Product Terms and Conditions
Last Updated: October 17, 2021
This General Terms and Conditions together with the terms and conditions stated on the Fee Quote and/or the purchase order confirmation (“PO Confirmation”) and the Price List (collectively, this “Agreement”) constitute an agreement between you, the client listed in the Fee Quote (both an individual and any legal entity on whose behalf such individual is acting) (“You” or “Your” or “Yourself” or the “Client”) and Cipia Vision Ltd. (“We” or “Our” or “Us” or “Cipia”) (each, a “Party” and collectively, the “Parties”).
R E C I T A L S
WHEREAS, You desire to market and sell Our proprietary products, to persons, corporations, organizations or other entities (“Customers”), together with Your products and solutions in the Territory listed in the Fee Quote and/or the PO; and
WHEREAS, based on the foregoing, We have agreed to grant You certain rights in marketing and promoting Our Products to Customers located in the Territory, either as stand-alone products or bundled with Your own products (the “Products”) as detailed in the Fee Quote.
NOW, THEREFORE, in consideration of the mutual representations, covenants, and agreements set forth herein, the Parties agree as follows:
1. PRODUCT DISTRIBUTION LICENSE
1.1. As of the date specified in the Fee Quote and/or the PO Confirmation (the “Effective Date”), and subject to the terms and conditions of this Agreement, We hereby grant to You, a non-exclusive, revocable, limited license and You accept from Us such License, to install and integrate, by Yourself or through others, the Product into Your products (or third-party products that were approved by Us in writing for integration), and/or market, sell and distribute (the “Distribution” or to “Distribute”) the Products to Customers located in the Territory specified in the Fee Quote and/or the PO Confirmation (the “Territory” and the “License”, respectively).
1.2. We hereby grant You a non-exclusive, revocable (subject to the terms of this Agreement), limited license to copy and distribute to Your Customers certain documentation, technical notes, manuals, or other professional documentation related to the Products, which We supplied and/or will supply to You (the “Documentation(s)”). You hereby declare that You know and understand that this license will expire together with the License and agree and warrant that Your use in the Documentation will be as follow:
(i) the Documentation content will be included a whole and without any modifications which were not pre-approved by Us in writing; and
(ii) You will use the Documentation for the purpose of Distribution, and not for any other purpose; and
(iii) You will not translate, amend, or alter the Documentations, or make any additions thereto which relate to the Products, without Our prior written consent; and
2.1. We may grant You a non-exclusive license within the Territory to use, copy, reproduce, and otherwise display certain of Our trademarks (including but not limited to brochures, presentations, images, icons, videos, logos, textual content, trade names) (the “Trademarks”). To the extent You will supply with this license, You hereby agree to refrain from changing and/or altering the Trademarks in any way, and declare that You Know that this license will expire together with the License, and declare that Your Use in the Trademarks shall be only:
(i) with respect to the Products and/or the related Marketing Materials (as defined below); and
(ii) for the purpose of Distribution and not for any other purpose; and
(iii) in good faith only; and
(iv) under the instructions provided in writing to You from Us.
3.1. We may supply You with certain software components, which may assist in the integration and operation of the Products (the “Middleware”). To the extent it is relevant, We hereby grant You a non-exclusive, revocable (subject to the terms of this Agreement), limited license to use, distribute, copy, modify, create derivative works, integrate, and otherwise implement the Middleware in connection with Your use of the Products only, and not as a standalone component or with respect to any other component other than the Products. This license provided hereunder shall expire together with the License.
4.1. The Products may be rebranded or uniquely branded (the “Branding”).
4.2. Any Branding shall be at Your expense subject to the following cumulative conditions:
(i) You will meet the distribution requirements set forth in the Fee Quote; and
(ii) You will pay the Branding Fee set forth in Fee Quote attached hereto; and
(iii) You will ensure that any and all of the Documentation attached to the Products, or other written or oral material supplied or provided by Us includes product features, disclaimers, and product limitations attached thereto or related therewith; and
(iv) You will obtain Our previous written consent.
