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ExtremeTransactions Development License

IF YOU INSTALL OR USE THE SOFTWARE, YOU WILL BE CONSIDERED TO HAVE ACCEPTED THIS LICENSE AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT THEN YOU SHOULD DELETE ANY INSTALLATION OF THE SOFTWARE IMMEDIATELY.

1. LICENSE TO USE.

Atomikos grants you a non-exclusive, non-transferable and royalty-free license, without the right to sublicense or redistribute, for internal development and testing use only of the software and documentation accompanying this license, whether on disk, in read only memory, on any other media or in any other form, and any error corrections provided by Atomikos (collectively called " software"). Commercial use as well as any other use of the software is not allowed.

2. PROPERTY.

The software is protected by Belgian intellectual property laws, other intellectual property laws and international treaty provisions. The software and all associated intellectual rights remain the exclusive property of Atomikos. You acknowledge and agree that Atomikos will be entitled to develop and implement any suggestions made by You regarding the software or related to the use thereof.

3. RESTRICTIONS.

You may not use the software for your own internal data processing or for any commercial or production purposes, or use the programs for any purpose except the development of a single prototype of your application. You may not use the software if you are participating or plan to participate in the development of a system (whether commercial or not) that could be presented as similar to the software. The software may only be installed and used by the person(s) in the operating environment identified by Atomikos, and for the named project covered by your development subscription. You may make one copy of the software for backup purposes. You are not allowed (nor permitted to instruct others) to redistribute the software, or modify, decompile, or reverse engineer the software or any part thereof (this includes the generation of documentation). You may also not rent, lease, lend or sublicense the software. You may not remove any notices or tags concerning intellectual property from the software nor do anything else that could endanger the rights of Atomikos. You are not allowed to disclose any benchmark results for the software without the prior and explicit consent of Atomikos. In addition, you acknowledge that Atomikos may audit your use of the software.

4. DISCLAIMER.

THE SOFTWARE IS PROVIDED "AS IS". TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU HEREBY WAIVE, AND ATOMIKOS HEREBY DISCLAIMS, ANY SUPPORT (*), REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.

(*) Except for the support that is implied by our Terms & Conditions and to which you are entitled via your development subscription purchase

5. LIABILITY DISCLAIMER.

Because software is inherently complex and may not be completely free of errors, You are advised to verify your work and make backup copies where appropriate. 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 ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT TO THE EXTENT APPLICABLE LAW, IF ANY, PROVIDES OTHERWISE. IN NO EVENT WILL ATOMIKOS' LIABILITY TO YOU EXCEED THE AMOUNT OF 50,- EUR.

6. EXPORT REGULATIONS.

All software and technical data delivered under this agreement are subject to Belgian and the European Union's export control laws and may be subject to export or import regulations in other countries. You agree to comply strictly with all such laws and regulations and acknowledge that you have the responsibility to obtain such licenses to export, re-export, or import as may be required after delivery to you and to comply strictly with any other applicable export regulations or laws.

7. TERMINATION.

This license automatically terminates without notice after your development subscription purchase expires (typically expiration happens after one year, unless otherwise indicated in your purchase records).

The license shall terminate immediately and automatically without notice if you fail to comply with any limitation contained herein. You agree to destroy all copies of the software upon termination. In addition, you may terminate this license at any time by destroying or erasing all your copies of the software. Atomikos reserves the right at any time to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the software.

8. GOVERNING LAW. APPLICABLE JURISDICTION.

This license will be governed by and construed in accordance with the laws of the Kingdom of Belgium. This license shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Any legal conflicts will be exclusively settled by the Court of Mechelen, Belgium.

9. COMPLETENESS.

This agreement is the entire agreement between you and Atomikos relating to its subject matter. It supersedes all prior communications, whether oral or in written, and prevails over any conflicting or additional terms. No modification of this agreement will be binding, unless in written and signed by an authorized representative of Atomikos.

10. WARNING.

Any violation of this contract will be prosecuted by Atomikos to the maximum extent possible by law, and will provoque damage claims.

