PLEASE READ THE FOLLOWING TERMS CAREFULLY AS PURCHASING, LICENSING AND/OR USING THE PRODUCTS, SERVICES INDICATES AGREEMENT WITH, AND ACCEPTANCE OF THESE TERMS.
THESE ARE THE CURRENT TERMS AND CONDITIONS OF USE (“AGREEMENT”) OF KRAMER TECHNOLOGIES LTD. AND/OR ITS AFFILIATES (“KRAMER”), WHICH APPLY TO ANY PURCHASE OF KRAMER’S PANTA RHEI SYSTEMS (“SYSTEM(S)”), LICENSES OF ACCOMPANYING SOFTWARE (AS DEFINED BELOW) INCLUDING ANY DOCUMENTATION THEREIN OR ATTACHED THERETO (THE SYSTEMS AND SOFTWARE, SHALL BE REFERRED TO, TOGETHER, AS “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 (“CUSTOMER” OR “RESELLER” AS THE CASE MAY BE) RIGHTS OF USE OF ANY SUCH PRODUCTS, AND/OR SERVICES, WHETHER PURCHASED DIRECTLY FROM KRAMER IN A SERVICE ORDER, QUOTATION OR THROUGH AN APPROVED THIRD-PARTY REPRESENTATIVE OF KRAMER.
1.1. “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.
1.2. “Effective Date”. By downloading the software or by clicking “I agree”, “Accept” or other similar button(s), or execution of the applicable order form for the purchase of any of the Products you are confirming your acceptance of this Agreement and agreeing to become bound by these terms (the date of such occurrence being the “Effective Date”). If you do not agree to the terms of this Agreement, do not use the Products.
1.3. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
1.4. “Service Order”. Service Order means the ordering documents for purchase of Products or Services, including addenda thereto, that are entered into between Customer, either directly with Kramer or with any of Kramer’s approved representatives. Service Orders shall be deemed as incorporating the terms of this Agreement as an integral part of such Service Order. In case a Service Order is signed with a representative of Kramer, Kramer’s sole liability and obligation to Customer shall be as set forth in this Agreement or any other specific agreement signed directly with Kramer and it shall have no other liability or obligation to Customer under such Service Order not signed with Kramer. The Service Order shall indicate whether the Product is new, used or Refurbished.
1.5. “Refurbished” means Products that have been returned to Kramer for a variety of reasons and then put through a rigorous refurbishment process, which may include a diagnostic test, replacement of any defective parts, a thorough cleaning and inspection process, and repackaging.
1.6. “Services” means services that Customer purchases or is entitled to receive as part of the Product purchase. Such services can be received from either Kramer or Kramer’s approved representative, at Kramer’s discretion. In case Services are to be received from a representative of Kramer, Kramer’s sole liability and obligation to Customer shall be as set forth in this Agreement or any other specific agreement signed directly with Kramer and it shall have no other liability or obligation to Customer for such Services not signed with Kramer.
1.7. “Software” means any software which is accompanied to the System, that includes any software component provided to Customer by Kramer, any of its related entities or any of its distributors, resellers or other authorized representatives (“Partners”), and any copies of it, including any enhancements, derivative works, translations, modifications, updates, releases, versions, Third Party Components or other changes to such software programs, Documentation, sample files, extension files, or other tools and utilities which are provided under this Agreement. In some cases, the Software may be composed of both a “client” component that is downloaded from a website and runs on your computers or cellphones (the “Client Component”) and a “server” component that is installed on your servers and/or that your computer or cellphone will access through the Internet or over an internal network (the “Server Component”). Any reference to installation or subscription of the Software in this Agreement and any license related to such installation or subscription refer to both the Client Component and the Server Component. The term “Documentation” means any instructions or other materials (including online documentation) provided with the Software or on any website through which you may access it. The term “Third Party Components” means components of the Software, whether in the form of a runtime version or object code, provided by third party vendors to Kramer for inclusion as an embedded component of the Software object code or utilities, including, without limitation, the Panta Rhei Software.
1.8. “Software Version Updates” means all published revisions and corrections to the printed documentation and corrections and new releases of the System including, without limitation, the Panta Rhei System which are generally made available to Kramer’s Customers that are under a service contract, at no additional cost or for handling charges only. Updates shall not include any options or future Systems which Kramer sells separately.
1.9. “General Use Data” means operational and technical information only that is received through a remote support system or through the Product and/or any digital asset connected with it such as a website (the “Website”). Such operational and technical information is required for monitoring and improving performance, efficiency and analysis, as well as for solving operational issues and maintenance. It will include productivity, utilization, ink consumption, maintenance profiles, errors and malfunctions. The Product and/or the Website may also collect personal information regarding particular usage of the System.
