- General Provisions – Acceptance The purchase order, together with these terms and conditions (collectively, the “Order”) is an offer by Kornit Digital Ltd. and its affiliates (“Kornit”) to purchase from the supplier named in the purchase order (“Supplier”) the goods and/or services described in the purchase order. The Order is expressly limited to the terms and conditions set forth therein and herein and is conditioned upon Supplier’s complete acceptance of the Order without modifications or additions. Unless specifically agreed to in writing by an authorized representative of Kornit(according to Kornit’s policy), the terms hereof shall govern and no additional or different terms or provisions (except additional warranties given by Supplier) of any quotation, invoice, acknowledgment or other form supplied by Supplier shall become part of the Order notwithstanding Kornit’s failure to object to such term or provision.
- Delivery – Late Delivery ; Non-Compliant Delivery –
Supplier shall deliver the goods and/or services at the time and prices specified in the Order (“Supply”). Stated time limits and quantity commitments are of the essence. Supplier shall give Kornit prompt notice of any prospective failure to ship the goods or provide the services on the delivery date specified in the Order. Supplier’s failure to comply with such requirements shall entitle Kornit, in addition to any other rights or remedies, to cancel the Order, without liability. The date of delivery is the date the Supply is received at Kornit’s designated delivery point. No early deliveries may be made without Kornit’s prior written agreement. Over-shipments and/or early deliveries may be returned at Supplier’s sole expense, or Kornit may delay processing the early delivery invoice until the delivery date. - Modifications Kornit reserves the right to change the volumes, delivery dates, and/or the nature of the Supply at any time provided Kornit gives Supplier notice. If such change results in an increase in cost or time of performance, an equitable adjustment to the price and/or delivery date may be made by mutual agreement. If Kornit and Supplier are unable to agree on an equitable adjustment, Kornit may, at its option, terminate all or any portion of the Order without liability. Claims for equitable adjustment must be asserted by Supplier within ten (10) calendar days of the change to the Order.
- Packaging and Documentation –
Supplier shall package and mark all goods adequately for shipment, storage and preservation, in accordance with applicable Governmental Laws (as defined below) and shall use packing and labeling specifications that Kornit reasonably requires. In the event that Kornit has designated specially-designed packaging for a specified item, Supplier shall use such packaging. Supplier will mark the goods and packaging with the country of origin as required by applicable Governmental Laws, and provide a certificate of origin and any other documents required for customs clearance or tax purposes. Supplier shall ship all goods together with all documentation required for its use, maintenance and upkeep. - Shipping –
Upon shipment of goods, Supplier shall send to Kornit, by email, fax or mail, a copy of the shipping notification including the references and date of the Order, the number of parcels, an exact description of the shipped goods and all documentation necessary to import and to export such goods. Unless otherwise provided in the Order, all deliveries shall be DDP (Incoterms 2020). - Invoicing –
Invoices shall be sent to the address in the Order and shall include Kornit references and a description of the Supply invoiced, the unit prices in the Order’s currency, volumes delivered, packing list, and such other information required by Kornit from time to time. Kornit reserves the right to suspend payment of any invoice which fails to comply with Kornit requirements. - Prices, Taxes and Terms of Payment
7.1 Unless otherwise provided in the Order (i) all prices are firm and include all transportation, insurance, packaging expenses, value added taxes and other similar taxes, fright charge, duties, customs or assessments, and (ii) standard payment terms are at the nearest payment date following ninety (90) days from the later of the date of the receipt of a complete invoice or Kornit acceptance of the Supply.
7.2 Kornit shall pay Supplier for Value Added Tax or any similar transaction taxes imposed on the sale of Supply sold to Kornit under an Order provided the taxes are statutorily imposed on Kornit.
7.3 If Kornit is required by law to make any deduction or to withhold from any sum payable hereunder, then the sum payable by Kornit upon which the deduction is based shall be paid to Supplier net of such legally required deduction or withholding.
7.4 Supplier hereby authorizes Kornit to set-off and deduct any and all liabilities, debts and claims Supplier or its affiliates owe to Kornit.
