligations concern an assignment other than the one under which PARTNER does not, does not adequately or does not in due time comply with its obligations.
Unless mentioned otherwise, signed contracts can be terminated by either party by giving a 90 days' notice term. Notices must be given by registered mail. In case PARTNER provided ATOMIKOS with incorrect or incomplete information, or, in case it is, in ATOMIKOS’s opinion, established that PARTNER did not communicate any amendments to or in connection with relevant information in due time to ATOMIKOS, or, in case of any other breach of contract of PARTNER, or, in case ATOMIKOS, following circumstances brought to its attention, has serious grounds to believe that PARTNER will not fulfil its obligations in the future (such as but not limited to PARTNER’s request for extension of payments, bankruptcy, winding-up or liquidation of PARTNER,…), ATOMIKOS is entitled to terminate any contract without notice and with immediate effect, and without being liable for any compensation whatsoever. ATOMIKOS will under all circumstances remain entitled to the payment of invoices for the services performed or products delivered.
In case of any other breach of contract by ATOMIKOS, or, in case PARTNER, following circumstances brought to its attention, has serious grounds to believe that ATOMIKOS will not fulfil its obligations in the future, PARTNER is entitled to terminate any contract without notice and with immediate effect, and without being liable for any compensation whatsoever for services received after the date of termination. In this case, ATOMIKOS shall refund Customer any prepaid fees covering the remainder of the term or any prepaid fees for services not provided.
Upon termination, PARTNER agrees to stop using ATOMIKOS products within 90 days following termination notice and ensures any of PARTNER's CLIENTs stop using ATOMIKOS products as well.
Art 8: Disputes
Any complaint related to the services performed, products delivered or to the amounts invoiced must be made in writing to ATOMIKOS, either within 30 days as from the moment the documents or information contested by PARTNER were received by PARTNER, or within 30 days upon discovery of the fault in case PARTNER proves that it could not have reasonably discovered said fault earlier.
In case a complaint is found to be well-founded, ATOMIKOS can opt between an adjustment of the fees invoiced to PARTNER, the correction, free of any charge, of the services performed or products delivered, or the re-performing of the services contested by PARTNER, and the cancellation, either totally or partially, of the performance of the assignment, at a proportional reimbursement of the fees already paid by PARTNER.
Art 9: Applicable law and dispute resolution
Only Belgian law shall apply to any contracts or other legal relationships to which the present general conditions apply.
Any dispute shall be, at the request of either party, immediately submitted to a conciliation committee consisting of at least one representative of either party plus one independent third-party representative whose nature and identity is accepted by both PARTNER and ATOMIKOS. If the conciliation committee were unable to settle the dispute within 30 days after the first meeting, or in the event that no acceptable third-party representative can be found within 30 days, each party is free to take the case before the competent court.
Art 10: Export regulations
All products, services or information delivered by ATOMIKOS to PARTNER are subject to Belgian and the European Union’s export control laws and may be subject to export or import regulations in other countries. PARTNER agrees to strictly comply with all such laws and regulations and acknowledges that he has the responsibility to obtain such licenses to export, re-export, or import as may be required after delivery to PARTNER and to comply strictly with any other applicable export regulations or laws.
Art 11: Intellectual Property
ATOMIKOS has several current and pending patents on various aspects of its technology. PARTNER agrees to respect ATOMIKOS patents and other intellectual property rights.
In general, PARTNER and ATOMIKOS agree that this agreement does not lead to any definite transfer of ownership or user's rights for software, documents or technical and commercial information by the other party, or of the knowledge shared by the other party within the framework of the present contract, for intellectual rights as well as for their material media.
The software, documents and information given to the other party can only be used for the purpose of fulfilment of the present contract and must be returned upon the date of expiry of the contract at the latest. Any material of this kind that would otherwise be sold by ATOMIKOS may not be resold free of charge without formal prior permission by ATOMIKOS.
ATOMIKOS warrants that:
- it is authorised to enter into the present general conditions,
- it isn't subject to a third party's approval and has the financial viability to fulfil its obligations hereunder,
- the products and services conform to its published specifications and documentation
- it has all the necessary intellectual property rights to grant use of the products and services hereunder,
- the products or services do not infringe, misappropriate or violate the intellectual property rights of any third party,
- the software versions it controls shall not contain illicit code, time-outs, viruses, Trojan horses, back doors, electronic self-help mechanisms and self-replicating code,
- it performs all services in a workmanlike manner
- it complies with all applicable laws, rules and regulations
Should PARTNER become subject to legal action initiated by an independent third party concerning infringement of that third party's intellectual property rights by ATOMIKOS, then ATOMIKOS will assist PARTNER in that claim and contribute to PARTNER's costs, damages and/or attorney fees attributable to PARTNER's use of the ATOMIKOS products - provided, however, that PARTNER abides all of the following conditions:
- to be current in the payment of all applicable fees towards ATOMIKOS prior to a claim or threatened claim
- to notify ATOMIKOS within 10 days of the receipt of any such claim - including any evidence brought forward by said third party
- to fund the whole claim's expenses, after which ATOMIKOS will contribute its share as determined by this contract
- to provide ATOMIKOS with the right to control and conduct the defense of the claim
- to provide ATOMIKOS with the right to involve the counsel of its choice
- to co-operate with ATOMIKOS in the defense of the claim
- to settle such claim at ATOMIKOS' sole discretion
Excluded explicitly from indemnification are:
- modifications of ATOMIKOS products made by PARTNER
- ATOMIKOS modifications made at PARTNER's request
- infringements resulting from combination of ATOMIKOS products with other, non-ATOMIKOS products
- circumstances where PARTNER is in violation of PARTNER agreement(s) with ATOMIKOS
- infringement situations that could have been avoided if PARTNER upgraded to a newer, existing ATOMIKOS release at the time of the claim
- infringement situations of usage scenarios outside PARTNER's control
- PARTNER usage of ATOMIKOS products against prior ATOMIKOS advice not to do so
- PARTNER claims against a third party
Should the ATOMIKOS products become the subject of a claim of infringement of third-party intellectual property rights then ATOMIKOS shall, at ATOMIKOS' option and expense, either:
- procure for the PARTNER the right to continue using the software;
- replace or modify the software so that it becomes non-infringing with no loss of functionality
- if unable to do the above: terminate the agreement and promptly grant PARTNER a refund of remaining prepaid subscription fees
Art 12: Disclaimer
Except for where explicitly acknowledged by ATOMIKOS, ATOMIKOS will not be liable for any damages whatsoever including – but not restricted to – lost revenue or profits or other direct, indirect, special, incidental, cover, or consequential damages, even if advised of the possibility of such damages, except to the extent applicable law, if any, provides otherwise.
In no event will ATOMIKOS' aggregate and cumulative liability towards you ever exceed the total fees paid to ATOMIKOS by you during the 12 months preceding the first event giving rise to such liability.