2. THIRD-PARTY PROVIDERS AND AUTHORIZED REPRESENTATIVES
2.1. Kramer may offer Products and/or Services for such Products under Service Orders or other purchase or service agreements signed directly with Kramer or through any of its approved representatives. Any acquisition by Customer 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 Customer and any third-party provider/approved representative, is solely between Customer and the applicable third-party provider/approved representative, according to the specific terms signed between Customer and third-party provider/approved representative, including any license terms and disclaimers. Kramer does not warrant or support third-party products or services and does not assume any responsibility with respect to them, including products purchased through Kramer’s approved representatives, whether or not they are designated by Kramer as “certified” or otherwise, except as specified herein or in a Service Order, purchase agreement or service agreement signed directly with Kramer. 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
3.2. Ownership of General Use Data. As between Kramer and Customer, Customer exclusively owns all rights, title and interest in and to all of General Use Data.
3.3. Kramer 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 Customer 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 Kramer and Customer hereby waives any rights to such matters. Should Kramer 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 Customer in the future in order to enhance and expand the use ability and features of the Products.
3.4. Specific Provisions for Reseller:
3.4.1. Kramer may, without restriction, save, process, use and reuse any data obtained in connection with the sales of Kramer Products. Upon request of Kramer, Reseller will promptly inform Kramer in writing about the measures which Reseller takes to fulfill its obligations and be in full compliance under applicable data protection laws. Kramer will take suitable technical and organizational measures to protect personal data received from Reseller against loss and unlawful processing.
3.4.2. Reseller warrants towards Kramer that (i) the data are lawfully obtained from data subjects; (ii) it has provided data subjects all necessary and relevant information with regard to the processing of their data as required under applicable data protection laws; (iii) the data is lawfully provided to Kramer; and (iv) the data processing will not infringe any third-party rights. Reseller agrees that it remains the contact point for data subjects and that it will inform data subjects to that effect. Reseller ensures that the personal data provided to Kramer will be up-to-date and relevant for the Kramer Products sold. Reseller undertakes to inform Kramer of any request of a data subject to rectify or to erase its data or to limit the processing of its data, by sending an email to [email protected].
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 Customer and/or Reseller as the case may be, in accordance with agreed upon Incoterms at the location of delivery specified in the Service Order issued to Customer and/or Reseller and confirmed by Kramer. Notwithstanding the aforementioned, the Products shall remain the property of Kramer unless and until Kramer receives all payments due for the Products; provided, however, that the Customer and/or Reseller shall be entitled to use the Products in Customer and/or Reseller’s ordinary course of business before such full payment. Before Kramer has received full payment, Customer and/or Reseller 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. Customer and/or Reseller shall keep the Products in good working order and insured against all risks of loss or damage for Kramer and shall inform the landlords of the site that Kramer is the owner of the Products. Kramer shall have the right to repossess, access, reclaim possession and/or re-sell the Products until Kramer has received all payments therefor. Customer and/or Reseller agrees to comply with any local formality which may be required in order to register or enforce Kramer’s retention of property as provided herein. Even upon transfer of title in the Products, Customer and/or Reseller shall undertake to comply with all restrictions set forth herein with regards to the Products, including specifically in sections 5 and 6 hereafter. Kramer has all rights, title and interests in and to the crates and other packaging materials of the Products and shall collect them from Customer to the extent required pursuant to Section 9.9 below.
4.2. Notwithstanding the above, Kramer 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), 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, “Kramer Intellectual Property Rights”). In addition, and without derogating from anything of the contrary, Customer and/or Reseller 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 Kramer. Customer and/or Reseller further acknowledges and agrees that the Software is licensed and not sold to Customer and/or Reseller and that all ownership of, and title to, the Software or evidenced by or embodied in, attached, connected, and/or related to the Software (and any and all improvements and derivative works thereof) and any other products, deliverables or services provided by Kramer and documentation and all subsequent copies thereof regardless of the form or media are held by Kramer. Customer and/or Reseller never acquire title to Kramer’s Intellectual Property Rights or Software.
4.3. Feedback. If feedback that Customer and/or Reseller has or receives (e.g., questions, comments, suggestions or the like) regarding any of the Products (collectively, “Feedback”), all rights, including intellectual property rights in such Feedback shall belong exclusively to Kramer, and Customer and/or Reseller hereby irrevocably and unconditionally transfers and assigns to Kramer all intellectual property rights they have in such Feedback and waives any and all moral rights that Customer and/or Reseller may have in respect thereto. It is further understood that use of Feedback, if any, may be made by Kramer at its sole discretion, and that Kramer in no way shall be obliged to make use of any kind of the Feedback or part thereof.