7.5 Payment of any amount will not constitute waiver of any claim related to this Order.
- Warranty
8.1 Without derogating from and in addition to Supplier’s (or its suppliers’) standard warranty and/or service guaranty, Supplier warrants that for a period of no less than twelve (12) months from delivery date as specified in the Order, or, if an acceptance procedure is provided for, acceptance: (a) the Supply will be free from any defect in design, material and manufacturing, and (b) the Supply will conform to Kornit’s specifications, the Order, and/or any sample approved Kornit. Where Supply is repaired or replaced under the above warranties, such warranties shall be extended as if the warranty period started from the date of replacement of Supply. Supplier further represents and warrants that (1) all Supply: (i) are transferred to Kornit with good and merchantable title and free and clear of all liens, claims and encumbrances ; (ii) are of good quality and merchantable ; (iii) comply with all applicable federal, provincial, state, local or foreign statute, law, ordinance, rule, regulation, license, permit, authorization, registration, policy or order (“Governmental Laws”), including, without limitation, money laundering, anti-bribery, export, import and trade-related laws, applicable industry codes and standards ; (iv) all services will be performed in a professional manner ; and (vi) will not infringe any patent, trademark, copyright or other intellectual property right of a third party ; and (2) Supplier has the requisite financial condition to fulfill the Order.
8.2 Supplier also warrants all goods against Epidemic Failure for a period of three years after delivery of the Supply. “Epidemic Failure” means the occurrence of the same failure, defect, or non-conformity with an Order in 2% or more of the Supply within any three-month period. If an Epidemic Failure occurs, all costs, including but not limited to, replacement Supply, parts, upgrades, materials, labor, transportation and inventory replacement arising from an Epidemic Failure shall be borne by Supplier, regardless of whether Kornit initiates a field stocking recall or customer based recall or retrofit, including Supply in distributor inventory and Kornit’s installed base. Supplier, at its expense, will ensure that such Supply, parts or upgrades have the highest shipping priority. Kornit reserves the right to procure, upon terms it deems appropriate, similar goods to substitute the affected Supply, and Supplier shall promptly reimburse Kornit for all costs, charges, prices and fees paid in purchasing the substitute goods.
8.3 The foregoing warranties shall survive delivery and payment, and shall run in favor of Kornit, its customers, successors and assigns. No payment, inspection, verification, acceptance, test, delay, use, resale or failure to inspect, verify, test or discover any defect or other nonconformance shall relieve Supplier of any of its obligations under the Order or impair any rights or remedies of Kornit. 8.4 If any Supplies are found by Kornit to be not in conformity with the requirements of this Order, Kornit may, at its option, either to return the Supplies at the risk of the Supplier and reject the goods and/or service and require the Supplier to re-perform the service or accept the whole or part of the goods and/or services supplied by the Supplier, but without prejudice to any rights of Kornit to claim compensation or damages for loss or damage suffered as a result of such failure to comply.
- Discontinuation ; Spare Parts
If Supplier desires to discontinue the manufacture, or proposes any modification in the specifications of any product subject to the Order, Supplier shall provide no less than 9 months prior written notice to Kornit. Kornit shall have the opportunity during such notice period to purchase any quantity of such product as it deems necessary. Supplier shall make available all spare parts for the products purchased for 7 years after the date of last delivery of any products under the Order. Supplier shall keep safe and return to Kornit all documentations, jigs and tools and all other means supplied by Kornit promptly after the Order has been completed or terminated for any reason. - License Grant and Intellectual Property Rights
10.1 Each party owns or has a license to use its respective patents, copyrights, trademarks, design rights, trade secrets, knowhow and other intellectual property and proprietary rights (“IP Rights”) created or developed prior to entering into the Order including all modifications, improvements or changes in or to such pre-existing IP Rights. To the extent that any pre-existing IP Rights are contained in or used in connection with the Supply (“Pre-existing IP”), Supplier grants to Kornit a worldwide, perpetual, non-exclusive, fully paid, royalty-free right and license to and to authorize others to, use, execute, reproduce, display, perform, distribute and prepare derivative works of such Pre-existing IP, directly or as integrated into Kornit’s products.
