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“Customer” means the customer placing an order for Products with the Company.
“Documentation” means any and all documentation and material supporting or pertaining to the Products or any part thereof, whether in writing or any machine-readable form, provided by or on behalf of Gemini to Customer, including without limitation, instructions, guides and manuals.
“Personnel” of a party includes an employee, servant, agent, officer or director of that party.
“Product(s)” means any products to be supplied by Gemini to the Customer pursuant to a Purchase Order.
“Purchase Order” means a purchase order signed by Gemini for the supply of Products.
“Gemini” or “Company” means Gemini Medical Technologies.
“Territory” means the United States of America.
“Terms and Conditions” means these Terms and Conditions.
Terms of Sale; Purchase Orders
2.1. Subject to these Terms and Conditions, Gemini shall furnish the Products set forth in each applicable Purchase Order executed between Gemini and the Customer.
2.2. These Terms and Conditions shall apply to all purchases of Products by Customer, including online purchases of Products through the Company’s website and including sample Products provided at no charge to Customer.
2.3. Each Purchase Order for Products made by the Customer to Gemini shall be deemed to be an offer by the Customer to purchase Products subject to these Terms and Conditions. Gemini shall not be bound by any Purchase Order unless and until it is signed by Gemini or the Products are dispatched to Customer, whichever is earlier.
2.4. Each Purchase Order shall reflect the types and the quantities of the Products which Customer desires to purchase. A Purchase Order shall not include any other terms or conditions.
2.5. All Purchase Orders are subject to the minimum quantity requirements notified to the Customer from time to time by Gemini.
2.6. Gemini shall not be bound by, and specifically and expressly objects to, any terms or conditions whatsoever which are different from or in addition to the provisions of these Terms and Conditions, including any terms and conditions contained on or referenced in any Customer Purchase Order. The provisions of these Terms and Conditions shall prevail unless Gemini and Customer enter into any negotiated contract which override any of the provisions contained herein.
Cancellation
3.1. Gemini may cancel the acceptance of any Purchase Order for Products at any time before delivery, in which case the relevant Purchase Order shall be deemed terminated without Gemini incurring any liability.
3.2. A Purchase Order may not be cancelled by Customer following signing of such Purchase Order by Gemini or dispatch of the relevant Products, without the written consent of Gemini.
Prices
4.1. Unless otherwise agreed in writing, Products will be invoiced in accordance with Gemini’s prevailing price list at the time the relevant Purchase Order is made, as published by Gemini from to time. Gemini may change its prices from time to time without notice.
4.2. Customer shall be responsible for and shall pay directly all state, federal, local or other taxes, customs duties, assessments, fees and other charges levied by any and all government entities in connection with the possession or use of any Products (other than any tax based on the net income of Gemini).
4.3. All prices are exclusive of sales, use, excise, or value-added taxes (collectively, “Sale Taxes”). Payment of Sale Taxes must be made at the same time as payment is due on the invoice for the Products.
4.4. All prices are exclusive of shipping and handling cost. In the event Gemini manages freight, Customer shall be responsible for shipping and handling which shall be added to the invoice. In the event Customer manages freight (Customer Pickup using Customer’s designated carrier), customer shall be responsible for handling which shall be added to the invoice.
Payment
5.1. Payment of invoices must be made by Customer within 15 days from the date of invoice.
5.2. The Customer shall not be entitled to withhold payment of any amount due to Gemini in respect of any claim based on defective Products or any alleged breach of contract by Gemini, nor shall the Customer be entitled to any right of set-off or deduction of any kind.
5.3. If the Customer fails to pay any amount on the due date, all amounts then owing to Gemini immediately and automatically will become due and payable. Gemini shall have the right to cancel any Purchase Order or other contract made with the Customer and/or to suspend deliveries. The Customer may be subject to an interest charge of 1.5 percent per month on any outstanding balance if Customer fails to make timely payments. The Customer shall indemnify Gemini and keep it indemnified in respect of all costs (including legal fees) reasonably incurred in attempting to recover such overdue amount.