4.4. Material Terms and Conditions. The Customer and/or Reseller specifically agrees that, without affecting the materiality of any other provision of this Agreement, each of the terms and conditions of this section are material and that failure of the Customer and/or Reseller to comply with these terms and conditions will constitute sufficient cause for Kramer to immediately terminate this Agreement and the license granted under this Agreement.
5. SOFTWARE LICENSE
5.1. Kramer grants Customer a nonexclusive, nontransferable, revocable and limited license to install, use, and/or remotely access (i.e., on a SaaS basis, installed on Customer’s premises or both) 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. Customer 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 Kramer.
5.2. The Software may include certain software or software components which may have been developed, and the copyright to which may be held, by third parties (“Third Party Software Components”), including but not limited to certain open source code software and materials that are distributed together with the Software and that are subject to their respective open source licenses, and which may have been made available to the public according to certain terms and conditions (Third Party Licenses). A list of any third-party open-source software and related open source licenses will be provided by Kramer upon written request and/or maybe available in the Software dependencies.txt file and/or on Kramer’s website as may be amended from time to time, at Kramer’s sole discretion. Therefore, this Agreement will apply to Third Party Software Components only to the extent permitted by the respective Third-Party Licenses. In any event of a conflict or contradiction between this Agreement and the provisions of a Third-Party License, the provisions of the respective Third Party License will prevail over the provisions of this Agreement with regard to the respective Third Party Software Component.
5.3. Account. In order to use some of the Software features Customer may have to create or use an account (an “Account”). If Customer create an Account, Customer must provide accurate and complete information for itself. Customer is solely responsible for the activity that occurs in its Account, and Customer must keep its Account password secure. You must notify Kramer immediately of any unauthorized use of its Account.
5.4. Permitted Users. The Software may be accessed solely by Customer’s employees and/or subcontractors who are explicitly authorized by Customer to use the Software on Customer’s behalf (each, a “Permitted User”). Customer will ensure that the Permitted Users comply with the terms of this Agreement at all times; and shall be fully responsible for any breach of this Agreement by a Permitted User. Unauthorized access or use of the Software must be immediately reported to Kramer.
5.5. Customer and/or Reseller are 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 Customer and/or Reseller in the human readable code of the Software (source code). This Agreement does not grant Customer and/or Reseller any rights to patents, copyrights, trade secrets, trademarks, Kramer’s Intellectual Property Rights or any other rights with respect to the Software or Documentation other than those specifically stated herein.
5.6. Subject to the restrictions set forth herein, the Software is licensed to be used on one Product purchased by Customer or leased to Customer, for Customer’s use.
5.7. Customer and/or Reseller acknowledges that the use of the Software may require one or more compatible devices and Internet access and may require obtaining updates or upgrades from time to time. Because use of the Product involves hardware, software, and Internet access, Customer’s ability to use the Product may be affected by the performance of these factors. Customer acknowledges and agrees that such system requirements, which may be changed from time to time, are its responsibility.
Notwithstanding the above, Kramer regularly changes, enhances, revises, updates, and upgrades the Software. This means that the Software is continually evolving and in order to make efficient use of these changes, Customer may need to upgrade its equipment, including but not limited to servers and other network equipment. Kramer recognizes that Customer may have legitimate business reasons for not upgrading to a new version of Software as soon as the updated version becomes available. However, at the end of the applicable subscription term, as set forth in the applicable order, Kramer may discontinue support for certain older versions of the Software.
5.8. Kramer may from time-to-time revise or update its Software. Such updates and revisions may be supplied separately for a fee according to Kramer’s then prevailing update prices, policies, terms and conditions.
6. USE RESTRICTIONS
6.1. Minimum Requirements. system requirements detailing the minimum Software and hardware requirements for the proper installation and use of the Software are contained in the Documentation. The Customer warrants and represents that it has met the minimum Software and hardware requirements.
6.2. Notwithstanding anything to the contrary, Customer and/or Reseller 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 Customer’s own intranets or otherwise for Customer 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, or (vii) 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 Kramer’s rights or damage the image or reputation of quality inherent in the Products, Kramer’s business, reputation, Kramer’s Intellectual Property or other valuable assets or rights.