10.2 Supplier shall identify all licenses and deliver to Kornit all materials required to meet the requirements of any licenses for third party software that is included in the Supply. Supplier shall deliver to Kornit the source code for any software licensed under a license that has a source availability requirement (such as the GNU General Public License). If the source code is not included with the material that Supplier has previously delivered, Seller shall deliver within seven (7) days after Kornit’s request the source code for any software licensed under an open source license that has a source availability requirement.
10.3 If the Supply is written, prepared, generated or created by Supplier in the course of Supplier’s performance of this Order, subject to Supplier or third party rights in any Pre-existing IP, Supplier agrees to assign and does hereby assign to Kornit all right, title and interest in the Supply and all IP Rights in or pertaining to the Supply, and such Supply shall be deemed as “works made for hire”. To the extent permitted by law, Supplier waives all moral rights in the Supply, including without limitation the right to be named as author, the right to modify, the right to prevent mutilation and the right to prevent commercial exploitation. Supplier will sign any necessary documents and will otherwise assist Kornit, at Kornit’s expense, in securing, maintaining and defending all IP Rights to protect the Supply in any country.
10.4 Supplier warrants that the sale or use of supplied goods or provision of services furnished hereunder will not infringe or contribute to infringement of any IP Right.
- Confidentiality ; Publicity
11.1 Without derogating from any confidentiality obligations undertaken by Supplier prior to the date of the Order, which obligations shall continue to apply mutatis mutandis, all information provided to Supplier, or to which Supplier may have access or learn in connection with the Order (“Confidential Information”) shall be kept strictly confidential and used exclusively for the purpose of performing the Order. Confidential Information shall also include the existence and the terms and conditions of this Order, and including but not limited to, all information or data concerning the Supply, general business plans, customers, costs, forecasts, and profits. Supplier shall not disclose its business relationship with Kornit to third parties, nor exhibit the whole of or part of the goods manufactured from technical documents or specifications owned/provided by Kornit. Supplier shall protect the confidentiality of Confidential Information with the same degree of care as Supplier uses for its own similar information, but no less than reasonable care. Notwithstanding the aforementioned, Supplier shall be entitled to disclose Confidential Information as required by law, provided, that it shall give 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, Supplier shall furnish only that portion of the information which is legally required.
11.2 Supplier shall not make or authorize any news release, advertisement, or other disclosure to any third party which shall deny or confirm the existence of this Order or reveal the terms of this Order without prior written consent of Kornit.
- Indemnity and Insurance
12.1 Supplier shall defend, indemnify and hold Kornit, its predecessors, successors, assigns and its customers (whether direct or indirect) against any and all claims, losses, demands, damages and expenses (including reasonable attorneys’ fees and other costs of defending any action) (collectively, “Claims”), which they, or any of them, may sustain or incur as a result of (i) any claim of violation of any Governmental Law, (ii) negligence, breach of warranty or strict liability in tort in connection with the use of the Supply, except to the extent caused by negligence of Kornit, and (iii) any claim that Supplier’s Supply, or the use, sale or importation of them, infringes any IP Right.
12.2 If the use of any Supply is enjoined (collectively, “Infringing Goods”), Supplier shall at its expense procure the right for Kornit to continue using or receiving the Infringing Goods. If Supplier is unable to do so, Supplier shall at its expense (and at Kornit’s option): (i) replace the Infringing Goods with non-infringing Supply of equivalent form, function and performance ; or (ii) modify the Infringing Goods to be non-infringing without detracting from form, function or performance ; or (iii) if unable to replace or modify the Infringing Goods, refund in full all monies paid by Kornit for the Infringing Goods and pay all reasonable costs incurred by Kornit in replacing the Infringing Goods.
