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END USER LICENSE AGREEMENT

Last updated: November 1, 2023

IMPORTANT:

PLEASE READ THIS END USER LICENSE AGREEMENT CAREFULLY AS IT CONTAINS IMPORTANT INFORMATION ABOUT THE LIMITATIONS OF THE SOFTWARE. USING THE ACCOMPANYING SOFTWARE CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.

THIS END USER LICENSE AGREEMENT (THIS “AGREEMENT”) IS BY AND BETWEEN ORBITAL STACK INC. (“ORBITAL STACK”) AND THE COMPANY OR ENTITY ON WHOSE BEHALF YOU, AS AN INDIVIDUAL (INCLUDING AS AN EMPLOYEE OR INDEPENDENT CONTRACTOR OF SUCH COMPANY OR ENTITY), ARE ACCEPTING THE TERMS OF THIS AGREEMENT (“USER”). YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE USER TO THE TERMS OF THIS AGREEMENT AND ACKNOWLEDGE AND AGREE THAT BY ACCESSING OR USING ANY PART OF THE SOFTWARE YOU CONSENT TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IF THE USER DOES NOT AGREE TO ANY OF THE TERMS OF THIS AGREEMENT, THE USER IS PROHIBITED FROM USING THE SOFTWARE.

Article 1 – Definitions and Interpretation

1.1 Definitions

As used herein, the following capitalized terms shall be defined as follows:

  • (a) “AI Software” means Software which utilizes artificial intelligence to generate Output Files.
  • (b) “Aggregated Data” means de-identified data that is gathered by Orbital Stack from Output Files and assembled and compiled into an aggregated data set.
  • (c) “Agreement” means this End User License Agreement and, where applicable, other terms and conditions governing the use of the Orbital Stack Website, and all indentures, agreements (including payment terms accepted by User at time of purchase or by way of a Purchase Order), or other instruments supplemental to, or in confirmation, amendment or modification thereof and subject to section 1.2, “Agreement” includes Legacy Agreements.
  • (d) “CFD Software” means Software which utilizes computational fluid dynamics (“CFD”) to create Output Files.
  • (e) “Fees and Reimbursable Expenses” means the fees and expenses payable by Users in connection with the use of the Software and/or any Professional Services requested by Users pursuant to a Professional Services Agreement.
  • (f) “Free Trial Period” means a period chosen by Orbital Stack during which Orbital Stack will grant User a license to use any portion of the Software free of charge.
  • (g) “Intellectual Property Rights” means any patent, copyright, trademark, trade name, design, trade secret, permit, service marks, brands, proprietary information, knowledge, technology, licenses, databases, computer programs, software, know how or other form of intellectual property right, title, benefits or interest whether arising before or after the execution of this Agreement and the right to ownership and registration of these rights.
  • (h) “Intended Use” has the same meaning as in Article 3 herein.
  • (i) “Legacy Agreement” means a Software License and Professional Services Agreement between Orbital Stack and the User entered into before April, 2022.
  • (j) “Open Source Software” means any software (in source or object code form) that is subject to (i) a license or other agreement commonly referred to as an open source, free software, copyleft or community source code license (including any code or library licensed under the GNU General Public License, GNU Lesser General Public License, BSD License, Apache Software License, or any other public source code license arrangement).
  • (k) “Orbital Stack Website” means the website through which Users may access the Software.
  • (l) “Output Files” means: (1) all of the simulations, analyses, reports, documents and information generated as output by Users based on User Inputs; and (2) where applicable, any modifications made to User Inputs as part of the Software Support Services.
  • (m) “Personal Information” means information about an identifiable individual.
  • (n) “Professional Services” means: (i) in relation to Output Files, the services of a professional engineer in interpreting the Output Files; or (ii) in the case of Input Files, the services of a professional that is duly qualified to provide a professional opinion on the User Input.
  • (o) “Professional Services Agreement” means an agreement between User and Rowan Williams Davies & Irwin Inc. (“RWDI”) for its provision of Professional Services to User in relation to Output Files.
  • (p) “Pricing Plan” means the payment terms chosen by Users pursuant to a Purchase Order setting out the Software license selected by the User, pricing for the Software License and Professional Services, and the frequency of payment, etc.
  • (q) “Purchase Order” means: (i) in the case of a Legacy Agreement, an order form or the portion of the agreement between Orbital Stack and/or the Client/User setting out the Pricing Plan chosen by the Client/User; and (ii) in every other case, means an order form whereby User selects a Pricing Plan.
  • (r) “Software” means the proprietary software of Orbital Stack and includes AI Software and CFD Software.
  • (s) “Software Services” means any support or guidance offered by Orbital Stack to Users in relation to Software for the purpose of ensuring that the Software performs in accordance with the Intended Use but Software Service do not include or otherwise constitute Professional Services.
  • (t) “Taxes” means any and all taxes, charges, fees, levies, imposts, duties, tariffs, or other assessments imposed by or payable to any governmental authority, including without limitation sales, use, goods, services, value added, transfer, customs, personal property, stamp duty, excise, and other obligations of the same or similar nature arising under this Agreement or the transactions contemplated hereunder payable in any applicable jurisdiction, including Canada, and/or the jurisdiction where the User is located.
  • (u) “User Content” means the User Inputs and Output Files generated therefrom;
  • (v) “User Feedback” means suggestions, enhancement requests, recommendations or other feedback provided by Users relating to the operation or functionality of the Software, excluding User Inputs.
  • (w) “User Input” means any and all information inputted into the Software and/or Orbital Stack Website by Users, including but not limited to three-dimensional (“3D”) building geometry provided by Users, but does not include Aggregated Data.
1.2 Legacy Agreements

