InOrbit Connect Participation Agreement

InOrbit Connect™ Participation Agreement

Effective Date: June 1, 2023

This InOrbit Connect™ Participation Agreement (this “Agreement”) constitutes a legally binding agreement between InOrbit, Inc., a Delaware corporation (“we” or “InOrbit”) and you (“you” or “Participant”) . InOrbit and Participant shall individually be referred to as a “Party” and collectively as the “Parties.” Participant wishes to participate in InOrbit Connect™, a certification program operated by InOrbit designed to simplify the deployment of automation solutions (the “Program”), in accordance with the following terms and conditions.

By checking the “I agree to the InOrbit Connect Participation Agreement” box you agree to be bound by this Agreement.

DEFINED TERMS
1. “Candidate Device” means a device, including without limitation a robot or other automation and automation-adjacent equipment, designated by Participant to qualify as a Certified Device.
2. “Certification Process” means completion of the requirements set forth at https://www.inorbit.ai/connect/certification.html.
3. “Certified Device” means a device that is representative of a model or class of equipment offered by Participant which has met the requirements of the Certification Process.
4. “Certified Device Activation” means enabling a specific User to gain access to data from one or more Certified Dev ices in accordance with the process set forth at https://www.inorbit.ai/connect/activation.html.
5. “Certified Unit” means an individual device corresponding to the same type as a Certified Device, as identified by model number, name or any other designation in all customer-facing communications.
6. “InOrbit Connect API” means the API located at
  https://api.inorbit.ai/connect/deviceAssociationCodes.
7. “InOrbit Platform” means the platform used to monitor, analyze, and control robots and other devices governed by the InOrbit Terms. The InOrbit Platform is accessible at https://control.inorbit.ai.
8. “InOrbit Software” means the InOrbit Agent, SDKs, and reference implementations.
9. “InOrbit Terms” means the Terms of Service available at https://www.inorbit.ai/terms.html.
10. “Ongoing Certification Requirements” means the requirements that must be completed on an ongoing basis to maintain Certified Device status as detailed in the Certification Process.
11. “Users” means third party companies who use or develop solutions for Participant’s devices, including but not limited to end users and system integrators.
INORBIT CONNECT™ CERTIFICATION PROGRAM
1. Participant may designate one or more equipment models developed by Participant as Candidate Devices to become InOrbit Connect™ Certified. As part of the Certification Process, Participant shall indicate to InOrbit the data that shall become available for its Certified Devices, including designating data to be accessible by Participant and data to be accessible by Users, in all cases through the InOrbit Platform.
2. InOrbit shall determine, in its sole discretion, which Candidate Devices meet the minimum set of requirements to be InOrbit Connect™ Certified in accordance with the Certification Process. Upon each Candidate Device’s successful completion of the Certification Process, such device shall be deemed a Certified Device.
3. In order to provide for the consistency of experience that is integral to the InOrbit Connect program, each Certified Unit shall meet all the same criteria as was identified as part of the Certification Process. For avoidance of doubt, every Certified Unit shall include before delivery to a User the applicable InOrbit Software and any Participant-defined configurations, settings, or integration code required for said Certified Unit to be capable of connecting to the InOrbit Platform.
4. In order for each class of Certified Device to maintain its status as InOrbit Connect™ Certified, Participant must, on behalf of each class of Certified Devices, at all times meet the Ongoing Certification Requirements. If Participant fails to complete and/or maintain the Ongoing Certification Requirements for any class of Certified Devices, InOrbit shall have the right to revoke such Certified Device’s status as InOrbit Connect™ Certified. InOrbit may, in its full discretion, contact Participant if any Certified Device fails to meet the Ongoing Certification Requirements, giving Participant a period not to exceed fifteen (15) days to provide a cure in order to maintain the status as Certified Devices.
LICENSE TO INORBIT SOFTWARE
1. Participant InOrbit hereby grants to Participant for its use on each instance of a Certified Device a non-exclusive, non-transferable, revocable, royalty-free license, during the Term, to use the InOrbit Software for the purpose of enabling Participant’s devices to connect to the InOrbit Platform..
PARTICIPANT INORBIT PLATFORM ACCESS
1. Participant shall have the option to access data related to Certified Devices through the InOrbit Platform.
2. All access to the InOrbit Platform shall be governed by the InOrbit Terms and subject to payment of all applicable fees, if any.
3. The specific data available to Participant related to Certified Devices through the InOrbit Platform shall be determined by Participant as part of the Certification Process.
