CLASTIX End User Licence Agreement

1.1 kMetal is proprietary, commercially licensed software. It is not open-source, freeware, or shareware. The commercial terms governing your use of kMetal – including pricing, the number of licensed CPU sockets, permitted deployment environments, and subscription duration – are set out in a separate written agreement between you and CLASTIX (the Commercial Agreement). In the event of any conflict between this Agreement and the Commercial Agreement, the Commercial Agreement shall prevail in respect of commercial terms.

1.2 Subject to the terms of this Agreement and upon execution of a Commercial Agreement, we grant you a non-exclusive, non-transferable licence to install and use kMetal and its associated documentation (Documents) for the scope and duration defined in your Commercial Agreement.

1.3 In accordance with your Commercial Agreement, you may:

(a) download, install, and use kMetal on the number of CPU sockets and within the environments specified in your Commercial Agreement;

(b) make up to two copies of kMetal for backup or disaster recovery purposes only, provided you maintain a record of such copies and take reasonable steps to prevent unauthorised access; and

(c) receive and use any updates, patches, or corrections to kMetal provided by us during your active subscription term.

1.4 Proof of Concept use. Where CLASTIX has agreed in writing to conduct a Proof of Concept (PoC) engagement with you prior to the execution of a Commercial Agreement, we grant you a limited, non-exclusive, non-transferable, revocable licence to use kMetal solely for the purposes, in the environments, and for the duration agreed with your CLASTIX representative. PoC use is provided “as is” without warranty, support, or indemnification of any kind, and may be terminated by us at any time on written notice. All other terms of this Agreement apply to PoC use.

1.5 Open-source adopters. CLASTIX acknowledges that some users may independently deploy Kamaji and/or Capsule under their respective open-source licences – including as a precursor to a commercial engagement with CLASTIX. Such use is governed exclusively by the applicable open-source licence and does not create any commercial obligation, warranty, or licence grant from CLASTIX in respect of kMetal. The terms of this Agreement and any associated commercial obligations arise only upon execution of a Commercial Agreement.

2.1 Kamaji. Kamaji is an open-source project owned by CLASTIX and made available under the Apache License, Version 2.0. A copy of that licence is available at https://www.apache.org/licenses/LICENSE-2.0. Your use of Kamaji is governed solely by the Apache 2.0 licence and this Agreement does not apply to it. No licence fees are payable for the use of Kamaji as open-source software. Commercial support services for Kamaji are available from CLASTIX and, if engaged, are governed by a separate written support agreement.

2.2 Capsule. Capsule is an open-source Kubernetes multi-tenancy framework originally created by CLASTIX and donated to the Cloud Native Computing Foundation (CNCF). Capsule is a CNCF-hosted project and CLASTIX acts as its founding contributor. Your use of Capsule is governed solely by the applicable CNCF project licence. CLASTIX imposes no additional licence terms on the use of Capsule. For more information, visit https://projectcapsule.dev.

In respect of kMetal, except as expressly set out in this Agreement or your Commercial Agreement, or as permitted by applicable law, you undertake:

(a) not to copy kMetal or its Documents except where such copying is incidental to normal use or where necessary for backup or operational security as permitted under Clause 1.3(b);

(b) not to use kMetal beyond the scope of use defined in your Commercial Agreement, including with respect to the number of licensed CPU sockets and permitted deployment environments;

(c) not to rent, lease, sub-licence, loan, translate, merge, adapt, vary, or modify kMetal;

(d) not to make alterations to, or modifications of, the whole or any part of kMetal, nor permit kMetal or any part of it to be combined with or incorporated in any other programs;

(e) not to disassemble, decompile, reverse-engineer, or create derivative works based on kMetal, or otherwise attempt to derive its source code, except to the extent that such actions cannot be prohibited because they are essential for achieving inter-operability with another software program under applicable Italian and EU intellectual property legislation (including Article 64-quater of Legislative Decree No. 518/1992 implementing the EU Software Directive, as amended), and provided that information obtained during such activities:

(i) is used only for the purpose of achieving inter-operability;

(ii) is not disclosed to any third party without our prior written consent; and

(iii) is not used to create software substantially similar to kMetal;

(f) to supervise and control use of kMetal and ensure that it is used by your employees, contractors, and representatives in accordance with the terms of this Agreement;

(g) to include our copyright notice on all copies of kMetal made on any medium;

(h) not to provide or otherwise make kMetal available, in whole or in part, to any person other than your employees or authorised contractors without our prior written consent;

(i) to comply with all applicable technology control or export laws and regulations; and

(j) not to use kMetal for any purpose which may be deemed immoral, illegal, offensive, threatening, abusive, or otherwise harmful.

4.1 In this clause, “Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets), and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.

4.2 You acknowledge that all Intellectual Property Rights in kMetal and its Documents anywhere in the world belong to CLASTIX, that rights to use kMetal are licensed (not sold) to you, and that you have no rights in, or to, kMetal or its Documents other than the right to use them in accordance with the terms of this Agreement.

4.3 You may not delete, remove, hide, move, or alter any trademark, logo, icon, image, text, or proprietary notice that appears as part of kMetal or its Documents.

