SkyD Terms of Use

1. About These Terms

1.1 Product-Specific Terms. These SkyD Terms of Use (“Terms”) are Product-Specific Terms under the Upscale General Terms of Use available at https://upscale.com/terms-of-use (the “General Terms of Use”). They govern your access to and use of the SkyD (the “Tool”) provided by Upscale, Inc. (“Upscale,” “we,” “us,” or “our”).

1.2 Acceptance. By clicking “Continue” when prompted, or by otherwise accessing or using the Tool, you agree to these Terms on behalf of yourself and the business you represent (together, “you”). If you do not agree, do not use the Tool.

1.3 Relationship to the General Terms of Use and other agreements. These Terms supplement and form part of the General Terms of Use, which also apply to your use of the Tool. If there is a conflict between these Terms and the General Terms of Use, these Terms control with respect to the Tool. Matters these Terms do not address, including governing law and dispute resolution, are governed by the General Terms of Use. These Terms, together with the General Terms of Use, constitute the entire agreement between you and Upscale regarding the Tool and its Outputs and supersede all prior or contemporaneous agreements, communications, and understandings regarding that subject matter. These Terms govern your use of the Tool even if you have a separate agreement with Upscale for other products or services, unless that agreement expressly refers to the SkyD.

2. The SkyD Tool

The Tool generates preliminary, first-pass planning estimates for the Ethernet networks of GPU clusters built on NVIDIA systems, including back-end GPU fabric, front-end, and out-of-band management networks using switches based on NVIDIA Spectrum-X. It also generates related hall and rack layouts, cable routes, optics and fiber trunks, power and cooling figures, an indicative bill of materials, and failure-scenario analysis (including the modeled impact of link or switch outages), and fault-tolerance recommendations (each, an “Output”). Outputs are intended to help you explore design options and to serve as a starting point for discussions with vendors and qualified professionals. They are not intended to be relied on. The Tool is provided free of charge. You may download an Output during your session; if you do not, it will not be available afterward (see Section 6). We have no obligation to provide continued or repeated access to the Tool.

3. Eligibility

3.1 Business use only. The Tool is for business and professional use only. It is not offered to consumers or for personal, household, or family purposes.

3.2 Business email required. You must register for and use the Tool with a valid email address issued by your employer or associated with your business's own domain. Personal and consumer email addresses (for example, Gmail, Yahoo, Outlook.com, Hotmail, iCloud, or email addresses provided by internet or telecommunication providers) are not accepted.

3.3 Authority. You represent that you are at least 18 years old and that you have authority to accept these Terms on behalf of the business you represent.

3.4 Competitors excluded. You may not access or use the Tool if you are, or are acting on behalf of, a competitor of Upscale, and you represent and warrant that you are not. You may not use the Tool to monitor its availability, performance, or functionality, for benchmarking or competitive analysis, or to build or improve a competing product or service. We may determine whether a person or entity is a competitor in our sole discretion.

3.5 Export Compliance and Use Restrictions. The Tool and its Outputs may be subject to U.S. and other applicable export control and economic sanctions laws, rules and regulations, including without limitation the regulations promulgated by the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”) and the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) (collectively, “Export Control Laws”). You agree to comply with all Export Control Laws as they relate to access to and use of the Tool and its Outputs. You shall not access or use the Tool if you are located in any jurisdiction in which the provision of the Tool is prohibited under U.S. or other applicable laws or regulations, including, without limitation, a country or territory that is subject to comprehensive U.S. trade sanctions (including, without limitation Cuba, Iran, North Korea, Syria, or the Crimea or so-called Donetsk People’s Republic (DNR) or Luhansk People’s Republic regions of Ukraine) (each, a “Prohibited Jurisdiction”) and you shall not provide access to the Tool or any Output to any government, entity or individual located in any Prohibited Jurisdiction. You represent, warrant and covenant that: (i) you are not named on, or owned or controlled by any party named on any U.S. government (or other government) list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person, (ii) you are not a national of, located in, or a company registered in, any Prohibited Jurisdiction, (iii) you will not use the Tool or any Output, directly or indirectly, to design, plan, or procure any computing cluster, data center, or network for any end use or end user that is prohibited or restricted under Export Control Laws, including any military, weapons of mass destruction, or restricted advanced computing, supercomputer, or artificial intelligence end use or end user, and (iv) you shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which you are located. You further agree you will not use the Tool to disclose, transfer, download, export or re-export, directly or indirectly, any Output or technical data to any country, entity or other party which is ineligible to receive such items under Export Control Laws or under other laws or regulations to which you may be subject. You acknowledge the Tool and the Outputs may not be available in all jurisdictions and you are solely responsible for complying with Export Control Laws.

