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Terms of Service 

Effective Date: April 15, 2018

 

This Terms of Service constitutes a legally binding agreement between InOrbit, Inc., a Delaware corporation (“we” or “InOrbit”) and you (“you” or “Customer”) regarding the subscription services made available through the InOrbit Platform. InOrbit and Customer shall individually be referred to as a “Party” and collectively as the “Parties.”

By checking the “I Agree to the Terms of Service and Privacy Policy” box or (i) accessing or using any part of the Platform,  or (ii) initiating any transaction on the Platform, you agree to be bound by these Terms of Service.

THESE TERMS OF SERVICE INCLUDE PROVISIONS FOR BINDING ARBITRATION ON AN INDIVIDUAL BASIS – WHICH INCLUDES A WAIVER OF A RIGHT TO A JURY TRIAL OR A RIGHT TO FILE A CLASS ACTION.

  1. Definitions.  The following terms shall be capitalized throughout this Agreement and shall be defined as follows:
    1. API. Application Programming Interface provided by InOrbit to Customer to integrate InOrbit functionality to Customer’s Robots and Related Systems for purposes of utilizing the Subscription Services.
    2. Authorized Users. The individuals authorized by Customer to access and use the Subscription Services by use of an assigned Customer Account ID and/or user-ID and password or other method of authentication provided by InOrbit.
    3. Platform. The InOrbit Robot management platform available to Customer at control.inorbit.ai and api.inorbit.ai which allows Customer to remotely monitor and manage its Robot and Related Systems.
    4. Robot and Related Systems or “Robot”.  A reprogrammable, multifunctional autonomous or semi-autonomous unit or system of units consisting of a controller, storage device, computational and interface hardware operated by Customer for the performance of tasks or actions and/or processing of information for the purposes of Customer’s internal operations or the provision of third party services.
    5. Robot and Related Systems Data.  The data transmitted, stored and/or collected by InOrbit in connection with the overall functioning of the Robot, including, but not limited to, data generated as a result of the routine monitoring of Robot conditions and applicable sensors, recording of key events during a malfunction or operational anomalies,  implementing remote updates and fixes, etc., for the purposes of facilitating diagnostics, failure modeling, prediction, real-time analytics and visualization. 
    6. Service Data. The encrypted, aggregated, processed, derivative, statistical and/or other benchmark data that is generated and/or extracted from Robot and Related Systems Data for analytics and other information processing and purposes.
    7. Software.  The proprietary InOrbit software product(s) provided in connection with this Agreement in object code form (or as otherwise specified in any related Ordering Document), including any documentation related thereto.
    8. Subscription Services.  The cloud-based subscription and related services selected by Customer through the Platform.
    9. Updates. The term Updates means any and all bug fixes, patches, enhanced functionality and maintenance releases to the Subscription Services as offered by InOrbit from time to time in its sole and absolute discretion. 
  1. Subscription Services.  Pursuant to this Agreement, InOrbit shall provide to Customer the Subscription Services selected by Customer through the Platform.  InOrbit may provide Updates to the Subscription Services at any time.
  2. Authorized Users.  InOrbit shall provide to Customer one or more Customer Account IDs or API keys to enable authorized access to the Subscription Services. All Authorized Users shall be subject to the terms and conditions of this Agreement.  Customer shall be responsible for maintaining the confidentiality and security of its account and is responsible for any and all activities that occur under Customer’s account.  
  3. Licenses.
    1. API Licenses. During the Subscription Term, InOrbit grants to Customer a limited, non-exclusive, non-sublicenseable,  non-transferable, non-assignable revocable, worldwide license to InOrbit’s APIs to enable bidirectional connectivity to the cloud to facilitate Robot monitoring, data collection and control.
    2. End User License Agreement.   During the Subscription Term, InOrbit hereby grants Customer a limited, non-exclusive, non-sublicensable, non-transferable, non-assignable, revocable, worldwide license to (i) download, install and utilize the Software, and (ii) access and utilize the Subscription Services,  pursuant to the terms of this Agreement.
