Terms and Conditions of Sale
These General Terms and Conditions of Sale (“Terms and Conditions“) shall apply to all quotations, offers, orders, sales, supplies and similar transactions made or accepted by Gemmacert Ltd. (“Seller“). Seller’s acceptance of any transaction with any buyer (“Buyer“) is conditioned upon Buyer’s acceptance of these Terms and Conditions, irrespective of whether Buyer accepts them in writing, by implication or by acceptance of or payment the goods ordered hereunder (“Products”), and irrespective of when Buyer’s purchase order or procurement document is issued, when a product is supplied or whether it precedes or follows issuance of these Terms and Conditions. If these Terms and Conditions conflict with any provision of a quotation, purchase order, offer or other procurement document, the terms and conditions contained herein shall govern. Seller’s failure to object to any provision contained in any communication from Buyer shall not be deemed a waiver of any provision herein.
- Offer and Sale. Seller agrees to sell the quantity and model of Products identified on Seller’s order acknowledgment to Buyer at the price stated therein. The Products may include related software, a license for which is included in Section 6 herein. Seller’s quotations, offers and tenders are always nonbinding. Legal business agreements (such as orders and supply contracts) are only valid and binding upon Seller when confirmed by Seller in writing. Buyer’s confirmation of a quotation, offer, order or contract, whether in writing, by implication or by acceptance of or payment for Products, is a binding undertaking towards Seller that it wishes to acquire the Products upon the applicable terms. Only legal representatives of Seller have the right to engage in legal business transactions on behalf of Seller.
- Prices. Prices payable by Buyer shall be those in effect when an order is confirmed by Seller and are subject to change by Seller from time to time. Unless otherwise specified, all prices are quoted and payable in United States Dollars. The relevant statutory taxes and charges valid on the invoice date will be quoted separately if applicable. A packing and delivery charge may be applied to each order as set forth herein, and will appear separately on the invoice. All such taxes and charges shall be borne and payable by Buyer. If by reason of any legislation, government action or other similar cause, any tax, impost, levy, charge, duty or expenditure of any kind, is imposed, becomes payable or applicable, or is incurred in respect of Products or services hereby sold, such shall be due and payable by Buyer and/or chargeable to Buyer by Seller.
- Terms of Payment. Except as expressly agreed by Seller in writing, a 10% down payment shall be made at the time the purchase order of the Product is accepted by Seller and the balance shall be paid 30 days prior to shipment of the Product. All payments shall be in U.S. dollars. If payment is not received by the Seller within said period, Seller reserves the right disregard Buyer’s order as void and terminated. Seller has the right to set-off accounts receivable against those of the Buyer, for whatever legal reason, even if the due dates of the accounts being set-off against are different. Without derogating from any right or remedy to which Seller is entitled under applicable law or these Terms and Conditions, breach of payment conditions shall entitle Seller to modify delivery terms or to stop deliveries.
- Terms of Delivery. All deliveries are made on the basis of EXW (Seller’s premises) (INCOTERMS 2000), to a shipping carrier designated by Buyer in consultation with the Seller, in writing, and based exclusively on Seller’s terms, as shall be in effect from time to time. All costs of delivery and shipment (including without limitation, insurance costs and charges, if applicable) shall be payable by Buyer. Seller will deliver at its earliest convenience and shall also be entitled to make part deliveries. Delivery dates are not binding deadlines unless explicitly recognized in writing by Seller in advance. If Seller fails to meet an agreed delivery date, Buyer shall grant Seller a reasonable extension, and only after its expiry shall Buyer be entitled to cancel the order. Claims for damages are excluded, except in the case of damage caused by Seller’s gross negligence or willful and intentional misconduct. Seller shall be released from its delivery obligations if Buyer has not fully and timely fulfilled its payment obligations. Force majeure, company shutdowns, labor disputes, fire, strikes, act of war and other impediments which are outside Seller’s control or responsibility, which affect Seller or its suppliers or shipment terms, shall release Seller from the contractual delivery obligations for the term of the disruption and the duration of its effects. Except as explicitly set forth herein, there shall be no returns or exchanges of ordered and delivered Products. The delivery is considered to be fulfilled as soon as Seller hands over the Products to the shipping carrier and all risk then passes from Seller to Buyer (EXW (Seller’s premises) (INCOTERMS 2000)). Buyer further assumes sole responsibility for its local customs requirements.