3.6 Verification. We may, but are not obligated to, verify your eligibility, and we may refuse, suspend, or end access for anyone who does not meet these requirements or who we believe has given inaccurate information.

4. Registration Information

4.1 Accurate information. Access to the Tool requires registration with Upscale. You agree to provide accurate, current, and complete registration information (including your first and last name, business email address, and company name) and not to impersonate any person or business or misrepresent your affiliation with any business.

4.2 Purpose of registration. We use your registration information to confirm your eligibility and to operate and secure the Tool, as described in Upscale’s Privacy Notice. Your registration does not store Your Content or your Outputs.

5. Your Content and Outputs

5.1 Your Content. “Your Content” means any requirements, parameters, specifications, text, files, or other information you enter or upload into the Tool. As between you and us, you retain all rights you have in Your Content.

5.2 Your representations. You represent and warrant that (a) you own or have obtained all rights, licenses, consents, and permissions needed to upload Your Content to the Tool and to grant the license in Section 5.3; (b) Your Content, and our use of it as permitted by these Terms, does not and will not infringe, misappropriate, or violate any intellectual property, privacy, publicity, contractual, or other right of any third party, or any applicable law; (c) Your Content does not include any information that you are prohibited from disclosing to us under any confidentiality obligation, agreement, or law, including any third party's confidential information; and (d) Your Content does not include sensitive personal information (such as financial account, health, biometric, or government identification information), or any personal information about other individuals beyond what is needed to use the Tool.

5.3 License to us. You grant us a non-exclusive, worldwide, royalty-free license to host, copy, process, modify, and use Your Content and your Outputs to generate your Outputs, to operate, secure, maintain, and improve the Tool and our other products and services, and to comply with applicable law.

5.4 Your Outputs. Subject to these Terms, including Section 10, we grant you a non-exclusive, non-transferable, royalty-free license to use, copy, and modify any Output you download for your internal business purposes in evaluating and planning your own infrastructure, and to share Outputs with your vendors, contractors, and professional advisors for that purpose, provided that you (a) retain, and do not remove, obscure, or alter, any notices Upscale includes on the Output; (b) do not present any modified Output as having been generated or approved by Upscale; and (c) do not publish, sell, or commercially distribute any Output, or use any Output to develop a competing product or service or to train any machine-learning or artificial-intelligence model. This license terminates automatically if you breach these Terms.

5.5 Our materials. The Tool and its software, models, algorithms, databases, product data, design rules, templates, and other materials we provide (“Upscale Materials”) are owned by Upscale or its licensors. Except for the license in Section 5.4, we reserve all rights. You may not extract, copy, resell, or redistribute Upscale Materials on their own, separate from an Output.

5.6 Generated content. Outputs are generated by automated processes. Similar Outputs may be generated for other users, and we do not guarantee that any Output is unique or eligible for intellectual property protection.

6. Download Your Outputs; No Access After Your Session

6.1 Download before you leave. We strongly recommend that you download any Output you wish to keep before your session ends. The Tool does not provide saved projects, account storage, or a history of prior Outputs.

6.2 No access afterward. We will not provide you with any access to Your Content or your Outputs after your session ends, and we have no obligation to retain, retrieve, restore, or re-create them. We are not responsible for any loss of Your Content or Outputs.

7. Privacy and Data Use

7.1 Privacy Notice. The Upscale Privacy Notice, available at https://upscale.com/privacy-policy, describes how Upscale collects, uses, and shares personal information, including the registration information described in Section 4 and information collected through the Tool.

