1. Acceptance By accessing or using the benefits of a Subscription Offering, you (“You”) accept the Agreement as defined below. IF YOU ARE ACCEPTING THE AGREEMENT ON BEHALF OF A COMPANY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE COMPANY TO THE AGREEMENT, AND THAT YOU HAVE READ AND UNDERSTOOD THE AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU OR THE COMPANY DOES NOT AGREE WITH THE TERMS OF THE AGREEMENT, YOU SHOULD NOT ACCEPT IT. If you are accepting the Agreement on behalf of your company, then the terms “You” and “Your” refer to your company whenever used below. If You have previously accepted a different version of the Agreement, this Agreement supersedes that agreement. If You are not using the Product or Subscription Offering as an end user (i.e. You are a “Partner”) and You have a separately executed agreement with Krumware (e.g., You are an OEM, VAR, etc.), the terms and conditions herein shall apply as specified in that agreement.
2. Structure The “Agreement” means the following components, each as defined in the Glossary: (a) the Master License Agreement (MLA), (b) the EULA; and (c) this document, being the Subscription Terms, including any terms on hyperlinks included in these terms. To the extent of any conflict or ambiguity between the terms and conditions of the MLA, the EULA, and these Subscription Terms, the documents shall apply in the following order of precedence: (i) these Subscription Terms; (ii) the MLA and (iii) the EULA. Each time You renew a Subscription Offering, the then-current version of these Subscription Terms shall apply to that renewal, unless the most recent version of the Subscription Terms no longer refers to Your Subscription Offering, in which case the most recent version of the Subscription Terms referring to Your particular Subscription Offering shall govern Your use of that Subscription Offering. 3. Agreement Effective Date. If You have signed an MLA with Krumware, the Agreement is effective as of the date of final signature of that MLA. If You have not signed an MLA with Krumware, the Agreement becomes effective on the first date You submit an order for Krumware Products, directly or indirectly.
3. Subscription Offerings
3.1 Benefit of Krumware Subscription Offerings. For each Subscription Offering, You are entitled to receive the materials and services, including technical support services as applicable, identified in these Subscription Terms and on the below URLs (“Subscription Benefits”):
a) Krumware Support. Krumware offers ‘Standard’ support and ‘Premium’ support. The level of technical support services to which You are entitled is determined at the time of purchase and specified in your order. In order to receive technical support for a Krumware Product, all of Your installations for that Krumware Product must be covered by a Subscription Offering. Subscription Offering benefits may be conditioned on You having applied the most current maintenance software available; for example, once a new Service Pack becomes available, support may be conditioned on You having applied that Service Pack. Similarly, support for Modules may be conditioned on You having updated to the most recent Module version made available by Krumware.
*b) Software Updates and Upgrades. If Krumware commercially releases any Upgrades and/or Updates during the period covered by Your Subscription Offering, Krumware will make such Upgrades and/or Updates available to You within a reasonable period of time after they become commercially available. You will be entitled (and may be required by Krumware) to install and use such Upgrades and/or Updates up to the number of installations for which You have purchased a Subscription Offering. Use of Upgrades is subject to the restrictions of the EULA provided with the Upgrade.
c) Third-party Products. Krumware shall not be liable to You, and shall not be in breach of any of its obligations under the Agreement, to the extent that any errors or defects in the operation of any Krumware Product is caused by a third-party product with which that Krumware Product interacts or interfaces.
d) Krumware Policies. You agree that your access to and use of the Subscription Offerings shall be subject to, and You agree to at all times comply with, the Krumware policies available at https://www.krum.io/legal/ from time to time.
e) Professional Services. Krumware offers optional professional services including training, consultancy and implementation services, which are as described in a statement of work entered into between You and Krumware or described in standard service descriptions available online at https://www.krum.io/ and referenced in an order placed by You.
f) Additional Promotional Terms. As a condition of Your use and receipt of certain promotional Subscription Offerings (each being a “Promotional Subscription”), Krumware may include limited exceptions or additional terms or restrictions applicable to Your use of certain Subscription Offerings as specified: (a) in a Transaction Document; or (b) on www.krum.io at the time a Transaction Document is entered into (such restrictions or conditions being a “Promotional Conditions”). You agree to comply with any Promotional Conditions applicable to Your Promotional Subscription.
