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PLEASE READ THE FOLLOWING TERMS CAREFULLY AS PURCHASING, LICENSING AND/OR USING THE PRODUCTS, SOFTWARE OR SERVICES INDICATES AGREEMENT WITH, AND ACCEPTANCE OF THESE TERMS.
THESE ARE THE CURRENT TERMS AND CONDITIONS OF USE (“AGREEMENT”) OF KORNIT DIGITAL LTD. AND/OR ITS AFFILIATES (“KORNIT”), WHICH APPLY TO ANY PURCHASE OF KORNIT PRINTING SYSTEMS (“SYSTEM(S)”), INK AND CONSUMABLES (COLLECTIVELY, “CONSUMABLES”), ADDITIONAL FEATURES OR SPARE PARTS (“PARTS”), LICENSES OF ACCOMPANYING SOFTWARE (AS DEFINED BELOW) INCLUDING ANY DOCUMENTATION THEREIN OR ATTACHED THERETO (THE SYSTEMS, CONSUMABLES AND PARTS SHALL BE REFERRED TO, COLLECTIVELY, AS THE “PRODUCTS”), AND/OR PROVISION OF SERVICES (AS DEFINED BELOW) AND GOVERN YOUR, ON BEHALF OF YOURSELF AS AN INDIVIDUAL, YOUR EMPLOYER, OR ANYONE YOU ARE ACTING ON BEHALF OF, INCLUDING ANY COMPANY OR OTHER LEGAL ENTITY (“PURCHASER”) RIGHTS OF USE OF ANY SUCH PRODUCTS, SOFTWARE AND/OR SERVICES, WHETHER PURCHASED DIRECTLY FROM KORNIT IN AN ORDER FORM OR PURCHASE AGREEMENT OR THROUGH AN APPROVED THIRD-PARTY REPRESENTATIVE OF KORNIT.
“Affiliate” means with respect to a party to this Agreement, any corporation, partnership, joint venture or other legal entity that a party to this Agreement controls, is controlled by, or is under common control with, where “control” means the ownership of more than fifty percent (50%) of the voting equity in such entity or otherwise the ability to direct the management of such entity. With respect to Kornit, “Affiliate” shall include, without limitation: Kornit Digital UK Ltd., Kornit Digital Technologies Ltd., Kornit Digital Asia Pacific Ltd., Kornit Digital Europe GmbH and Kornit Digital North America Inc.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Order Form” means the ordering documents for purchase of Products, Software or Services, including addenda thereto, that are entered into between Purchaser, either directly with Kornit or with any of Kornit’s approved representatives. Order Forms shall be deemed as incorporating the terms of this Agreement as an integral part of such Order Form. In case an Order Form is signed with a representative of Kornit, Kornit’s sole liability and obligation to Purchaser shall be as set forth in this Agreement or any other specific agreement signed directly with Kornit and it shall have no other liability or obligation to Purchaser under such Order Form not signed with Kornit.
“Services” means services that Purchaser purchases or is entitled to receive as part of the Product purchase. Such services can be received from either Kornit or Kornit’s approved representative, as agreed between the parties. In case Services are to be received from a representative of Kornit, Kornit’s sole liability and obligation to Purchaser shall be as set forth in this Agreement or any other specific agreement signed directly with Kornit and it shall have no other liability or obligation to Purchaser for such Services not signed with Kornit.
“General Use Data” means operational and technical information only that is received through a remote support system. Such operational and technical information is required for monitoring and improving performance and efficiency, as well as for solving operational issues and maintenance. It will include productivity, utilization, ink consumption, maintenance profiles, errors and malfunctions. The System will not pull sensitive or private information and will not share with any other third-party company.
2. THIRD-PARTY PROVIDERS AND AUTHORIZED REPRESENTATIVES
We may offer Products and/or Services for such Products under Order Forms or other purchase or service agreements signed directly with Kornit or through any of our approved representatives. Any acquisition by Purchaser of third-party products or services, including but not limited to, transportation, insurance, training, maintenance services, implementation, installation, support, customization, software and other Services, and any exchange of data between Purchaser and any third-party provider/approved representative, is solely between Purchaser and the applicable third-party provider/approved representative, according to the specific terms signed between Purchaser and third- party provider/approved representative, including any license terms and disclaimers. Kornit does not warrant or support third-party products or services and does not assume any responsibility with respect to them, including Products purchased through Kornit approved representatives, whether or not they are designated by Kornit as “certified” or otherwise, except as specified herein or in an Order Form, purchase agreement or service agreement signed directly with Kornit. In those cases, all such warranties, support and services not specifically detailed in this Agreement will be received directly from such third-party provider/approved representative.