To the extent that any provision of this Agreement conflicts from a Legacy Agreement in relation to the following provisions of this Agreement, the terms of the Legacy Agreement will prevail and control to the extent of such conflict:

  • (a) Payment terms (other than changes in pricing which Orbital Stack is permitted to make in accordance with a Legacy Agreement);
  • (b) Any special conditions accepted by Orbital Stack in a Legacy Agreement

In all other cases, the terms of this Agreement shall prevail, control, and supersede the provisions of the Legacy Agreement.

1.3 No Obligations to Users during Free Trial Period

Users who utilize the Software during a Free Trial Period acknowledge and agree that Orbital Stack is providing such users with access to the Software free of charge and, as such, unless otherwise expressly indicated in this Agreement, Orbital Stack has no obligations to such Users in relation to warranties, support, or other services during the Free Trial Period.

1.4 Professional Services Agreement

User acknowledges and agrees that in the event User enters into a Professional Services Agreement with RWDI, the sole involvement of Orbital Stack in relation thereto shall be billing the User for the Professional Services but in no event shall Orbital Stack have any liability or responsibility for Professional Services delivered by RWDI.

Article 2 – License

2.1 Grant

Subject to the terms and conditions of this Agreement, Orbital Stack hereby grants User, a limited, non-exclusive, non-transferable license to use the Software, in accordance with this Agreement. The Software may contain third party and Open Source Software. Orbital Stack will make a copy of the applicable Open Source Software license available to Users upon request. To the extent that the terms of this Agreement conflict with the terms and conditions of an Open Source Software license, then the terms of such license shall control in connection with the applicable third party and/or Open Source Software but only to the extent of the conflict.

