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
• "YOU(R)" ("CUSTOMER") will be used to denote the other party implied by this document and as identified in any dependent document(s)

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, 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.

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: Suspension and termination

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.

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.

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 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.

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 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.

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.

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,
• 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

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 agreement and promptly grant you a refund of remaining prepaid subscription fees

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

• to have a valid ATOMIKOS "professional" 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 10 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
• ATOMIKOS modifications made at your request
• infringements resulting from combination of ATOMIKOS products with other, non-ATOMIKOS products
• circumstances where you are in violation of your agreement(s) with ATOMIKOS
• infringement situations that could have been avoided if you upgraded to a newer, existing ATOMIKOS release at the time of the claim
• infringement situations of usage scenarios outside your control
• your usage of ATOMIKOS products against prior ATOMIKOS advice not to do so
• your claims against a third party

GC 8: 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.

GC 9: Testimonial

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

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