Scyld ClusterWare End-User License Agreement

Penguin Computing Software End User License Agreement

Last revised: 1/4/2012

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"). This Agreement governs your use of the Scyld 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 SCYLD 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  The Software is comprised of a collection of software components that fall into three (3) categories: (a) "Scyld Unpublished Software" which is owned by Penguin and/or its licensors and licensed under the terms of this Agreement; (b) "Scyld Published Software" which is owned by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.

• "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-sub licensable right and license to (a) reproduce (solely to download and install), perform, and execute the Scyld 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 Scyld 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 Scyld Unpublished Software or Documentation, with or without consideration; (b) permit any third party to access or use the Scyld Unpublished Software or Documentation; (c) permit any third party to benefit from the use or functionality of the Scyld 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 Scyld Unpublished Software; (f) modify or create derivative works based upon the Scyld Unpublished Software or Documentation, in whole or in part; (g) reproduce the Scyld 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 Scyld Unpublished Software or Documentation; (i) use the Scyld Unpublished Software for any purpose other than expressly permitted in Section 2.1 above; or (j) use the Scyld 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 Scyld 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 Scyld Published Software is licensed under the terms of the end-user license that accompanies such Open Source Software and Scyld 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 Scyld 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 Scyld 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 Scyld Published Software that is subject to the terms of the GPL and LGPL. For the Open Source Software and Scyld 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 Scyld 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 Scyld Unpublished Software, Scyld Published Software, and Documentation, and any full or partial copies thereof, including any additions or modifications to the Scyld 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 "Scyld, "Scyld Beowulf", "Scyld ClusterWare" and "Scyld 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. 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. Scyld Unpublished Software and the structure, organization, and code of the Scyld Unpublished Software, including but not limited to the shell scripts of the Scyld 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 Scyld Unpublished Software from End User's computers, ceasing all use thereof, and destroying all copies of the Scyld 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 Scyld 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.