Article 3 – Software Functions and Intended Use

3.1 Intended Use of Software and Output Files

The User understands and agrees that:

  • (a) the AI Software utilizes artificial intelligence algorithms to automatically generate Output Files and such Output Files may present less accurate results than Output Files generated using the CFD Software;
  • (b) the results contained in the Output Files (whether utilizing AI Software or CFD Software) are based on the assumption that all User Inputs are complete, reliable, and accurate and as a result, the User remains solely responsible for verifying the completeness, reliability, and accuracy of the User Inputs;
  • (c) the Output Files provide only an approximation which may not fully represent real world conditions at full scale;
  • (d) the Output Files are generated based on historical climate and meteorological data prepared by third parties which can be affected by a number of external factors (including but not limited to site conditions, meteorological and climatological phenomena, and ongoing climate change) which may not be accounted for in the Output Files;
  • (e) Orbital Stack assumes that the data prepared by third parties is accurate and complete, but is unable to verify the accuracy, completeness or reliability of such third party data;
  • (f) the Output Files are meant to be utilized by Users as visual and informational tools only (“Intended Use”) and do not constitute a professional opinion on User Inputs or any other matter whatsoever or a substitute for a professional opinion on the Output Files or User Inputs;
  • (g) the Output Files may be incomplete for the purpose of design without a formal opinion from a duly qualified professional;
  • (h) Orbital Stack is not a licensed engineering firm and, as such, Software Support Services provided by Orbital Stack shall be provided solely for the purpose of ensuring that the Software performs in accordance with the Intended Use and in no event shall Orbital Stack provide Professional Services to the Licensee or any User nor shall Software Support Services provided by Orbital Stack be construed as Professional Services;
  • (i) Orbital Stack makes no warranty, express or implied, as to the accuracy or completeness of any Output Files;
  • (j) User remains solely responsible for establishing the adequacy of independent procedures for testing the reliability, accuracy, completeness, compliance with applicable legal requirements, and other characteristics of the Output Files;
  • (k) User remains solely responsible for communicating the limitations of the Software and the terms of this Agreement to any third parties with whom the Output Files are shared; and
  • (l) Orbital Stack assumes no liability for any and all:
    • (i) Third party data used to generate the Output Files;
    • (ii) interpretations of the Output Files;
    • (iii) design decisions made by User or any party using the Output Files; and
    • (iv) any use of the Output Files whatsoever.
3.2 User Content

Users are solely responsible for retrieving, downloading, and making backup copies of the User Content.

Article 4 – Intellectual Property

4.1 Ownership and Intellectual Property Rights of Orbital Stack

Orbital Stack or, where applicable, its licensors retain all right, title and interest in and to the Software, the Orbital Stack Website, and all associated Intellectual Property Rights and Orbital Stack reserves all rights not expressly granted to User under this Agreement.

4.2 Ownership and Intellectual Property Rights of User

The User represents and warrants to Orbital Stack that the User owns all Intellectual Property Rights to the User Inputs or has received authorization to use the User Inputs from the owner(s) thereof. The User and/or any third party (as applicable) shall remain the owner(s) of all right, title, and interest in the User Inputs and all associated Intellectual Property Rights therein.

4.3 Aggregated Data and User Feedback

The User acknowledges and agrees that nothing herein shall prohibit, restrict or limit Orbital Stack from making use of User Inputs both during and after the term of this Agreement for the purposes of carrying out its obligations under this Agreement. The User further acknowledges and agrees that Orbital Stack shall be sole owner of any and all Intellectual Property Rights in the Aggregated Data and User Feedback and will use Aggregated Data and User Feedback for its own research and development purposes including but not limited to the development of its artificial intelligence platforms. However, in no event shall Orbital Sack be obligated to implement any User Feedback.

4.4 Collection of Personal Information

Any Personal Information provided by Users during their use of the Software, the Orbital Stack Website, and any associated software will be collected, stored, processed and used in accordance with Orbital Stack’s Privacy Policy accessible at: https://orbitalstack.com/privacy/.