- Restricted Use of Products; No Intellectual Property Rights. PRODUCTS ARE SOLD AND LICENSED SOLELY FOR PERSONAL USE BY BUYER, IN ACCORDANCE WITH THE TERMS HEREOF. Products may not be used in any way whatsoever in which Buyer charges money, collects fees, or receives any form of remuneration. The Products may not be resold, relicensed, sub-licensed, rented or leased. Without derogating from the generality of the above, it is clarified that any and all (i) commercial use; and/or (ii) reverse engineering, de-compilation, disassembly or reproduction of any Products; and/or (iii) re-selling or other transfer, alone or as a component, under any circumstances, are explicitly and strictly prohibited. Any use of Products other than as explicitly permitted herein is subject to the execution of a separate agreement with Seller, which shall contain such conditions and limitations as shall be deemed necessary or advisable by Seller and which shall be executed by Seller at its sole and absolute discretion. By accepting the Products, Buyer assumes sole responsibility for their safe and prudent handling, storage and use, in accordance with the terms hereof and complying with applicable laws, rules and regulations. Upon passage of title to the Product from Seller to Buyer hereunder, Buyer will defend, indemnify and hold harmless, Seller, its subsidiaries and affiliates, their officers, directors, shareholders, employees, agents, successors and assigns from and against any and all claims, liabilities, obligations, damages, penalties, judgments, costs and expenses (including reasonable legal fees), resulting or arising from, or relating to Buyer’s use, handling or storage of any Products.
Buyer agrees that Seller retains ownership of all right, title and interest in all intellectual property, works of authorship, trade secrets and the like in all aspect of the Products. NO PATENT, COPYRIGHT, TRADEMARK OR OTHER PROPRIETARY OR OTHER RIGHT OR LICENSE, EXCEPT AS SET FORTH IN SECTION 6 BELOW, IN OR TO ANY PRODUCTS OR PRODUCTS IS GRANTED BY SELLER.
Without derogating from the generality of the above, any data or feedback obtained or gathered by Buyer from the use of the Products, including without limitations, scan of cannabis leaves using GEMMACERT® and any derivative thereof, shall be deemed Seller’s intellectual property and may be freely used by Seller with no remuneration to Buyer.
- Software License. With respect to any software products incorporated in or forming a part of the Products hereunder, Seller and Buyer intend and agree that such software products are being licensed and not sold, and that the words “purchase”, “sell” or similar or derivative words are understood and agreed to mean “license”, and that the word “Buyer” or similar or derivative words are understood and agreed to mean “licensee”. Notwithstanding anything to the contrary contained herein, Seller or its licensor, as the case may be, retains all rights and interest in software products provided hereunder.
Seller hereby grants to Buyer a royalty-free, non-exclusive, nontransferable license, without power to sublicense, to use software provided hereunder as part of the Products solely for Buyer’s own personal use on the Products provided hereunder and to use the related documentation solely for Buyer’s own personal use. This license terminates when Buyer’s lawful possession of the Products provided hereunder ceases, unless earlier terminated as provided herein. Buyer agrees to hold in confidence and not to sell, transfer, license, loan or otherwise make available or provide access or log in information in any form to third parties the software products and related documentation provided hereunder. Buyer may not disassemble, decompile or reverse engineer, copy, modify, enhance or otherwise change or supplement the software products provided hereunder without Seller’s prior written consent. Seller will be entitled to terminate this license if Buyer fails to comply with any term or condition herein. Buyer agrees, upon termination of this license, immediately to return to Seller all software products and related documentation provided hereunder and all copies and portions thereof.