3. GENERAL USE DATA
3.1 Purchaser hereby confirms that it is aware that the Software within the Systems shall include the ability to collect and store General Use Data. Unless un- enabled by Purchaser, Purchaser acknowledges that Kornit may directly or through its allowed representatives access and retrieve General Use Data from such Systems through wireless connections or direct access to the Systems. The Systems shall allow Purchaser to restrict such access by restricting the enabling of access to such General Use Data.
3.2 Ownership of General Use Data. As between Kornit and Purchaser, Purchaser exclusively owns all rights, title and interest in and to all of General Use Data.
3.3 Kornit shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use the General Use Data including to incorporate any outcomes learned from such General Use Data or incorporate into the System any suggestions, enhancement requests, recommendations or other feedback provided by Purchaser or resulting from the General Use Data. All such enhancements, modification, improvements and/or new inventions or ideas, other than the General Use Data itself, shall be fully owned by Kornit and Purchaser hereby waives any rights to such matters. Should Kornit develop any Product, Software or Service enhancements based on the studying of such General Use Data or otherwise, such Product, Software and/or Service enhancements may be offered to Purchaser in the future in order to enhance and expand the use ability and features of the Products.
4. RISK, TITLE AND PROPRIETARY RIGHTS
4.1 All rights, title, interests, and all risks of loss and damage to any Product will pass to the Purchaser in accordance with agreed upon Incoterms at the location of delivery specified in the Order Form issued by Purchaser and confirmed by Kornit. Notwithstanding the aforementioned, the Products shall remain the property of Kornit unless and until Kornit receives all payments due for the Products; provided, however, that the Purchaser shall be entitled to use the Products in Purchaser’s ordinary course of business before such full payment. Before Kornit has received full payment, Purchaser shall not sell, lease or otherwise dispose of the Products, shall take proper care of the Products, and shall keep them at the initial installation site free and clear of liens, pledges, security interests and rights of others whatsoever. Purchaser shall keep the Products in good working order and insured against all risks of loss or damage for Kornit and shall inform the landlords of the site that Kornit is the owner of the Products. Kornit shall have the right to repossess, access, reclaim possession and/or re- sell the Products until Kornit has received all payments therefor. Purchaser agrees to comply with any local formality which may be required in order to register or enforce Kornit’s retention of property as provided herein. Even upon transfer of title in the Products, Purchaser shall undertake to comply with all restrictions set forth herein with regards to the Products, including specifically in sections 5.1 and 6 hereafter. Kornit has all rights, title and interests in and to the crates and other packaging materials of the Products and shall be entitled to collect them from Purchaser’s premises following the installation of the Products, at its expense.
4.2 Notwithstanding the above, Kornit owns and/or reserves all rights, title and interest to all intellectual property including the ideas, concepts, techniques, inventions, technologies, processes, methodologies, patents, and rights in and to the Products and to any Software, programs (and all images, photographs, animations, video, audio, music and text incorporated into the Products) (the “Software”), trademarks, copyrights and trade names relating to and in the Products and their creation and all modifications, improvements or changes therein or thereto (all jointly, including the Software, “Kornit Intellectual Property Rights”). In addition, and without derogating from anything of the contrary, Purchaser acknowledges and agrees that the program code, technical documentation, specifications, instructions, structure, sequence and organization of the Software, including the Software itself are a valuable proprietary right of Kornit. Purchaser further acknowledges and agrees that the Software is licensed and not sold to Purchaser and that all ownership of, and title to, the Software and documentation and all subsequent copies thereof regardless of the form or media are held by Kornit. Purchaser never acquire title to Kornit’s Intellectual Property Rights or Software.