5. MARKETING MATERIALS
5.1. We may provide You, from time to time, with Product specifications, brochures, and data sheets (in English) (the “Marketing Materials”) to Your marketing efforts.
5.2. You may prepare Your own marketing materials regarding the Products and even include the Marketing Materials therewith, for as long as they include Product features, disclaimers, and limitations attached thereto or related therewith, and provided that no other representations or warranties will be made with respect to the Products, its features, and/or its limitations.
6. PRODUCT CHANGES IN YOUR INITIATIVE
6.1. You will not incorporate any change in design, functionality, or other technical specifications of Our Products, without obtaining Our prior written consent.
7. PRODUCTS’ INTEGRATION
7.1. The Products’ integration procedure will be conducted by You. For that purpose, We will equip You with an installation kit.
8. ASSISTANCE, MAINTENANCE, AND TECHNICAL SERVICES
8.1. During the pre-sale phase (only), and subject to Our sole discretion, We will assist You with troubleshooting or by way of provision of demonstrations and field trials for Customers.
8.2. During the Warranty Period (which specified in the Fee Quote), We will provide You, without additional charges, maintenance services, telephonic and remote support for the purpose of supporting Your marketing and sales activities, as (and if) specified in the Fee Quote. After the lapse of the Warranty Period, such services shall be subject to additional payment as shall be mutually pre-agreed by the Parties
8.3. As of the Effective Date and for a period of 1 year thereafter, We will provide You with available updates and bug fixes without additional charges (the “Technical Services”), provided, that You will act in accordance with the provisions of a mutually pre-agreed relevant protocol. After 1 year, such Technical Services shall be subject to additional payment as shall be mutually pre-agreed by the Parties.
9. FUTURE PURCHASE ORDERS
9.1. Subject to the terms and conditions of this Agreement, You may submit Us, from time to time a PO for the Products You wish to purchase. PO may not be canceled, suspended, or amended in any way without Our prior written consent (such consent not to be unreasonably withheld).
9.2. Each PO shall contain the:
(i) name of Product; and
(ii) number of units of Product; and
(iii) the Customer price for the purchased units of Product; and
(iv) Product model, specifications, and version, as applicable and any other specific information required by this Agreement or by the circumstances of the PO.
9.3. Within five (5) days of receipt of any PO, We will acknowledge receipt and acceptance thereof (“Acceptance Notice”) or will notify You in writing of Our refusal to accept it. For the avoidance of doubt, refusal to a PO may be made for any reason and under our sole discretion and you hereby waive on any claims regarding this matter.
9.4. During the Term of this Agreement, You shall provide Us with a quarterly forecast with respect to the Products to be purchased. Such forecast shall be in a manner and form reasonably requested by Us. You acknowledged that the forecast will serve as the basis for Our production plans and therefore We shall not be required to approve any PO which exceeds the number of Products indicated in the forecast. It is acknowledged that the forecast does not represent a guarantee of sales.
9.5. You acknowledged that the average lead time for Provisions of the Products is 9 weeks, and therefore, You shall be responsible to purchase adequate stock in order to meet market demand.
10. PRICES AND PAYMENT TERMS.
10.1. The agreed price per unit of Product is the price specified in the Fee Quote and/or the PO, plus applicable VAT or sales tax (if applicable) (the “Price Per Unit”). Any change in the mutually agreed Price Per Unit shall be mutually agreed by the Parties in advance of bona fide discussion and be recorded in an updated Fee Quote.
10.2. Each Party shall bear the tax payments that are imposed on such Party under any applicable law with respect to the transactions contemplated in this Agreement.
10.3. Additional payment and delivery terms shall be as set specified in the Fee Quote.
In the event that You do not collect the Product within 7 days following notification, you may be charged with storage fees.
