Penguin Computing, Inc.
45800 Northport Loop West, Fremont, CA 94538
Tel: 415-954-2800 
www.penguincomputing.com

Penguin Computing Software End User License Agreement

Last revised: 2/22/2025

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, Inc. ("Penguin"). This 
Agreement governs your use of the ICE RemoteWare™ 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 EULA and remove the software 
from the system immediately.

END USER LICENSE AGREEMENT FOR ICE RemoteWare™ Software

1. Definitions.

1.1 "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.

1.2 "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.

1.3 "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components that fall into three (3) categories: (a) "Unpublished Software" which 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 (LPGL), Apache, Artistic, BSD, 
IBM Public, Mozilla, Omron, Open Group Public License, and Python licenses.

1.4 "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.

2.1 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.

2.2 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.

2.3 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 “ICE ClusterWare™” and “ICE RemoteWare” 
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. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, 
PENGUIN NOR ANY OF ITS AUTHORIZED DISTRIBUTORS, RESELLERS AND LICENSORS WILL BE  
LIABLE TO END USER FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, 
LOST OPPORTUNITIES, LOST SAVINGS, OR LOST DATA OR COST OF COVER ARISING OUT OF 
THE USE OR INABILITY TO USE THE SOFTWARE OR DOCUMENTATION OR ANY SERVICES 
HEREUNDER, HOWEVER CAUSED ON ANY THEORY OF LIABILITY (INCLUDING CONTRACT, STRICT 
LIABILITY, OR NEGLIGENCE), EVEN IF PENGUIN, ITS AUTHORIZED DISTRIBUTORS, 
RESELLERS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 
IN NO EVENT SHALL PENGUIN'S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE 
AMOUNT ACTUALLY PAID BY END USER TO PENGUIN FOR THE SOFTWARE GIVING RISE TO THE 
CLAIM.  END USER ACKNOWLEDGES THAT THE AGREEMENT REFLECTS AN ADEQUATE AND 
ACCEPTABLE ALLOCATION OF RISK.

6. Confidential Information. Unpublished Software and the structure, 
organization, and code of the Unpublished Software, including but not limited to 
the shell scripts of the Unpublished Software, are confidential and proprietary 
information ("Confidential Information") of Penguin and/or its licensors. End 
User agrees to safeguard such Confidential Information with a degree of care 
commensurate with reasonable standards of industrial security for the protection 
of trade secrets and proprietary information such that no unauthorized use is 
made of such information and no disclosure of any part of its contents is made 
to anyone other than End User's employees whose duties reasonably require such 
disclosure in order to effectuate the purposes of this Agreement.

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. End User acknowledges and agrees that the Software and 
Documentation which is the subject of this Agreement may be controlled for 
export purposes. End User agrees to comply with all United States export laws 
and regulations including, but not limited to, the United States Export 
Administration Regulations, International Traffic in Arms Regulations, 
directives and regulations of the Office of Foreign Asset Control, treaties, 
Executive Orders, laws, statutes, amendments, and supplement thereto. End User 
assumes sole responsibility for any required export approval and/or licenses and 
all related costs and for the violation of any United States export law or 
regulation.

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. 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 is the final, complete and exclusive agreement 
between the parties relating to the Software and Documentation, and supersedes 
all prior or contemporaneous proposals, representations, understandings, or 
agreements relating thereto, whether oral or written. Software shall be deemed 
irrevocably accepted by End User upon installation. No waiver or modification 
of the Agreement will be valid unless signed by each party. The waiver of a 
breach of any term hereof will in no way be construed as a waiver of any other 
term or breach hereof. The headings in this Agreement do not affect its 
interpretation. End User may not assign or transfer any of its rights or 
obligations under this Agreement to a third party without the prior written 
consent of Penguin. Any attempted assignment or transfer in violation of the 
foregoing will be null and void. If any provision of this Agreement is held by 
a court of competent jurisdiction to be unenforceable, the remaining provisions 
of this Agreement will remain in full force and effect. This Agreement is 
governed by the laws of the State of California without reference to conflict 
of laws principles that would require the application of the laws of any other 
state. The United Nations Convention on Contracts for the International Sale of 
Goods shall not apply to this Agreement. All disputes arising out of this 
Agreement will be subject to the exclusive jurisdiction of the state and federal 
courts located in San Francisco County, California, and the parties agree and 
submit to the personal and exclusive jurisdiction and venue of these courts. 
Should you have any questions about this Agreement, or if you desire to contact 
Penguin, please contact us by mail at 
Penguin Computing, Inc., 45800 Northport Loop West, Fremont, CA 94538. 
