THESE ARE THE CURRENT TERMS AND CONDITIONS (“AGREEMENT”) OF TWINE SOLUTIONS LTD (“TWINE”), WHICH APPLY TO ANY PURCHASE, LICENSE AND ANY OTHER USE OF TWINE’S SYSTEM, SPARE PARTS, CONSUMABLES, PRODUCT, FEATURES, SOFTWARE, SYSTEM OPTIONS, ACCESSORIES (NON CONSUMABLES), UPGRADE KITS AND/OR PROVISION OF SERVICES INCLUDING ANY DOCUMENTATION THEREIN OR ATTACHED THERETO (“PRODUCTS”) AND GOVERN THE PURCHASER’S (AS DEFINED BELOW) USE OF ANY SUCH PRODUCTS, WHETHER PURCHASED DIRECTLY FROM TWINE OR THROUGH AN APPROVED THIRD PARTY REPRESENTATIVE OR PARTNER OF TWINE. BY PURCHASING, RENTING, LEASING OR USING OF ANY PRODUCT, PURCHASER AGREES TO BE COMPLY AND BE BOUND BY THE TERMS OF THIS AGREEMENT. PLEASE READ THIS AGREEMENT CAREFULY AND ACCAPT THESE TERMS AND CONDITIONS.
IF PURCHASER IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, PURCHASER REPRESENTS THAT PURCHASER HAS THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IF PURCHASER DOES NOT HAVE SUCH AUTHORITY, OR IF PURCHASER DOES NOT AGREE WITH THIS AGREEMENT, PURCHASER MUST NOT MAKE ANY USE OF ANY OF THE PRODUCTS.
This Agreement is effective between Purchaser and Twine as of the date of Purchaser purchasing any such Twine Products and is an integral part of any purchase agreement or Order Form.
“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, including any addenda thereto, that are entered into between Purchaser, either directly with Twine or with any of Twine’s 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 Twine, Twine’s sole liability and obligation to Purchaser shall be as set forth in this Agreement or any other specific agreement signed directly with Twine and it shall have no other liability or obligation to Purchaser under such Order Form not signed with Twine.
“Purchaser” means any purchaser, whether customer, representative or any other third party acting on behalf of any company or other legal entity, to which Twine has agreed to provide the Products, as stated in the Order Form.
“Services” means services that Purchaser purchases or is entitled to receive as part of the Product purchase. Such Services can be received from either Twine or Twine’s approved representative, as agreed between the parties. In case the Services are to be received from a representative of Twine, Twine’s sole liability and obligation to Purchaser shall be as set forth in this Agreement or any other specific agreement signed directly with Twine and it shall have no other liability or obligation to Purchaser for such Services not signed with Twine.
“General Use Data” means operational and technical information only that is received through a remote support system or during the regular “day to day” work activities. 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, operation and utilization data, ink consumption, maintenance profiles, dying and color data and profiles, errors and malfunctions. The system will not pull personal information.
Twine may offer Products and/or Services for such Products under Order Forms or other purchase or service agreements signed directly with Twine or through any of its representatives. Any acquisition by Purchaser of third-party products or services, including but not limited to Products, transportation, insurance, training, maintenance services, implementation, installation, support, customization, and other Services, and any exchange of data between Purchaser and any third-party provider/ representative, is solely between Purchaser and the applicable third-party provider/ representative, according to the specific terms signed between Purchaser and third-party provider/ representative. Twine does not warrant or support third-party products or services, , whether or not they are designated by Twine as “certified” or otherwise, except as specified herein or in an Order Form, purchase agreement or service agreement signed directly with Twine. In those cases, all such warranties, support and services not specifically detailed in this Agreement will be received directly from such third party provider/ representative.
3.1 Purchaser hereby confirms that it is aware that the Software within the Products shall include the ability to collect and store General Use Data. Unless un-enabled by Purchaser, Purchaser acknowledges that Twine may directly or through its representatives access and retrieve General Use Data from such Products through wireless connections or direct access to the Products. The Products 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 Twine and Purchaser, Purchaser exclusively owns all rights, title and interest in and to all of General Use Data.
