Terms and Conditions


END USER LICENSE AGREEMENT

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, 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) “CFD” means computational fluid dynamics and “CFD Software” means Software which utilizes CFD to create Output Files;
  • (d) “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.
  • (e) “Intended Use” has the same meaning as in Article 3 herein.
  • (f) “Orbital Stack Website” means the website through which Users may access the Software.
  • (g) “Output Files” means the simulations, analyses, reports, documents and information generated as output by Users based on User Inputs using Software.
  • (h) “Personal Information” means information about an identifiable individual.
  • (i) “Professional Services” means the services of a professional engineer in interpreting the Output Files or the services of any other professional that is duly qualified to provide a professional opinion on the User Input.
  • (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) “Software” means all of the proprietary software of Orbital Stack;
  • (l) “Software Services” means any support or guidance offered by Orbital Stack to Users in relation to the 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;
  • (m) “User Content” means the User Inputs and Output Files generated therefrom;
  • (n) “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.
  • (o) “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.

Article 2 – Grant of License

2.1 Grant

Subject to the terms and conditions of this Agreement, Orbital Stack hereby grants User, a limited, non-exclusive, non- sublicenseable, non-transferable license to use the AI 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 Licensee 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 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 makes no warranty, express or implied, as to the accuracy or completeness of any Output Files;
  • (i) 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;
  • (j) 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
  • (k) 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, 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 access the Software, 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 – Warranty Disclaimer

6.1 Disclaimer

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;
    • (iii) the Software is entirely free from security vulnerabilities;
    • (iv) User Content will not be lost or damaged.
  • (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 the Licensee or 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) In the absence of a written agreement for services between the User and Orbital Stack, the User shall not be entitled to any Software Support Services.
6.2 Limitation of Liability

The User acknowledges that Orbital Stack is providing User with use of the AI Software free of charge. Accordingly, to the maximum extent permitted by applicable law Orbital Stack shave no liability whatsoever for any loss or damages suffered by the User as a result of its use of the Software regardless of the theory of liability and whether based on contract, tort (including negligence and strict liability), indemnification, recourse, statute or otherwise. Furthermore, 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 (in each case, regardless of the legal theory for seeking such damages or other liability).

Article 7 – Indemnification

7.1 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 8 – Changes

8.1 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) terminate free use of the Software by Users; and
  • (e) to the maximum extent permitted by applicable law, modify the terms of this Agreement.
8.2 Termination

Orbital Stack may, in its sole and unfettered discretion, terminate the licenses to the Software granted to User under this Agreement at any time, for any reason, by restricting access to the User’s profile or account or by written notice to User.

Article 9 – General

9.1 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. 

9.2 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.

9.3 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.

9.4 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.

9.5 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.

9.6 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.

9.6 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.