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. 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, and if such amendment is explicitly foreseen in the present document. 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. However, ATOMIKOS can avail of additional rights resulting out of documents or writings emanating from PARTNER, or resulting out of documents or writings emanating from ATOMIKOS, provided that these latter documents or writings have not immediately and explicitly been contested by 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 ATOMIKOS to enforce one of its rights or prerogatives under these present general conditions, or any failure of ATOMIKOS to react to a default or breach by PARTNER of all or any parts of the provisions of the present general conditions, shall not constitute a waiver by ATOMIKOS 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 ATOMIKOS receives the assignment proposal it drafted, duly signed by PARTNER, or at the moment ATOMIKOS starts to perform any services for PARTNER, if this takes place at an earlier moment. As long as ATOMIKOS does not receive any assignment proposal duly signed by PARTNER, all legal relationships between ATOMIKOS and PARTNER will in any case be governed by the present general conditions, as from the moment that and insofar as these general conditions were delivered to PARTNER either by fax, by email or in person against receipt.
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. Any extra costs or fees following the delay in performance of the assignment, as a consequence of PARTNER not having provided ATOMIKOS adequately or in due time with the information necessary for the performance of its assignment, shall be exclusively at the expense of 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, without the latter however having the possibility to challenge this. Unless explicitly agreed upon in writing, ATOMIKOS is not obliged to bring up to date the results of the performance of the assignment. 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.
In no event will ATOMIKOS 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
PARTNER 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 ATOMIKOS would request it to disclose such information. PARTNER is not entitled to use the information put at its disposal by ATOMIKOS for any other purpose than for the one the information was provided to PARTNER. This obligation of non-disclosure does not apply in case PARTNER 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: Fee rates, expenses and invoicing
Unless otherwise explicitly agreed upon in writing, the services performed by ATOMIKOS will be invoiced to PARTNER based on the number of hours spent and on the hourly rates of the staff members involved. The fees of ATOMIKOS do not depend on the results of the assignment. Unless explicitly agreed upon in writing, any administration costs, travelling time and travel and accommodation costs as well as other costs related to the assignment are not included in said rates and will be separately invoiced to PARTNER, possibly increased with expenses incurred by third parties.
Art 7: 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 receipt of the invoice. The date of receipt of the invoice is fixed at the first day, following the date mentioned on the invoice (even if this day of receipt is a Saturday, a Sunday or a legal holiday).
Any overdue payment will entitle ATOMIKOS by force of law and without any default notice to an interest equalling 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.
In case of a jointly given assignment, and insofar as, in ATOMIKOS’ opinion, the services were performed for the joint PARTNERS, said PARTNERS are jointly and severally liable for the payment of the invoiced amounts, interests and liquidated damages.
Art 8: 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 reasonable 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.
Art 9: 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 sent by ATOMIKOS, or within 30 days upon discovery of the fault in case PARTNER proves that it could not have reasonably discovered said fault earlier. Any such dispute does not affect PARTNER’s payment obligations.
In case a complaint is found to be well-founded, ATOMIKOS can opt, at its sole discretion, 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.
Unless explicitly otherwise agreed upon in writing, any prerogative of PARTNER against ATOMIKOS expires after six months as from the moment PARTNER knew of the existence of the facts that gave rise to said prerogative or should reasonably have known thereof.
Art 10: 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.
All legal conflicts will be exclusively settled by the Court of Mechelen, Belgium.
Art 11: 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 12: 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.