Terms and Conditions of Sale
1. General
GeminiBio is the “Seller” for all transactions contemplated herein. Any person buying or offering to buy goods from Seller is herein referred to as the “Buyer.” The products and services, including replacement products, sold by Seller are hereinafter the “Products.”
2. Acceptance
These terms and conditions, together with Seller’s order confirmation (where applicable), constitute the sole and exclusive agreement (the “Contract”) between Seller and Buyer. These terms and conditions may not be amended except by a writing signed by authorized representatives of both Seller and Buyer. Seller expressly disclaims acceptance of any terms or conditions on any order form, purchase order or other document of Buyer that are different from or additional to these terms and conditions, and such different or additional terms and/or conditions are hereby expressly rejected and are void.
3. Modification of Material Furnished by Seller
3.1 All catalogues, specifications, and other material of Seller are subject to modification by Seller and are not binding unless so stated in writing by Seller. Seller reserves the right to correct clerical and typographical errors at any time.
3.2 All prices listed in any catalogues, advertisements, price lists or other materials issued by Seller are subject to modification by Seller and are not binding unless so stated in writing by Seller.
4. Prices
4.1 Unless Seller has specified in writing that any quotation is binding for a specified period not yet expired, price quotes are subject to change at any time prior to shipment of the Products.
4.2 Unless otherwise agreed in writing by the parties, freight and insurance are not included in the price. In addition, sales, use, value added, or similar taxes are not included in the price, unless otherwise agreed in writing by the parties.
5. Delivery
5.1 Unless otherwise agreed by the parties in writing, the delivery term is Free On Board (FOB) origin.
5.2 Any delivery dates indicated herein or otherwise set by Seller are estimates only. They do not operate to bind Seller to the dates indicated unless specifically agreed in writing by Seller. Seller reserves the right to make partial shipments and to submit separate invoices for each such partial shipment. If Buyer defaults in its obligations in regard to any partial or prior whole shipment, Seller may suspend any additional partial or whole shipments unless and until Buyer cures such default.
5.3 Delivery dates are subject to change for any cause which interferes with Seller’s production, supply or transportation of the Products (whether or not caused or contributed to by Seller’s negligence or fault) including, but not limited to, any event of Force Majeure.
6. Title/Risk of Loss/Legal Duties
Risk of loss shall pass, and the parties’ respective legal obligations in regard to delivery and shipment, whether the relevant shipment term is FOB or otherwise. Title shall pass when risk of loss passes and when the Products have been paid in full by or on behalf of Buyer.
7. Payment
7.1 Buyer shall pay to Seller the invoice price of the Products sold hereunder, in full and without any deduction or set-off of any kind whatsoever, within thirty (30) days after the invoice date in the currency specified by Seller, unless otherwise agreed by the parties in writing.
7.2 All invoices will be paid in U.S. dollars.
7.3 Late Payment. If the Buyer is late in making payment, then, without affecting Seller’s other rights the Buyer will make payment to the Seller, upon our demand, of a late-payment charge. The late payment charge will be calculated as interest on the sums due from the payment due date until Buyer makes payment in full, at the rate of 1.5% per month, or, if less, the maximum amount allowed by law and will also include Seller’s reasonable costs of collection (including collection agency fees and attorneys’ fees). Seller also reserves the right to cancel or stop delivery of products in transit and withhold shipments in whole or in part if Buyer does not pay the Seller when due, or if the Buyer otherwise does not perform their obligations in this Agreement.
7.4 If Seller shall conclude in its sole discretion that the financial condition of Buyer at any time jeopardizes its ability to perform its obligations hereunder, Seller may require cash payments or additional security satisfactory to Seller before further performance by Seller. Buyer’s failure to timely pay any invoice shall operate to make all other invoices of Seller immediately due and payable and, at the discretion of Seller, shall be grounds for cancellation of any further performance by Seller. The receipt by Seller of part payment shall not constitute a waiver of any of Seller’s rights set forth herein or provided by law, including the right to cancel.
