Acceptable Usage Policy
This Acceptable Use Policy contains the complete terms and conditions between Penguin Computing, Inc. (“We”) and you regarding your use of the Penguin Computing Benchmarking and Innovation Lab (the “the BIL”) service. You have entered into a separate agreement with us (the “the BIL User Agreement”) pursuant to which you may have access to the BIL. By using the BIL, you agree to be bound by this Acceptable Use Policy in addition to the terms of the BIL User Agreement. Any terms not defined herein shall have the meanings ascribed to them in the BIL User Agreement.
Your use of the BIL and your User Content must not include or engage in any of the following:
- Constitute, promote, facilitate, or permit gambling.
- Include, promote or facilitate child pornography or other illegal activities, including without limitation any activities that might be libelous or defamatory or otherwise malicious, harassing or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age.
- Engage in deceptive practices such as posing as another service for the purposes of phishing or pharming.
- Distribute, share, or facilitate the distribution of unauthorized data, malware, viruses, Trojan horses, spyware, worms, or any malicious or harmful code.
- Violate, misappropriate, or infringe the rights of any third party.
- Constitute or facilitate the illegal export of any controlled or otherwise restricted items, including without limitation, software, algorithms, or other data that is subject to export laws.
- Compromise the security of or tamper with system resources or accounts on the BIL or other systems by distributing or using tools designed to compromise security (viruses, password guessing programs, cracking tools, network probing tools, etc.)
- Engage in, promote or facilitate digital currency mining.
Penguin Computing reserves the right to investigate suspected violations of this Acceptable Use Policy. When Penguin Computing becomes aware of a possible violation, Penguin Computing may initiate an investigation and gather information from you and any complaining parties.
You may make network connections from the BIL to servers hosted by yourself or a third party only with the permission and authorization of the destination hosts or networks. You may not make any external network connections for the following purposes:
- Unauthorized probes and port scans for vulnerabilities.
- Unauthorized penetration tests or traffic that circumvents authentication systems or other unauthorized attempts to gain entry into any systems.
- Web crawling.
- Unauthorized network monitoring or packet capture.
- Create forged or non-standard protocol headers, such as altering source addresses, etc.
- Denial of Service (DoS) of any kind.
In addition, you may not operate network services related to the BIL that include any of the following:
- Open proxies.
- Open mail relays.
- Open and recursive domain name servers.
READ THIS AGREEMENT CAREFULLY.
BY CLICKING ON THE “I AGREE” BUTTON OR ACCESSING the BIL, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU. YOU WILL NOT BE GIVEN ACCESS TO the BIL UNLESS YOU ACCEPT THE TERMS OF THIS AGREEMENT.
IF YOU WISH TO USE the BIL AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT. THE the BIL ACCESS GRANTED UNDER THIS AGREEMENT IS EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.
IF YOU HAVE ENTERED INTO A SEPARATE WRITTEN the BIL USER AGREEMENT WITH PENGUIN COMPUTING FOR USE OF the BIL, THE TERMS AND CONDITIONS OF SUCH OTHER AGREEMENT SHALL PREVAIL OVER ANY CONFLICTING TERMS OR CONDITIONS IN THIS AGREEMENT.
This End User Access Agreement (“Agreement“) is between Penguin Computing, Inc., located at 45800 Northport Loop West, Fremont, CA 94538 (“Penguin Computing“) and the customer (individual or entity) that has procured access to the BIL (as defined below) for use as an end user (“you” or “User“). This Agreement covers any the BIL and supporting technical documentation provided with the BIL (“Documentation“).
“Affiliate” means any entity under your control where .control. means ownership of or the right to control greater than 50% of the voting securities of such entity.
“User Content” means User Data and User Software together.
“User Data” means any and all files, information, data or other content that you upload to the BIL or was generated by the User Software in connection with your use of the BIL.
“User Software” means any computer program or code uploaded to the BIL by you.
“Documentation” means the applicable end user technical documentation for the BIL as generally made available by Penguin Computing during the Subscription Term and the BIL Policies.
“the BIL” is the “Penguin Computing Benchmarking and Innovation Lab (the BIL)” platform that allows you to have access to a test computing environment for high performance computing and storage. You work with Penguin Computing employees to load your applications and data to the BIL in order to test workloads on the BIL.
“the BIL Policies” means the BIL Acceptable Use Policy available at http://www.penguincomputing.com and any other general policies and procedures for use of the BIL generally issued by Penguin Computing during the Subscription Term.
“Professional Services” means any professional consulting services provided by Penguin.
“Services Description” means the then-current description of the BIL and related services available at http://www.penguincomputing.com.
“Subscription” means your right to access and use the BIL as specified in the Services Description for such Subscription during the applicable Subscription Term.
“Subscription Fee” means the monthly fee, if any, for each Subscription as specified at the time of your purchase.
“Subscription Term” means the time period specified at the time of your purchase.
“Usage Fees” means compute, storage, data transfer, bandwidth or other fees based on your actual usage which are charged monthly in arrears to you as specified at the time of your purchase. Usage Fees are in addition to Subscription Fees.