    3. Reservation of Rights. Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided herein, InOrbit has and will retain all rights, title and interest (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights related thereto) in and to the Software, Subscription Services and API and all copies, modifications and derivative works thereof (including any changes which incorporate any of your ideas, Feedback or suggestions). You acknowledge that you are obtaining only a limited license right to the Software, Subscription Services and API and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to you under this Agreement or otherwise.  Any and all rights not expressly granted herein by InOrbit are reserved by InOrbit.  
  1. Robots and Related Systems & Data Ownership. Except for the limited rights granted herein, Customer shall retain all right, title and interest to the its Robots and Related Systems and Robots and Related Systems Data (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights related thereto).  
  2. Robot and Related Systems Data License.  Customer hereby grants to InOrbit a non-exclusive, sublicenseable, royalty-free, non-revocable, worldwide right and license to collect, process, store, host, copy, transmit, display, distribute, disseminate, modify, and create derivative works of any and all Robot and Related Systems Data (excluding Customer’s source code, object code or similar Robot-application-specific data), for any purpose whatsoever, both commercial and non-commercial, without compensation or accounting to you.
  3. Service Data Ownership.  InOrbit expends significant resources gathering, assembling, and compiling the Service Data and such Service Data constitutes an original compilation protected by applicable copyright laws.  InOrbit shall retain all right, title and interest to any Service Data created, generated and/or derived from Customer’s use of the Subscription Services. InOrbit shall retain the unrestricted right, in its sole and absolute discretion, to utilize such Service Data for any purpose whatsoever, both commercial and non-commercial, without compensation or accounting to you.
  4. Promotional License.  Customer grants to InOrbit the unrestricted right and license to use Customer’s name and logos to market and promote the Subscription Services. This includes the worldwide right to copy, translate, broadcast, transmit, distribute, exhibit, perform, publish and display Customer’s name and logos as incorporated into InOrbit’s marketing and promotional materials.   InOrbit is granted no other rights to Customer’s name and logos and acknowledges that it shall not gain any proprietary interest in Customer’s name and logos.  InOrbit is under no obligation to make use of or to provide compensation for any of the rights or permissions granted.  InOrbit shall be the exclusive owner of all right, title, and interest, including copyright, in InOrbit’s marketing and promotional materials. This license may be terminated at any time with thirty (30) days written notice to legal@inorbit.ai.
  5. Feedback.  Any suggestions, ideas, proposals or other material submitted to InOrbit by Customer, whether solicited or unsolicited, (collectively, the "Feedback") shall be considered to be non-confidential and non-proprietary.  Notwithstanding the foregoing, Customer may not disclose such Feedback to any third party for any purpose whatsoever. InOrbit shall not be liable for the disclosure, use or exploitation of such Feedback. You hereby grant and agree to grant InOrbit a worldwide, non-exclusive, perpetual, irrevocable, royalty-free and transferable right and license to incorporate, use, publish and exploit the Feedback for any purpose whatsoever, commercial or otherwise, without compensation or accounting.
  6. Free Trial.  If Customer has opted to utilize InOrbit’s Early Access Program or other free trial or beta services offered by InOrbit from time to time (collectively “Free Trial”), such Free Trial Subscription Services will be available to Customer free of charge until earlier of (a) the date on which your Free Trial subscription expires or is terminated by either Party, or (b) the start date of your paid subscription plan.   Paid subscriptions are subject to the terms and conditions in effect upon purchase of the applicable subscription plan.
  7. Fees and Term. 
    1. Payment.  You expressly authorize us to charge the applicable recurring Subscription Service fees (“Subscription Fees”), as well as any additional fees for add-on services selected on the Platform,  pursuant to the authorized payment method provided by you through your account.
    2. Usage Fees. In addition to recurring Subscription Fees, additional usage fees based on units in excess of your Subscription Plan allotment shall be charged to the authorized payment method in arrears in accordance with the fees specified at the time of purchase, or any renewal thereof.  
    3. Additional Fees.  Additional fees for professional services shall be subject to a separate statement of work entered into by the Parties.
    4. Late Payments.  In the event InOrbit is unable to process payment of the applicable fees, InOrbit reserves the right to suspend or terminate services for payments that are more than fifteen (15) days past due.  Past due payments will accrue interest at the greater of 1.5% monthly or the highest interest rate allowable under applicable law.