8. Limitation of Warranty
8.1 Seller warrants that the Products shall be in accordance with the Seller’s ratings and Seller’s Specifications. If any failure to conform to the warranty is reported to Seller in writing within thirty (30) days after the date of receipt of the Product by Buyer, Seller, upon being satisfied of the existence of such non-conformity, will correct the same by repairing the Product or by delivering replacement Product to Buyer, at Seller’s sole discretion. If Seller is unable to correct such non-conformity by repair or replacement, Seller may return the purchase price thereof, or, where appropriate, the unit price for such number or quantity of the non-conforming Products affected. The warranty set forth in this paragraph shall apply both to the Products and to any replacement Products. The foregoing shall be Buyer’s sole and exclusive remedies, and the liability of Seller hereunder is expressly limited to the repair or replacement of nonconforming Products, or the repayment of the purchase price, as the case may be.
8.2 THIS WARRANTY SHALL BE IN LIEU OF ALL OTHER WARRANTIES. THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PURPOSE AND OTHERWISE, EXPRESS OR IMPLIED, ARE EXCLUDED.
9. Returns
9.1 All returns are subject to prior written authorization by the Seller, in its sole discretion. Requests for return may require certain supporting documentation, depending on the product. Returned product must be identified clearly with the Return Authorization (RA) number. Unauthorized or unidentified returns will be rejected or destroyed, with no credit issued. Authorized returns shall be shipped at Seller’s risk and expense, freight prepaid, to such location as Seller may designate. In the event the Product is found to be conforming, shipping and return freight charges may be charged back to Buyer.
9.2 Subject to a 20% restocking fee, Buyer may return any standard and currently-stocked product which Seller approves if: (i) it is in new condition, suitable for resale in its undamaged, unopened, unmarked original packaging and with all its original parts and (ii) it has not been used, installed, modified, rebuilt, reconditioned, repaired, altered or damaged. Non-standard and/or non-stocked products, equipment, or instruments (i.e., products made-to-order, built to customer’s specifications, partly or fully customized, modified, etc.) may not be returned unless due to manufacturer non-conformance(s).
9.3 All orders placed by Buyer for non-standard and/ or non-stocked products, equipment, or instruments cannot be changed or cancelled without written consent from the Seller in accordance with the terms of Paragraph 12.1 and 12.2.
10. Indemnification
10.1 Custom Manufactured Products. If Buyer asks Supplier to manufacture products according to the Buyer’s unique specifications, the Buyer agrees to indemnify, defend and hold harmless Seller from and against any and all costs, losses, expenses, damages, claims, liabilities or fines, including, but not limited to, attorneys’ fees and court costs, resulting from or arising in connection with (i) any claim of infringement of any patent or other proprietary rights of any person or party to the extent that the Product was manufactured pursuant to specifications supplied or required by Buyer; or (ii) any and all actual or alleged injuries to, or deaths of, persons and any and all damage to, or destruction of, property arising directly or indirectly from or relating to the Products sold pursuant to this Contract, or any products or items manufactured using such Products, except for such costs, losses, expenses, damages, claims, liabilities or fines which directly are caused by or result from Seller’s willful misconduct or gross negligence; or (iii) the negligence and/or willful misconduct of Buyer, its employees or agents hereunder.
11. Confidentiality
Buyer agrees that all specifications, data and other technical information furnished by Seller to Buyer constitute the property of Seller, are furnished solely for the purpose of Seller’s performance or anticipated performance hereunder and may not be copied or made accessible to third parties without Seller’s prior written consent. Buyer shall promptly return such specifications, data and other technical information and all copies thereof to Seller upon Seller’s request. Such request may be made at any time prior to or after delivery of the Products. The obligations of Buyer set forth also shall survive cancellation or completion of the Contract. Buyer shall not reverse engineer the Products.
12. Cancellation
12.1 Buyer may cancel or change all purchase orders placed for catalog and standard products within seventy-two (72) hours of placing the purchase order unless the Seller has already shipped the order, or if the Seller has performed a service (e.g. heat inactivation, or gamma irradiation) at the request of the Buyer.
12.2 Buyer may cancel or change all purchase orders placed for custom and non-standard products within seventy-two (72) hours of placing the purchase order unless the Seller has already begun manufacture of the custom order and/ or shipped the order.
12.2.1 The Contract is not subject to changes or cancellation by Buyer, other than in accordance with the terms of Paragraph 12.2 and 13.2.