g) Included Promotional Subscription Offerings. A Promotional Subscription for a specific Krumware Product (the “Promotional Product”) may include entitlements to other Krumware Offerings for other Krumware Products at no additional charge or at a discounted price, as specified: (a) in a Transaction Document; or (b) on www.krum.io at the time a Transaction Document is entered into (such additional entitlements being an “Add-On Subscription”). If Your Promotional Subscription for a Promotional Product includes an Add-On Subscription, You may use that Add-On Subscription only if, at the commencement of the term of the Subscription Offering, You have registered all of the Instances of the Promotional Product specified in Your Transaction Document.
3.2 Coverage Requirement When You acquire a Subscription Offering for a Krumware Product, You must also acquire sufficient Subscription Offerings in the applicable Units to cover all installations or deployments of that Krumware Product (including variants or components thereof). This requirement is called Krumware’s “Coverage Model”. By way of example, if the Unit is per device on which a Krumware Product is installed, then You must acquire a Subscription Offering for each device on which that Krumware Product is installed. Upon renewal of a Subscription Offering for a Krumware Product, your payment of Subscription Offering fees will be deemed a representation of the number of installations deployed for that Krumware Product.
3.3. Applying the Coverage Model to Specific Krumware Products. Without limiting Section 3.2, the following specific rules apply: a) Epinio and Epinio by Krumware. The Coverage Model applies to Epinio by Krumware but not Epinio. However, If You deploy Epinio by Krumware and Epinio on the same Epinio by Krumware Server, You must also acquire Subscription Offerings in respect of each deployment of Epinio that shares an Epinio by Krumware Server. Otherwise, Rancher is not subject to the Coverage Model.
3.4 Internal Use
a) Unless You are a Partner or otherwise specified in Your MLA, each Subscription Offering acquired by You is solely for your internal use and internal benefit and may be deployed only on infrastructure owned or managed by You or managed on Your behalf, in each case, exclusively for Your internal benefit. You may not: (a) use any Subscription Offering or Krumware Product for the benefit, directly or indirectly, of any third party, which includes making the Subscription Offering or Krumware Product available as part of any product or service that is sold, leased, rented or otherwise made available by You; (b) allow a third-party to use or access, directly or indirectly, any of Your Subscription Offerings or Krumware Products for that third party’s own benefit; or (c) assign or transfer the Subscription Offering to any third party. In this Section 3.4, Your internal use means use by the entity entering into the Agreement and, subject to Section 3.4(b), Your Affiliates. The usage rights and restrictions set out in this Section 3.4 are “Internal Use”.
b) Your Affiliates may access and use Subscription Offerings acquired by You provided that: (a) You ensure that each Affiliate accessing or using the Subscription Offering complies with the Agreement, including procuring access to such Affiliates’ premises for the purpose of compliance verification in accordance with the Agreement; (b) You are responsible for Your Affiliates’ non-compliance with the Agreement as if it were Your own; (c) You are liable for the payment of all Subscription Offerings used or accessed by Your Affiliate; and (d) nothing in the Agreement grants any Affiliate the right to enforce the Agreement directly against Krumware.
3.5 No Mixing of Subscription Offerings Subscription Offerings may only be applied to the exact Krumware Product for which the Subscription Offering was acquired.
4. Technical Usage Data
Krumware reserves the right to collect and generate technical usage data relating to Customer’s deployments of Krumware Products, including error logs, usage patterns, update status, and the systems on which the Krumware Products are deployed, but in each case, excluding personal data (together, the “Technical Usage Data”). Krumware may collect Technical Usage Data: (a) by way of Your use of certain Krumware Products, where such Krumware Products collect the Technical Usage Data; (b) by requiring You to install or use a tool that captures the Technical Usage Data and provide that Technical Usage Data to Krumware. As a condition of Your use of and access to the Krumware Offerings, You agree that Krumware may collect and generate Technical Usage Data as described in this Section and that Krumware may use, store, analyze, and aggregate the Technical Usage Data solely for the purpose of: (i) performing its obligations under the Agreement; (ii) improving the services Krumware provides to customers; (iii) developing new products and services for customers; and (iv) monitoring Your compliance with the Agreement. Krumware warrants that Technical Usage Data does not include personal data or personally identifiable information.
