End-User License Agreement#

Penguin Computing Software End User License Agreement

Last revised: 6/16/2026

LEGAL NOTICE - READ CAREFULLY BEFORE INSTALLING OR OTHERWISE USING THIS SOFTWARE.

This License Agreement (the "Agreement") is a legal agreement between you, a single legal entity ("End User"), and Penguin Computing ("Penguin"), each individually a “Party,” and collectively the “Parties”. This Agreement governs your use of the ClusterWareAI™ software defined below (the "Software") and any accompanying written materials (the "Documentation"). You must accept the terms of this Agreement before installing, downloading, accessing or otherwise using such Software and documentation.

By "ACCEPTING" at the end of this Agreement, you are indicating that you have read and understood, and assent to be bound by, the terms of this Agreement. If you are an individual working for a company, then you represent and warrant you have all necessary authority to bind your company to the terms and conditions of this Agreement.

If you do not agree to the terms of the Agreement, you are not granted any rights whatsoever in the Software or Documentation. If you are not willing to be bound by these terms and conditions, do not "ACCEPT" the Agreement and remove the software from the system immediately.

END USER LICENSE AGREEMENT FOR SOFTWARE

  1. Definitions

    • "Clustered System" means a collection of computer systems managed by the Software and for which the total number of computers in the system is specified in the End User purchase order.

    • "Master Node" means the computer or computers designated as the Master Node(s) in the applicable End User purchase order, where the Software is initially installed and from which the total number of computers comprising the Clustered System are managed.

    • "Software" means the software provided under this Agreement by Penguin or its authorized distributor or reseller and for which the applicable End User purchase order specifies: (i) the Software to be licensed by End User; (ii) the Master Node(s); (iii) the license fees; and (iv) the total number of computers in the Clustered System for which End User has paid applicable license fees and the term of the Software usage. The Software is comprised of a collection of software components that fall into three (3) categories: (a) "Unpublished Software" which is owned by Penguin and/or its licensors and licensed under the terms of this Agreement; (b) "Published Software" which is owned by Penguin and licensed under the GPL version 2 open source license or such other open source license as Penguin may elect in its sole discretion; and (c) "Open Source Software" which is owned by various entities other than Penguin and is subject to the "open source" or "free software" licenses, including but not limited to General Public Licenses (GPL), Lesser General Public License (LGPL), Apache, Artistic, BSD, IBM Public, Mozilla, Omron, Open Group Public License, and Python licenses.

    • "Client Connections" means the simultaneous connections between any software client and Software, where a connection creates a persistent and unique Software session per software client.

  2. License

    • License Grant. Subject to the terms and conditions of this Agreement, Penguin grants to End User a non-exclusive, non-transferable, non-sublicensable right and license to (a) reproduce (solely to download and install), perform, and execute the Unpublished Software on the specified Master Node(s), solely for End User's internal purposes, and (i) solely for use on the number of computers in the Clustered System and (ii) not to exceed the maximum number of Client Connections for which End User has paid the required license fees for the authorized term; and (b) make one (1) copy of the Unpublished Software and Documentation for backup and/or archival purposes only.

    • Restrictions. The End User shall not, and shall not permit any third party to: (a) sell, lease, license, rent, loan, or otherwise transfer the Unpublished Software or Documentation, with or without consideration; (b) permit any third party to access or use the Unpublished Software or Documentation; (c) permit any third party to benefit from the use or functionality of the Unpublished Software via a timesharing, service bureau, or other arrangement; (d) transfer any of the rights granted to End User under this Agreement; (e) reverse engineer, decompile, or disassemble the Unpublished Software; (f) modify or create derivative works based upon the Unpublished Software or Documentation, in whole or in part; (g) reproduce the Unpublished Software or Documentation, except as expressly permitted in Section 2.1 above; (h) remove, alter, or obscure any proprietary notices or labels on the Unpublished Software or Documentation; (i) use the Unpublished Software for any purpose other than expressly permitted in Section 2.1 above; or (j) use the Unpublished Software for more than the total number of computers, or longer than the authorized term the End User is licensed for pursuant to Section 2.1 above.