5. SOFTWARE LICENSE
5.1 Kornit grants Purchaser a nonexclusive, nontransferable, revocable and limited license to use the accompanying Software program(s) in executable form and accompanying documentation (the “Documentation”), subject to the terms and restrictions set forth in this Agreement for its own internal purposes and solely in conjunction with the use of the Products to which it relates. Purchaser acknowledges that the Software may also be subject to additional terms and conditions set forth in executable or electronic license agreements, which shall control and govern all such licensed Software. All rights not expressly granted herein or therein are reserved to Kornit. Purchaser is not permitted to directly or indirectly, modify, enhance, adapt, translate, make improvements, create derivative works of, disassemble, decompile, reverse engineer, reduce to any human or machine perceivable form, or circumvent any technological measures that control access to or permit derivation of the source code of the Software or any part thereof; copy, sell, assign, lease, rent, transfer, assign, distribute or sublicense the Software or Documentation or to use the Software or Documentation in a time-sharing arrangement or in any other unauthorized manner nor permit any other party to do any of the foregoing, or make use of the Software as a stand -alone, including in any way which is not an integral built in part of the Products. Further, no license is granted to Purchaser in the human readable code of the Software (source code). This Agreement does not grant Purchaser any rights to patents, copyrights, trade secrets, trademarks, Kornit’s Intellectual Property Rights or any other rights with respect to the Software or Documentation other than those specifically stated herein.
5.2 Subject to the restrictions set forth herein, the Software is licensed to be used on one Product purchased by Purchaser or leased to Purchaser, for Purchaser internal use.
6. USE RESTRICTIONS
6.1 Notwithstanding anything to the contrary, Purchaser shall not (i) permit any third party to access the Software except as permitted herein; (ii) create derivate works based on the Products and/or the Software; (iii) copy, frame or mirror any part or content of the Products and/or Software, other than copying or framing on Purchaser’s own intranets or otherwise for Purchaser own internal business purposes; (iv) reverse engineer the Products and/or Software, or any compositions made using the Products; (v) access the Software and/or Products in order to copy any features, functions or graphics of the Products and/or Software; (vi) change, distort or delete any patent, copyright or other proprietary notice which appear on or in the Product (or in the Software); (vii) use the Consumable after their expiration date, as set forth on the label of each Consumable container, (viii) use the Consumables for resale to any third party and not for its internal business purposes, (ix) use the Consumables not in accordance with the usage guidelines and/or contrary to Kornit’s instructions which were made available to the Purchaser, or (x) operate or make use of the Products and/or Software in any way that may violate any applicable law or regulation or take or permit any other action that may impair Kornit’s rights or damage the image or reputation of quality inherent in the Products, Kornit’s business, reputation, Kornit’s Intellectual Property or other valuable assets or rights.
6.2 Any breach of the provisions of Section 6.1 above will automatically cancel all warranties provided by Kornit hereunder, and any other agreement between Kornit and the Purchaser, including, without limitation, any services agreement or agreements relating to Consumables’ prices.
6.3 In the event Purchaser rents, leases, sells or otherwise transfers the Systems and/or Parts to a third party, Purchaser agrees that it will require such third party to be bound by Section ?3 (General Data Use), Section ?4 (Risk, Title and Proprietary Rights), Section ?5 (Software License) and Section ?6 (Use Restrictions) hereof as a condition of such sale, rental, lease or other transfer.
Purchaser shall keep confidential the terms and conditions, including the commercial terms, at which Products, Services or Software are sold or licensed, any information, drawings, designs or manual received from Kornit or anyone on its behalf in connection with therewith and either marked as “confidential” or “proprietary” or which should reasonably be deemed as such, and shall not disclose such information to a third-party, except as required by law, provided, that Purchaser gives Kornit prompt notice thereof so that Kornit may seek a protective order or other appropriate remedy, and further provided, that if the same is not obtained, Purchaser shall furnish only that portion of the information which is legally required.
8. WARRANTIES AND DISCLAIMERS
8.1 Kornit System Warranties.
a) Kornit warrants that for a period of six (6) months from the actual date of installation of the System (unless otherwise defined in the Order Form when purchased directly from Kornit) (the “Warranty Period”), each component thereof shall substantially meet the Kornit specifications, although Kornit does not warrant uninterrupted or error-free operation. If Purchaser schedules or delays such installation by Kornit more than thirty (30) days after delivery, the warranty period will begin on the 31st day after delivery. Customer’s sole and exclusive remedy under this limited warranty for Systems shall be either repair or replace, at Kornit’s option, any component found to contain defects in materials or workmanship with new or refurbished parts. Notwithstanding the aforementioned, replacement of print heads shall be subject to certain limitations, as set forth in the Kornit price list. Repairs or replacements of parts under warranty shall be at Kornit’s expense, except that Kornit shall charge the Purchaser for travel and out-of-pocket expenses incurred by Kornit in connection with its performance of the warranty Services (“Expenses”). Expenses incurred by Kornit shall conform to Kornit’s Expense Reimbursement Policy and shall be invoiced at cost. Notwithstanding the above, in the first 90 days from the installation date of the System, Kornit will provide up to two visits free of charge (including no payment of Expenses) in case of any actual System failures and not due to improper use or poor maintenance of the System(s). Purchaser shall return the defective parts to Kornit at its own cost within 30 days from receiving the new or refurbished parts. Failure to return the defective parts within the above time period shall result in a charge to Purchaser for those unreturned parts. The above remedies shall be available only if Kornit is notified in writing within the Warranty Period and is provided with a reasonable opportunity to cure such defect or non-conformance.