5. Technical Preview
Krumware may from time to time provide early access to new, beta or pre-release product features and functionality, for You to provide feedback on and for You to test and experiment with (such products and features being “Technical Previews”). Technical Previews are not Krumware Products, are not provided as part of any Krumware Offering and none of the rights or obligations in the Agreement apply to the Technical Previews. WITHOUT LIMITING THE FOREGOING, YOU AGREE THAT THE TECHNICAL PREVIEWS MAY CONTAIN ERRORS AND ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE.
6. Limitation of Liability and Indemnity
6.1 SUBJECT TO SECTION 6.3, NEITHER PARTY, NOR ITS AFFILIATES, WILL BE LIABLE FOR (A) LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF GOODWILL OR LOSS OR CORRUPTION OF DATA, IN EACH CASE WHETHER DIRECT OR INDIRECT; OR (B) ANY INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, IN EACH CASE, WHETHER ARISING UNDER ANY LEGAL OR EQUITABLE THEORY OR ARISING UNDER OR IN CONNECTION WITH THE AGREEMENT, ALL OF WHICH ARE HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER OR NOT ANY PARTY TO THE AGREEMENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.2 SUBJECT TO SECTION 6.3, EACH PARTY’S AGGREGATE LIABILITY UNDER OR RELATING TO THE AGREEMENT: (A) FOR ALL CLAIMS ARISING OUT OF A KRUMWARE OFFERING, IS LIMITED TO THE FEES RECEIVED BY KRUMWARE IN RESPECT OF THE KRUMWARE OFFERING GIVING RISE TO THE FIRST CLAIM UNDER THE AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THAT (FIRST) CLAIM (OR ONE THOUSAND US DOLLARS ($1,000) IF NO AMOUNTS WERE RECEIVED); AND (B) FOR ALL OTHER CLAIMS UNDER OR IN CONNECTION WITH THE AGREEMENT, IS LIMITED TO FIVE THOUSAND US DOLLARS ($5,000). THIS LIMITATION APPLIES REGARDLESS OF THE NATURE OF THE CLAIM, WHETHER CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR OTHER LEGAL THEORY.
6.3 NOTWITHSTANDING ANY OTHER PROVISION OF THE AGREEMENT, NOTHING IN THE AGREEMENT EXCLUDES OR LIMITS: (A) LIABILITY FOR DEATH OR PERSONAL INJURY OR DEATH CAUSED BY ITS NEGLIGENCE, OR (B) LIABILITY FOR FRAUD OR FRAUDULENT MISREPRESENTATION; (C) ANY OTHER LIABILITY THAT CANNOT BE LAWFULLY EXCLUDED OR LIMITED; OR (D) YOUR OBLIGATION TO MAKE PAYMENT OF FEES DUE AND PAYABLE UNDER THE AGREEMENT
7. Governing Law
7.1 The Agreement is governed by, construed in accordance with, and enforced under the substantive law of the State of South Carolina, without giving effect to any contrary choice of law or conflict of law provision or rule (whether of the State of South Carolina or other jurisdiction). Any claim or action brought by a party in connection with the Agreement, or any part hereof, will be brought in the appropriate federal or state court located in the State of South Carolina, and the Parties irrevocably consent to the exclusive jurisdiction of such courts. In any action relating to the Agreement, each of the parties irrevocably waives the right to trial by jury.
7.2 If Your principal place of business is the United Kingdom, or a member state of the European Union or the European Free Trade Association, (1) the courts of England and Wales shall have exclusive jurisdiction over any action of law relating to the Agreement; and (2) the laws of England and Wales shall apply except where the laws of the country of Your principal place of business are required to be applied to any such action of law, in which case the laws of that country shall apply.