Article 5 – User Restrictions

5.1 Restrictions on use of Software and Output Files

The Software and Output Files may not be used for anything that is not expressly permitted under this Agreement. Prohibited uses include, but are not limited to:

  • (a) Allowing third parties to use the Software using the User’s account, whether through a service bureau, outsourcing, or otherwise;
  • (b) Distributing or reproducing the Software;
  • (c) Renting, leasing, sub-leasing, assigning, or transferring the User’s rights in the Software without the written consent of Orbital Stack;
  • (d) Making available any copies of the Software for sale, re-sale, license, or sub-license, or any other type of distribution;
  • (e) Decompiling, adapting, translating, reverse engineering, scraping, disassembling, modifying, or creating derivative works based on the Software, in whole or in part, or attempting to discover the source code of the Software;
  • (f) Bypassing, modifying, defeating, or circumventing any of the functions or protections of the Software, or any mechanisms operatively linked to the Software; and
  • (g) Removing any copyright or other proprietary notice from the Software.

The User further acknowledges and agrees that the User has no right to obtain or have access to the source code or systems and programming documentation of the Software other than any applicable Open Source Software in accordance with the terms of the application Open Source Software license.

Article 6 – Fees and Payments

6.1 Payment of Fees

Users shall pay all Fees and Reimbursable Expenses and Taxes thereon in accordance with the terms of a Purchase Order and/or Legacy Agreement.

Article 7 – Compliance Audit and Termination of this Agreement

7.1 Compliance Audit

Orbital Stack has the right to verify the access to and use of any Software by Users. Within seven (7) days of a request from Orbital Stack, User shall provide a report to Orbital Stack using Orbital Stack approved verification tool, that contains information relating to the access to, and use by Users of the Software. If Orbital Stack determines that the User access to or use is not in conformity with the terms and conditions of this Agreement or, where applicable, a Legacy Agreement, (including any special terms or other applicable terms), User shall immediately be required to pay any fees (or if applicable, purchase any subscriptions) to remedy the noncompliance and pay Orbital Stack’s reasonable costs of the verification. Orbital Stack reserves the right to seek any other remedies available at law or in equity.

7.2 Suspension or Termination

In addition to any and all termination rights that it may have under this Agreement, Orbital Stack reserves the right to deny, cancel, terminate, suspend, lock, or modify access to (or control of) the User’s access to the Software and/or the Orbital Stack Website or any associated software in the event that a User breaches any provision of this Agreement. During any suspension of the license granted under this Agreement and following the termination of this Agreement, Users shall not have access to any Output Files and/or User Content.

7.3 Termination

In the case of a Free Trial Period, Orbital Stack may terminate this Agreement at the end of the trial period or at any time before in the event that Orbital Stack, in its sole discretion determines that the User breaches any provision of this Agreement. In every other case, this Agreement may be terminated by either the User and/or Orbital Stack at any time upon thirty (30) days’ written notice to the other party.

Notwithstanding the foregoing, in the event that User fails to pay, when due, any sum owing to Orbital Stack pursuant to the provisions of a Purchase Order or breaches any term of this Agreement, Orbital Stack shall terminate this Agreement by giving the User written notice of termination, such termination to be effective upon the date specified in the notice.

Article 8 – Limited Warranty

8.1 Limited Warranty

Except where User has a license to use any portion of the Software during a Free Trial Period, Orbital Stack warrants that the Software will generate the Output Files selected by Users while using the Software. Orbital Stack’s entire obligation and liability, and the User’s sole and exclusive remedy, for Orbital Stack’s breach of this warranty will be for Orbital Stack, at its option, (i) to attempt reasonably to remedy the breach or (ii) to refund amounts received from affected Users and terminate this Agreement. User must bring any warranty claim within 10 days. Where a User has a license to use any portion of the Software during a Free Trial Period, the aforesaid warranty does not apply and Orbital Stack shall have no obligation to User whatsoever.