6.3. Any breach of the provisions of Section 6.2 above will automatically cancel all warranties provided by Kramer hereunder, and any other agreement between Kramer and the Customer and/or Reseller.
6.4. In the event Customer rents, leases, sells or otherwise transfers the Systems and/or Parts to a third party, Customer 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. For the avoidance of doubt, Customer shall be solely responsible for any General Use Data transferred to any third party in connection with such rent, lease, sale or otherwise transfer of the System.
7.1. Customer and/or Reseller 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 Kramer 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 Customer gives Kramer prompt notice thereof so that Kramer may seek a protective order or other appropriate remedy, and further provided, that if the same is not obtained, Customer shall furnish only that portion of the information which is legally required.
8. WARRANTY SUPPORT AND DISCLAIMERS
8.1. Kramer System Warranties.
8.1.1. Kramer warrants that commencing on the date of delivery of the System (new or Refurbished) (based on the applicable Incoterms) and for a period of twelve (12) months for the System and three (3) months for the Software (the “Warranty Period”), it will provide warranty to the applicable Product. The warranty shall be provided in accordance with Kramer’s then currant warranty terms and conditions.
8.1.2. Support. During the Warranty Period, Kramer will provide only remote support, on a commercially reasonable efforts basis, during regular business hours in accordance with Kramer’s than currant services and support terms and conditions. The support and maintenance services may be performed by Kramer, a Partner and/or Kramer’s certified third-party providers.
8.1.3. Kramer’s warranty and/or support obligations hereunder regarding maintenance, repair or replacement necessitated in whole or in part, shall not apply if the failure of the Product results from or is otherwise attributable to: (i) installation, repair, maintenance or modification of the Product by persons other than Kramer or its authorized contractors or representatives; (ii) accident, negligence, abuse or misuse of the Product; (iii) use of the Product other than in accordance with the applicable Documentation; (iv) Customer’s failure to implement software updates provided by Kramer specifically to avoid such failure; (v) the combination of the Product with equipment or software not authorized or provided by Kramer (vi) catastrophe, fire or water damage, electrical disturbances, fault or negligence of the Customer or other causes beyond Kramer’s control; (vii) improper or unauthorized use, alteration or modification of the System, if Kramer reasonably determines that damage to the Systems has probably been caused by such use; (viii) deviation from recommended maintenance procedures, non-compliance with specifications, minimum requirements as detailed in the Documentation, 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 (ix) virus, infection, worm or similar Malicious code not introduced by Kramer.
8.1.4. Following the Warranty Period, Customer shall be entitled to purchase additional support services according to terms to be agreed upon between Customer and Kramer in a separate agreement.
8.2. Kramer Software Warranties. All warranties applicable to the Software are as stated in the Product’s manual or in the Software Documentation itself, whether in paper or electronic form, accompanying the Software. Except as expressly stated therein, the Software is licensed to Customer “as is”, without warranty of any kind and Kramer 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. Kramer 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, KRAMER 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 CUSTOMER SOLE AND EXCLUSIVE REMEDIES.
9. RESELLER RESPONSIBITIES AND WARRANTIES
9.1. RESELLER PROMOTION OF SALES
Reseller will use its best efforts to promote, maintain and increase the sale of Kramer Products in the territory agreed upon by Kramer (“Territory”).
9.2. DELIVERY, ACCEPTANCE AND RETURN
9.2.1. Kramer will make reasonable commercial efforts to make Kramer Products ordered available for pickup at the pickup point as shall be agreed by Kramer within thirty (30) days after acceptance of a service order, unless Kramer specifies a later date upon acceptance of the order. Kramer will have the right to make partial shipments, which shipments will be separately invoiced and paid for when due, without regard to subsequent shipments.
9.2.2. Kramer Products will be delivered in Kramer’s standard packaging with Kramer’s standard labels and markings.
9.2.3. If Kramer cannot ship the Kramer Products due to an act or omission of Reseller, all costs associated therewith (including storage) will be charged to Reseller.
9.2.4. Reseller will properly inspect the Kramer Products upon pickup. Reseller’s failure to give notice to Kramer of any claim within five (5) days after the inspection of the Kramer Products will constitute an unqualified acceptance of them.
9.2.5. Returns are only permitted after obtaining Kramer’s written consent, and if applicable upon receipt of a return merchandise authorization number and within forty-five (45) days of receipt of such Kramer Products. Reseller will comply with the than currant Kramer’s return policy. Kramer will credit Reseller for the purchase price of returned Kramer Products only if Kramer determines that the Kramer Products were defective or damaged prior to pickup at the pickup point as shall be agreed by Kramer.