    5. Subscription Term.  The term of the subscription will commence on the date the Subscription is purchased and shall continue for the periodic subscription term chosen by you on the Platform (“Subscription Term”), and any renewal thereof, until terminated pursuant these Terms of Service.
    6. Taxes. Customer is responsible for paying any applicable taxes, including, but not limited to, governmental sales, use, value-added, commodity, harmonized, GST, consumption tax, service tax and other taxes imposed on your purchase or use of the Subscription Services. To the extent InOrbit is required to collect such taxes, the applicable tax will be added to Customer’s billing account.
    7. No Refunds.  Subscription Fees will not be prorated upon cancellation and/or termination and all fees paid through the date of termination are nonrefundable.
  1. Subscription Automatic Renewal.  
    1. The Subscription Fees consists of an initial charge followed by recurring periodic charges in accordance with the Subscription Plan selected by you on the Platform.  By entering into this agreement, you acknowledge that your subscription has an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. 
    2. Periodic charges consistent with your purchased Subscription Plan shall be charged without further notice or additional authorization from you, until you cancel the Subscription Services in accordance with these terms.
    3. Unless cancelled by either Party, your Subscription Services will be automatically renewed, and the renewal Subscription Fees will automatically be charged to the payment mechanism utilized by you for the original Subscription Services or the most recent renewal.  The renewal price will be the current rate then in effect at the time of renewal. You will receive a notice prior to renewal of any changes in Subscription Fees or these Terms of Service.
    4. Automatic Renewal Cancellation.  If you do not want to renew, you must cancel your subscription by email at legal@inorbit.ai or, if available, within the Platform dashboard, prior to the Renewal Date.  If InOrbit opts not to renew your services, it will email you at the email address provided by Customer on the Platform.
  1. Use Restrictions.  Customer will not, directly or indirectly, alter or modify the Subscription Services, or reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Software, Subscription Services, API, and/or the documentation or data related to the Software, Subscription Services and/or API.   You will not make the Software, Subscription Services or API available for the benefit of any third party, or sell, resell, license, sublicense, distribute, rent or lease the Software, Subscription Services or API to any third party for any purpose, commercial or otherwise.
  2. Confidentiality & Non-Disclosure.  In providing the Subscription Services under this Agreement, InOrbit may have access to Customer’s confidential and proprietary Customer Data (“Confidential Information”). To the extent such Confidential Information is disclosed to InOrbit:
    1. Non-Disclosure Obligation.  InOrbit shall not disclose any Confidential Information to any third party for any reason without your prior written consent, other than its employees or agents who have a need to know about such information in order to provide the Subscription Services.
    2. Required Disclosure. In the event InOrbit is requested or required by legal process to disclose any of the Confidential Information, InOrbit shall give Customer prompt notice so that you may seek a protective order or other appropriate relief prior to any such disclosure.  In the event that such protective order is not obtained, InOrbit shall disclose only that portion of the Confidential Information that its legal counsel advises that it is legally required to disclose, and shall work with the owner of such Confidential Information to minimize the extent and effect.
    3. Injunctive Relief. Both Parties understand and agree that money damages will not be a sufficient remedy for any breach of InOrbit’s confidentiality obligations under this Section, and that Customer shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach.  Such remedies will not be deemed to be the exclusive remedies for a breach by Customer, but will be in addition to all other remedies available to Customer at law or in equity.
  1. Customer Support.  Customers should email InOrbit at support@inorbit.ai for customer support and assistance.  InOrbit support personnel shall respond to Customer’s email inquiries regarding issues relating to the Subscription Services within a reasonable timeframe.
  2. Security and Privacy. InOrbit will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Robot and Relates Systems Data in accordance with industry standard security requirements and shall comply with all laws applicable to InOrbit’s data collection and processing practices. Customer shall be responsible for ensuring compliance with any and all privacy, notice and consent rules or regulations and/or data collection laws or regulations applicable to its use of the Subscription Services, its operation of its Robots, and the collection and processing of information and Robots and Related Systems Data.  
  3. Representations and Warranties. Each Party represents and warrants that:
    1. Good Standing & Authority. It is duly organized, validly existing and in good standing under the laws of the place of its origin, and possesses all the necessary authority to enter into and perform its obligations under this Agreement.