7.2 Usage Data. We may collect and use data about how the Tool is accessed and used (“Usage Data”), and aggregated or de-identified data derived from Your Content, your Outputs, or Usage Data, to operate, secure, analyze, develop, and improve the Tool and our other products and services, including machine-learning and artificial-intelligence features. Aggregated or de-identified data will not identify you or your business.

8. Third-Party Products and Trademarks; No Endorsement

8.1 Third-party information. The Tool and Outputs may include or refer to the names, trademarks, logos, product names, model numbers, specifications, images, or other information of third parties, including hardware, software, and component vendors such as NVIDIA (“Third-Party Information”). Third-Party Information is used for identification and reference purposes only.

8.2 No endorsement or affiliation. The appearance of any Third-Party Information in the Tool or any Output does not constitute or imply (a) any endorsement, sponsorship, recommendation, certification, or validation by Upscale of that third party or its products or services; (b) any endorsement, sponsorship, recommendation, or validation of Upscale, the Tool, any Output, or you by that third party; or (c) any affiliation, partnership, or other relationship between Upscale and that third party.

8.3 Trademarks. NVIDIA, Spectrum-X, and other product and company names mentioned in the Tool or any Output may be trademarks or registered trademarks of their respective owners. References to them describe the products the Tool is designed to work with and do not indicate any certification, validation, or partnership. Nothing in the Tool or any Output grants any license or right to use any third-party trademark or other intellectual property.

8.4 Third-party information may be inaccurate. Third-Party Information, including product specifications, power ratings, port counts, and compatibility information, is drawn from publicly available or third-party sources that Upscale has not independently verified, and may change without notice. See Section 10.

8.5 Your responsibility. You are solely responsible for having all rights needed for any third-party materials you include in Your Content, and for complying with any applicable third-party trademark or brand guidelines when you share an Output as permitted under Section 5.4.

8.6 No misleading use. You may not present any Output as having been endorsed, validated, certified, or provided by Upscale or by any third-party vendor, or as an official vendor design, reference architecture, or quotation.

9. Acceptable Use

You agree not to, and not to allow anyone else to: (a) upload or create any content that is unlawful, infringing, defamatory, obscene, harassing, or deceptive; (b) use the Tool or any Output to impersonate any person or business, or to commit fraud; (c) upload malware or interfere with or disrupt the Tool; (d) access the Tool by automated means, including scraping, bots, or bulk generation, except with our express prior permission in writing; (e) reverse engineer, decompile, or attempt to derive the source code, underlying models, algorithms, design rules, or product data of the Tool, including by systematically running inputs to replicate its logic, except as permitted by law; (f) resell, sublicense, or provide the Tool to third parties; (g) circumvent any eligibility, security, or usage controls; (h) remove, obscure, or alter any notice, label, or footer in the Tool or on any Output; or (i) use the Tool or any Output in violation of any applicable law, including Export Control Laws.

10. Disclaimers

10.1 Planning purposes only. The Tool is provided by Upscale for information and preliminary planning purposes only. Outputs are first-pass estimates intended to help you explore design options. They are not final designs, design specifications, construction or installation documents, or professional engineering, electrical, mechanical, or other technical advice, and they are not intended to be relied on.

10.2 Technology changes quickly. AI cluster technology, products, and specifications change quickly, and vendors may change their products, specifications, availability, and pricing at any time without notice. Upscale makes reasonable efforts to keep the Tool’s content current and to check it. However, the Tool may not reflect the latest products, firmware, specifications, or vendor guidance, and Upscale has no obligation to update the Tool or any Output.

10.3 All Outputs are estimates. All Outputs are approximate estimates. This includes network sizing and topologies for back-end, front-end, and out-of-band management networks; switch, device, component, port, and cable counts; hall and rack layouts; cable routes, types, and lengths; optics, transceivers, and fiber trunks; power and cooling figures; bills of materials; failure-scenario and outage-impact results; and fault-tolerance recommendations. Outputs are generated from the inputs you provide and from assumptions and data that may be incomplete or out of date, and may be based on maximum, nameplate, or typical values rather than actual measured values. Further, the accuracy of an Output depends on the accuracy and completeness of your inputs. Actual results will vary depending on your workloads, hardware and software configurations, firmware versions, facility conditions, and other factors the Tool does not model.