11. WARRANTY.

Until this license terminates, Atomikos warrants that the software will work in substantial conformance to the published specification. This warranty does not imply that the software will have full operability under any conditions chosen by you for the purpose of the use thereof, nor does it warrant that the operation of the software will be uninterrupted or error-free. The details that govern this warranty are outlined in the Atomikos support conditions.

General Conditions

GC 1: General

The present conditions apply to all legal relationships between ATOMIKOS and you, also labeled "parties" in the following text. Your general conditions do not apply, whether included in any purchase order of yours or otherwise, and even if of a more recent date, unless ATOMIKOS accepted them explicitly, in writing, either totally or partially. Any amendments to the present conditions are only possible if specified in a contract signed by both ATOMIKOS and you. The present conditions as well as any amendments thereto that have been explicitly accepted in writing by ATOMIKOS, supersede all previous contracts between ATOMIKOS and you, either oral, in writing or tacit, and they do constitute the only documents that apply to the legal relationships between ATOMIKOS and you.

Atomikos shall not be bound by any contract or obligation whatsoever towards the end-user and/or client, unless and until Atomikos has provided to the client a clear and written confirmation of the order made by the client, referring to the terms and conditions mentioned in the initial quote made by Atomikos. Under no circumstances, the (beginning of the) execution of the contract and or communication of information or login credentials by Atomikos, can be considered as an acceptance of any additional or different terms and /or conditions mentioned by the client on any document, purchase order or communication, which was sent or communicated prior or after the date of the quote / offer of Atomikos.

Even in the case of absence of an order confirmation, Atomikos will execute the order as agreed, in accordance (exclusively) with our terms and conditions as mentioned in the initial quote or offer.

Any (even partial or temporary) use of our products, software, access or login credentials by the client or the end-user, implies the acceptance, without any reservation, of our terms and conditions as specified in the quote and/or offer issued by Atomikos.

ATOMIKOS delivers services and/or products only for your benefits. You will take every reasonable effort to protect ATOMIKOS from any obligations towards your 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 you only, not to any of your customers or end users.

If one or more of the provisions of these 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 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 conditions, shall not constitute a waiver by such party of any of its rights under these present conditions.

GC 2: 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.

GC 3: Termination

Unless explicitly stated otherwise, ATOMIKOS services and products are offered on a subscription basis:

Paid up-front for each new year.
Auto-renewable unless terminated explicitly by you or by us.
Termination by either party happens via registered mail - at least 90 days before renewal is due.
When you terminate, you should include a signed declaration that you are no longer using our products or services.

In case you do not fulfil your obligations, or in case you do not adequately fulfil them or do not fulfil them in due time, ATOMIKOS is entitled to suspend the performance of its obligations until you fully complied with your obligations. ATOMIKOS is entitled to suspend the performance of its obligations, even if these obligations concern an assignment other than the one under which you do not, do not adequately or do not in due time comply with its obligations.

Each renewal period shall be governed by the version of this Agreement in effect at the time of renewal, as provided with the applicable renewal quotation.

GC 4: 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 you were received from ATOMIKOS, or within 30 days upon discovery of the fault in case you prove that you 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 you, the correction, free of any charge, of the services performed or products delivered, or the re-performing of the services contested by you, and the cancellation, either totally or partially, of the performance of the assignment, at a proportional reimbursement of the fees already paid by you.

GC 5: Applicable law and dispute resolution

Only Belgian law shall apply to any contracts or other legal relationships to which the present conditions apply. Any legal conflicts will be exclusively settled by the Court of Mechelen, Belgium (or its official successor should it cease to exist).

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 you 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 in Belgium.

GC 6: Export regulations

All products, services or information delivered by ATOMIKOS to you are subject to Belgian and the European Union’s export control laws and may be subject to export or import regulations in other countries. You agree to strictly comply with all such laws and regulations and acknowledge that you have the responsibility to obtain such licenses to export, re-export, or import as may be required after delivery to you and to comply strictly with any other applicable export regulations or laws.