8.2 Disclaimer

Except for the express limited warranty set forth in section 7.1 above, to the maximum extent permitted by applicable law, the User acknowledges that:

  • (a) Software and Output Files shall be delivered to User on “as is” basis and Orbital Stack makes no warranties or representations of any kind in relation to the performance of the Software or the Output Files;
  • (b) Orbital Stack does NOT represent or warrant that:
    • (i) the Software or Output Files will meet the Licensee’s requirements or expectations;
    • (ii) the Software will operate uninterrupted or error-free;
  • (c) The use of Software, the Output Files, or the Orbital Stack Website and other software associated therewith, is at the sole risk of the User;
  • (d) To the extent permitted by law, Orbital Stack expressly disclaims all express warranties and all implied warranties and conditions, including any implied warranty or condition of satisfactory quality, result, accuracy, reliability, merchantability, merchantable quality, fitness of the Software and/or Output Files for any particular purpose or warranties or conditions based on a course of dealing or usage of trade or industry standards;
  • (e) Any statements about the Software (including any statements about their functionality or performance) or Output Files, or other communications with Users, that are not contained in this Agreement are for information purposes only and do not constitute a warranty, representation, condition or other commitment; and
  • (f) During a Free Trial Period, the User shall not be entitled to any Software Support Services and providing such Software Support Services to Users during a Free Trial Period shall be at the sole discretion of Orbital Stack.
8.3 Limitation of Liability

Orbital Stack shall not have any liability (directly or indirectly) for any incidental, special, indirect, consequential or punitive damages; loss of profits or revenue; business interruption or loss of use; cost of procurement of substitute goods or services or other cover; failure of or defects in the Output Files; loss, corruption or deletion of (or failure to delete) data or User Content; or damages resulting from Force Majeure (in each case, regardless of the legal theory for seeking such damages or other liability). In addition, the aggregate liability of Orbital Stack with respect to the Software or Output Files thereof will in no event exceed the amount paid by the User for its use of the Software in the one-year period before the events or circumstances giving rise to the liability first occurred. The limitations on liability in these Terms will apply to the maximum extent permitted by applicable law to any damages or other liability, however caused and regardless of the theory of liability, whether based on contract, tort (including negligence and strict liability), indemnification, recourse, statute or otherwise.

The User acknowledges and agrees that the amounts payable for the Software are based in part on and reflective of the disclaimers of warranties and limitations on liability in this Agreement and that such disclaimers and limitations are an essential element of the bargain between the User and Orbital Stack.

Nothing in this Agreement purports to restrict or exclude Orbital Stack’s liability for (i) death or personal injury caused by Orbital Stack’s willful intent or gross negligence or (ii) damages or losses to the User caused as a result of fraud by Orbital Stack.

8.4 Applicable Laws

Orbital Stack does not seek to limit the warranties and rights and remedies available to User or the liability of Orbital Stack for damages or losses to the extent the limits are not permitted by applicable law (such as statutory warranties, conditions, remedies or liabilities that cannot be excluded by applicable law). Nothing in this Agreement restricts the effect of warranties, the liability of Orbital Stack for damages or losses or other terms that cannot be excluded or otherwise modified under applicable law notwithstanding a contractual restriction to the contrary.

Article 9 – Indemnification

9.1 Indemnity

User shall indemnify and save harmless Orbital Stack from and against any all claims, damages, losses, liabilities, demands, suits, judgments, causes of action, legal proceedings, penalties or other sanction, and any and all costs and expenses arising in connection therewith including, without limitation, legal fees and disbursements and all legal fees and disbursements in connection with any and all appeals resulting or arising from, or related to:

  • (a) the use of the Software, Output Files, the Orbital Stack Website or any other software associated therewith, by User or anyone with whom the User shares Output Files or causes to have access to the Software in contravention of this Agreement; and
  • (b) third party claims brought against Orbital Stack on the basis that the User Inputs infringe or violate any rights of third parties, including without limitation, Intellectual Property Rights, rights of privacy, or any applicable laws.

Article 10 – Changes

10.1 Changes to Software and the Terms of this Agreement

The User acknowledges that Orbital Stack may from time to time:

  • (a) modify or release subsequent versions of the Software;
  • (b) discontinue certain features of the Software and/or Output Files and/or provide instead substitutions thereof;
  • (c) add or modify license keys, authorizations or other means of controlling access to or use of the Software;
  • (d) (unless otherwise agreed to in a Legacy Agreement) discontinue promotions which allow Users to access all of a portion of the Software free of charge or at reduced rates; and
  • (e) to the maximum extent permitted by applicable law, modify the terms of this Agreement.