11. REPRESENTATIONS AND WARRANTIES
11.1. Our Representations and Warranties. We represent and warrants to You that:
(i) We have the right to enter into this Agreement;
(ii) We will comply with all of the terms of this Agreement;
(iii) We will comply with and adhere to applicable laws and regulations in the performance of Our responsibilities under this Agreement;
(iv) We make no warranty or representation that any Trademarks are capable of registration, nor that they are valid or enforceable in any jurisdiction;
(v) We shall ensure that there is no backdoor into the Products and no unauthorized connection, nor any data transfer will be established to/from the Products without Your explicit permission and the Customer explicit permission.
11.2. Your Representations and Warranties. You represent and warrants to Us that:
(i) You have the right to enter into this Agreement;
(ii) You will not duplicate or reproduce or support any other party in duplicating or reproducing the Products (including the Software, Hardware and Design), the documentation attached to the Products or other written or oral material supplied or provided by Us except with Our prior written consent, and will not modify or amend any of the product features, disclaimers and product limitations attached thereto or related therewith;
(iii) You will be responsible for all expenses incurred by You in Your performance of this Agreement;
(iv) You will comply with all of the terms of this Agreement;
(v) You will comply with and adhere to applicable laws and regulations in the performance of Your responsibilities under this Agreement.
12. PRODUCT WARRANTY
12.1. During the Warranty Period (which specified in the Fee Quote), You will be provided with a warranty with respect to the Products, for material defect(s) in quality and functionality which prevents the Product from operating in functional equivalence to the Documentations (the “Defect(s)” and the “Warranty”, respectively). After the lapse of the Warranty Period, such services shall be subject to additional payment as shall be mutually pre-agreed by the Parties
12.2. The Warranty shall be void and of no effect if the Defect(s) is caused by and/or due to:
(i) faulty maintenance or repair, improper storage, excessive loads, faulty transportation, incorrect or careless handling, unsuitable work equipment, or by alterations undertaken without Our prior consent; and/or
(ii) non-compliance with this Agreement and/or our provisions and/or the Documentation and/or any other instruction given by us; and/or
(iii) any act or omission by anyone other than Us; and/or
(iv) power shortages, irregularities or failures; and/or
(v) any other cause beyond Our control (such as, inter alia, technological Defect(s) which caused as a result of integration performed by You or anyone on Your behalf; and/or
(vi) if the Defect has not been reported within the Warranty Period.
13. LIMITATION OF LIABILITY
13.1. IN NO EVENT WILL NEITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON OR PARTY FOR ANY LOST REVENUES, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY NATURE, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, REGULATION, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), WILLFUL MISCONDUCT OR ANY OTHER LEGAL THEORY, EVEN IF PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, THAT MAY ARISE UNDER THIS AGREEMENT OR OTHERWISE WITH RESPECT TO THIS AGREEMENT. THIS LIMITATION IS AN ESSENTIAL PART OF THE AGREEMENT BETWEEN US AND YOU. THE PARTIES ACKNOWLEDGE THAT THIS LIMITATION REPRESENTS A REASONABLE ALLOCATION OF RISK, TAKING INTO ACCOUNT THE AMOUNTS TO BE PAID HEREUNDER AND THAT THE PARTIES WOULD NOT HAVE ENTERED INTO THIS AGREEMENT OTHERWISE.
13.2. TO THE EXTENT PERMITTED BY LAW, IN THE EVENT THAT, NOTWITHSTANDING THE TERMS OF THIS AGREEMENT, A PARTY IS FOUND LIABLE FOR DAMAGES OF ANY KIND (INCLUDING LIABILITY FOR NEGLIGENCE) CONNECTED AND/OR RELATED TO THIS AGREEMENT, SUCH PARTY’S TOTAL LIABILITY FOR SUCH DAMAGES SHALL NOT EXCEED 3 TIMES THE CONSIDERATION(S) PAID US BY YOU UNDER THIS AGREEMENT.
13.3. THE ABOVE LIMITATIONS SHALL NOT APPLY IN THE EVENT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY A PARTY OR YOUR MISAPPROPRIATION OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
14. INTELLECTUAL PROPERTY
14.1. It is understood and agreed that We shall be and remain the sole owner of any and all Our Intellectual Property Rights (as defined below).
