Back to a somewhat theoretical base in logic, I can see the point gmaxwell is making, but for all intents and concerns, one Jupiter mining publicly is no big deal. There are a certain number of units that should have shipped today. If those didn't ship, then certainly they should box up the Jupiter they have mining and ship it out, but if they met their shipment goal for today (all 1st-day shipments sent) then them mining with it is a mute point. To get technical, they didn't breach their contract, as their 5% agreement was based on hashing power
sold.
Direct quote from KnCMiner Website: "We will not mine with more than 5% of the hash rate we sell, and we will never mine with customer hardware."
Two main things above: will not mine with more than 5% of the hash rate they SELL. They sold tons of hashing power. I can guarantee you they sold more than 100TH of mining power, so they are currently in the clear. Notice it doesn't say 5% of shipped, although even with that wording, they would likely be fine as well. The 2nd interesting point is that they will never mine with customer hardware. This is technically not a production unit, as it's not in a commercial case. Thereby, it could be easily considered either a quality-control unit, or one that KnC reserved for themselves. Assuming they don't ship that unit to a consumer at any point in time (unless as part of a liquidation), they don't violate the 2nd part as well.
TL;dr: KnC says they won't mine with >5% of the hashing power they sell, they certainly sold more than 10TH total. Also, this unit could be not shipped to a consumer/customer, making it not a customer hardware unit.
Disclosure: I have a day-2 shipping order; Saturn, whoop-whoop.