12.3 Supplier shall procure and maintain all necessary and customary insurance policies, including the following insurance with a duly authorized admitted insurer or a reputable insurance carriers rated “A” (or any equivalent rating) or better, to protect Kornit and Supplier from any and all Claims for the entire period of this Agreement and/or for any required additional period, in respect of “claims made” insurance policies: (i) Third Party Liability Insurance/Commercial General Liability Insurance, including Products/Completed Operations and Contractual Liability Insurance, with a limit of liability not less than $5 million per occurrence and in the aggregate period of insurance, for any bodily injury and/or property damage to any third party ; (ii) Product liability Insurance and Complete Operation aggregate liability, with a limit of liability of not less than $5 million per occurrence and in the aggregate period of insurance for any bodily injury and/or property damage to any third party in connection with the services and/or any product manufactured, repaired, installed, supplied, sold, marketed or handled in any other way by Supplier and/or on its behalf. The insurance will be extended to cover products recall in the sum of $500,000 ; (iii) Professional Indemnity Insurance/Errors and Omissions Insurance for Supplier’s liability for any loss and/or damage to any third party, including consequential and/or financial loss, resulting from Supplier’s performance and/or failure to perform the Services with a limit of liability not less than $2 million per occurrence and in the aggregate period of insurance ; (iv) Workers’ Compensation with statutory limits ; (v) Employers’ Liability Insurance with a limit of $2 million each accident and disease or as customary in the place which Supplier operates (the highest between the two) ; (vi) Excess Liability (Umbrella Coverage) with limits of liability of not less than $5 million per occurrence and in the aggregate period of insurance in excess of the Third Party Liability Insurance/Commercial General Liability Insurance, Product liability Insurance and Complete Operation and Employers Liability ; and (vii) Any compulsory insurance required by law for bodily injury as a result of use of vehicle and Automobile Liability Insurance for any auto owned, non-owned, leased, rented or hired and used in the fulfillment of the Order, with a limit of $2 million per occurrence combined single limit for bodily injury and property damage.
12.4 The insurance policies shall include the following: (i) the insurance policies are primary to any insurance arranged by the Kornit and/or anyone on its behalf and the insurer waives any demand regarding contribution by the insurance policies of the mentioned above, and (ii) The policies shall include a worldwide territorial limits and jurisdiction cover (including USA and Canada).Supplier shall provide Kornit a certificate of insurance issued and duly signed by an authorized representative of Supplier’s insurance company, in accordance with the provisions of this Section 12, naming Kornit as additional insured in respect of their liability for errors and/or omissions of Supplier and/or anyone on its behalf and/or in respect of their liability in connection with the products and/or the goods, subject to a cross liability clause, and providing a waiver of subrogation in favor of Kornit. Upon request, Supplier shall provide Kornit with a copy of such insurance policies. Supplier hereby agrees to purchase, at Supplier’s expense, any additional insurance which Kornit may consider to be necessary in light of the risks relating to performance of the Order.
- Termination
13.1 Kornit may cancel the Order or any part thereof at any time prior to (i) shipment for goods not specially manufactured for Kornit, or (ii) commencement of services, without any liability to Supplier. If Kornit terminates after the time set forth in 14.1(i) or (ii) above, Kornit shall be liable to Supplier for Supplier’s actual, documented out of pocket expense expended prior to receipt of notice of cancellation by Kornit for work and materials procured solely as a result of the Order which cannot be used by Supplier for any other product or service, and in no event in excess of the purchase price of cancelled goods or services (the “Termination Cost”).
13.2 Kornit shall have the right to cancel any Order for specially manufactured goods or services, and Kornit’s liability for cancellation of the Order for specially manufactured goods shall be limited to the Termination Cost.
13.3 In addition to its other rights and remedies, Kornit may immediately terminate any Order without liability whatsoever in the following cases (i) court-ordered, or out-of-court dissolution or liquidation of Supplier ; (ii) an event of force majeure, the consequences of which last for more than 6 weeks ; (iii) Supplier’s material breach of or default under the Order, which such breach or default is not cured within 5 days of Kornit’s notice to the Supplier ; and (iv) Supplier’s failure (as determined by Kornit in its sole discretion) to provide adequate assurance of performance and/or financial condition.
13.4 With respect to services, no automatic renewal provisions shall apply to any service term, license or any other engagement period, and Kornit expressly rejects any such terms.