Glossary
Capitalised terms used in these Subscription Terms but not defined in this glossary will have the meaning given to them in the MLA or other written contract with Krumware governing Subscription Offerings (as applicable).
A
“Agreement” has the meaning given in Section 2.
B
“Bare Metal Deployment” means installation of the Krumware Product directly onto a computer’s hard disk, or the physical hardware components of a computer, without an operating system, hypervisor or applications being installed.
C
“Client” is the client part of a client-server application.
“Client Device” is the client device of a solution with client and server device.
“Client Server Application” is an application whose design requires two or more parts to fulfill the dedicated purpose: one or more clients and one or more servers acting together.
“Cloud Computing” means a paradigm for enabling network access to a scalable and elastic pool of shareable physical or virtual resources with self-service provisioning and administration on demand.
“Cloud Kubernetes Cluster” means a Kubernetes cluster that has a third party managing the Kubernetes API and etcd Instances associated with the cluster such as (by way of example) EKS and AKS clusters.
“Cloud Services” means one or more capabilities offered via Cloud Computing invoked using a defined interface.
“Container Workloads” are processes running in Containers on a scheduler such as Kubernetes.
“Core” means a subunit within a CPU on a single chip that handles the main computational activities of a computer.
“CPU” means “Central Processing Unit” and is the functional unit (i.e., the “computing part”) of the computer that interprets and executes instructions for a specific instruction set; it is made up of one or multiple Cores, including the control unit and the ALU.
“CSP”, or cloud service provider, means a company offering a cloud-based platform, infrastructure, application, or storage services.
“Current” means an active, valid Subscription Offering. Once a Subscription Offering passes its expiration date, it is “Expired”.
D
“Data Center” means physical location in an enterprise that contains back-end IT systems, infrastructure and data stores, including mainframes, servers and databases, which centrally manage storage, computing and resources for an organization.
“Device” means laptop, desktop, workstation, server or other physical entity which can process and transfer data.
E
“EULA” means the applicable end user license agreement that accompanies and governs the use of Krumware Software which is available at https://www.krum.io/legal.
“Extension” is a product which requires another product as a foundation to be operational.
I
“Instance” is a Physical Server or a Virtual Instance.
M
“MLA” or “Master License Agreement” means the terms of the Master License Agreement entered into between You and Krumware.
“MSP”, or managed service provider, means a company that remotely manages a customer’s IT infrastructure and/or end-user systems, typically on a proactive basis and under a subscription model.
N
“Node” is a physical entity capable of receiving and sending data and temporary storage and reading, writing or performing logical operations with the data. A Node typically consists of one or more Processors, memory, and input/output devices connecting to other Nodes or other types of devices. It can also have access to directly attached persistent storage and special-purpose Processors.
“Non-Production Environment” means an environment other than a Production Environment, including without limitation, development, testing, backup and pre-deployment (or staging) environments.
O
“Operating Environment” can be a Physical Server or Virtualization Host or Virtualization Environment.
P
“Patch (Update)” means a fix or compilation of fixes released by Krumware to correct operation defects (program bugs) in Krumware Products. A patch can contain one or multiple files to replace or enhance existing executables, programs, applications or documents.
“Physical Deployment” means deployment or use within a physical hardware environment without abstracting software or Virtualization Host or Virtual Machine Monitor (VMM).
“Physical Node” means Physical Server.
“Physical Server” means a physical computer system, whether in a network that is shared by multiple users or on its own, regardless of whether the physical computer system has been partitioned by software. A Physical Server may contain one or multiple CPUs, Cores, or Processors, regardless of production capacity.
“Physical System” means Physical Server.
“Price List” means the Corporate Price List as published periodically by Krumware.
“Private Cloud” means a deployment model where Cloud Services are controlled and used exclusively by You.
“Processor” has the same meaning as CPU.
“Product” is a Krumware product, which does not require another product as a foundation to be operational.
“Production Environment” is the set of computers where finished, user-ready software is deployed and executed for live, usable operation for the intended end users.
“Promotional Conditions” has the meaning given in Section 4.1.
