It seems to me at least, yes. You still need ptxas, but this piece of Software technically isn't deployed in the datacenter, if you AOT compile your kernels. Its usage seems more than fine, especially considering you could just run it on a system without Nvidia GPUs or old Tesla GPUs while still targeting eg. sm_89. If using ptxas compiled kernels in the datacenter counts as indirect datacenter usage, I don't know. Also, technically you are never presented with the GeForce software license during the CUDA download and installation process, which sparks the question if it is even applicable. In this case, all you would need is the open source driver and you could stuff as many consumer GPUs in your datacenter as you want. However, it technically governs all software downloadable from nvidia.com. I'm no legal expert if this matters, but I would assume consumers would be fine, but companies may be held to a higher standard of seeking out licenses which might govern what they are about to use.

Specifically the clause is that you cannot use their consumer cards (e.g. RTX 4090) in datacenters.

use the open kernel driver, which is MIT/GPL and thus cannot impose usage restrictions.

it's worth noting that "NVIDIA software stack" is an imprecise term. the driver is the part that has the datacenter usage term, and the open-kernel-driver bypasses that. the CUDA stack itself does not have the datacenter driver clause, the only caveat is that you can't run it on third-party hardware. So ZLUDA/GpuOcelot is still verboten, if you are using the CUDA libraries.

https://docs.nvidia.com/cuda/eula/index.html