OEM Terms and Conditions
These conditions are applicable to OEM subscribers. Our standard terms and conditions 'ASC' (available at http://www.atomikos.com/Main/TermsAndConditions
) are an integral part of this document; if you agree to the present document then you are also assumed to agree to the ASC. Should this document contain any clauses that are incompatible with the ASC then the content of this document prevails.
Art.1. Redistribution Rights
Provided that you observe all obligations and terms of the present agreement, you will obtain the non-exclusive, non-transferable right to re-sell end-user subscriptions for ATOMIKOS products to third parties.
Provided that the protection measures for Atomikos intellectual property rights (as described in this document) are met, you are allowed to:
- re-badge the software involved
- deliver the software through the same medium as your proprietary products
You will systematically communicate to ATOMIKOS in writing the identity and sector of activity of each of your customers, within 1 week after each sale.
Art.2. Sales and Marketing activities
You agree to co-market ATOMIKOS products and services such as via joint announcements, press releases, on your web site. You agree to share leads with ATOMIKOS for the purpose of upselling specialized services.
This is a contract between ATOMIKOS and you, not between ATOMIKOS and any customers of yours.
You are responsible of ensuring that any contract between you and your customers cannot endanger the specified rights of ATOMIKOS or cause additional obligations for ATOMIKOS.
You are not allowed to grant additional rights on the software to your customers.
ATOMIKOS has no obligations towards third-party customers other than those indirectly implied by this contract between ATOMIKOS and you.
You are not allowed to redistribute the software under a license that weakens ATOMIKOS rights or implies additional obligations from ATOMIKOS.
You are not allowed (nor permitted to instruct or allow others) to modify, decompile, reverse engineer ATOMIKOS products or any part thereof (this includes generation of documentation).
You or your customers are not allowed to disclose any benchmark results for the software without any prior and explicit consent of ATOMIKOS. Note that this does not restrict your rights to disclose benchmark information about your own products.
Termination happens according to the general conditions, but is only possible after at least one year and with a notice of 90 days. Upon termination, you lose your rights obtained through this contract. Termination does not end any of your obligations towards ATOMIKOS.
In addition to what is specified in the general conditions, ATOMIKOS will have the right to terminate the present contract immediately and without formal notice or summons in case of:
- Direct or indirect transfer of your management or
- In case of transfer of your activities or fields of activity to a natural or legal person whose activities are in competition with ATOMIKOS or who controls, directly or indirectly, a company having an activity of that nature.
Art.5. Maintenance and Support
You will represent ATOMIKOS for all support issues towards your customers.
You are not allowed to use sub-distributors of the OEM type without a separate OEM agreement with Atomikos. For each OEM customer of yours, a new Atomikos OEM deal must be negotiated.
Use of brands and logos
ATOMIKOS hereby grants you the non-exclusive right and license to use ATOMIKOS brands, trademarks and logos in accordance with ATOMIKOS current trademark usage guidelines, provided, however, that in the event that ATOMIKOS has reason to believe that use of any Trademark may open ATOMIKOS up to any liability, you agree to stop using such Trademark upon written notice thereof from ATOMIKOS. All use of such Trademarks shall inure to the sole benefit of ATOMIKOS. Upon ATOMIKOS request, you shall provide copies of all your Products bearing any ATOMIKOS Trademark so that ATOMIKOS may ensure that the quality of your use of such Trademarks is comparable to the quality of ATOMIKOS use thereof. You shall not remove, cover or deface, so as to render illegible, any copyrights, trademarks, or other proprietary markings that appear on the ATOMIKOS Products. You shall further utilize the appropriate Trademarks on all materials related to the promotion and marketing of the ATOMIKOS Products. You will not register any Trademarks or any other words or devices likely to be confused therewith, without first obtaining written permission from ATOMIKOS. You shall not use any Trademarks or any other words or devices likely to be confused therewith, except as permitted in writing by ATOMIKOS.
Transfer of intellectual property rights.
In general, you and ATOMIKOS state (and accept) 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.
If you fail to fulfil any obligation described in this article, you will be held responsible and compensation will be due to ATOMIKOS from him for all losses suffered by ATOMIKOS, directly or indirectly, due to your negligence. Losses can be proven by any means.
ATOMIKOS will safeguard you from claims by the user with regard to defects in the ATOMIKOS products, within the limits specified for the relevant product.
ATOMIKOS liability with regard to you in this respect, will be limited to rectifying reproducible faults that may be detected in the ATOMIKOS software packages or, if necessary, replacement of the software. This liability is in any case restricted to the price paid by you for the concerned subscriptions, with regards to the order placed on behalf of the client filing the claim.
Art.9. Right to Audit
ATOMIKOS has the right to perform an audit of your records or technology whenever ATOMIKOS believes that there are serious reasons to suspect abuse against the terms of this agreement. Audits can be performed by an independent auditor and must be allowed by you within 30 days after ATOMIKOS request.