9.3. RISK OF LOSS, TITLE
9.3.1. In all cases, the risk of loss for Kramer Products will pass to the Reseller upon pickup at the pickup point as shall be agreed by Kramer. The reseller will be responsible for insuring all Kramer Products in transit and thereafter, as well as filing appropriate loss or damage claims with its insurance carrier. Reseller may designate a freight carrier of its choosing, provided that any designated freight carrier must be able to accept delivery of Kramer Products on the date and at the pickup point as shall be agreed by Kramer.
9.3.2. Title to Kramer Products will pass to Reseller only upon payment in full of Kramer’s invoices for the Kramer Products. At Kramer’s request, Reseller will execute all documents and do all acts which may be required to enforce Kramer’s retention of title.
9.4. TRAINING AND ACCREDITATION
9.4.1. Reseller will ensure that at all times, at least one of its employees who is involved in selling and supporting Kramer Products will have gone through training and certification by Kramer or by any third-party certifier that Kramer may appoint, to learn how to market, install and supply support for Kramer Products. Such training may be on-line or in person and at times and locations all as determined by Kramer. Reseller will bear any costs of its employees in travelling to and participating in such training. Reseller’s certified employee(s) will be responsible for training other Reseller employees who are involved in marketing, installing and supporting Kramer Products.
9.5.1. Reseller is aware that upon first installation and/or use and/or or subscription of the Software, a Customer will be asked to agree to a click license agreement (the “EULA”) and that the use of the Software will be conditioned on the Customer’s acceptance of the EULA. The conditions of the EULA will be determined by Kramer in its sole discretion. Reseller will notify Kramer promptly of any breach by a Customer of which it becomes aware of any of its obligations under the EULA. Reseller will render all reasonable assistance to Kramer as to any action which Kramer may decide to take regarding such breach by a Customer.
9.5.2. Kramer may release bug fixes, updates and upgrades from time to time in its sole discretion. Should Kramer release bug fixes or updates, it will notify Reseller and make them available to it. Reseller will arrange to make them available to Customers during any period to which they are entitled to support. Should Kramer release upgrades, it will notify Reseller and make them available to it. Reseller will distribute them as if they were separate Kramer Products under the Agreement.
9.6. Reseller Use of Trademarks
9.6.1. Reseller undertakes to not remove, deface, alter or cover the Trademarks, serial numbers, claims as to patents or other intellectual property or other means of identification or claims on Kramer products or packaging or otherwise alter the Kramer Products or their packaging in any way not expressly permitted in this Agreement.
9.6.2. Reseller may during the term of any agreement between the Parties, display such trademarks, trade names, and designations owned by Kramer or its Affiliates (“Trademarks”) that are directly associated with Kramer Products that Reseller is authorized to purchase and sell, solely for the purposes of selling, advertising, and promoting the sale of the Kramer Products, subject to the below.
9.6.3. Reseller agrees to adhere to Kramer’s graphic, verbal, thematic, and other standards, specifications, guidelines, and requirements for the use of the Trademarks. Reseller, at its expense, will provide Kramer with copies, photographs, computer files, links and other representative samples of Reseller’s materials bearing the Trademarks for Kramer’s approval prior to the publication, broadcast, dissemination, or other use or distribution of such materials.
9.6.4. Reseller will not act in any manner that may cause the Trademarks to be adversely affected or come into disrepute or lose goodwill;
9.6.5. Except as expressly allowed in this Agreement, Reseller will not: (i) use or adopt the Trademarks as part of the corporate or any trading name of Reseller without the written permission of Kramer; (II) use or adopt any term, phrase, or design which is confusingly similar to or a colorable imitation of a Trademark as part of a service mark or trademark, a corporate, assumed, or trade name, as a product name, on stationery, business cards, or similar materials, or directly or indirectly in connection with, or in relation to, any activity or agreements with third parties; (iii) identify or market Kramer Products with any additional trademarks or other trade designations or in packaging or with sales materials other than those provided or expressly permitted by Kramer; and (iv) attach or use the Trademarks on or in connection with products or services other than Kramer Products;
9.6.6. Reseller will promptly notify Kramer in writing if Reseller becomes aware of any person or entity that may be infringing any Kramer intellectual property rights. Reseller will, at its own expense and cost, fully cooperate with all efforts of Kramer to protect those rights.
9.7. All goodwill and enhancement in value of the Trademarks generated by Reseller’s use of the Trademarks will accrue to Kramer and be for Kramer’s exclusive benefit. Reseller will not be entitled to any goodwill or business reputation compensation.