Delivery, Transfer of Title, Risk of Loss
6.1. Unless otherwise provided for in the Purchase Order, all deliveries shall be made DAP [Incoterms 2010]. If the Customer requests express delivery of Products or any non-standard form of delivery or if Customer requests that delivery be made by a carrier selected by Customer, then delivery shall be made EXW Gemini’s facility [Incoterms 2010].
6.2. Customer shall bear the risk of loss from the time and location of delivery of the Products into Customer’s possession.
6.3. Shipment schedules quoted by Gemini are approximate and while Gemini shall use commercially reasonable efforts to complete each shipment as indicated in the respective Purchase Order, Gemini shall not be liable for any delays.
6.4. Gemini may make partial deliveries or deliveries by instalments in any amount it may determine in which case each installment shall constitute a separate order.
6.5. The Customer must notify Gemini within seven (7) days of delivery of any shortfall in or loss or damage to Products delivered or it will be deemed to have accepted the Products.
Returns
7.1. Gemini will accept return of defective Products if there is any defect in the Products or Products are damaged in transit prior to delivery in accordance with Section 6.1 above. Gemini will replace any such defective or damaged Product.
7.2. Gemini will accept return(s) of non-damaged, unopened product within 90 days of purchase. A twenty percent (20%) restocking fee will be charged for all returned non-damaged, unopened product. Customer shall bear cost of return logistics. Prior to shipping, customer shall contact Gemini and complete Return Material Authorization (RMA) form prior to shipping any product. No credit will be issued on any product returned without prior RMA approval
Storage, Handling and Use of Goods
It is the Customer’s responsibility:
8.1. to ensure that all applicable health and safety regulations and therapeutic goods requirements are observed and other appropriate steps taken in relation to the storage, handling and the use of the Products once they are delivered to the Customer; Customer shall manage the Product inventory in compliance with ‘First Expiry – First Out’ (FEFO) principle; and
8.2. where information is supplied to the Customer on potential hazards relating to the Products, to bring such information to the attention of its personnel, sub-contractors, visitors and patients.
9.1. The Customer agrees that it is buying the Products for its own internal use only and not for resale to any third party.
9.2. Customer shall not use the Products for any uses which have not been approved by the U.S. Food and Drug Administration (“off label”).
Product Recalls
Customer agrees to comply with the Company’s recall proceedings, as amended by the Company from time to time and cooperate with the Company’s recall demands, if any. Customer agrees to provide the Company with detailed information on the consumption and status of Products remaining in his possession, if required to do so by the Company.
Confidential and Proprietary Technology
It is expressly understood and agreed by Customer that the Products incorporate highly confidential knowledge, technology, and trade secrets (all of which, whether or not copyrighted or patented, are hereafter referred to as “Technology”). The Technology includes technology incorporated in the Products themselves, Documentation (whether marked confidential or not), and oral information provided to Customer by Gemini on a confidential basis. The Technology is, and shall always remain, the exclusive property of Gemini. Customer shall have a continuing obligation to maintain the confidentiality of the Technology until such time that it becomes publicly known through no fault of Customer. During such time, Customer will take reasonable measures to ensure the confidentiality of the Technology, using procedures at least as secure as those Customer uses to protect its own confidential or proprietary technology. Customer shall not replicate, reproduce, alter, modify, disassemble, decompile, reverse engineer, create derivative works from, transfer or disclose to third parties, any part of the Technology for any purpose whatsoever. Customer shall not remove any proprietary notice, labels, or marks on the Products. Customer acknowledges that any violation of this Section will result in irreparable harm to Gemini and that Gemini may enforce its rights hereunder by injunction against any threatened or continuing violation, or in an action for damages, or both.
The Customer indemnifies Gemini, its affiliates, and its and their Personnel against any and all cost, expense, damage, judgment, liability or loss (including consequential loss, loss of profit and loss of expected profit) incurred directly or indirectly as a result of or in connection with any claim, demand or cause of action asserted or brought by a third party in relation to or arising from any negligent act or omission, unlawful conduct or other misconduct by the Customer or its Personnel relating to the use of the Products by Customer.