“Promotional Subscriptions” has the meaning given in Section 4.1.
“PTF” is a Problem Temporary Fix: it is an issue to correct one or more customer issues for the time being and is supported until a regular patch is released. Some PTFs might require resolution in the next Service Pack for technical and quality reasons.
“Public Cloud” means a deployment model where Cloud Services are potentially available to any Cloud Service customer.
S
“Security Fix” is a corrective fix for a security issue.
“Software” means any Krumware or Krumware Affiliate-branded software product that is included in a Subscription Offering.
“Subscription Offering” means a right to receive technical support, Updates and Upgrades in accordance with Section 4, which You purchase directly or indirectly from Krumware for a Krumware Product.
“Subscription Terms” means these terms setting out rules applicable to Krumware’s Subscription Offerings, as available at https://www.krum.io/legal.
“Krumware Product” is: (1) a software product that you obtain directly from Krumware or indirectly from Krumware (for example, via a distributor or reseller), that is made available for download by Krumware and for which Subscription Offerings are made available; and/or (2) any other open-source software product in respect of which Krumware provides a support and maintenance offering for which Krumware charges fees, as specified at www.krum.io.
T
“Transaction Document” means Krumware’s standard ordering document, an SOW, a Krumware issued quote form as accepted by a matching purchase order, or any other document executed between the Parties for the sale and purchase of a Krumware Offering. Any conflicting or additional terms and conditions set forth in a purchase order shall not form part of a Transaction Document and shall not apply to a Krumware Offering.
U
“Upgrade” means any new version of Krumware Products which bears the same product name, including version changes evidenced by a number immediately to either the left or right of the decimal. If a question arises as to whether a product offering is an Upgrade or a new product, Krumware’s opinion will prevail, provided that Krumware treats the product offering the same for its end users generally.
“User” is a user or entity accessing the system and establishing a connection to the system, or an entry in a directory, regardless of which kind, e.g., a person, an object such as a company name.
V
“vCPU” - virtual central processing unit. One or more vCPUs are assigned to every Virtual Machine (VM) within a cloud environment. Each vCPU is seen as a single physical CPU core by the VM’s operating system.
“Virtual Core” or “vCore” is a logical CPU exposed to the operating system by the Physical Server or Virtual Machine. Enabling or disabling technologies like Intel Hyper-Threading or the AMD SMT extensions can influence the number of Virtual Cores exposed to the operating system.
“Virtualized Deployment” means deployment or use of the product involving a VMM.
“Virtual Device” is a virtualized resource in a Virtual Machine context, e.g. virtualized processor, virtualized block or network device.
“Virtualization Environment” means a group of Virtualization Hosts on which You can deploy Virtual Machines as if they were running on a single Virtualization Host.
“Virtualization Host” is a single Physical Server which executes one or more Virtual Machines by a VMM.
“Virtual Image” see Virtual Instance.
“Virtual Instance” is one entity of an operating system, workload or application, which is executed in a virtual context created by a VMM.
“Virtual Machine” or “VM” or “Virtual Guest” means a virtualized context that can execute e.g. one operating system, workload, application, or multiples of such, like a Physical System. Some VMs can be migrated from one VMM context to another, residing on the same Physical System, or on different Physical Systems, or within logical partitions. Some VMMs allow nesting of VMMs (multiple layers of virtualization with the same or different VMMs).
“Virtual Machine Monitor (VMM) or Hypervisor” describes a software and/or hardware technology, which allows creation of one or multiple virtualized contexts for sharing and/or isolating resources of the underlying hardware. A VMM can, by way of example, manage and expose these resources to an operating system, workload environment or application. VMMs include without limitation KVM, Xen, Microsoft Hyper-V, VMware vSphere Hypervisor, DLPAR, LPAR, and z/VM.
“Virtual System” is a virtualized context which is able to abstract a Physical System, like a Virtual Machine. See VM.
“Virtualization Technology” means software and/or hardware technology used to implement e.g. a Virtual Machine Monitor (VMM) and supporting functions such as to manage the lifecycle of a Virtual Machine.