    2. Compliance with Applicable Laws.  Customer shall comply with all state, federal or international laws or regulations applicable to the performance of its obligations under this Agreement, including all safety, privacy, information processing and security rules and regulations. Customer represents and warrants it has obtained all applicable licenses and permits necessary for the lawful operation of the Robot.
    3. Ownership.  Customer represents that it has all right, title and interest necessary to operate the Robot and to permit the integration of InOrbit’s API for the purposes of collecting and processing Robot and Related Systems Data.
  1. Export Compliance. You acknowledge that the Software, Subscription Services and API may be subject to United States export control and economic sanctions laws, import laws, and to regulations and requirements of certain foreign governments. You shall not, and shall not allow any third party to, export from the United States or allow the re-export or re-transfer of any part of the Subscription Services: (a) to any country subject to export control embargo or economic sanctions implemented by any agency of the U.S. Government; (b) to any person or entity on any of the U.S. Government’s Lists of Parties of Concern (http://www.bis.doc.gov/index.php/policy-guidance/lists-of-parties-of-concern); (c) to any known end-user or for any known end-use related to the proliferation of nuclear, chemical or biological weapons or missiles, without first obtaining any export license or other approval that  may  be  required  by  any  U.S.  Government agency having jurisdiction with respect to the transaction; or (d) otherwise in violation of any export or import laws, regulations or requirements of any United States or applicable foreign agency or authority.
  2. Suspension of Services.  InOrbit may immediately suspend, revoke or limit Client’s use of the Software and Subscription Services if InOrbit determines there is a material breach of Client’s obligations or violation of applicable law.
  3. Termination. 
    1. Automatic Termination.  This Agreement shall automatically terminate, without notice, (i) upon the institution by or against either Party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of either Party’s debts, (ii) upon either party making an assignment for the benefit of creditors, or (iii) upon either party’s dissolution or ceasing to do business.
    2. Breach.  Either Party may terminate this Agreement if the other Party breaches any material provisions of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such breach.
    3. Survival.  The following Sections survive termination of this Agreement: Individual Binding Arbitration, Promotional License, Feedback License, Service Data Ownership, Confidentiality & Non-Disclosure, Disclaimer of Warranties, Indemnity, Limitation of Liability, and Choice of Law.
  1. Individual Binding Arbitration. Any claim or controversy with InOrbit arising out of or relating to the Platform, Software, Subscription Services and/or this Agreement (including its formation, interpretation, performance and breach) shall be settled by binding arbitration. Binding arbitration shall be administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules, excluding any rules or procedures governing or permitting class actions. Any judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.  
  2. Future Functionality. Customer agrees that its purchase of the Subscription Services and use of the accompanying Software and API’s, is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by InOrbit regarding future functionality or features.
  3. DISCLAIMER OF WARRANTIES.  UNLESS OTHERWISE STATED HEREIN AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE, SUBSCRIPTION SERVICES AND API INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS AGREEMENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.  INORBIT DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE, SUBSCRIPTION SERVICES  OR API (I) WILL BE UNINTERRUPTED, TIMELY OR SECURE, (II) WILL BE FREE OF DEFECTS, INACCURACIES OR ERRORS, (III) WILL MEET YOUR REQUIREMENTS, OR (IV) WILL OPERATE IN THE CONFIGURATION OR WITH OTHER HARDWARE OR SOFTWARE YOU USE. EXCEPT WHERE PROHIBITED BY LAW, INORBIT EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT AND WILL NOT BE LIABLE FOR YOUR USE OF OR RELIANCE ON THE SOFTWARE, SUBSCRIPTION SERVICES AND API.
  4. DISCLAIMER OF THIRD PARTY CONDUCT. INORBIT DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO YOUR USE OF THE SOFTWARE, SUBSCRIPTION SERVICES AND API.  TO THE EXTENT PERMITTED BY APPLICABLE LAW, INORBIT MAKES NO WARRANTIES REGARDING THIRD PARTY SERVICES, GOODS, RESOURCES AND INFORMATION INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT AND WILL NOT BE LIABLE FOR YOUR USE OF OR RELIANCE ON SUCH OTHER THIRD PARTY SERVICES, GOODS, RESOURCES OR INFORMATION.