Orbital Stack will endeavor to notify Users of any material modification to the terms and conditions of this Agreement that may have a materially adverse effect on Users.

Article 11 – Force Majeure

Neither party hereto shall be liable nor be able to terminate this Agreement for any failure to perform hereunder where such failure is proximately caused by a Force Majeure Event. The party affected by a Force Majeure Event shall provide the other party with full particulars thereof as soon as it becomes aware of the same (including its best estimate of the likely extent and duration of the interference with its activities). Thereupon, the obligations of the notifying party, shall be suspended during, but not longer than, the continuance of the Force Majeure Event. Any party asserting a Force Majeure Event as an excuse to performance shall give prompt notice to the other party and shall have the burden of proving proximate cause, that reasonable steps were taken to minimize the delay and damages caused by events when known, and that the other party was timely notified of the likelihood or actual occurrence which is claimed as grounds for a defense under this clause. For clarity, greater certainty and avoidance of doubt, a Force Majeure Event shall not excuse the Licensee from its obligation to pay any and all outstanding amounts owed to Orbital Stack pursuant to this Agreement.

Article 12 – General

12.1 Survival

Sections 3, 4, 5, 6, 8, and 9 shall survive the termination of this Agreement.

12.2 Compliance with Laws

Subject to the limitations of the Software set out in this Agreement, both parties to this Agreement agree to comply with all applicable laws and regulations.

12.3 Governing Law

This Agreement shall be governed by the laws of the Province of Ontario and of Canada applicable therein, and the parties hereby irrevocably attorn to the jurisdiction of the courts of the Province of Ontario.

12.4 Compliance with Export Controls and Sanctions Laws

Orbital Stack does not make any representation that the use of the Software or any portion thereof is appropriate or available for use in locations outside of Canada and the United States. By using the Software, Output Files, and/or the Orbital Stack Website, the User agrees that User is not situate in a country where such use is prohibited and that User is not a person or entity that is prohibited from such under applicable laws including but not limited to laws relating to economic or trade sanctions. The User is responsible for compliance with any and all laws applicable the use of the Software and/or the Output Files by the User.

12.5 Cumulative Rights

Unless otherwise stated herein, the rights and remedies of Orbital Stack set forth in this Agreement are not exclusive and are in addition to any other rights and remedies provided by law.

12.6 No Assignment

Orbital Stack may assign its rights and obligations under this Agreement. User may not assign its rights and obligations under this Agreement without the consent of Orbital Stack. The rights and obligations of both parties under this Agreement shall enure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns.

12.7 No Agency

During the term of this Agreement, neither party shall describe itself as agent or representative of the other party, except as authorized by this Agreement. Nothing in this Agreement shall be deemed to constitute, create, give effect to, or otherwise recognize a joint venture, partnership or formal business entity of any kind, nor shall any provision hereof be construed to authorize either party to act for or create any obligation on behalf of the other party.

12.8 No Waiver

Any failure of Orbital Stack to insist upon strict compliance with any terms and conditions of this Agreement shall not be construed as a waiver of such terms and conditions, or of the right of that party to insist at any time thereafter upon such strict compliance.

12.9 Severability

If any provision of this Agreement is unenforceable or invalid for any reason whatsoever, such unenforceability or invalidity shall not affect the enforceability or validity of the remaining provisions of this Agreement and such provision shall be severable from the remainder of this Agreement.

12.10 Entire Agreement

This Agreement sets out the entire agreement and understanding between the User and Orbital Stack with respect to the subject matter of this Agreement.

12.11 Translation of this Agreement

The original English language version of this Agreement may have been translated into other languages. The translated version of this Agreement is a courtesy translation only and no rights are derived from such translation. If there is a discrepancy or inconsistency between the English language version of this Agreement and a version of this Agreement translated into another language, the English language version of this Agreement shall apply, prevail, and be conclusive.