10.4 Layouts and cable routes are conceptual. Hall layouts, rack placements, cable routes, and fiber trunk designs are conceptual. They do not account for site-specific conditions such as structural and floor-loading limits, containment, clearances, cable tray capacity, bend radius, power distribution, or applicable building, electrical, and fire codes, and they may omit ports, connections, components, or spatial details.

10.5 Bill of materials is indicative. Any bill of materials is indicative only. It may omit items, accessories, spares, or part numbers, and quantities may be inaccurate. It is not a quotation, offer to sell, or order, and it does not reflect product availability, pricing, or lead times.

10.6 Power and cooling figures are modeled. Power and cooling figures are modeled estimates. They are not suitable for electrical, power distribution, or mechanical design, or for sizing facility power or cooling infrastructure.

10.7 Failure scenarios and fault-tolerance recommendations. Failure-scenario results, including the modeled impact of link or switch outages, reflect only the scenarios and assumptions the Tool models. Any fault-tolerance recommendations are automated Outputs based on those results and are not professional advice. Neither failure-scenario results nor fault-tolerance recommendations are a representation or warranty of availability, redundancy, resilience, or performance under any failure condition, and they must not be used to set or support service levels or uptime commitments.

10.8 Design selection. Where the Tool selects a design or recommends any configuration based on power or any other criterion, the selection is made only among the options the Tool evaluates, using modeled assumptions. It does not mean that the design is the lowest-power, lowest-cost, or best-performing design for your requirements.

10.9 No vendor validation. Outputs have not been reviewed, tested, or validated by NVIDIA or any other vendor, and they are not vendor reference architectures or certified configurations. Refer to the applicable vendor documentation and reference architectures.

10.10 Not for construction, procurement, or installation. Outputs are not for construction, procurement, installation, or commissioning. Outputs must not be used as the basis for any electrical, power distribution, cooling, structural, fire-protection, or life-safety design. Any such design must be prepared or approved by appropriately licensed or qualified professionals responsible for the project.

10.11 Not a substitute for professional advice or vendor documentation. Outputs do not replace vendor documentation, design guides, reference architectures, compatibility matrices, site surveys, or the advice of qualified network, electrical, mechanical, and facilities engineers. Any infrastructure you design, install, or operate must comply with applicable vendor specifications and with all applicable laws, codes, and standards, including electrical, fire, building, and safety codes.

10.12 No professional relationship. Your use of the Tool does not create any engineering, consulting, advisory, or other professional relationship between you and Upscale, and Upscale does not assume any duty of care with respect to any design, facility, or project.

10.13 Your responsibility. You are solely responsible for evaluating any Output and for any use of, or reliance on, it, including any decision to buy equipment, sign contracts, make commitments to third parties, or design, build, or modify any network, data center, or facility. The entire risk arising from your use of, and reliance on, the Tool and its Outputs remains with you.

10.14 Sharing Outputs. If you share an Output with anyone else, you may not represent the Output as final, approved, reliable, or suitable for construction, procurement, or installation. You are responsible for any use of, or reliance on, an Output by anyone with whom you share it. Upscale has no duty or liability to any such person.

10.15 Third-party products. References to third-party products, components, or services in the Tool or any Output (for example, GPUs, servers, switches, network interface cards, optics, cables, and power and cooling equipment) are provided for informational purposes only. Upscale makes no representation or warranty regarding any third-party product, including its availability, specifications, compatibility, interoperability, performance, or support. Any warranty for a third-party product is provided solely by its manufacturer or seller.

10.16 Automated Outputs. Outputs are generated by automated processes and may contain errors, omissions, or inconsistencies, including between Outputs generated from similar inputs.