9.8.1. Reseller will provide prompt and effective “First Level Support”, meaning that (i) Reseller will provide initial support with regard to Products with respect to Customers entitled to it and making a reasonable effort to solve them before requesting support from Kramer; Kramer will supply such support, if at all, in its exclusive discretion and under the conditions it may determine from time to time notwithstanding the above, any support to be provided by Kramer shall be provided on a reasonable commercial efforts’ basis, via remote support only, during normal working hours.; (ii) Reseller will act as an interface between Kramer and the Customer where Kramer so requests and, to the extent Kramer requests it, will provide Kramer with direct access to the Customer; (iii) Reseller will submit all required error information to Kramer in order to enable Kramer to provide optimal support to the extent Kramer agrees to supply such support; and (iv) Reseller will follow instructions from Kramer to resolve the issues at its expense, in compliance with any instructions prescribed by Kramer. Kramer will have no liability to Reseller, its employees, or any Customer or owners of Kramer Products in connection with any product support performed by Reseller or its representatives or agents.
9.8.2. Reseller will supply its services with regard to First Level Support free of charge to any Customer that is entitled to such support.
9.9. RESELLER REPRESENTATIONS AND WARRANTIES
Without derogating from any other provision of this Agreement:
9.9.1. Reseller represents and warrants that: (i) it is duly organized, existing and is in good standing under the laws of its place of the organization; (ii) it has all necessary authorizations for the execution, delivery, and performance of this Agreement have been obtained; (iii) its execution, delivery, and performance of this Agreement will not result in any material violation of any agreement to which it is a part; and (iv) the individual signing this Agreement on Reseller’s behalf is a duly authorized corporate officer.
9.9.2. Reseller warrants that it will act in full compliance with the law, ordinances, rules, and regulations applicable in connection with the sale, use, service, shipment, or disposal of Kramer Products, and in connection with any obligations under this Agreement.
9.9.3. Reseller will make certain that its Customers of Kramer Products will be aware of the warranty and its conditions and that Reseller will secure the agreement of such Customers that – other than the fulfilment of the warranty – the Customers will have no claim of any sort (including any liability for loss of profits, damage to property, or other consequential, exemplary, incidental, special or indirect damages) against Kramer, Reseller and any of their employees, consultants, directors, officers or shareholders. Reseller will administer the warranty relative to its Customers.
9.10. REPORTING BY RESELLER
9.10.1. Reseller will provide reports to Kramer of its sales of Kramer Products and about its inventory of Kramer Products. Details of the reports required the frequency at which they will be provided and of the way in which they are to be provided will be in accordance with Kramer’s written instructions from time to time. Such written instructions may be made available on Kramer’s or its Affiliates’ websites, by direct transmission to Reseller or in other ways to be determined by Kramer. Nothing in this paragraph will require Reseller to act in breach of any obligation imposed by applicable laws on the protection of personal (or other) data but Reseller is, to the fullest extent reasonably possible, to seek to obtain any consents necessary to enable it to comply with this obligation to the extent that might involve providing Kramer with any such personal (or other) data. To confirm that Reseller has fully and accurately provided all required reports, Kramer will perform checks and analysis on the data provided to ensure consistency between the quantities Reseller report as sold by Reseller, Reseller’s inventory as reported by Reseller and the quantities known to have been purchased by Reseller from Kramer. If Kramer has grounds for concern over the accuracy or completeness of the data that Reseller has provided, Reseller will explain the discrepancies to the satisfaction of Kramer.
9.10.2. Reseller will inform Kramer of any major changes in its management, organization, capital structure or financial conditions and any other material change in its business, immediately after such change takes place.
9.11. BRIBERY, EXPORT, AML, WEEE
Without derogating from any other obligation under this Agreement, Reseller undertakes that until the Effective Date and during the term of this Agreement: (i) it has not provided, and will not provide, to any person or entity any gift, gratuity, service or other inducement or favor to influence or reward any person or entity in connection with this Agreement or in connection with Reseller’s relationship with Kramer; (ii) it will comply with the requirements of any applicable anti-bribery or corrupt practices legislation whether in Kramer’s jurisdiction or in the Territory; (iii) it will comply with any import, export or similar restrictions that may be applicable to the sale of Kramer Products whether in Kramer’s jurisdiction or in the Territory, (iv) it will comply with any applicable anti-money laundering or similar restrictions whether in Kramer’s jurisdiction or in the Territory, (v) it will comply with any applicable requirement to collect, treat, recover and dispose of waste electrical and electronic equipment (“WEEE”) in an environmentally sound manner; if Kramer has designated a WEEE recycler, Reseller will arrange for and pay for the cost of collection and transportation of WEEE to the recycler. In case of any sale by Kramer directly to Customer the above shall apply to Kramer and not to a Reseller and (vi) Reseller will timely inform Kramer of any local rules or regulations which may restrict, technically, regulatory or otherwise, the deployment or operation of the Kramer Products in the Territory and provide any reasonably required assistance in obtaining any license required therefor.