14.2. If ever any doubt shall arise as to Our sole and exclusive ownership of Our Intellectual Property Rights, You hereby irrevocably transfers, assigns, grants, convey and relinquish exclusively throughout the world, for perpetuity (or the longest period of time otherwise permitted by law) to Us, all of the rights, interests and title in and to the patents related to Our Intellectual Property (the “Assignment”).
14.3. At Our first request, You hereby agree to sign all documents and to take all further steps required to give effect to and perfect the Assignment and You shall assist Us in every proper way to obtain and enforce Israeli and any other foreign rights including, but not limited to, Our Intellectual Property Rights, relating to or in connection with Our Intellectual Property.
14.4. You hereby declare that You have no suit or claim with regard to Our Intellectual Property, and that You will abstain from commencing any law suit or claim against Us with regards to Our Intellectual Property, including claims with regards to ownership and/or infringement. Without derogating from the aforementioned, You herby explicitly waive any interest, claim or demand that You had, have, or may have in the future for, or may be entitled to, with respect to consideration, compensation or royalty payment in connection with Our Intellectual Property.
14.5. Nothing herein shall be deemed a transfer or license by Us of any of Our Intellectual Property Rights that We may now possess or acquire in the future which may cover any aspect of the Integrated Product.
14.6. It is clarified that Our Intellectual Property Rights of whatever nature in and to Our Product and its accompanying Documentation and any Marketing Materials provided by Us to You, and any updates, upgrades and/or customization made thereto, derivative works, modification, enhancement, adaptation, translation or other change of or addition to the following, even if developed by Us based on ideas, suggestions, specifications, demands or proposals by You or the Customer or any other third-party are and shall remain Our exclusive property.
14.7. You may register and use Your own trademarks in connection with White Label Products and Marketing Materials.
14.8. If Your use of a Product is enjoined by a court of competent jurisdiction as a result of or in connection with an Infringement Claim, We will either:
(i) procure the right for You to continue Your use of the Product; or
(ii) replace the Product with a functional equivalent; or
(iii) modify the Product to make it non-infringing.
14.9. If We will unable to procure one of the three remedies listed above in Section 14.8 after using all reasonable endeavor’s to do so (including by incurring reasonable costs in seeking to procure a continued use right or to modify or replace the infringing Product), We will refund the full amount paid by You to Us for the Product.
14.10. Client always indemnifies and holds harmless Cipia and Cipia’s officers, representatives, employees, and contractors “Cipia Indemnified” from any costs, damages, compensation, or other loss suffered or incurred by Cipia Indemnified arising out of or in connection with a claim by a third-party that relate to Client’s misrepresentation or breach of its obligations under Sections 11.2 and 14.10 which will survive the termination of this Agreement until the lapse of the statutes of the limitation period.
14.11. In this Agreement:
(i) “Our Intellectual Property Rights” means, all rights arising from the Products, the License, the Documentation(s), the Trademarks, the Middleware, the Marketing Materials and all rights arising from patents, copyrights, trade secrets, Confidential Information (as defined below), trademarks, service marks, trade names, mask works, applications, and other proprietary rights in any jurisdiction, and to all inventions, discoveries, works of authorship know-how, technical information, work product, designs, ideas, concepts, innovations, drawings, schematics, original works of authorship, formulae, concepts, techniques, know-how, methods, systems, processes, compositions of matter, computer software programs, databases and mask works, whether or not patentable, copyrightable or protectable as trade secrets, irrespective of whether registered as a patent, copyright, trademark or in another form, and irrespective of whether constituting a commercial, professional or trade secrets.
(ii) “White Label” Products means Our Products supplied to You under no branding intended to be branded and marketed with the Your own branding.