    • Open Source Software. The Open Source Software and Published Software are not subject to the terms and conditions of Sections 2.1, 2.2, or 6. Instead, each item of Open Source Software and Published Software is licensed under the terms of the end-user license that accompanies such Open Source Software and Published Software, as may be located in the product packaging or available on-line. End User agrees to abide by the applicable license terms for any such Open Source Software and Published Software. Nothing in this Agreement limits End User's rights under, or grants End User rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software or Published Software. In particular, nothing in this Agreement restricts End User's right to copy, modify, and distribute any of the Open Source Software and Published Software that is subject to the terms of the GPL and LGPL. For the Open Source Software and Published Software subject to the GPL and LGPL, for a period of three (3) years following End User's receipt of the Software, End User may contact Penguin at the address below in writing and request a copy of the source code for such Open Source Software or Published Software at Penguin's then-current fees.

  3. Ownership. The Software is licensed, not sold. Penguin and its licensors retain exclusive ownership of all applicable worldwide copyrights, trade secrets, patents, and all other intellectual property rights throughout the world, and all applications and registrations relating thereto, in and to the Unpublished Software, Published Software, and Documentation, and any full or partial copies thereof, including any additions or modifications to the Unpublished Software and Documentation. End User acknowledges that, except for the limited license rights expressly provided in this Agreement or the Open Source Licenses, as applicable, no right, title, or interest to the intellectual property in the Software or Documentation is provided to End User, and that End User does not obtain any rights, express or implied, in the Software or Documentation. All rights in and to the Software not expressly granted to End User in this Agreement or the Open Source Licenses, as applicable, are expressly reserved to Penguin and its licensors. The "ClusterWareAI™" and "Penguin Computing" trademarks and associated logos are the trademarks of Penguin and its affiliates. This Agreement does not permit End User to use the Penguin trademarks.

  4. Limited Warranty. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE SOFTWARE IS PROVIDED AND LICENSED "AS IS" WITHOUT WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSE. PENGUIN DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET THE END USER'S REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE ERROR FREE OR APPEAR PRECISELY AS DESCRIBED IN THE ACCOMPANYING DOCUMENTATION.

  5. Limitation of Liability/Direct Damages Cap. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PENGUIN SHALL NOT BE LIABLE FOR ANY COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE (INCLUDING WITHOUT LIMITATION LOSS OF USE, DATA, PROFIT, OR BUSINESS) ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY, WHETHER IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PENGUIN’S CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY RECEIVED BY PENGUIN UNDER THIS AGREEMENT FOR THE PRODUCTS OR SERVICES GIVING RISE TO THE CLAIM.

  6. Confidential Information.

    • “Confidential Information” means all technical, financial, and business information disclosed by a party (“Discloser”) to the other party (“Recipient”), including, but not limited to, trade secrets, know-how, techniques, data, specifications, software, programs, documentation, training materials, product roadmaps, business plans, business operations and systems information, strategies, and information that is marked or identified as confidential or proprietary, or which, given the nature of the information and the circumstances surrounding disclosure, should reasonably be understood by the Recipient to be confidential.

    • Confidential Information does not include any information which the Recipient can demonstrate was: (i) rightfully in its possession prior to disclosure without restriction, (ii) generally available to the public or became generally available to the public through no breach of this Agreement, (iii) rightfully received from a third party without restriction, or (iv) independently developed by or for the Recipient without use of or reference to Confidential Information of the Discloser.

    • During the term of the Agreement and for three years following the last disclosure, a Recipient of Confidential Information related to this Agreement must protect Confidential Information using at least the same care used for its own information (not less than reasonable care) and use it solely for the essential purposes of the Agreement. Recipient may only disclose Confidential Information to its representatives with a need to know who are bound by similar confidentiality terms, and Recipient remains fully responsible for any unauthorized disclosure by those representatives. Disclosure may be made to comply with governmental orders if Recipient gives notice, discloses only what's required, and seeks confidential treatment. No license to Confidential Information under any intellectual property right is granted, its ownership remains with Discloser, and Recipient must return or destroy all Confidential Information upon request. All Confidential Information is provided "as-is" with no warranties as to accuracy, completeness, or usefulness.