10.1. Indemnification by Kramer. Subject to the limitation of liability set forth in section 11 below, Kramer shall defend Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer 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 Customer for any damages finally awarded against, and for reasonable attorney’s fees incurred by Customer in connection with any such Claim; provided, that Customer (a) promptly gives Kramer written notice of the Claim; (b) gives Kramer sole control of the defense and settlement of the Claim; and (c) provides to Kramer all reasonable assistance, at Kramer expense. Kramer may, at its sole option and expense, procure for Customer 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 any unused portion of the applicable subscription fees according the Service Order. Notwithstanding the above, Kramer 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 Kramer 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.
10.2. Indemnification by Customer. Customer shall defend Kramer against any Claim made or brought against Kramer by a third party alleging that Customer’s use of the Products, Software and/or Services (and not the Products, Software and/or Services themselves as covered by Section 10.1 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 Kramer for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Kramer in connection with any such Claim; provided, that Kramer (a) promptly gives Customer written notice of the Claim; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim before receipt of prior written approval form Kramer to such settlement); and (c) provide to Customer all reasonable assistance, at Customer expense.
10.3. Indemnification by Reseller. Reseller will indemnify, defend and hold Kramer harmless from all losses, expenses, claims, suits, judgments and liabilities (including Kramer’s reasonable attorney’s fees) arising out of Reseller’s or its employees or agents breach of this Agreement, or their wrongful acts, omissions, or misrepresentations, including failure of Reseller to fulfil its obligations under Section 8 and above, warranties or representations made by Reseller or its employees, with regard to Kramer Products that differ from the warranty.
10.4. Exclusive Remedy. This Section 10 (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.
11. LIMITATION OF LIABILITY
11.1. WITHOUT DEROGATING FROM KRAMER’S INDEMNIFICATION OBLIGATION UNDER THIS SECTION 11 AND EXCEPT FOR: (i) ANY DAMAGES RESULTING FROM ANY BREACH OF EITHER PARTY’S CONFIDENTIALITY OBLIGATIONS HEREIN, AND/OR (II) CUSTOMER OR RESELLER’S MISAPPROPRIATION OR OTHERWISE VIOLATION OF KRAMER’S INTELLECTUAL PROPERTY RIGHTS (INCLUDING MISUSE OF THE LICENSE BY CUSTOMER):
11.2. KRAMER’S MAXIMUM LIABILITY FOR ANY DIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO KRAMER BY CUSTOMER OR RESELLER AS THE CASE MAY BE, IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. FOR CLARITY, THE LIMITATIONS IN THIS SECTION DO NOT APPLY TO PAYMENTS DUE TO KRAMER UNDER THIS AGREEMENT.
11.3. EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES. IN NO EVENT KRAMER SHALL HAVE ANY LIABILITY TO ANY CUSTOMER OR RESELLER OR ANY OF THEIR REPRESENTATIVES 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.
12. EXCLUSIONS AND LIMITATIONS (LIMITATION OF LIABILITY)
THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION (LIMITATION OF LIABILITY) WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND: (A) EVEN IF KRAMER HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (B) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (C) REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, TORT, NEGLIGENCE OR STRICT LIABILITY). TERM AND TERMINATION.
12.1. Term. This Agreement and the applicable licenses granted hereunder will commence on the Effective Date and will continue until terminated by either Party in accordance with the provisions contained herein.
12.2. Termination of Agreement.
12.2.1. Termination by Kramer. Kramer will have the right to terminate this Agreement and the license granted herein immediately upon the Customer and/or Reseller’s failure to comply with any of the material terms and conditions of this Agreement;
12.2.2. Termination for IP Violations. The foregoing notwithstanding, in the event Kramer exercises its right to terminate this Agreement due to any IP violation, Kramer will have the right to take immediate action to prevent further use of the Software and the Documentation.
12.3. Termination for Convenience by Kramer. Kramer shall have the right to terminate this Agreement at any time and for any reason by providing a 180 days prior written notice.
12.4. Upon such termination, Customer 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 Kramer for any reason shall not entitle Customer and/or Reseller to any type of refund or rebate for any unused portion of this Agreement or any support or maintenance agreement.