3.3 Twine shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use the General Use Data including to incorporate any outcomes learned from such General Use Data or incorporate into the Products, Services of Twine’s business 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 then the General Use Data itself, shall be fully owned by Twine and Purchaser hereby waives any rights to such matters. Should Twine develop any Product or Service enhancements based on the studying of such General Use Data or otherwise, Twine may, in its sole discretion, offer such Product and/or Service enhancements, to Purchaser in the future in order to enhance and expand the use ability and features of the Products.
4.1 The Products shall remain the property of Twine unless and until Twine 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, all in accordance with the payment terms as set forth in the Order Form. Risk of all loss shall pass to Purchaser, upon delivery of the Products, following which Purchaser shall be responsible for loss, theft, defects or destruction caused to the Products, due to any cause whatsoever. Before Twine has received full payment, Purchaser shall not sell, lease or otherwise dispose 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 Twine.
Even upon transfer of title in the Products, Purchaser shall undertake to comply with all restrictions set forth herein with regards to the Products. In addition, it is hereby clarified that the use of non-Twine authorized Consumables in the operation of the System may result in a safety hazard and Twine shall not be liable for such Consumables and any result thereof.4.2 Notwithstanding the above, Twine 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, program code, technical documentation, specifications, instructions, structure, sequence and organization (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, “Twine Intellectual Property”). In addition and without derogating from anything to the contrary, Purchaser acknowledges and agrees that any and all Twine Intellectual Property are a valuable proprietary right of Twine. Purchaser acknowledges and agrees that it will never acquire title to Twine’s Intellectual Property Rights or Software and shall take no action, in any manner, to jeopardize, limit or interfere with Twine’s ownership or exploitation of Twine intellectual property. Purchaser shall take reasonable measures to safeguard Twine’s Intellectual Property and Twine’s Confidential Information from unauthorized use or disclosure provided that in no event will such efforts be less than the degree of care that Purchaser exercises in protecting its own valuable confidential information and/or intellectual property.
5.1 Twine grants Purchaser a nonexclusive, nontransferable, revocable and limited license to use the accompanying Software program(s) 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 any other license agreements or separate terms and conditions, which shall control and govern all such licensed Software. All rights not expressly granted herein or therein are reserved to Twine. Further, no license is granted to Purchaser in the Software’s source code.
5.2 Purchaser agrees that the Software provided to it by Twine under this Agreement or any renewals, extensions, expansions, modifications, upgrades, enhancements or changes thereof, shall, as between the parties hereto, be treated as Twine Intellectual Property and Confidential Information of Twine.
5.3 This Agreement does not grant Purchaser any rights to patents, copyrights, trade secrets, trademarks, Twine’s Intellectual Property or any other rights with respect to the Software or Documentation other than those specifically stated herein.
5.4 Subject to the restrictions set forth herein, the Software is licensed to be used on one System purchased by Purchaser or leased to Purchaser.
Notwithstanding anything to the contrary, Purchaser shall not, directly or indirectly (i) permit any third party to access the Software except as permitted herein; (ii) modify, enhance, adapt, translate, make improvements or 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; (iv) disassemble, decompile, reverse engineer, reduce to any human or machine perceivable form the Products and/or Software or circumvent any technological measures that control access to or permit derivation of the source code of the Software or any part thereof, or any compositions made using the Products ;(v) access the Software and/or Products in order to (a) build a competitive product or service, or (b) 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) sell, assign, lease, rent, transfer, assign, distribute or sublicense the Products and/or Software or to use the Products and/or Software 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 any of the Products and/or Software as a stand-alone, including in any way which is not an integral built in part of the Products; or (vii) operate or make use of the Products in any way that may violate any applicable law or regulation or take or permit any other action that may impair Twine’s rights or damage the image or reputation of quality inherent in the Products, Twine’s business, reputation, Twine’s Intellectual Property or other valuable assets or rights. In the event Purchaser rents, leases, sells or otherwise transfers the Products to a third party, Purchaser shall require such third party to be bound by this Agreement as a condition of such sale, rental, lease or other transfer.
7.1 “Confidential Information” shall mean all financial, commercial, technical or other information, Products information, know-how, trade secret (whether written, oral or in electronic form or on magnetic or other media) concerning the business and transactions of Twine that the Purchaser obtains, receives or has access to directly or indirectly.