  5. LIMITATION OF LIABILITY.  YOU EXPRESSLY AGREE THAT YOUR USE OF THE SOFTWARE, SUBSCRIPTION SERVICES AND API IS AT YOUR SOLE RISK.  NEITHER INORBIT NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SUBSCRIPTION SERVICES AND API WILL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOST PROFITS, SECURITY BREACH, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE SOFTWARE, SUBSCRIPTION SERVICES AND API, EVEN IF INORBIT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL INORBIT’S AGGREGATE LIABILITY, OR THAT OF ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF, OR OF THE INABILITY TO USE, THE SOFTWARE, SUBSCRIPTION SERVICES AND API, EXCEED THE FEES PAID TO INORBIT IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO YOUR CLAIM.
  6. INDEMNITY.  To the maximum extent permitted by law, Customer agrees to indemnify, defend and hold harmless InOrbit, and its InOrbit subsidiaries, affiliates, officers, directors, shareholders, employees, representatives, agents, volunteers, attorneys, managers, licensors, business partners and each of their respective successors and assigns (the “Indemnified Parties”) from and against all damages, losses, liabilities, claims, expenses, fees or costs (including, without limitation, reasonable attorneys’ fees and costs) incurred in connection with any claim, demand or action brought or asserted against any of the Indemnified Parties arising out of or relating to (i) Customer’s use of the Software, Subscription Services and API, (ii) Customer’s breach of this Agreement, (iii) Customer’s violation of any third party right, including without limitation any intellectual property right, publicity, property or privacy right, (iv) a breach of Customer’s representations or warranties under this Agreement, (v) a breach of Customer’s obligations under applicable law, and (vi) any claim for bodily injury, death, or property damage caused by Customer, its agents, subcontractors and/or its Robots and Related Systems.   Customer’s obligations under this Section will be conditioned upon promptly notifying InOrbit in writing of the existence of any such claim, giving InOrbit full authority to conduct the defense and settlement of the claim.
  7. Miscellaneous.
    1. Force Majeure.  InOrbit will not be liable or responsible for any delays in providing the Subscription Services, or for failing to provide the Subscription Services, as a result of any event beyond its reasonable control, including, without limitation, adverse weather conditions, internet outage or interruption of service, telecommunications or power outage, fire, flood, civil disobedience, terrorism, labor disruptions, strikes, lockouts, freight, embargoes, terrorism, natural disaster, denial of service attacks, war or acts of God.  
    2. Independent Contractors.  The Parties to this agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created herein between the parties.  Neither Party will have the power to bind the other or incur obligations on the other’s behalf without the other Party’s prior written consent.
    3. Severability.  The validity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement.  
    4. Modifications.  No modification of this Agreement shall be effective unless it is in writing and signed by an authorized representative of each Party.
    5. Choice of Law.  This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California, without regard to or application of California’s conflict of law principles.  The Parties consent to the jurisdiction of the State of California, and venue in Santa Clara County, with regard to any controversy or claim arising out of or relating to this Agreement, or the breach thereof
    6. Assignment.  Neither Party shall assign any of the rights or obligations under this Agreement without the prior written consent of the other Party, which consent shall not unreasonably be withheld.  However, consent is not required for an assignment of this Agreement in connection with a change of control, merger, stock transfer, sale or other disposition of substantially all the assets of the assigning Party’s business.
    7. Successors and Assigns.  This Agreement is binding on and inures to the benefit of the Parties and their respective successors and permitted assigns.
    8. No Waiver.  No failure or delay by a Party exercising any right, power or privilege under this Agreement will operate as a waiver thereof.
    9. Interpretation.  Headings are for reference purposes only and do not limit the scope or extent of such section.
    10. Notices.  All notices required or permitted to be given under this Agreement will be in writing and delivered to:  InOrbit at: InOrbit, Inc. 8 The Green, Suite R, Dover (Kent), DE  19901 and by email to legal@inorbit.ai and to Customer at the address and/or email provided on the Platform.
    11. Entire Agreement.  This Agreement comprises the entire agreement between the Parties and supersedes all prior or contemporaneous agreements, written or oral, between the Parties regarding the subject matter contained herein.