GC 7: Intellectual Property

ATOMIKOS has several current and pending patents on various aspects of its technology. You agree to respect ATOMIKOS patents and other intellectual property rights.

General

In general, either party agrees 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.

Each party retains ownership of its pre-existing intellectual property and of any data, materials, or documentation it provides under this agreement. Nothing in this agreement shall be construed as transferring such rights unless explicitly agreed in writing.

Warranties

ATOMIKOS warrants that:

it is authorised to enter into the present 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,
to the best of Atomikos’ knowledge, the products or services do not infringe, misappropriate or violate the intellectual property rights of any third party,
to the best of Atomikos’ knowledge, 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 in connection with the performance of its obligations under this Agreement

Indemnification

Should the ATOMIKOS products become the subject of a claim of infringement of third-party intellectual property rights against you then ATOMIKOS shall, at ATOMIKOS' option and expense, either:

procure for you 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 availability of the infringing functionality and promptly grant you a refund of pro-rated remaining prepaid subscription fees (to the extent that these fees can be allocated to the infringing functionality).

Indemnification in the above sense is offered provided, however, that you abide all of the following conditions:

to have a valid ATOMIKOS "MISSION CRITICAL" subscription at the time of the claim being raised
to be current in the payment of all applicable fees towards ATOMIKOS prior to a claim or threatened claim
to notify ATOMIKOS within 90 days of the receipt of any such claim - including any evidence brought forward by said third party
to provide ATOMIKOS with the right to control and conduct the defense of the claim if it so desires
to provide ATOMIKOS with the right to involve the counsel of its choice if it so desires
to co-operate with ATOMIKOS in the defense of the claim
to settle such claim at ATOMIKOS' sole discretion

Excluded explicitly from indemnification are:

evaluation / trial usage and other non-paid usage of ATOMIKOS
modifications of ATOMIKOS products made by you that were not deemed as acceptable by ATOMIKOS
ATOMIKOS modifications made at your request
infringements resulting from your combination(s) of ATOMIKOS products with other, non-ATOMIKOS products
circumstances where you are in material breach of your agreement(s) with ATOMIKOS and such breach directly caused or contributed to the third-party claim
infringement situations that could have been avoided if you upgraded to a newer, existing ATOMIKOS release at the time of the claim (and you were notified by ATOMIKOS of the possible infringement)
your usage of ATOMIKOS products against prior ATOMIKOS advice not to do so
your claims against a third party

GC 8: Liability

The limitations of liability set forth in this GC 8 apply to all claims, damages, losses and causes of action of any kind, whether arising in contract, tort (including negligence), breach of warranty, indemnification, strict liability, statute or otherwise, arising out of or related to this Agreement.

Besides the exceptions listed below, neither party will be liable for any direct, indirect, incidental, special, cover or consequential damages whatsoever (including – but not restricted to – lost revenue or profits, loss of time, loss of data or software) 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 greater of 50,- EUR or the total fees paid to ATOMIKOS by you during the 12 months preceding the first event giving rise to such liability.

Customer’s total liability towards Atomikos shall not exceed the same amount, except in the event of:

Breach of Atomikos’ intellectual property rights;
Situations where the combination of Customer’s software with Atomikos leads to infringement of third-party intellectual property rights for which Atomikos is held accountable;
Unauthorized use or redistribution of the software;
Violation of license restrictions.
Failure to pay agreed fees or invoices under this agreement.

Nothing in this Agreement limits liability for fraud or wilful misconduct or gross negligence.

GC 9: Testimonial

You agree to provide a testimonial for ATOMIKOS marketing use, outlining:

Who you are and what you do
The problems you faced before working with ATOMIKOS
Why going with ATOMIKOS is an investment to you
The benefits of working with ATOMIKOS
How you feel about working with ATOMIKOS
In what scenarios you would recommend ATOMIKOS

GC 10: Taxes

Any and all sales, use, import, value-added, services, consumption, customs and other taxes applicable to the delivery of ATOMIKOS products and/or services shall be at your expense.