2. THE BIL GENERALLY
2.1. Provision of the BIL. Penguin Computing will provide the BIL access to you at no cost, for an agreed upon period of time, in accordance with the terms of this Agreement.
2.2. Access to the BIL. You may access and use the BIL solely for your own benefit and in accordance with the terms and conditions of this Agreement, the Documentation and any scope of use restrictions designated at the time of this Agreement. Use of and access to the BIL is permitted only by the number of your employees specified at the time of your purchase (“Permitted Users“). To the extent that you are given passwords, authentication keys or security credentials to access the BIL (“Login Credentials“), you shall require that all Permitted Users keep Login Credentials strictly confidential and not share such information with any unauthorized person. You shall be responsible for any and all actions taken using your Login Credentials, and shall immediately notify Penguin Computing if any Permitted User who has access Login Credentials is no longer your employee. You may permit your independent contractors and consultants (“Contractors“) and Affiliates to serve as Permitted Users, provided you remain responsible for compliance by each such Contractor or Affiliate with all of the terms and conditions of this Agreement and any such use of the BIL by such Contractor or Affiliate is for your sole benefit. Use of the BIL by the Affiliates, Contractors and User in the aggregate must be within the restrictions specified at the time of this agreement. The Affiliate rights granted in this section shall not apply to any “enterprise wide” the BIL access unless Affiliate usage is designated at the time of your purchase.
2.3. General Restrictions. You shall not: (a) rent, lease, copy, provide access to or sublicense the BIL to a third party or use the BIL to provide a service to a third-party, (b) reverse engineer, decompile, disassemble or otherwise seek to obtain the source code or APIs to the BIL, except to the extent expressly permitted by applicable law (and then only upon advance notice to Penguin), (c) modify the BIL or any Documentation or create any derivative product from any of the foregoing, (d) remove or obscure any product identification, proprietary, copyright or other notices contained in the BIL (including any reports or data printed from the BIL) or (e) publicly disseminate information or analysis regarding the performance of the BIL.
2.4. Acceptable Use. You agree that you shall comply with the BIL Policies, which are hereby incorporated by this reference. In addition, you shall not:
tamper or interfere with the jobs of other users;
attempt to circumvent or expand any of the file permissions established by Penguin Computing for your the BIL account;
knowingly overload the scratch storage associated with a compute node or otherwise intentionally cause a compute node to fail; or
interfere with the operation of the BIL or disable or attempt to disable the BIL.
3. OPERATION OF the BIL
3.1. Test Environment. You understand and acknowledge that the BIL is a test computing environment. This means that User Content will be accessible to Penguin Computing Employees at any time during the test period
3.2. Scheduling and Availability. the BIL compute nodes will be allocated to your tests as such nodes are available. While Penguin Computing strives to ensure that sufficient compute nodes are available for all customers who request them, there may be cases where the BIL does not have sufficient compute nodes at the time you submit an access for the BIL to execute the job immediately, due to maintenance, use by other customers, etc. You understand and acknowledge that all access requests submitted by you will allocated on a first-come, first-served basis and be scheduled for execution as determined by the BIL administrator.
4. CUSTOMER PROGRAMS AND DATA
4.1. Generally. You are solely responsible for all User Content, including but not limited to the uploading, use and maintenance of all User Content, as well as obtaining all licenses and adhering to all license terms applicable to such User Content. Provided that you comply with the terms of this Agreement and the Documentation, you may use the BIL to execute and process User Content owned or lawfully obtained by you.
4.2. User Software. You shall obtain all third-party rights (including from any applicable third-party software vendors) necessary to copy, distribute, store, transmit, display, perform or otherwise use any User Software or other User Content in connection with the BIL. You represent and warrant that you have all such rights and grants such rights to Penguin Computing to the extent necessary for Penguin Computing to provide the BIL to you under this Agreement. You represent and warrant that no User Software or other User Content infringes the rights of any third party. PENGUIN COMPUTING MAKES NO WARRANTIES OR REPRESENTATIONS AND WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR YOUR USE OF ANY USER SOFTWARE OR USER DATA.
4.3. User Data. You shall ensure that your use of the BIL and all User Data is at all times compliant with your privacy policies and all applicable local, state, federal and international laws and regulation, including those relating to data privacy, international transmission of data and import or export of technical or personal data. You are solely responsible for the accuracy, content and legality of all User Data.
4.4. User Content Storage. The BIL is not an archiving service. Penguin Computing reserves the right to remove User Content from the BIL (including the applicable compute nodes and scratch disks) after the completion of every job. Penguin Computing agrees only that it shall not intentionally delete any User Content from the BIL prior to the end of your test period. Penguin Computing expressly disclaims all other obligations with respect to storage.
4.5. Indemnification by User. You shall indemnify, defend and hold harmless Penguin Computing from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys. fees and costs) arising out of or in connection with any claim arising from or relating to (a) any action taken (or not taken) by you based upon use of the BIL, (b) any User Content or (c) any service or product offered by you in connection with or related to the BIL. This indemnification obligation is subject to your receiving (i) prompt written notice of such claim; (ii) the right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonable necessary cooperation of Penguin Computing at your expense. You shall not settle any lawsuit on behalf of Penguin Computing without advance written consent of Penguin Computing (which consent shall not be unreasonably withheld or delayed).
5.1. Reservation of Rights. This is an agreement for use of the BIL and not an agreement for sale. You acknowledge that you are obtaining only a limited right to the BIL and that irrespective of any use of the words purchase, sale, or like terms hereunder no ownership rights are being conveyed to you under this Agreement. Penguin Computing or its suppliers retain all right, title and interest (including all patent, copyright, trade secret and other intellectual property rights) in and to the BIL, Service Descriptions, Documentation, Professional Services deliverables and any and all related and underlying software (including interfaces), databases (including data models and structures) and technology. Further, you acknowledge that the BIL is offered as an on-line, hosted solution, and that you have no right to obtain a copy of the BIL itself.
5.2. Feedback. You, from time to time, may submit comments, information, questions, data, ideas, description of processes, or other information to Penguin Computing(“Feedback“). Penguin Computing may in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise.
6. TERM AND TERMINATION
6.1. Term. This Agreement is effective as of the date when the BIL is first made available to you, and unless terminated earlier in accordance with this Section 6 shall remain in effect for so long as Penguin Computing provides the BIL access to you.
6.2. Termination for Convenience. Either party may terminate this Agreement without cause and for its convenience at any point. Upon a termination for convenience, your access shall terminate immediately.
6.3. Effect of Termination. Within five (5) days after expiration or termination of this Agreement, you shall remove all User Content from the BIL. You acknowledge that after such five-day period, Penguin Computing shall have no obligation to maintain or retain any User Content in the BIL and may thereafter, unless legally prohibited, delete all User Content in its systems or otherwise in its possession or under its control. Furthermore, upon any termination of this Agreement, you shall immediately cease any and all use of and access to the BIL and delete (or, at the request of Penguin Computing, return) any and all copies of the Documentation, any Penguin Computing passwords or access codes and any other Penguin Computing Confidential Information in its possession. Termination of this Agreement is not an exclusive remedy and the exercise of either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
7. LIMITED WARRANTY
7.1. Limited Warranty. Penguin Computing does not warrant that your use of the BIL will be uninterrupted or error-free, nor does Penguin Computing warrant that it will review the User Content for accuracy or that it will preserve or maintain the User Content without loss. Penguins sole liability (and your sole and exclusive remedy) for any breach of this warranty shall be, to allow you to re-run a Failed Test at no charge, provided that you notify Penguin Computing of any such warranty breach within two (2) business days of any such breach. A “Failed Test” means a workload that did not complete solely due to a hardware failure of the BIL. Failed Tests do not include tests that did not complete due to errors on the your part; bugs in the operating system, tools or libraries; exceeding the available local disk scratch space; or any other factors not related to failure of the BIL hardware. A test is a process or series of processes launched by you to be executed on the BIL.
7.2. Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 8.1, the BIL and all SERVICES ARE PROVIDED “AS IS”. NEITHER PENGUIN COMPUTING NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO FIVE (5) BUSINESS DAYS FROM SUBMISSION OF THE APPLICABLE JOB. PENGUIN COMPUTING DOES NOT WARRANT THAT THE CUSTOMER CONTENT used or uploaded by you in connection with your use of the BIL WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. furthermore, Penguin Computing SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF Penguin Computing.
8. LIMITATION OF REMEDIES AND DAMAGES
8.1. NEITHER PART SHALL BE LIABLE FOR ANY LOSS OF USE, LOST or INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
8.2. THIS SECTION 9 SHALL NOT APPLY TO YOU WITH RESPECT TO ANY CLAIM ARISING UNDER SECTIONS 2.3 (GENERAL RESTRICTIONS), 4 (CUSTOMER PROGRAMS AND DATA) AND 10 (CONFIDENTIAL INFORMATION).
9. CONFIDENTIAL INFORMATION.
Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party“) from the disclosing party (“Disclosing Party“) constitute the confidential property of the Disclosing Party (“Confidential Information“), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Penguin Computing Technology, performance information relating to the BIL, and the terms and conditions of this Agreement shall be deemed Confidential Information of Penguin Computing without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s non-disclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by employees of the Receiving Party who had no access to such information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
10. GENERAL TERMS
10.1. Assignment. This Agreement will bind and inure to the benefit of each parties permitted successors and assigns. Neither party may assign this Agreement except upon the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such parties assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 11.1 will be null and void.
10.2. Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
10.3. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in San Francisco, California and both parties hereby submit to the personal jurisdiction of such courts.
10.4. Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
10.5. Notice. Any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses provided at the time of purchase or at such other address as may be given in writing by either party to the other in accordance with this Section and shall be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.
10.6. Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by you will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
10.7. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. You acknowledge that the BIL is a remote access test facility, and that in order to provide an improved user experience Penguin Computing may make changes to the BIL.
10.8. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
10.9. Subcontractors. Penguin Computing may use the services of subcontractors for performance of services under this Agreement, provided that Penguin Computing remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) for the overall performance of the BIL as required under this Agreement.
10.10. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.