b) During the Warranty Period, Kornit will provide remote support during regular business hours in the applicable Kornit regional office (Monday-Friday 8AM – 5PM). Remote support out of regular business hours or on non-business days in the applicable regional office will be invoiced according to Kornit’s hourly standard rate.
c) Kornit’s warranty obligations hereunder regarding maintenance, repair or replacement necessitated in whole or in part, may be adversely affected by the following: (i) catastrophe, fire or water damage, electrical disturbances, fault or negligence of the Purchaser or other causes beyond Kornit’s control; (ii) improper or unauthorized use, alteration or modification of the System, such as, without limitation, use of improper or non-conforming thinner, solvents, inks or other consumables, if Kornit reasonably determines that damage to the Systems has probably been caused by such use; (iii) installation, modification or repair other than by Kornit or authorized technical representatives; (iv) deviation from recommended maintenance procedures, non-compliance with specifications, user manuals and instructions, removal of the Systems from the original installation site, unusual stress, power failure or failure to maintain the prescribed environmental conditions at the installation site; or (v) virus, infection, worm or similar malicious code not introduced by Kornit.
d) Following the Warranty Period, Purchaser shall be entitled to purchase additional service and support according to terms to be agreed on between Purchaser and Kornit in a separate agreement.
8.2 Kornit Software Warranties. All warranties applicable to the Software are as stated in the Product’s manual or in the Software itself, whether in paper or electronic form, accompanying the Software. Except as expressly stated therein, the Software is licensed to Purchaser “as is”, without warranty of any kind and Kornit disclaim all warranties, express or implied, including without limitation the warranties of merchantability, fitness for a particular purpose, title, and non- infringement of third-party rights.
8.3 Specifications. Kornit reserves the right to modify the specifications of the Products and Software, provided, that any such modification shall not adversely affect the performance thereof.
8.4 Mutual Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other party any Malicious Code.
8.5 Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION ?8 ABOVE, KORNIT MAKES NO WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE PRODUCTS, SOFTWARE AND/OR SERVICES, AND, TO THE EXTENT ALLOWED BY LOCAL LAW, EXPRESSLY DISCLAIMS ANY SUCH WARRANTIES INCLUDING WITHOUT LIMITATION ANY EXPRESS, STATUTORY OR IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. THE REMEDIES PROVIDED HEREIN, IF ANY, ARE PURCHASER SOLE AND EXCLUSIVE REMEDIES.
9. MUTUAL INDEMNIFICATION
9.1 Indemnification by Kornit. Kornit shall defend Purchaser against any claim, demand, suit, or proceeding (“Claim”) made or brought against Purchaser by a third party alleging that the use of the Products, Software and/or Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify Purchaser for any damages finally awarded against, and for reasonable attorney’s fees incurred by Purchaser in connection with any such Claim; provided, that Purchaser (a) promptly gives Kornit written notice of the Claim; (b) gives Kornit sole control of the defense and settlement of the Claim; and (c) provides to Kornit all reasonable assistance, at Kornit expense. Kornit may, at its sole option and expense, procure for Purchaser the right to continue using the Products, Software and/or Services; replace or modify any component so that the Products, Software and/or Services are rendered non-infringing; or refund the price actually paid by Purchaser after deducting therefrom twenty percent (20%) for each year or portion thereof that shall have elapsed from the date of the purchase. Notwithstanding the above, Kornit shall have no obligation or liability hereunder with respect to a suit or claim based on the use of the Products, Software and/or Services in a manner for which it was not designed, for any changes, modification or amendments made by anyone other than Kornit itself or for any Claim arising due to the use of the Products, Software and/or Services in combination with any other software, product or means, where without such use, the Product, Software and/or Services itself would not be regarded to as infringing.