15. CONFIDENTIAL INFORMATION
15.1. In this Agreement, “Confidential Information” means, any information of a confidential or proprietary nature disclosed by Us (in this Section 15, the “Disclosing Party”) to You (in this Section 15, the “Receiving Party”) in connection with this Agreement, whether orally or in writing or in any other form including, without limitation, Our Intellectual Property Rights computer programs, code, algorithms, names and expertise of employees and consultants, know-how, trade secrets, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, improvements, business, financial and product development plans, forecasts, strategies and information or data relating to the Disclosing Party’s business or Product.
15.2. With respect to Confidential Information, Receiving Party and its directors, officers and employees (collectively, “Representatives”) agree to:
(i) retain the Confidential Information of the Disclosing Party in strict confidence, to protect the security, integrity, and confidentiality of such information and to not permit unauthorized access to or unauthorized use, disclosure, publication or dissemination of Confidential Information except in conformity with this Agreement; and
(ii) adopt and/or maintain security processes and procedures to safeguard the confidentiality of all Confidential Information received by Disclosing Party using a reasonable degree of care, but not less than that degree of care used in safeguarding its own similar information or material; and
(iii) ensure that upon the termination of this Agreement, Receiving Party will all documents, memoranda, notes, and other writings or electronic records prepared by it that include or reflect any Confidential Information are returned or destroyed as directed by Disclosing Party; and
(iv) notify to the Disclosing Party in writing if there is an unauthorized disclosure or loss of any of the Confidential Information by Receiving Party or any of its Representatives. Receiving Party will promptly, at its own expense, and take all actions as may be necessary or reasonably requested by Disclosing Party to minimize any damage to the Disclosing Party or a third-party as a result of the disclosure or loss; and
(v) take reasonable steps to ensure that its Representatives adhere to the terms of this Agreement.
15.3. The obligation not to disclose Confidential Information shall survive the termination of this Agreement. Receiving Party will
15.4. Receiving Party will be responsible for any breach of this Agreement by any of its Representatives
15.5. Receiving Party that use or disclosure of any Confidential Information in a manner inconsistent with this Agreement will give rise to irreparable injury for which:
(i) money damages may not be a sufficient remedy for any breach of this Agreement by such party; and
(ii) the other Party may be entitled to specific performance and injunction and other equitable relief with respect to any such breach; and
(iii) such remedies will not be the exclusive remedies for any such breach but will be in addition to all other remedies available at law or equity.
16. TERM AND TERMINATION
16.1. This Agreement shall become effective as of the Effective Date and shall remain in effect for a period of three years (3) (the “Initial Term”), and thereafter shall automatically renew for successive three years (3) (the “Renewal Term”) unless terminated by any Party giving written notice of non-renewal at least 30 days prior to the last day of the Initial Term, and/or in accordance with any other provision in this Agreement.
16.2. Without derogating from anything We may, with or without cause, terminate this Agreement by providing You with 90 days prior written notice.
16.3. Each Party may terminate this Agreement at any time upon the occurrence of any of the following, with immediate effect:
(i) if the other Party commits a material breach of any of its undertakings, warranties and representations under this Agreement, and such breach is not remedied within thirty (30) days following written notice with respect to the breach; and/or
(ii) upon the institution of any proceedings by or against either Party seeking relief, reorganization or arrangement under laws relating to insolvency, which proceedings are not dismissed within forty five (45) days; and/or
(iii) upon the assignment for the benefit of creditors, or the appointment of a receiver, liquidator or trustee, of any of either Party’s property or assets; and/or
(iv) upon the liquidation, dissolution or winding up of either Party’s business; and/or
(v) upon the admission in writing of a Party’s inability to pay current debts; then and in any such events this Agreement may immediately be terminated by the other Party upon written notice
16.4. Upon termination of this Agreement for any reason:
(i) You shall cease promoting and marketing the Products and shall promptly return Us all Rights and/or Confidential Information and/or any such tangible property representing the Confidential Information and all copies thereof; and/or
(ii) at Our option, erase or delete any such Confidential Information held by electronic form; and
(iii) You shall confirm Us in writing Your compliance hereof.