12.2.2 If Buyer decides to change or cancel the Contract or any portion thereof in contravention of the terms of Paragraph 12.1 in respect of any Products which have been specially or custom manufactured for Buyer, Seller, in addition to all other remedies available under applicable law, shall be reimbursed by Buyer for all direct costs of labor, raw materials and parts purchased or contracted to be purchased and overhead costs incurred by Seller in the manufacture of said Products. Buyer agrees that Seller’s calculation of the costs shall be accepted by the parties hereto. In addition, Seller shall have the right to complete and sell to a third party any specially manufactured Products, the order for which has been purportedly cancelled by Buyer, without any liability or off-set whatsoever to Buyer.
13. Force Majeure
13.1 “Force Majeure” means any cause not within the reasonable control of the party affected, but no payment of monies can be excused by Force Majeure. Events of Force Majeure include, without limitation, acts of God, pandemics, epidemics, acts of terrorism, lockouts or other labor disturbances, wars, blockades, quarantine embargoes, riots, fires, explosions, failures of production facilities, shortages of fuel, transportation, utilities, or raw materials, and governmental laws and regulations.
13.2 Force Majeure shall not excuse either party from the performance of its obligations under the Contract but shall merely suspend such performance during the Force Majeure. The party prevented from performing its obligations shall promptly notify the other party and shall provide the other party from time to time with its best estimate of the duration of such Force Majeure and with notice of the termination thereof. Upon termination of the Force Majeure the performance of any suspended obligation shall recommence. If, however, the Force Majeure prevents performance by either party for a period in excess of ninety (90) days, then so long as such Force Majeure continues, either party may terminate the Contract at once by delivering notice of termination to the other party. Neither party shall be liable to the other party for any direct, indirect, consequential, incidental or special damages, including but not limited to lost profits, lost data, or loss of use, arising out of or relating to the suspension or termination of any of its obligations under the Contract by reason of Force Majeure.
14. Miscellaneous
14.1 The invalidity or unenforceability of any of these terms shall not affect the validity and enforceability of the remaining terms.
14.2 The failure of either party to insist upon strict performance by the other party of any term of this Contract or to exercise any right hereunder shall not be deemed to be a modification of any term hereof or a waiver of the future performance of any such term.
14.3 This Contract shall be governed by, and construed in accordance with, the law of California, without regard to its conflict of laws provision. The prevailing party in any litigation shall be entitled to reimbursement of reasonable attorneys’ fees and disbursements and court costs from the losing party.
14.4 Buyer and Seller hereby unconditionally and irrevocably submit to (and waive any objection on the grounds of inconvenient forum or otherwise) the jurisdiction of the State and Federal Courts of the State of California, County of Yolo, which courts shall have exclusive jurisdiction to adjudicate and determine any suit, action or proceeding regarding or relating to this Agreement.
14.5 BUYER AND SELLER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
14.6 Buyer may not assign, transfer or otherwise convey its rights, duties or obligations hereunder without Seller’s prior written consent.
14.7 This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Contract.
15. No Consequential Damages
IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, SELLER SHALL NOT BE LIABLE TO BUYER OR ANY OTHER PERSON, WHETHER BY WAY OF INDEMNIFICATION OR CONTRIBUTION OR OTHERWISE, FOR INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR REVENUE, LOST DATA, OR LOSS OF USE, WHETHER ARISING FROM DEFECTIVE WORKMANSHIP OR MATERIALS OR DESIGN, BREACH OF WARRANTY, DELAYS IN DELIVERY OR OTHER BREACH OF CONTRACT, FROM ANY OTHER CAUSE WHATSOEVER, INCLUDING THE NEGLIGENCE OR MISCONDUCT OF SELLER OR ITS AGENTS OR EMPLOYEES.
16. Limitation of Liability
IF AND TO THE EXTENT PERMITTED BY THE APPLICABLE LAW, SELLER’S OVERALL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER.
17. Survival
Payment, Limitation of Warranty, Warranty Exclusions, Returns, Indemnification/Insurance, No Consequential Damages, Limitation of Liability, and Confidentiality provisions together with the sections for which survival is necessary for the interpretation or enforcement of this Contract, shall continue in full force and effect for the duration stated in such provisions or the applicable statute of limitations.
Volume discounts are available. Contact your GeminiBio representative for details.
All invoices are due Net 30 days, unless other payment arrangements have been made in advance.
Prices may change without notice. Please contact Customer Service at support.geminibio.com or your GeminiBio Account Manager via Contact Us for the most current information.
updated 8/2023