Warranties and Disclaimers
13.1. Other than as specifically set out in these Terms and Conditions, all warranties implied by statute or law are excluded to the full extent permitted by law.
13.2. Except as expressly stated in these terms and conditions, there are no warranties, express or implied, by operation of law or otherwise. Gemini disclaims the implied warranties of merchantability and fitness for a particular purpose as to all products. Gemini warranties extend solely to Customer.
13.3. Products Warranty and Disclaimers: Gemini warrants that it shall hold good title to the Products at the time of its sale to Customer; that Gemini has received regulatory authorization from the United State Food and Drug Administration required for the distribution and sale of the Products in the Territory; that all Products covered by these terms and conditions shall be free of material defects and contamination when delivered; that the Products shall have a remaining shelf life of at least 12 months when delivered; [and that Gemini has not received any written notice to the effect that the Products infringe any third party intellectual property rights and to its actual knowledge the distribution, sale or use of Products does not infringe any third party intellectual property rights.] The preceding warranties are subject to the following: (a) Gemini’s sole obligation hereunder shall be to replace any defective Product; and (b) Gemini shall have no obligation (either during or subsequent to the warranty period) to make replacements necessitated in whole or in part by: (i) the fault or negligence of Customer; (ii) improper use of the Products; (iii) use of the Products which is not in accordance with the Product’s label (“off label”) or (iv) causes external to the Products.
The warranty for the machine will be void and Gemini Medical Technologies will not be responsible for any repairs or replacements if the machine is damaged due to improper storage or handling while traveling.
13.4. Liability Disclaimers: To the maximum extent permitted by applicable law, Gemini hereby expressly disclaims liability for any damage resulting from the use of the Products other than in strict compliance with any documentation, information or instructions provided or otherwise made available to the Customer.
13.5. Limitation of Liability: Gemini shall not be liable for any loss or damage (including, without limitation, lost profits or direct, indirect, special, incidental or consequential damages) caused by or relating to the Products provided under any Purchase Order, or by delay or any act or omission of Gemini in connection with any Purchase Order and these Terms and Conditions, even if Gemini has been advised of the possibility of such loss or damage and even if such loss or damage have been reasonably foreseeable. Customer’s sole and exclusive remedy for breach of any and all warranties and for Gemini’s liability of any kind under or arising out of any Purchase Order and these Terms and Conditions (whether in contract, tort, or otherwise) shall be limited to the replacement of defective Products and in any event the total cumulative liability of Gemini to Customer for any damages or claims arising out of or related to any Purchase Order(s) and these Terms and Conditions, whether in contract, tort or otherwise, shall not exceed the total amount paid to Gemini by Customer for the Products under the relevant Purchase Order.
Nothing herein shall be deemed to exclude or limit liability for death or personal injury.
Default and Remedies
14.1. By providing Customer with written notice of termination, Gemini may immediately terminate any Purchase Order if (i) Gemini determines that any material representation or warranty now or hereafter made by Customer was not true or accurate when given, or (ii) Customer is in breach of a Purchase Order or these Terms and Conditions or otherwise defaults on any of its duties, including, but not limited to, timely payments of sums due, and fails to cure this default (to the extent such a default is curable) within five (5) days after Gemini gives Customer written notice of default.
14.2. Upon any such default, Gemini may: (i) declare any and all sums payable as to any and all Products or Service immediately due and payable, without further notice or demand; (ii) without notice, demand, court order or other process of law, repossess any or all Product(s) by any means whatsoever and keep or dispose of said Product(s) according to law; (iii) terminate or suspend service as to any and all Products and suspend any other Gemini obligations; and (iv) pursue any other remedies available at law or in equity.
14.3. Unless specifically stated otherwise, no remedy or election hereunder shall be deemed exclusive but shall, whenever possible, be cumulative with all other remedies provided herein or available at law or in equity.