7.2 Purchaser shall keep confidential and shall ensure its personnel protect of this Agreement, including the commercial terms, at which Products and/or Services are sold, any Confidential Information, drawings, designs or manuals received from Twine or anyone on its behalf in connection with the Products and/or Services.
7.3 Purchaser shall restrict disclosure of, and access to, Confidential Information to its Affiliates, employees, agents, advisors, or subcontractors who have a need to know in order for Purchaser to perform its obligations or exercise its rights under this Agreement, and who have assumed obligations of confidentiality no less restrictive than those contained herein. Purchaser shall be responsible for any breach of this section by its employees, agents, advisors or subcontractors to whom it has disclosed Confidential Information.
7.4 Purchaser shall not disclose such Confidential Information to a third-party, except as required by law, provided, that Purchaser gives Twine prompt notice thereof so that Twine 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.
8.1 Purchaser shall defend Twine against any claim, demand, suit, or proceeding (“Claim”) made or brought against Twine by a third party alleging that Purchaser’s use of the Products (and not the Products themselves), including in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify Twine for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Twine in connection with any such Claim; provided, that Twine (a) promptly gives Purchaser written notice of the Claim; (b) give 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 Twine to such settlement); and (c) provide to Purchaser all reasonable assistance, at Purchaser expense. Twine shall have no obligation or liability hereunder with respect to a suit or claim based on the use of the Products in a manner for which it was not designed, for any changes, modification or amendments made by anyone other than Twine itself or for any Claim arising due to the use of the Products in combination with any other software, product or means, where without such use, the Product itself would not be regarded to as infringing.
8.2. Exclusive Remedy. This Section 8 (Indemnification) states the Purchaser’s sole liability to, and Twine’s exclusive remedy against, the other party for any type of Claim described in this Section.
9.1 IN NO EVENT SHALL PURCHASER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEEDS THE TOTAL AMOUNT PAID BY PURCHASER HEREUNDER. NOTWITHSTANDING THE FOREGOING, ANY PURPORTED LIMITATION OR WAIVER OF LIABILITY SHALL NOT APPLY TO PURCHASER’S OBLIGATION UNDER THE INDEMNIFICATION, CONFIDENTIAL INFORMATION OR USE RESRICTIONS SECTIONS OF THE AGREEMENT.
9.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST 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.
10.1 Termination of Agreement. The rights granted hereunder are perpetual unless terminated earlier as specified hereafter. Twine reserves the right to terminate and revoke this Agreement or any Services and terminate its relationship with Purchaser at any time following Purchaser’s breach of any of the terms herein, and such termination shall be effective immediately upon such written notice to Purchaser. Upon such termination, Purchaser shall immediately cease any use of the Products and/or Software, including that embedded within the Products, delete or destroy all copies in its possession, and shall promptly return to Twine all materials, tools and written Confidential Information provided by Twine to Purchaser under the Agreement.
10.2 Termination without Cause. Twine reserves the right to terminate the Agreement or any Services in whole or in part, without liability at any time, without cause, upon fourteen (14) days prior written notice to Purchaser.
10.4 Surviving Provisions. Sections 2 (Third Party Providers), 3 (General Use of Data), 4 (Risk, Title and Proprietary Rights), 6 (Use Restrictions), 7 (Confidentiality), 8.3 (Disclaimer), 8 (Indemnification), 9 (Limitation of Liability), 11 (General Provisions) and any other clauses which by their nature should survive termination, shall survive any termination or expiration of this Agreement.
11.1 Force Majeure. Twine 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 Twine’s usual sources, shortage of Twine’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 Twine’s reasonable control, preventing, delaying or hindering performance.
11.2 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 Customer and Twine.
11.3. 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 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 Tel Aviv, Israel.
11.4 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.
11.5 Waiver and Amendment. This Agreement may be amended, modified, superseded, canceled, renewed, extended or waived only in written instrument signed by Twine. The waiver by Twine of a breach of any provision of this Agreement shall not operate as a waiver of any subsequent breach.
11.6 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.
11.7 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
11.8 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 Twine. Any attempted assignment or transfer without Twine’s prior written consent will be void and unenforceable.
11.9 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. 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.