12.5. RESELLER CONSEQUENCES OF TERMINATION
12.5.1. Upon termination, Reseller will immediately cease marketing the Products and making any use or any reference whatsoever to Kramer’s Trademarks, copyrights, trade secrets or any other Kramer Intellectual Property Rights relating to the Products and return any Confidential Information.
During any notice period prior to termination, Kramer at its sole discretion (i) will not be obliged to accept any Service Order for which the delivery will take place after the date of termination of the Agreement; or (ii) may decrease the quantities ordered by Reseller in order not to exceed the quantities normally ordered by Reseller.
12.5.2. Upon termination of the Agreement for any reason whatsoever: (i) Kramer and Reseller will co-operate to ensure a smooth handover of responsibility for the relationships with Reseller’s Customers; (ii) notwithstanding any prior agreement to the contrary, any sums owed by Reseller to Kramer will become due and payable immediately on the date of termination or expiration; (iii) Kramer may at its option repurchase from Reseller, and Reseller will in such case sell to Kramer, any or all stock of Kramer Products then held by Reseller at the original Discounted price paid by Reseller for the Kramer Products.; (iv) Reseller will within 30 calendar days of termination send to Kramer or otherwise in accordance with the directions of Kramer, any advertising, promotional or sales material relating to Kramer Products, as well as any other materials and information in relation to Kramer Products in its possession or within its control; (v) Reseller will duly and promptly refer to Kramer any and all enquiries, orders, correspondences and the like, whether in writing or oral form, relating to Kramer Products; (vi) Reseller will cease to use any Trademarks or other trade names or branding of Kramer, or any adaption thereof, and (vii) upon termination of the Agreement all data collected by Reseller during the term of the Agreement, will at the first request of Kramer and in conformity with this Agreement be shared with Kramer to the extent allowed by the applicable data protection laws. Notwithstanding the provisions of this Section, Reseller may sell its stock of Kramer Products purchased prior to the date of termination and not repurchased by Kramer and in relation thereto and to that extent the provisions of the Agreement will be fully applicable.
12.5.3. Following termination, Kramer – either directly or through distributors or other Resellers – will be entitled to continue selling to Customers with whom contact was initiated by Reseller and will have no further obligations to Reseller of any sort, including obligations to compensate Reseller for its efforts in building or maintaining a market for Kramer Products or for its expectations that it will continue to enjoy the benefits of its position in accordance with this Agreement. Reseller will have no right to any compensation or damages for loss of goodwill in the event of any termination of this Agreement.
12.6. 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), 10 (Indemnification), 11 (Limitation of Liability), 13 (General Provisions) and any other clauses which by their nature should survive termination, shall survive any termination or expiration of this Agreement.
13. GENERAL PROVISIONS
13.1. Force Majeure. Kramer 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 Kramer’s usual sources, shortage of Kramer’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 Kramer’s reasonable control, preventing, delaying or hindering performance.
13.2. 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 email as confirmed by an electronically printed confirmation of date and time, or manually delivered, addressed to the respectively applicable addresses of the Customer, Reseller and Kramer.
13.3. Governing Law; Jurisdiction. This Agreement shall be governed, construed and enforced in accordance with the laws of the State of Israel, without regard to the conflict of laws rules. The Customer and/or Reseller agree that the United Nations Convention for the Sale of Goods shall not apply to this Agreement and the goods sold under any Service 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 Tel Aviv, Israel.
13.4. 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.
13.5. Waiver and Amendment. This Agreement may be amended, modified, superseded, cancelled, renewed, extended or waived only in written instrument signed by Kramer’s authorized signatories. The waiver by Kramer of a breach of any provision of this Agreement shall not operate as a waiver of any subsequent breach.
13.6. 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. Customer and/or Reseller acknowledge 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 Kramer, Reseller or Customer. Customer and/or Reseller agree that they 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.
13.7. 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.
13.8. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
13.9. Assignment. Customer and/or Reseller may not assign any of their ’s rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Kramer. Kramer may freely assign its rights and obligations herein, at its sole discretion.
13.10. Entire Agreement. This Agreement, including all exhibits and addenda hereto, and purchase agreement or any and all quotations and/or Service Orders 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 Service Order, the terms of this Agreement shall prevail.
13.11. Update to this Agreement. Kramer reserves the right to modify this Agreement from time to time. If Kramer makes any changes to this Agreement, it will change the “Last Revision” date below and will post the updated Agreement on this page.
Last revision: January 2024