USERS INORBIT PLATFORM ACCESS
1. Users shall have the option to access data related to Certified Devices through the InOrbit Platform, provided that Participant has completed the Certified Device Activation for said Certified Devices.
2. All access to the InOrbit Platform by a User shall be governed by the InOrbit Terms and subject to payment of all applicable fees, if any.
3. The specific data available to Users related to Certified Devices through the InOrbit Platform shall be determined by the Participant as part of the Certification Process.
CERTIFIED DEVICE ACTIVATION
1. Participant shall follow the steps for Certified Device Activation on behalf of every User that has acquired, including without limitation, bought, rented, leased, hired or other service or purchase agreement allowing User to utilize or otherwise benefit from, any Certified Unit corresponding to a Certified Device offered by Participant.
2. In no case shall Participant unreasonably withhold User access to a Certified Unit through the InOrbit Platform.
3. In case of failure by Participant to complete the Certified Device Activation for covered Certified Units, InOrbit shall have the right to revoke Certified Device status as InOrbit Connect™ Certified and to terminate Participant’s participation in the Program. InOrbit may, in its full discretion, contact Participant if any Certified Units fail to complete the Certified Device Activation upon request by a User, giving Participant a period not to exceed fifteen (15) days to provide a cure in order to continue participating in the Program.
PUBLICITY
1. Participant hereby grants InOrbit the right to use promotional content and materials that Participant has released to InOrbit, including without limitation Participant’s name, logo, trademarks, trade names, promotional content, device model identifiers, and device capabilities and/or features (the “Participant Materials”) for the explicit purpose of identifying and promoting Participant as a participant in the Program. For avoidance of doubt, InOrbit shall have the right to use Participant Materials on the Robot Directory available at https://directory.inorbit.ai (the “Robot Directory”), as well as in other promotional materials created and published by InOrbit.
2. InOrbit hereby grants Participant the right to use InOrbit’s name and logo, and the InOrbit Connect™ logo available at https://inorbit.ai/InOrbitConnect/logo, for the explicit purpose of identifying and promoting Participant as a participant in the Program.
DISCLAIMER OF WARRANTIES
1. PARTICIPANT HEREBY ACKNOWLEDGES AND AGREES THAT THE PROGRAM IS PROVIDED BY INORBIT ON AN “AS IS” BASIS AND AS AVAILABLE, AND YOUR ACCESS TO, PARTICIPATION IN, AND/OR USE OF THE PROGRAM IS AT YOUR SOLE RISK. TO THE EXTENT PERMITTED BY APPLICABLE LAW, INORBIT EXPRESSLY DISCLAIMS ALL AND YOU RECEIVE NO WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. INORBIT MAKES NO WARRANTY THAT ANY OF THE SERVICES CONTEMPLATED HEREUNDER (INCLUDING THE PROGRAM) WILL MEET PARTICIPANT’S REQUIREMENTS AND/OR THAT SUCH SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE, NOR DOES INORBIT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM PARTICIPANT IN THE PROGRAM. PARTICIPANT UNDERSTANDS AND AGREES THAT ANY SOFTWARE DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE PARTICIPATION IN THE PROGRAM IS DONE AT PARTICIPANT’S SOLE RISK AND THAT PARTICIPANT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM, ROBOTS, DEVICES, AND/OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD THE SOFTWARE. NO INFORMATION OR ADVICE, WHETHER ORAL OR WRITTEN, OBTAINED BY PARTICIPANT FROM INORBIT OR THROUGH THE PROGRAM SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES AND CONDITIONS, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO PARTICIPANT.
  PARTICIPANT PROVIDES THE CANDIDATE DEVICE AND ALL OTHER PRODUCTS
  ON AN AS-IS BASIS AND HEREBY DISCLAIMS ALL WARRANTIES WHATSOEVER,
  WHETHER EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO,
  FITNESS FOR A PARTICULAR PURPOSE. INORBIT SHALL NOT MAKE ANY
  WARRANTIES OR REPRESENTATIONS REGARDING THE CANDIDATE’S DEVICE OR
  ANY OTHER PRODUCTS OR SERVICES PROVIDED BY PARTICIPANT.
2. Participation in the Program is strictly voluntary. Participants have ultimate control of their ecosystem. To the extent that a Participant provides self-certification or makes changes to their system that impact continuous compliance, InOrbit takes no responsibility for any impact that this may have on such Participant or any third parties relying on the Program.
LIMITATION OF LIABILITY
1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (I) NEITHER PARTY NOR ITS AFFILIATES SHALL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, OR FOR LOST PROFITS, LOST OPPORTUNITIES, OR INTERRUPTION OF BUSINESS, OR THE COST TO PROCURE SUBSTITUTE GOODS OR SERVICES, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE GREATER OF (1) THE AMOUNT PAID BY PARTICIPANT TO INORBIT IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM, OR (2) USD $100.00.
2. Liability arising out of Participant’s use of the InOrbit Platform shall be governed by the InOrbit Terms.
TERM AND TERMINATION