- Warranty. Seller warrants to Buyer that Products sold to Buyer will, on the date of shipment of the Product, substantially conform to the Product’s specifications as provided by Seller in connection with the applicable shipment.
If any defect in material or failure to meet said published specifications appears in the Product, Seller will, at its option, either replace the defective Product without charge, provided that Buyer notifies Seller in writing of the claimed defect or non-conformance within forty eight (48) hours after Buyer first knows or reasonably should have known of the claimed defect or non-conformance, and in any event no later than two (2) weeks from the date of its delivery; and (ii) Seller’s examination of the product discloses, at Seller’s sole discretion, that the claimed defect or non-conformance actually exists and are of no fault of the Buyer. Buyer shall follow Seller’s instructions regarding return of defective/non-conforming Product, and no Product will be accepted for replacement without the written authorization of and in accordance with Seller’s instructions. Replaced Products shall become Seller’s property. Buyer shall bear all shipment and delivery charges of said Product to Seller’s premises. If Seller determines that the returned Products are defective/non-conforming, as the case may be, Seller shall reimburse Buyer of transportation charges at Seller’s then prevailing rates, which reimbursement may be by way of set-off from invoiced amounts.
Without derogating from any other provisions of these Terms and Conditions, Seller makes no warranties, and will not be obligated in any event under any warranty, with respect to (i) Products which have been mishandled or misused, or improperly stored, used, handled or maintained (whether pursuant to industry standards and practices or pursuant to Seller instructions); or (ii) Products which have been disassembled, modified or altered by anyone other than Seller; or (iii) defects or damages caused by Buyer or any third party, or occurring after delivery of Products, all of the above as determined by Seller at its sole discretion.
Buyer understands and acknowledges that some of Seller’s Products may be preliminary beta, pre-released versions of the Product, which Seller expects that may contain significant errors, omissions and problems and that the products are not approved by or registered with any regulatory authority for their use or marketing. Buyer further acknowledges and agrees that Seller shall have no responsibility to correct any defects or problems in the services or the Products, or any part thereof. It is Buyer’s responsibility to ensure that any data contained on its computer and/or server and/or computer network is backed and retrievable. ALL PRODUCTS ARE PROVIDED, AND ALL SOFTWARE IS LICENSED AND PROVIDED TO BUYER BY THE SELLER ON “AS IS” AND “AS AVAILABLE” BASIS.
EXCEPT AS EXPLICITLY STATED IN THIS SECTION 7, SELLER, ITS SUBSIDIARIES AND AFFILIATES, SUBCONTRACTORS AND SUPPLIERS, MAKE NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, AND SPECIFICALLY DISCLAIM, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE USE OF PRODUCTS WILL NOT INFRINGE ANY PATENT OR OTHER PROPRIETARY RIGHTS OF A THIRD PARTY, AS WELL AS OTHER WARRANTIES, IN LAW OR EQUITY. BUYER’S SOLE AND EXCLUSIVE REMEDY, AND SELLER’S SOLE AND EXCLUSIVE LIABILITY AND OBLIGATION OF ANY KIND (INCLUDING WITHOUT LIMITATION FOR NEGLIGENCE) IS EXPRESSLY LIMITED TO SELLER’S OBLIGATION TO REPLACE PRODUCTS OR CREDIT OR REFUND (AT SELLER’S OPTION) AS SET FORTH ABOVE.