16.5. Notwithstanding anything to the contrary in this Section, such termination shall not affect:
(i) integrated Products already sold to Customers prior to the termination of this Agreement; and
(ii) the obligation to proceed with support and maintenance services of delivered Products to Customers under this Agreement.
16.6. You shall be responsible for payment for any Purchase Order that We approved prior to the effective date of termination.
16.7. The following provisions shall survive upon the termination of this Agreement for any reason:
(i) Sections 1,2,4,9.2, 11,12,13, 14.5; and
(ii) any related provision to this Sections in the Purchase Orders, and
(iii) any other provisions in this Agreement, which by their natures extend beyond the termination or expiration of this Agreement.
17. INDEPENDENT CONTRACTORS
17.1. This Agreement does not create and shall not be construed as creating an employer-employee relationship between the Parties, nor any joint venture or partnership.
18. GENERAL PROVISIONS
18.1. All notices under or relating to this Agreement shall reference this Agreement and may be sent by facsimile or by registered mail to the appropriate address set forth below at the Parties’ signatures, or to any other address either Party may designate in writing and will be effective upon receipt or refusal of delivery, acknowledgment of receipt of fax, or three business days after being deposited in the mail as required above. Either Party may change its address by giving notice of the new address to the other Party.
18.2. The Parties have read this Agreement and agree to be bound by its terms, and further agree that it constitutes the complete and entire agreement of the Parties and supersedes all previous communications, oral or written, between them relating to the subject matter hereof. No representations or statements of any kind made by either Party that is not expressly stated herein shall be binding on such Party.
18.3. Unless otherwise expressly stated in the Fee Quote, this Agreement shall be governed by and construed under the laws of the State of Israel and the parties submit to the exclusive jurisdiction of the competent Courts of Tel Aviv – Jaffa, Israel. Both Parties hereby mutually agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods, 1980, shall not apply to this Agreement and to their engagement.
18.4. This Agreement may be executed in two or more counterparts, which may be faxed counterparts, each of which shall be deemed an original and enforceable against the Parties actually executing such counterpart, and all of which when taken together shall constitute the same instrument.
18.5. At any time and from time to time, each Party agrees, without further consideration, to take such actions and to execute and deliver such documents, as may be reasonably necessary to effectuate the purposes of this Agreement.
18.6. In case any provision of the Agreement shall be invalid, illegal, or unenforceable, such provision shall be valid, legal, and enforceable to the extent possible, and the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
18.7. Each Party’s failure or delay in enforcing any of the provisions of this Agreement shall not, in any way, be construed as a waiver of any such provisions, or prevent such Party thereafter from enforcing each and every other provision of this Agreement which were previously not enforced.
18.8. If either Party is affected by Force Majeure (as defined below) it shall forthwith notify the other Party of the nature and extent thereof. Neither of the Parties hereto shall incur any liability to the other in the event that it is delayed in the performance of its obligations hereunder solely by force majeure. For the purpose of this Agreement “Force Majeure” shall mean any cause of delay beyond the reasonable control of the Party liable to perform unless conclusive evidence to the contrary is provided and shall include, but not by way of limitation, strikes, lockouts, riots, act of war or piracy, Acts of God, destruction of essential equipment by fire, explosion, storm, flood, earthquake or delay caused by failure of power supplies or transport facilities. If either Party is delayed or prevented from the performance of its obligations by reason of this Section for more than 180 consecutive calendar days, either Party may terminate the Agreement by notice in writing given to the other Party, without liability.
18.9. The headlines used in this Agreement are for the convenience of reading, shall not be construed as the interpretation of the clauses hereof, and shall not affect the meaning of any clause hereof by whatsoever ways.
18.10. In this Agreement (unless the context requires otherwise), the masculine, feminine and neutral genders and the singular and the plural include one another.
19.1. We reserve the right, at Our sole discretion, to modify or replace this General Terms and Conditions at any time.
19.2. If a revision is material, We will try to provide at least 7 days’ notice before any new terms taking effect. What constitutes a material change will be determined at our sole discretion.
If You have any questions about these terms, please contact us.