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.
Atomikos grants you a non-exclusive, non-transferable license, without the right to sublicense or redistribute, to use 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").
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, and that any such implementation and associated intellectual property rights will become and remain the sole exclusive property of Atomikos.
Your use of the software is subject to the limitations stated in your purchase agreement with Atomikos or any third-party vendors acting on Atomikos' behalf. 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.
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 production subscription purchase
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.
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.
This license automatically terminates without notice after your production 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.
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.
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.
Any violation of this contract will be prosecuted by Atomikos to the maximum extent possible by law, and will provoke damage claims.
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.
An issue (or ticket) is defined as a problem caused by an ATOMIKOS product and experienced by you. A support incident is a single, specific, issue–based request for support. A request that raises multiple issues will generate the need for and use of multiple support incidents.
A bug is a special type of issue where the behavior of an ATOMIKOS product is different from what is advertised in our documentation.
An incident is considered closed (resolved) when any of the following occur:
|Production support||Remote access to get bug fixes, new releases and workaround advice in order to resolve problems encountered in your production environment.||Development support or consulting.||At least 3 years after the initial availability of each new stable release.|
|Development support||Remote advice on the installation, configuration and use of Atomikos.||Production support, customer-application-specific or third-party product issues.||At least 3 years after the initial availability of each new stable release.|
|Consulting||Professional advice for issues outside the Atomikos products. Performed by an Atomikos engineer, either remote or on-site at the customer, during normal business hours.||Support.||At least 3 years after the initial availability of each new stable release.|
The following table defines the severity and performance related to an issue. Any differences on your purchase order take precedence over these.
|Severity||Description||Formula||Target Response Time||Resolution|
|1||Catastrophic production problem which severely impacts Your production systems, or in which Your production systems are down or not functioning; loss of production data and no procedural work around exists.||Production support.||1 business day||Work continuously until resolved or expired.|
|2||High-impact problem in which Your operation is disrupted but there is capacity to remain productive and maintain necessary business-level operations.||Production support.||1 business day||An immediate workaround or a fix in the next planned release.|
|3||Medium-to-low impact problem which involves partial non-critical functionality loss impairing some operations but allowing Your systems to continue to function. This may include a minor issue with limited loss or no loss of functionality or impact to Your operations and usually includes documentation errors.||Production support.||2 business days||An immediate workaround or a fix in the next planned release.|
|4||All problems outside production use.||Development support.||Planned in with customer||A workaround or a fix in an upcoming release.|
Business days are counted as Monday to Friday.
Support is limited to 12 months from your purchase date of an Atomikos support subscription or until the date mentioned during purchase. A response to an issue/incident may consist of the acknowledgement by ATOMIKOS of your incident report, and may not necessarily resolve your incident.
ATOMIKOS warrants itself to be the legal owner of the software and to have the right to all royalties originating from it. Consequently, ATOMIKOS warrants that no part of the present contract interferes with the rights of any third party and that you may make full use of the license granted to you in the full knowledge of the above.
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 either the exclusive property of ATOMIKOS or that of certain licensors to ATOMIKOS.
The intellectual property rights on the software and its documentation, any feedback provided by you as well as all copies, updates or possible extensions, including new functions that may be developed by ATOMIKOS for you, remain the sole property of ATOMIKOS, or of certain licensors to ATOMIKOS, unless otherwise agreed in writing.
Support concerns issues that arise from the usage of the software, conform the specifications in the ATOMIKOS documentation. Not included are new features that you request, modifications to features that are not causing problems when using the software or ports to unsupported platforms or environments. When a newer version of the software is available then you should upgrade first before asking support. Also excluded is custom coding (i.e., writing customer-specific code outside the ATOMIKOS product boundaries).
You are not allowed to disclose any benchmark results for the software without any prior and explicit consent of ATOMIKOS.email@example.com where they will be pulled into the Atomikos ticketing system.
You agree to supply the following minimum information for each issue:
Upon receipt, ATOMIKOS will generate a timestamp and ticket (number) to identify the problem. This ticket should be used by you for all further communications related to the case.
Our support fees are paid up-front in order to guarantee availability of our support staff. For this reason, we do not offer refunds.http://semver.org and with backward compatibility we mean compatibility at the Atomikos API and configuration level.
The following table summarizes when our current and past releases expire in terms of support; from those dates on it is highly recommended that you upgrade to a newer release.
|Stable Release||First Published||Support Expires On|
|3.2||September 29, 2007||September 29, 2010|
|3.3||April 18, 2008||April 18, 2011|
|3.4||October 3, 2008||October 3, 2011|
|3.5||January 13, 2009||January 13, 2012|
|3.6||December 28, 2009||December 28, 2012|
|3.7||February 26, 2011||February 26, 2014|
|3.8||May 29, 2012||May 29, 2015|
|3.9||July 20, 2013||March 11, 2019|
The following apply only if you have purchased OEM rights.
In addition to what is specified in the general conditions, ATOMIKOS will have the right to terminate the present contract immediately 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.
You will represent ATOMIKOS for all first- and second-line support issues towards your customers. ATOMIKOS will take care of third-line support issues for you.
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.
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.
No party will register any Trademarks or any other words or devices likely to be confused therewith, without first obtaining written permission from the other party. No party shall use any Trademarks or any other words or devices likely to be confused therewith, except as permitted in writing by the other party.
ATOMIKOS will support you as specified by this document, and in any case limited to all matters concerning the embedded use of ATOMIKOS software within your products. No other support is given.
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, but at most once every calendar year. Audits can be performed by an independent auditor and must be allowed by you within 30 days after ATOMIKOS request. Audits are at ATOMIKOS' expense.
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, 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 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.
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.
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.
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 you provided ATOMIKOS with incorrect or incomplete information, or, in case it is, in ATOMIKOS’s opinion, established that you 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 yours, or, in case ATOMIKOS, following circumstances brought to its attention, has serious grounds to believe that you will not fulfil your obligations in the future (such as but not limited to your request for extension of payments, bankruptcy, winding-up or liquidation of yours, 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 you, following circumstances brought to your attention, have serious grounds to believe that ATOMIKOS will not fulfil its obligations in the future, you are 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 any prepaid fees covering the remainder of the term or any prepaid fees for services not provided.
Upon termination, you agree to stop using ATOMIKOS products within 90 days following termination notice and ensure any of your clients stop using ATOMIKOS products as well. Termination does not end any of your obligations towards ATOMIKOS.
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.
Only Belgian law shall apply to any contracts or other legal relationships to which the present 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 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.
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 acknowledges that he has 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.
ATOMIKOS has several current and pending patents on various aspects of its technology. You agree to respect ATOMIKOS patents and other intellectual property rights.
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.
ATOMIKOS warrants that:
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.
You agree to provide a testimonial for ATOMIKOS marketing use, outlining: