POD Terms of Use



Acceptable Usage Policy

This Acceptable Use Policy contains the complete terms and conditions between Penguin Computing, Inc. ("We" or "Penguin") and you regarding your use of the Penguin Computing on Demand (the "POD") products and services. You have entered into a separate agreement with us (the "POD Customer Agreement") pursuant to which you may have access to POD. By using POD, you agree to be bound by this Acceptable Use Policy in addition to the terms of the POD Customer Agreement. Any terms not defined herein shall have the meanings ascribed to them in the POD Customer Agreement.

PROHIBITED ACTIVITIES

Your use of POD and your Customer 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 POD 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 reserves the right to investigate suspected violations of this Acceptable Use Policy. When Penguin becomes aware of a possible violation, Penguin may initiate an investigation and gather information from you and any complaining parties.

NETWORK CONNECTIONS

You may make network connections from POD 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.
  • Flooding.
  • Denial of Service (DoS) of any kind.
 

In addition, you may not operate network services related to POD that include any of the following:

  • Open proxies.
  • Open mail relays.
  • Open and recursive domain name servers.


Customer Agreement

READ THIS AGREEMENT CAREFULLY.

BY CLICKING ON THE "I AGREE" BUTTON OR ACCESSING POD, 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 POD UNLESS YOU ACCEPT THE TERMS OF THIS AGREEMENT. IF YOU HAVE PAID A SERVICE FEE FOR USE OF POD AND DO NOT AGREE TO THESE TERMS, YOU MAY RECEIVE A FULL REFUND PROVIDED YOU NOTIFY PENGUIN WITHIN TEN (10) DAYS AND YOU DO NOT ACCESS OR USE POD.

IF YOU WISH TO USE POD 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 POD ACCESS GRANTED UNDER THIS AGREEMENT IS EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.

IF YOU HAVE ENTERED INTO A SEPARATE WRITTEN POD CUSTOMER AGREEMENT WITH PENGUIN FOR USE OF POD, 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") and the customer (individual or entity) that has procured access to POD (as defined below) for use as an end user ("you" or "Customer"). This Agreement covers any POD and supporting technical documentation provided with POD ("Documentation").

1. DEFINITIONS

"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.

"Customer Content" means Customer Data and Customer Software together.

"Customer Data" means any and all files, information, data or other content that you upload to POD or was generated by the Customer Software in connection with your use of POD.

"Customer Software" means any computer program or code uploaded to POD by you.

"Documentation" means the applicable end user technical documentation for POD as generally made available by Penguin during the Subscription Term and the POD Policies.

"POD" is the "Penguin Computing on Demand (POD)" service that allows you to have access to a shared computing environment for high performance computing.  You load your own applications and data to POD in order to execute jobs on POD.

"POD Policies" means the POD Acceptable Use Policy available at http://www.penguincomputing.com and any other general policies and procedures for use of POD generally issued by Penguin during the Subscription Term.

"Professional Services" means any professional consulting services provided by Penguin.

"Services Description" means the then-current description of POD and related services available at http://www.penguincomputing.com.

"Subscription" means your right to access and use POD 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. POD GENERALLY

2.1. Provision of POD.  Penguin will provide POD access to you for the type of Subscription specified at the time of your purchase during each applicable Subscription Term in accordance with the terms of this Agreement.

2.2. Access to POD.  You may access and use POD 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 your purchase.  Use of and access to POD 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 POD ("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 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 POD by such Contractor or Affiliate is for your sole benefit. Use of POD by the Affiliates, Contractors and Customer in the aggregate must be within the restrictions specified at the time of your purchase. The Affiliate rights granted in this section shall not apply to any "enterprise wide" POD 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 POD to a third party or use POD to provide a service to a third-party, (b) reverse engineer, decompile, disassemble or otherwise seek to obtain the source code or APIs to POD, except to the extent expressly permitted by applicable law (and then only upon advance notice to Penguin), (c) modify POD 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 POD (including any reports or data printed from POD) or (e) publicly disseminate information or analysis regarding the performance of POD. 

2.4. Acceptable Use.  You agree that you shall comply with the POD Policies, which are hereby incorporated by this reference. In addition, you shall not:

  1. tamper or interfere with the jobs of other customers;
  2. attempt to circumvent or expand any of the file permissions established by Penguin for your POD account;
  3. knowingly overload the scratch storage associated with a compute node or otherwise intentionally cause a compute node to fail; or
  4. interfere with the operation of POD or disable or attempt to disable POD.

3. OPERATION OF POD.

3.1. Shared Environment.  You understand and acknowledge that POD is a shared computing environment.  This means that Customer Content will reside on the same physical servers and storage systems as other POD customers. 

3.2. Scheduling and Availability.  POD compute nodes will be allocated to your jobs as such nodes are available.  While Penguin strives to ensure that sufficient compute nodes are available for all customer jobs at all times, there may be cases where POD does not have sufficient compute nodes at the time you submit a job for POD to execute the job immediately.  You understand and acknowledge that all jobs submitted by you will go into a queue and be scheduled for execution as determined by the POD job scheduler. 

3.3. Status of Jobs in Queue.  Each POD customer may query POD to get a status of all jobs in the queue.  The response to such query may include the status of not just your jobs, but also the jobs of other customers.  Accordingly, you understand and acknowledge that the names of your jobs shall not be your Confidential Information as defined in Section 12 of the Agreement and that the names of your jobs may be visible to other POD customers.

4. CUSTOMER PROGRAMS AND DATA

4.1. Generally.  You are solely responsible for all Customer Content, including but not limited to the uploading, use and maintenance of all Customer Content, as well as obtaining all licenses and adhering to all license terms applicable to such Customer Content.  Provided that you comply with the terms of this Agreement and the Documentation, you may use POD to execute and process Customer Content owned or lawfully obtained by you. 

4.2. Customer 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 Customer Software or other Customer Content in connection with POD.  You represent and warrant that you have all such rights and grants such rights to Penguin to the extent necessary for Penguin to provide POD to you under this Agreement. You represent and warrant that no Customer Software or other Customer Content infringes the rights of any third party.  PENGUIN MAKES NO WARRANTIES OR REPRESENTATIONS AND WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR YOUR USE OF ANY CUSTOMER SOFTWARE OR CUSTOMER DATA. 

4.3. Customer Data.  You shall ensure that your use of POD and all Customer 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 Customer Data.

4.4. Customer Content Storage.  POD is not an archiving service.  Penguin reserves the right to remove Customer Content from POD (including the applicable compute nodes and scratch disks) after the completion of every job.  You may temporarily save Customer Content in POD.s central repository (currently a Tier 1 NetApp filer) while using POD or for such longer storage-only Subscription period for which you have paid the applicable storage fee, provided that Penguin reserves the right to cease offering storage on POD.s central repository upon thirty (30) day.s prior written notice to you. If back-up services are specified at the time of your purchase, Penguin shall provide to you back-up services for Customer Content on POD during the Subscription Term in accordance with the back-up and overwrite intervals set forth in the Services Description. If any Customer Content is lost for any reason, as Penguin.s sole liability for such loss, Penguin agrees to use commercially reasonable efforts to recover lost Customer Content and assist you in identifying lost Customer Content.  Notwithstanding any storage or back-up services, Penguin agrees only that it shall not intentionally delete any Customer Content from POD prior to termination of your applicable Subscription.  Penguin expressly disclaims all other obligations with respect to storage.

4.5. Indemnification by Customer.  You shall indemnify, defend and hold harmless Penguin 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 POD, (b) any Customer Content or (c) any service or product offered by you in connection with or related to POD. 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 at your expense.  You shall not settle any lawsuit on Penguin.s behalf without Penguin.s advance written consent (which consent shall not be unreasonably withheld or delayed).

5. OWNERSHIP.

5.1. Reservation of Rights.  This is an agreement for use of POD and not an agreement for sale. You acknowledge that you are obtaining only a limited right to POD 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 or its suppliers retain all right, title and interest (including all patent, copyright, trade secret and other intellectual property rights) in and to POD, 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 POD is offered as an on-line, hosted solution, and that you have no right to obtain a copy of POD itself.

5.2. Feedback.  You, from time to time, may submit comments, information, questions, data, ideas, description of processes, or other information to Penguin ("Feedback"). Penguin 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. SUBSCRIPTION TERM, FEES & PAYMENT 

6.1. Subscription Term and Renewals.  Each Subscription Term shall be month to month and each Subscription Term, as applicable, shall automatically renew for additional one month periods unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current monthly term.

6.2. Fees and Payment.  Penguin's monthly billing period begins on the 26th of the previous month and ends on the 25th of the current month ("Monthly Billing Period"). You shall pay the Subscription Fee and/or the Usage Fees incurred in each Monthly Billing Period within 30-days after the end of the period. The Subscription Fee or Usage Fees are those shown on the POD Portal (Current Rates and Services) at https://pod.penguincomputing.com/services unless otherwise mutually agreed upon by both both parties. All payments are non-refundable (except as expressly set forth in this Agreement). You shall be responsible for all taxes, withholdings, duties and levies arising from the order (excluding taxes based on the net income of Penguin). If you purchased access to POD from an authorized reseller, you shall pay to reseller the fees agreed upon at the time of your purchase from reseller.

6.3. Suspension of Service.  If your account is thirty (30) days or more overdue, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), Penguin reserves the right to suspend your access to POD and any related services without liability to you, until such amounts are paid in full. 

7. TERM AND TERMINATION

7.1. Term.  This Agreement is effective as of the date when POD is first made available to you, and unless terminated earlier in accordance with this Section 7 shall remain in effect for so long as Penguin provides POD access to you.  

7.2. Termination for Convenience.  Either party may terminate this Agreement without cause and for its convenience upon thirty (30) days' prior written notice.  Upon a termination for convenience, your Subscription shall terminate immediately and you shall promptly pay any fees due and owing to Penguin as of the effective date of termination.  For the avoidance of doubt, you shall not be entitled to any refund of pre-paid amounts as a result of your termination for convenience.

7.3. Termination for Cause.  Either party may terminate this Agreement if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors. arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). 

7.4. Effect of Termination.  Within five (5) days after expiration or termination of this Agreement, you shall remove all Customer Content from POD.  You acknowledge that after such five-day period, Penguin shall have no obligation to maintain or retain any Customer Content in POD and may thereafter, unless legally prohibited, delete all Customer 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 POD and delete (or, at Penguin.s request, return) any and all copies of the Documentation, any Penguin passwords or access codes and any other Penguin 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. 

7.5. Survival.  The following Sections shall survive any expiration or termination of this Agreement: 2.3 (General Restrictions), 4.2 (Customer Software), 4.5 (Indemnification by Customer), 5 (Ownership), 6.2 (Fees and Payment), 7 (Term and Termination), 8.2 (Warranty Disclaimer), 11 (Limitation of Remedies and Damages), 12 (Confidential Information), and 13 (General Terms). 

8. LIMITED WARRANTY

8.1. Limited Warranty.  Penguin warrants, for your benefit only, that POD will operate substantially as described in the applicable Service Description.  Penguin does not warrant that your use of POD will be uninterrupted or error-free, nor does Penguin warrant that it will review the Customer Content for accuracy or that it will preserve or maintain the Customer Content without loss.  Penguin.s sole liability (and your sole and exclusive remedy) for any breach of this warranty shall be, to allow you to re-run a Failed Job at no additional charge, provided that you notify Penguin of any such warranty breach within two (2) business days of any such breach.  A "Failed Job" means a job that did not complete solely due to a hardware failure of POD. Failed Jobs do not include jobs 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 POD hardware.  A .job. is a process or series of processes launched by you to be executed on POD. 

8.2. Warranty Disclaimer.  EXCEPT FOR THE LIMITED WARRANTY IN SECTION 8.1, POD and all SERVICES ARE PROVIDED "AS IS". NEITHER PENGUIN 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 DOES NOT WARRANT THAT THE CUSTOMER CONTENT used or uploaded by you in connection with your use of POD WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. furthermore, Penguin 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.

9. SUPPORT.  If support is specified in the applicable Service Description for the applicable Subscription, Penguin shall provide to you during the Subscription Term end user support in accordance with the terms set forth at http://www.penguincomputing.com.

10. PROFESSIONAL SERVICES.  Penguin shall provide Professional Services subject to a separate Statement of Work ("SOW") executed by both parties describing the work to be performed, fees and any applicable milestones, dependencies and other technical specifications or related information.  Unless Professional Services are provided on a fixed-fee basis, you shall pay Penguin at the per-hour rates set forth in the SOW. You will reimburse Penguin for reasonable travel and lodging expenses as incurred. You shall have a non-exclusive license to copy and use any work product, code or deliverables and any derivative, enhancement or modification thereof created by Penguin or its agents ("Deliverables") for your internal business purposes only, subject to any additional terms set forth in the applicable SOW. Penguin shall retain all right, title and interest in and to any such Deliverables.  

11. LIMITATION OF REMEDIES AND DAMAGES

11.1.   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. 

11.2.   NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, PENGUIN'S AND ITS SUPPLIERS' ENTIRE LIABILITY TO CUSTOMER SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO PENGUIN DURING THE PRIOR TWELVE MONTHS UNDER THIS AGREEMENT. 

11.3.   THIS SECTION 11 SHALL NOT APPLY TO YOU WITH RESPECT TO ANY CLAIM ARISING UNDER SECTIONS 2.3 (GENERAL RESTRICTIONS), 4 (CUSTOMER PROGRAMS AND DATA) AND 12 (CONFIDENTIAL INFORMATION).

11.4.   The parties agree that the limitations specified in this Section 11 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

12. 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 Technology, performance information relating to POD, and the terms and conditions of this Agreement shall be deemed Confidential Information of Penguin 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 nondisclosure 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. 

13. GENERAL TERMS

13.1. Assignment. This Agreement will bind and inure to the benefit of each party.s 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 party.s assets or voting securities.  Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 13.1 will be null and void.

13.2. 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. 

13.3. 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.

13.4. 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. 

13.5. 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. 

13.6. 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. 

13.7. 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 POD is on-line, subscription-based product, and that in order to provide improved customer experience Penguin may make changes to POD, and Penguin will update the POD Service Description accordingly.

13.8. 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.

13.9. Subcontractors. Penguin may use the services of subcontractors for performance of services under this Agreement, provided that Penguin remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) for the overall performance of POD as required under this Agreement. 

13.10. 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.