End-user licence agreement

End-user licence agreement for Timoneer

One document, two tracks. This Agreement has a free track and a commercial track, and the same copy of the Software is licensed under both: which track applies depends on who uses it and for what, not on which file was downloaded.

The terms of your copy. This Agreement is contained in the installer file from which you install the Software, and that copy is licensed on it. We publish the SHA-256 digest of each installer file at https://timoneer.lumasoft.org before it can be downloaded. A later version of this Agreement does not apply to a copy installed from an earlier installer file; the only exception is a Threshold Notice (section 1.3).

How this Agreement binds you. This Agreement is published at https://timoneer.lumasoft.org before the download and placed beside the Software on your device. By installing or using the Software you accept it. If you do not accept it, do not install or use the Software.

Licensor. LUMA spółka z ograniczoną odpowiedzialnością (LUMA sp. z o.o.), ul. Gawronia 15, 04-785 Warszawa, Poland, entered in the Polish National Court Register (KRS) under number 0001244636, NIP 9522285489, REGON 544875680 ("we", "us").

1. Definitions

1.1 "Software" means Timoneer as the program in the installer file that contains this Agreement, together with the files that installer places on your device.

1.2 "Organisation" means a legal person, an organisational unit without legal personality, or an individual carrying on a business or profession, for whose activity the Software is used.

1.3 "Threshold". The Threshold is the income level and the funding level stated in the Threshold Notice we publish at https://timoneer.lumasoft.org, each with the date from which it applies. An Organisation, counted together with every entity that controls it, is controlled by it or is under common control with it, is above the Threshold on a given day when (a) its net revenue from sales for its last financial year closed before that day exceeds the income level, or (b) the funding it has raised in the 36 months ending on that day exceeds the funding level. "Funding" means only contributions to share capital and to supplementary or reserve capital, including any share premium, and loans, notes or other instruments convertible into shares or other equity interests; grants, subsidies and loans or credit that are not convertible are not funding. Both are taken from the Organisation's own records, with amounts in other currencies converted into Polish zloty at the average exchange rate published by the National Bank of Poland (table A) for the last business day before the day concerned, and are never reported to us. A Threshold Notice never applies to a period before its publication. As to a copy of the Software already downloaded, a later Threshold Notice may only raise a level, and the raised level applies to that copy from the end of the period of notice stated in that Threshold Notice.

1.4 "Sales Opening Day" means the day from which we offer Entitlement Files for sale, announced at https://timoneer.lumasoft.org no later than 30 days before that day.

1.5 "Entitlement File" means a file signed by us that states the period of its validity and states either that its holder is above the Threshold and holds the right to Commercial Use, or that its holder declared that it is not above the Threshold.

1.6 "Commercial Use" means use of the Software by or for an Organisation in the course of its activity.

2. Licence grant - the free track

2.1 Subject to this Agreement, we grant you a non-exclusive, non-transferable, worldwide licence, without the right to grant sublicences, to:

• (a) install the Software and store it on any number of devices you own or control;
• (b) run, display and use the Software, including the permanent or temporary reproduction that running it requires;
• (c) keep copies of the installer file for backup and for installing the Software under (a), including within your Organisation.

Any other use requires our consent, except as section 3.2 or the law permits.

2.2 The free track applies to:

• (a) every individual using the Software outside the activity of an Organisation;
• (b) every Organisation that is not above the Threshold;
• (c) every Organisation, whatever its size, until the Sales Opening Day (section 4).

2.3 The free track carries no fee. Using the Software on either track does not require an account, a sign-in with us, an activation, or any connection to a server of ours. How the Software behaves on the network is described in the zero-telemetry commitment shown on the Software's About screen.

2.4 Term, and the copies already downloaded. The free track for an individual is not limited in time by this Agreement. We do not end it at our will; it ends only if you breach this Agreement.

2.5 Consumers. Nothing in this Agreement limits a right that the law gives you as a consumer and that cannot be excluded by contract. This applies also to an individual carrying on a business to whom the law gives a consumer's protection for a given contract.

2.6 Your data. The Software sends the data in your clusters and your kubeconfig only to the Kubernetes API servers your kubeconfig names, and to no server of ours. We have no access to that data through the Software. If you send us anything yourself, such as a report, a log or a crash dump, the information notice published at https://timoneer.lumasoft.org applies to it.