10.17 No warranties. THE TOOL, ALL OUTPUTS, AND ALL UPSCALE MATERIALS ARE PROVIDED FREE OF CHARGE “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY. TO THE FULLEST EXTENT PERMITTED BY LAW, UPSCALE DISCLAIMS ALL WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, ACCURACY, AND COMPLETENESS, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, UPSCALE DOES NOT WARRANT THAT ANY DESIGN, NETWORK SIZING, DEVICE COUNT, LAYOUT, CABLE ROUTE OR LENGTH, BILL OF MATERIALS, POWER OR COOLING FIGURE, FAILURE-SCENARIO OR OUTAGE-IMPACT RESULT, FAULT-TOLERANCE RECOMMENDATION, CONFIGURATION, OR OTHER OUTPUT IS ACCURATE, COMPLETE, CURRENT, OR FIT FOR ANY PARTICULAR PURPOSE; THAT ANY DESIGN WILL FUNCTION AS EXPECTED, BE FAULT-TOLERANT, OR MEET YOUR REQUIREMENTS; OR THAT THE TOOL WILL BE UNINTERRUPTED, SECURE, OR ERROR-FREE. WE PROVIDE NO SUPPORT OR SERVICE LEVEL COMMITMENT.

11. Limitation of Liability

11.1 Exclusion of damages. TO THE FULLEST EXTENT PERMITTED BY LAW, UPSCALE, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, AND SUPPLIERS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR OTHER LOSS OR DAMAGE ARISING OUT OF OR RELATING TO THESE TERMS, THE TOOL, OR ANY OUTPUT, OR FROM YOUR USE OF OR RELIANCE ON THEM. THIS INCLUDES LOSS OF PROFITS, REVENUE, BUSINESS, GOODWILL, DATA, OR CONTENT; THE COST OF EQUIPMENT, MATERIALS, OR SERVICES PURCHASED OR PROCURED; THE COST OF REDESIGN, REWORK, OR REINSTALLATION; PROJECT DELAYS; SERVICE-LEVEL CREDITS OR PENALTIES OWED TO THIRD PARTIES; AND NETWORK, SYSTEM, OR FACILITY DOWNTIME OR DAMAGE. THIS EXCLUSION APPLIES WHETHER THE CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER THEORY, EVEN IF UPSCALE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11.2 Maximum liability. IF, DESPITE SECTION 11.1, UPSCALE IS FOUND LIABLE, ITS TOTAL LIABILITY ARISING OUT OF OR RELATING TO THESE TERMS, THE TOOL, OR ANY OUTPUT WILL NOT EXCEED ONE HUNDRED U.S. DOLLARS (US$100).

11.3 Relationship to the General Terms of Use. This Section 11 applies to the Tool and its Outputs in place of any limitation of liability in the General Terms of Use.

11.4 Basis of the bargain. You acknowledge that Upscale provides the Tool free of charge, and that the disclaimers in Section 10 and the limitations in this Section 11 are an essential basis of the bargain between you and Upscale.

11.5 Jurisdictional limits. Some jurisdictions do not allow the exclusion or limitation of certain warranties or damages. In those jurisdictions, these exclusions and limitations apply to the fullest extent permitted by law.

12. Indemnification

You (and the business you represent) will defend, indemnify, and hold harmless Upscale and its affiliates, officers, employees, and agents from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys' fees) arising out of or relating to (a) Your Content; (b) your use of any Output, including any use of Third-Party Information; (c) any Output that you provide to or share with any third party, or any third party's use of or reliance on it; or (d) your breach of these Terms or applicable law. This Section supplements any indemnity in the General Terms of Use.

13. Changes, Suspension, and Termination

13.1 Changes to the Tool. We may modify, suspend, limit, or discontinue the Tool, or any part of it, at any time, with or without notice, and without liability to you.

13.2 Suspension and termination. We may suspend or end your access at any time, including if we believe you do not meet the eligibility requirements in Section 3 or have breached these Terms.

13.3 Survival. Sections 1.3, 3.5, 5.2, 5.3, 5.4 (as to Outputs lawfully downloaded before termination), 5.5, 5.6, 6, 7.2, and 8 through 15 survive any termination.

14. Changes to These Terms

We may update these Terms from time to time. The “Last Updated” date above shows when they were last changed. If we make material changes, we will ask you to accept the updated Terms the next time you access the Tool. Your continued use of the Tool after accepting, or after updated Terms take effect, means you accept them. Questions about these Terms may be sent to legal@upscaleai.com.

15. No Third-Party Beneficiaries

These Terms are for the benefit of you and Upscale only. No other person, including anyone with whom you share an Output, has any right to enforce these Terms or to rely on any Output.