- Disputes – Governing Law –
The Order and any claim, dispute, or controversy arising out of or in connection with or relating to the Order or the breach or alleged breach thereof shall be governed by and construed in accordance with the laws of the State of Israel, without reference to conflicts of law principles. 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 Tel Aviv, Israel. The United Nations Convention on Contracts for the International Sale of Goods shall not be applicable. - Governmental Laws and Contract Terms and Conditions
15.1 Supplier agrees to comply with all applicable Governmental Laws, including any provisions of governmental contracts, including, without limitation, customs rules and regulations, restrictions on export of information, restrictions on dealing with restricted persons and citizens of restricted countries and compliance with equal opportunity requirements. Supplier will comply with and take appropriate due diligence and continuous monitoring of Supplier’s supply chain as are reasonably necessary to avoid procurement or use of onflict minerals sourced from regions of the world known as “conflict regions”, including, without limitation, conflict minerals that directly or indirectly finance or benefit armed groups in the Democratic Republic of the Congo or an adjoining country, as such terms are defined in Section 1502 of the US Dodd-Frank Wall Street Reform and Consumer Protection Act. Supplier further agrees to fully support Kornit’s efforts to keep its supply chain free from such conflict minerals and make its due diligence measures available to Kornit for review upon request.
15.2 In order to enable use of the Supply in total safety, the Supplier shall: – ensure that none of the Supplies contain one or more of the hazardous substances referred to in Articles 4 and 6 of the European Directive 2011/65/EU of June 2011, also known as the RoHS 2 Directive and the amendment of the European Directive 2015/863, also known as RoHS 3, – comply with all the obligations concerning substances which are restricted and/or banned in the European Union and, in particular, those listed in the REACH Regulation (EC 1907/2006), – provide Kornit with a declaration which complies with the requirements of the European Directive 2011/65 of June 2011, and the European Directive 2015/863, and – comply with the legislation and regulations relating to the ban on, or restriction of, the use of certain products or substances which are effective when the Order is placed, both in the European Union and in other countries, if such is specified in the Order and/or the specifications, or which may become applicable up to the delivery date of the Supply. At Kornit’s first request, the Supplier shall provide it with all supporting documents required by the above-mentioned rules and regulations, as may be amended from time to time, during the legal timeframe for conserving documents. Supplier Shall comply with Kornit SQM (SUPPLIER QUALITY MANUAL) and in particular to Kornit MRSL (https://www.kornit.com/kornit-chemicals-policy/)
15.3 The Supplier certifies and warrants to Kornit that any Supplies that introduce any hazardous materials as defined by applicable Governmental Law into any facility of Kornit or Kornit’s customer(s) are properly labeled, shipped in proper containers and are accompanied by MSDS (material safety data sheets). Any Supply that introduces any materials or substances regulated under any Governmental Law (including, without limitation, California Proposition 65) shall be properly disclosed, labeled, packaged, shipped and shall be accompanied by material safety data sheets and other documents as required by applicable Governmental Law. Materials that are prohibited by Governmental Law, including, without limitation, asbestos, asbestos containing materials and polychlorinated biphenyls shall not be introduced into the Supply or any facility of Kornit or Kornit’s customers.
- Data Privacy
16.1 For the purpose of processing and managing the Order and our relationship, Kornit will be required to collect and process your personal information (or, as applicable personal information of contact person(s) of the Supplier). Kornit shall process such personal in accordance with Kornit’s privacy policy available at https://www.kornit.com/kornit-privacy-policy/.
16.2 To the extent that Supplier processes personal information on behalf of Kornit, Supplier agrees to be bound by the terms of the data processing agreement available here.
- Miscellaneous
17.1 No Assignment. Supplier shall not delegate or assign its rights or obligation without Kornit’s prior written consent. Any attempted delegation or assignment by Supplier without such consent shall be void.
17.2 Limitation of Liability. To the extent permitted by applicable law, in no event will Kornit, including its subsidiaries, be liable for any lost revenues, lost profits, or any indirect, incidental, consequential, special or punitive damages.
17.3 KORNIT’S MAXIMUM LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED IN THE AGGREGATE TO THE FEES PAID BY KORNIT UNDER THE ORDER DURING THE THREE (3) MONTHS PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
17.4 Non-Restrictive Relationship. Kornit shall not be precluded from independently developing, acquiring from other third parties, distributing or marketing other Supply which may perform the same or similar functions as the Supply provided under this Order.
17.5 Supplier undertakes to provide the Supply and perform its obligations under the Order as an independent contractor. There shall be no employer-employee relationship between Supplier’s employees and Kornit, and Kornit‘s employees and Supplier. Supplier shall indemnify Kornit against any claim by its employees asserting otherwise.