4.4 You acknowledge that you have no right to access kMetal in source code form.

4.5 The integrity of kMetal is protected by technical protection measures (TPMs). You must not attempt in any way to remove or circumvent any such TPM, except to the extent strictly necessary for the purpose of exercising your rights under Clauses 3(a) or 3(e).

5.1 Subject to the limitations and exclusions of liability below, we warrant that properly licensed kMetal will substantially conform with the valid Documentation for the duration of your active subscription.

5.2 Subject to Clause 5.1, kMetal is provided “as is” without any warranty of any kind, whether express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement.

5.3 We do not warrant that kMetal will meet your specific requirements or that its operation will be uninterrupted or error-free. You are solely responsible for all costs and expenses associated with rectification, repair, or damage caused by such errors.

5.4 We shall not be liable if kMetal fails to operate in accordance with the limited warranty in Clause 5.1 as a result of any modification not performed by us, or caused by abuse, corruption, or incorrect use (including use with incompatible equipment or software), or as a result of use in breach of this Agreement.

5.5 To the maximum extent permitted by applicable law, your sole and exclusive remedy for any material defects in kMetal shall be, at our sole option and expense, to repair or replace the affected software. Support level agreements for kMetal are available on request.

6.1 We shall not in any circumstances be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:

(a) loss of profits, sales, business, or revenue;

(b) business interruption;

(c) loss of anticipated savings;

(d) loss or corruption of data or information;

(e) loss of business opportunity, goodwill, or reputation; or

(f) any indirect or consequential loss or damage.

6.2 Other than the losses set out in Clause 6.1, our maximum aggregate liability under or in connection with this Agreement shall in all circumstances be limited to a sum equal to the licence fees paid by you to us during the preceding 6-month period. This maximum cap does not apply to Clause 6.3.

6.3 Nothing in this Agreement shall limit or exclude our liability for:

(a) death or personal injury resulting from our negligence;

(b) fraud or fraudulent misrepresentation; or

(c) any other liability that cannot be excluded or limited by Italian law.

6.4 This Agreement sets out the full extent of our obligations and liabilities in respect of kMetal. Except as expressly stated in this Agreement, there are no conditions, warranties, representations, or other terms, express or implied, that are binding on us.

7.1 We may terminate this Agreement and your right to use kMetal immediately by written notice if you:

(a) commit a material or persistent breach of this Agreement or your Commercial Agreement which you fail to remedy (if remediable) within 7 days after the service of written notice requiring you to do so;

(b) fail to pay any amount due under your Commercial Agreement on the due date for payment;

(c) are unable to pay your debts as they fall due, or are the subject of bankruptcy, insolvency, or similar procedures under Italian or applicable law; or

(d) suspend or cease, or threaten to suspend or cease, carrying on all or a substantial part of your business.

You shall keep confidential all information of a confidential nature (including trade secrets and information of commercial value) which may become known to you from us in connection with this Agreement. You shall not use such information for your own purposes or disclose it to any third party without our prior written consent, except to your professional advisors or as required by law or regulatory authority, and unless that information is or becomes public knowledge through no fault of yours. You shall use reasonable endeavours to prevent the unauthorised disclosure of any such information.

9.1 You shall not export, directly or indirectly, any licence, software, documentation, or technical data acquired from us in breach of any applicable laws or regulations (Export Control Laws), including applicable EU and Italian export control regulations, without first obtaining any required governmental licence or approval.

9.2 You shall use kMetal solely in a manner that complies with the terms of this Agreement and all applicable laws and regulations.

Any notice given by you to us, or by us to you, shall be in writing and delivered by email. Notices will be deemed received and properly served 24 hours after an email is sent. Contact details for CLASTIX are available at www.clastix.io or by emailing hello@clastix.io.

11.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this Agreement caused by any act or event beyond our reasonable control, including without limitation failure of public or private telecommunications networks (Event Outside Our Control).

11.2 If an Event Outside Our Control takes place:

(a) our obligations under this Agreement will be suspended for the duration of the Event Outside Our Control; and

(b) we will use our reasonable endeavours to find a solution by which our obligations may be performed despite the Event Outside Our Control.

12.1 We may transfer our rights and obligations under this Agreement to another organisation, but this will not affect your rights or our obligations under this Agreement.

12.2 You may only transfer your rights or obligations under this Agreement to another person or entity with our prior written consent.

12.3 This Agreement, together with your Commercial Agreement, constitutes the entire agreement between us relating to kMetal and supersedes all previous agreements, representations, and understandings between us relating to its subject matter.

12.4 If we fail to enforce any of our rights under this Agreement, or if we delay in doing so, that will not constitute a waiver of those rights. Any waiver must be given by us in writing.

12.5 Each provision of this Agreement operates separately. If any court or competent authority decides that any provision is unlawful or unenforceable, the remaining provisions will remain in full force and effect.

12.6 This Agreement and any non-contractual disputes or claims arising out of or in connection with it are governed by Italian law. We both irrevocably agree to the exclusive jurisdiction of the courts of Naples, Italy (Tribunale di Napoli), save that we reserve the right to bring proceedings against you in any other court of competent jurisdiction.

12.7 Any questions concerning this Agreement should be directed to us at www.clastix.io or hello@clastix.io.