- Limitation of Liability. Seller and Buyer hereby agree that, to the extent permitted by law, any loss, damage or claim arising out of, relating to or resulting from any Product supplied by Seller or a breach of one or more of the warranties set forth in Section 7 above, the liability of Seller is limited to the replacement of the Products or the credit or refund of the purchase price (at Seller’s option), as set forth above. Buyer’s property, when under Seller’s custody or control, will be entirely at Buyer’s risk as regards to loss or damage thereto, or from whatsoever cause arising. SELLER, ITS SUBSIDIARIES AND AFFILIATES, SUBCONTRACTORS AND SUPPLIERS, SHALL NOT BE SUBJECT TO NOR INCUR, AND BUYER HEREBY RELEASES EACH OF THE ABOVE FROM, ANY CLAIM, ACTION OR LIABILITY, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR OTHER LOSS OR DAMAGE, WHETHER KNOWN OR UNKNOWN AND EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, INCLUDING WITHOUT LIMITATION, INJURY OR DAMAGE TO PERSONS OR PROPERTY, LOSS OF USE OF PRODUCTS OR SERVICES, LOSS OF PROFITS OR BUSINESS INTERRUPTION, ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS OR ANY PRODUCTS, DELAYS, NON-DELIVERY, DEFECTIVE MATERIALS OR WORKMANSHIP, NEGLIGENCE OR ANY ACT, MATTER, CONDUCT OR THING DONE, PERMITTED OR OMITTED BY SELLER, EXCEPT IF DAMAGE IS CAUSED BY SELLER’S GROSS NEGLIGENCE OR WILLFUL AND INTENTIONAL MISCONDUCT. WITHOUT DEROGATING FROM THE GENERALITY OF THE FOREGOING, IN THE EVENT THAT SELLER IS FOUND LIABLE TO BUYER AND/OR TO ANY THIRD PARTY AS A RESULT OF OR IN CONNECTION WITH THE PRODUCT, IRRESPECTIVE OF THE ABOVE, SELLER’S TOTAL CUMULATIVE LIABILITY SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY BUYER FOR THE PRODUCT, AND THE FOREGOING SHALL BE THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO BUYER.
- Reservation of Title. The Products delivered by Seller shall remain Seller’s property until complete payment of all invoices and claims has been received by Seller, including those of former deliveries. The Products subject to reservation of title may neither be pledged nor transferred as security. To further secure Seller’s rights, any claims arising to Buyer from utilization of the reserved merchandise shall be automatically transferred and assigned to Seller in the amounts charged to the third parties. Buyer shall treat carefully and maintain the Products subject to reservation of title. In the event that Seller’s security interests are affected by measures of third parties such as seizure or attachment of deliveries and/or attachment of claims, Buyer shall so inform Seller immediately, and provide it with the documents available to Buyer (such as protocols regarding the attachment etc.). Buyer shall also be responsible to inform all third parties of Seller’s security interests. Buyer shall bear all costs for legal defense measures incurred by Seller as a result of breach of this Section 9 or as a result of third parties’ interference with Seller’s security interests.
- Governing Law; Jurisdiction. These Terms and Conditions and all transactions contemplated hereunder shall be governed, construed and interpreted in accordance with the Laws of the State of Israel, without giving effect to principles of conflicts of law or choice of law that would cause the substantive laws of any other jurisdiction to apply. The UN Convention on Contracts for the International Sale of Goods (CISG) shall not be applicable. Any dispute arising out of, or relating to these Terms and Conditions and all transactions contemplated hereunder, shall be resolved exclusively by the competent courts of the Tel-Aviv-Jaffa district, Israel, and each of the parties hereby submits exclusively and irrevocably to the jurisdiction of such court, except that Seller shall be entitled to seek injunctive relief and/or a decree for specific performance, and such other relief as may be proper, in any competent court worldwide.
- General. Buyer may not transfer or assign any rights or obligations hereunder; Seller may freely transfer and assign any rights or obligations hereunder. In the event that any of the provisions of these Terms and Conditions shall be held by a court or other tribunal of competent jurisdiction to be illegal, invalid or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that these Terms and Conditions shall otherwise remain in full force and effect. The observance of any term hereof may be waived (either prospectively or retroactively and either generally or in a particular instance) only with the written consent of Seller against such waiver is sought and to such extent set forth therein; no failure or delay in enforcing any right by Seller will be deemed a waiver. No pricing, Product specifications or other terms or conditions of sale disclosed by Seller to Buyer may be disclosed by Buyer to any third party unless and to extent required by applicable law.