These 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 (the “Purchase Order”) 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 the Purchase 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. The terms of payment for the Products and any additional fees due by the Buyer to the Seller shall be set forth in the Purchase Order. If payment is not received by the Seller within said period, Seller reserves the right disregard Buyer’s order as void and terminated. The Buyer consents upon buying the Products to receiving from the Seller a digital invoice as the payment document, which is created, forwarded, recorded and maintained in the digital environment. 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 in the Purchase Order, 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 or in the Purchase Order, 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.
- Returns. Returned goods shall be subject to a 20% restocking charge. No goods shall be returned to the Seller without written authorization by the Seller. Returned goods must be returned in the original packaging and not in breach of the Warranty.
- 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.Additional terms and conditions related to the software products incorporated in or forming a part of the Products (the “Software”) and our software services shall be set forth in Section 6 below and in the EULA (as defined below). In the event of a conflict between the provisions of this Section 5 and the EULA in connection with any matter related to the Software, the provisions of the EULA shall prevail.
Seller hereby grants to Buyer a license to use the Software and receive the Services (as defined below) solely pursuant to the terms and conditions of the Seller’s End User License Agreement (the “EULA”). The EULA may be updated by the Seller from time (subject to the provisions of applicable law) and its most updated version is available upon request.
- Warranty. See link for “The GemmaCert Warranty”
- 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, the Software, the Services 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 under any Purchase Order. 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.
Last Updated: January 1, 2023