1. Termination. This Agreement, and Participant’s right to participate in the Program shall terminate immediately if: (i) InOrbit determines that Participant has failed to meet the requirements set forth in Section 2 hereof and fails to remedy such failure within five (5) business days; (ii) a party materially breaches any provision of this Agreement and fails to cure such breach within thirty (30) days from the date of such party’s written notice to the other party, (iii) a party seeks protection under any bankruptcy or similar proceeding and such proceeding is not dismissed within sixty (60) days; (iv) Participant desires to cease participation in the Program and provides InOrbit with written notice thereof; or (v) InOrbit terminates the Program.
2. Effect of Termination. Upon termination of this Agreement: (i) each party will cease use of the other party’s materials or Participant Materials, as the case may be, as permitted under Section 7; (ii) the license set forth in Section 3 hereof shall terminate and Participant shall cease all use of the InOrbit Software, provided that any other licenses that Participant may have to the InOrbit Software or other software or solutions offered by InOrbit shall remain unaffected by such termination; and (iii) InOrbit shall remove Participant’s Certified Devices from the Robot Directory and other promotional material.
CONFIDENTIALITY
1. “Confidential Information” means non-public information that is identified as confidential at the time of disclosure by the Disclosing Party or that should reasonably be understood by the Receiving Party to be confidential due to the nature of the information or the circumstances surrounding its disclosure. Confidential Information does not include information that: (i) is made generally available to the public without breach of this Agreement or of any existing confidentiality obligations governing such information; (ii) is developed by the Receiving Party independently from and without reference to the Confidential Information; (iii) is disclosed to the Receiving Party by a third party without restriction; or (iv) was in the Receiving Party’s lawful possession prior to disclosure and was not obtained by the Receiving Party either directly or indirectly from the Disclosing Party.
2. Obligations. Each party (the “Receiving Party”) shall protect the Confidential Information of the other party (the “Disclosing Party”) using the same degree of care that it uses to protect the confidentiality of its own confidential information (but not less than reasonable care). The Receiving Party shall (i) not use or disclose any Confidential Information of the Disclosing Party for any purpose except as necessary in performance of its obligations under this Agreement or as otherwise authorized by the Disclosing Party in writing, and (ii) limit access to Confidential Information of the Disclosing Party to those of its and its affiliates, employees and contractors who have a need to know such Confidential Information for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. The Receiving Party’s obligations under this Section 11 shall survive termination and continue for five (5) years from the date of termination of this Agreement. All Confidential Information shall remain the property of the Disclosing Party. Upon termination, the Receiving Party shall cease any use of the Disclosing Party’s Confidential Information. Upon the Disclosing Party’s written request, the Receiving Party shall promptly return or destroy all documents and tangible materials containing Disclosing Party’s Confidential Information and provide a signed document attesting to such return or destruction. If Receiving Party is required by law or court order to disclose Confidential Information, then Receiving Party shall, to the extent legally permitted, provide Disclosing Party with advance written notice and cooperate in any effort to obtain confidential treatment of the Confidential Information. The Receiving Party acknowledges that disclosure of Confidential Information may cause substantial harm for which damages alone may not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
GENERAL PROVISIONS
1. Governing Law and Venue. This Agreement will be governed by the laws of the State of California and the United States without regard to any conflicts of laws principles. The parties expressly consent to the personal jurisdiction and venue in the state and federal courts in Santa Clara County, California for any lawsuit filed relating to this Agreement.
2. Compliance with Laws. The parties agree to comply with all laws applicable to the use of the Service and performance of its obligations under this Agreement.
3. Assignment. This Agreement is not assignable, transferable or sublicensable by either party without the other party’s prior written consent, except in connection with a corporate reorganization or merger, acquisition, or sale of all or substantially all of its business and/or assets.
4. Miscellaneous. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. 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, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has the authority to bind the other party in any respect whatsoever.