  7. Term and Termination. This Agreement will remain in effect until terminated or for the authorized term of license usage. End User may terminate this Agreement by removing the Unpublished Software from End User's computers, ceasing all use thereof, and destroying all copies of the Unpublished Software and Documentation and certifying to Penguin that it has done so. Any breach of this Agreement by End User will result in the immediate and automatic termination of this Agreement and licenses granted by Penguin herein, and End User shall cease all use of and destroy all copies of the Unpublished Software and Documentation and certify to Penguin that it has done so. In addition to termination, Penguin will have the right to pursue any other remedies available to it under law or in equity.

  8. Export Controls. Each Party shall comply with all applicable export control laws and regulations, including but not limited to the U.S. Export Administration Regulations (EAR), the International Traffic in Arms Regulations (ITAR), and the economic sanctions regulations administered by the U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC). Neither Party shall export, re-export, transfer, or release, directly or indirectly, any technical data, software, product, or service provided under this Agreement to any prohibited or restricted destination, entity, or individual without first obtaining all required government authorizations. Each Party represents and warrants that it is not located in, under the control of, affiliated with, or a national or resident of any country or territory subject to U.S. sanctions, and is not listed on any U.S. government denied-party list.

  9. U.S. Government End Users. The Software is a "commercial item" as that term is defined at 48 C.F.R. 2.101 (OCT 1995), consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), all U.S. Government End Users acquire the Software with only those rights set forth herein.

  10. Miscellaneous. This Agreement, together with any exhibits, schedules, or attachments hereto, constitutes the complete and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. This Agreement supersedes all pre-printed terms and conditions contained in any purchase order or other business form submitted hereafter by either Party. Software shall be deemed irrevocably accepted by End User upon installation. No amendment or waiver of this Agreement is effective unless in writing and signed by both Parties. Except as expressly stated, no failure or delay in exercising any right or remedy under this Agreement constitutes a waiver, nor does any partial exercise preclude further or other exercises thereof. The headings in this Agreement do not affect its interpretation. Neither Party may assign or transfer any of its rights or delegate any of its obligations under this Agreement without the other Party's prior written consent, which shall not be unreasonably withheld. Notwithstanding the foregoing, Penguin may assign this Agreement to an Affiliate or to a successor following a Change of Control (defined as acquisition of 50% or more of voting securities, business combination, or transfer of substantially all assets). Any unauthorized assignment, transfer, or delegation shall be void. This Agreement shall bind and benefit the Parties' permitted successors and assigns. If any provision of this Agreement is determined to be invalid or unenforceable, it shall be adjusted rather than voided, if possible, to achieve the intent of the Parties. All other provisions shall be deemed valid and enforceable to the maximum extent possible. This Agreement shall be governed by and construed in accordance with the laws of the State of California, United States of America, without giving effect to any choice of law or conflict of law provisions or rules. The United Nations Convention on Contracts for the International Sale of Goods (1980) is specifically excluded and shall not apply. In the event of any dispute relating to this Agreement ("Dispute"), the Parties will first attempt resolution through good faith negotiations initiated by written notice. If unresolved within thirty (30) days, the Dispute will be resolved through binding arbitration administered by JAMS/Endispute in San Francisco, with proceedings in English and conducted by one (1) arbitrator (or three (3) if the amount exceeds $500,000); the prevailing Party may recover reasonable fees and expenses. Notwithstanding these procedures, Penguin may seek interim or injunctive relief in any court to protect intellectual property rights, enforce payment, or prevent irreparable harm. The Parties agree that any dispute resolution or arbitration shall be pursuant to the procedural and substantive laws of the State of California. All proceedings, documents, and communications related to any Dispute shall be considered Confidential Information.