14.4. Customer shall not be entitled to a refund of any payments for Products ordered prior to any payment default and such prior payments are agreed and acknowledged by the parties hereto to be nonrefundable fees for the use of the Products prior to the default.
Assignment
Customer may not assign its rights or obligations under any Purchase Order or these Terms and Conditions without the prior written consent of Gemini. Any attempted assignment in violation of this provision shall be null and void ab initio. Gemini may assign its rights and obligations under any Purchase Order and/or these Terms and Conditions.
If performance of any obligation, except for the payments, is prevented, restricted, or interfered with because of fire, natural disaster, labor disputes, law, order, regulation or governmental requirement, war, civil disorder, other violence or any other act or condition, whether foreseeable or not, beyond the reasonable control of the affected party, the affected party shall be excused from such performance to the extent of such prevention, restriction, or interference. The affected party shall give prompt notice and shall resume performance immediately whenever such causes are removed. The affected party shall take reasonable steps to avoid or remove such cause at the earliest possible time, but in any event within ninety (90) days. The other party’s only remedy for this non-performance shall be rescission after the aforesaid ninety (90)-day period.
Notices
All notices and other communications required or permitted to be given under any Purchase Order or the terms hereof (“Notices”) shall be in writing, referencing the relevant Purchase Order and these Terms and Condition and addressed to the party’s address as specified in the Purchase Order.
A Notice shall be deemed given when (i) delivered personally; (ii) sent by confirmed fax or email; (iii) ten (10) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) 2 days after deposit with a commercial overnight courier, for overnight delivery, with written verification of receipt.
General Provisions
18.1. The relationship between the parties is non-exclusive.
18.2. Gemini may revise these Terms and Conditions at any time by giving notice to the Customer and the revised Terms and Conditions will be immediately effective for all Purchase Orders made after notice has been given to the Customer.
18.3. These Terms and Conditions, together with all Purchase Orders shall be governed by the laws of the State of Florida, excluding its conflict-of-law or choice-of-law principles. Litigation by Customer to enforce its rights may be brought only in the competent courts in the [insert the relevant district, Florida] Gemini may file suit in any jurisdiction where its rights may be threatened, and judgment will be enforceable in any state or country. The parties consent to the exclusive jurisdiction of such courts and consent to the service of process by registered or certified mail. Gemini and Customer hereby waive all rights they have to a trial by jury.
18.4. Nothing in these Terms and Conditions prevents a party seeking urgent injunctive or similar interim relief from a court.
18.5. If a dispute arises between the parties in connection with any Purchase Order, the parties undertake in good faith to use all reasonable endeavors to settle the dispute by way of good faith negotiation (including escalating the dispute to executive level).
18.6. These Terms and Conditions, together with the relevant Purchase Order, represent the entire agreement between the parties regarding the subject matter, superseding and replacing any additional or inconsistent terms and conditions contained on the face or reverse side of Customer’s purchase orders or other standard forms of Customer of whatever date and cancels all prior understandings, written or oral. No amendment, waiver, or cancellation of any part of these Terms and Conditions shall be valid unless pre-approved in writing with reference to these Terms and Conditions and signed by an authorized officer of each of Customer and Gemini.
18.7. Omission by Gemini to remedy a default or enforce rights reserved to it, or to require performance of any of the terms hereof, shall not be a waiver, nor shall it affect the right of Gemini to enforce such provisions thereafter.
18.8. Any term or provision of these Terms and Conditions that is held by a court of competent jurisdiction or arbitrator to be invalid, void or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the invalid, void or unenforceable term or provision in any other situation or in any other jurisdiction and any such term or provision, where held to be invalid, void or unenforceable, shall be deemed modified to the extent necessary to render such term or provision enforceable, and the rights and obligations of Gemini and Customer shall be construed and enforced accordingly, preserving to the fullest permissible extent, the intent and agreements of Gemini and Customer set forth herein.
Last updated on June 26, 2019