9.2 Indemnification by Purchaser. Purchaser shall defend Kornit against any Claim made or brought against Kornit by a third party alleging that Purchaser’s use of the Products, Software and/or Services (and not the Products, Software and/or Services themselves as covered by Section 9.1 above), including in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify Kornit for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Kornit in connection with any such Claim; provided, that Kornit (a) promptly gives Purchaser written notice of the Claim; (b) gives Purchaser sole control of the defense and settlement of the Claim (provided that Purchaser may not settle any Claim before receipt of prior written approval form Kornit to such settlement); and (c) provide to Purchaser all reasonable assistance, at Purchaser expense.
9.3 Exclusive Remedy. This Section 9 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.
10. LIMITATION OF LIABILITY
10.1 IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY PURCHASER TO KORNIT FOR THE SPECIFIC PRODUCT(S) AND/OR SERVICES AND/OR SOFTWARE GIVING RISE TO A CLAIM AGAINST KORNIT.
10.2 EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOSS PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
11.1 Termination of Agreement. The rights granted hereunder are perpetual unless terminated earlier as specified hereafter, and either party reserves the right to terminate this Agreement and terminate its relationship with the other party at any time following a party’s breach of any of the terms herein, and such termination shall be effective immediately upon such written notice to the other party. Upon such termination, Purchaser shall immediately cease any use of the Software, including that embedded within the Products, delete or destroy all copies in its possession. Termination of this Agreement by Kornit or by Purchaser for any reason shall not entitle Purchaser to any type of refund or rebate for any unused portion of this Agreement or any support or maintenance agreement.
11.2 Surviving Provisions. ?2 (Third Party Providers and Authorized Representatives), ?3 (General Use of Data), ?4 (Risk, Title and Proprietary Rights), ?6 (Use Restrictions), ?7 (Confidentiality), ?8.5 (Disclaimer), ?9 (Mutual Indemnification), ?10 (Limitation of Liability), ?12 (General Provisions) and any other clauses which by their nature should survive termination, shall survive any termination or expiration of this Agreement.
12. GENERAL PROVISIONS
12.1 Force Majeure. Kornit shall not be liable for any delay or failure in the performance of its obligations, when such delay or failure results in whole or in part from shortages or disruption in the supply of materials from Kornit’s usual sources, shortage of Kornit’s usual means of transport, floods, fire, other acts of God or due to criminal intention, war, riot, civil insurrection, strikes, lock-outs, industrial unrest, accident, inclement weather, acts of civil or military authorities, or circumstances beyond Kornit’s reasonable control, preventing, delaying or hindering performance.
12.2 Notices. Any notice shall be in writing and shall be deemed to have been duly given five (5) business days after being mailed by prepaid registered air mail, or one (1) business day after being transmitted by fax or email as confirmed by an electronically printed confirmation of date and time, or manually delivered, addressed to the respectively applicable addresses of the Purchaser and Kornit.
12.3 Governing Law; Jurisdiction. This Agreement shall be governed, construed and enforced in accordance with the laws of the State of New York, without regard to the conflict of laws rules. The Purchaser agrees that the United Nations Convention for the Sale of Goods shall not apply to this Agreement and the goods sold under the Order. Any controversy or claim arising under, out of, or in connection with the terms hereunder are hereby submitted to the sole and exclusive jurisdiction of the competent courts located in New York, New York.
12.4 Provisions Separable. If one or more provisions of this Agreement shall be held invalid, this shall not affect the validity of the other provisions. In such an event, the invalid provisions shall be replaced by provisions that deviate therefrom as little as possible.
12.5 Waiver and Amendment. This Agreement may be amended, modified, superseded, canceled, renewed, extended or waived only in written instrument signed by Kornit’s Managing Director. The waiver by Kornit of a breach of any provision of this Agreement shall not operate as a waiver of any subsequent breach.
12.6 Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services or Products. Purchaser acknowledges that the Product contains certain functionality, which the export and re-export of which might be restricted under certain import/export laws governing and applicable to Kornit or the Purchaser. Purchaser agrees that it will refrain from exporting or re- exporting the Product or any parts thereof in violation of any such applicable export/import control laws, rules, or regulations. Without limiting the foregoing, each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports.
12.7 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
12.8 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
12.9 Assignment. Purchaser may not assign any of Purchaser’s rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Kornit.
12.10 Entire Agreement. This Agreement, including all exhibits and addenda hereto, and purchase agreement or any and all Order Forms it is an integral part of, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any purchase agreement, exhibit or addendum hereto or any Order Form, the terms of this Agreement shall prevail