3. Commercial use, and restrictions

3.1 The commercial track. From the Sales Opening Day, an Organisation above the Threshold may make Commercial Use of the Software only while it holds a valid Entitlement File. The statement about the Threshold that the Organisation makes when it buys an Entitlement File is a condition of that right.

3.2 Restrictions. This clause applies on both tracks.

• (a) You may not distribute, sell, rent, lend or sublicense the Software or the installer file outside your Organisation, and you may not distribute a modified copy of the Software.
• (b) You may not remove or alter copyright notices, trademark notices or the third-party notices in the Software.
• (c) You may modify the Software for your own use and reverse engineer it for debugging such modifications.
• (d) Nothing in this Agreement limits an act that the law permits you to perform without our consent and that cannot be excluded by contract.

Licences of third-party components. Components of the Software that are licensed to you under their own licences, as listed in the file THIRD-PARTY-NOTICES.txt delivered with the Software, are governed by those licences as to those components. Nothing in this Agreement restricts a right that such a licence grants you, and where this Agreement and such a licence differ as to that component, that licence prevails.

3.3 Names and marks. This Agreement grants no right to our names, logos or trademarks.

4. Transitional clause - before the Sales Opening Day

4.1 Until the Sales Opening Day (section 1.4), every Organisation is on the free track, and section 3.1 does not apply.

4.2 No fee is due for any use of the Software before the Sales Opening Day, including Commercial Use by an Organisation above the Threshold.

4.3 The Sales Opening Day does not change this Agreement. It starts the application of section 3.1.

5. The Entitlement File

5.1 Entitlement Files for Commercial Use are sold only to businesses, for use in the course of their business or professional activity, and not to consumers. We issue such a file only after the seller confirms payment for it. An Entitlement File stating that its holder declared that it is not above the Threshold is issued free of charge. Each Entitlement File covers only the period it states.

5.2 The Entitlement File is evidence, not the grant. The right to Commercial Use is granted by this Agreement; an Entitlement File for Commercial Use evidences that its holder bought that right for its period, and an Entitlement File stating that its holder is not above the Threshold evidences only that declaration. An Entitlement File for Commercial Use evidences that right only for the Organisation that bought it, and passing the file to anyone else transfers no right.

5.3 When an Entitlement File expires, the Software works exactly as before. Expiry ends only the right to Commercial Use that the file evidenced. The Software behaves the same with or without an Entitlement File. It never contacts us to check one; whether a file is valid, expired, missing or unreadable changes only a sentence on its About screen.

5.4 The seller. Entitlement Files are sold by the seller named at checkout, which may be a reseller acting in its own name. The seller's terms of sale govern price, taxes, invoicing, payment, withdrawal, refunds and renewal. This Agreement governs your use of the Software. On the licence this Agreement prevails; on the sale, the terms of sale prevail.

5.5 Refunds. If the payment for an Entitlement File is refunded or reversed, the right to Commercial Use that the file evidences ends on that day, even if the file still verifies in the Software.

5.6 What the file carries. An Entitlement File carries no name, e-mail address, device identifier or other identifier of you or your Organisation, and the Software reads it on your device without sending it anywhere.

6. Warranty, liability and governing law

6.1 Warranty.

• (a) If you are a consumer, you have the rights the law gives you as to the conformity of the Software, and nothing in this section limits them.
• (b) Otherwise, to the extent the law allows, the Software is provided as it is, with no warranty beyond what this Agreement states.

6.2 Liability.

• (a) Nothing in this Agreement excludes or limits liability for damage caused intentionally or through gross negligence, for death or personal injury, under the law on defective products, or any liability the law does not allow to be excluded or limited.
• (b) Subject to (a), where you use the Software in the course of a business or profession, we are not liable for lost profits, loss of data or business interruption.

6.3 Governing law and jurisdiction. This Agreement is governed by Polish law. If you are a consumer habitually resident in another country, this choice does not deprive you of the protection of the provisions of that country's law that cannot be derogated from by agreement, and you may bring proceedings in the courts where you are domiciled. Other disputes are decided by the court competent for our registered office.