Terms and Conditions of Sale

A Gemini Bakery Equipment Company (Seller) proposal becomes a binding contract, subject to the following terms and conditions of sale, when signed by the Buyer and Seller.  Buyer’s written purchase orders are also subject to the following terms and conditions of sale.

The following items are not included in the equipment prices and are Buyer’s responsibility unless noted otherwise in the proposal:

• Crating, freight, unloading and storage charges.

• Security of equipment and components received at Buyer’s facility.

• Federal, state and local sales taxes and other applicable taxes.

• Permits, inspections and costs of permits and inspections

• Plant services and utilities such as electrical power, steam, gas, oil, compressed air, water, refrigerant, etc.

• Mechanical and electrical installation inclusive of all labor and tools required for unloading, uncrating, transporting, rigging, assembly, field fabrication, power wiring, control wiring, field interconnecting wiring, stack work, ductwork, piping, plumbing, trash removal, etc.

• Ancillary equipment and components not specified in the proposal such as, pressure reducing and isolation valves required on steam, gas, water, compressed air, etc service mains, circuit breaker(s) prior to Seller supplied electrical panel(s), local motor disconnects, field installed e-stop buttons and safety pull cords.

• Relocation, refurbishment, additions, modifications and integration of existing or new equipment not provided by Seller.

• Building construction including excavations, additions, foundations, modifications, equipment pads, roof/wall/floor penetrations, sealing of penetrations, structural support steel, platforms, crossovers, etc.

Seller’s warranty is exclusive and in lieu of any other warranty, expressed or implied, including but not limited to, any implied warranty of merchantability, fitness for a particular purpose, other warranties of quality, and of all other liabilities and obligations on Seller’s part.  There are no warranties, which extend beyond the following:

• New equipment (except for Rondo and Erika equipment) is warranted to be free from defects in material and workmanship for a period of (12) months from installation/start-up but will not extend beyond (15) month after shipment date.  Service labor is warranted for a period of (90) days.

• New equipment manufactured by Rondo and Erika is warranted (24) months for parts and service  from shipment date..

• Replacement parts are warranted to be free from defects in material and workmanship for a period of (60) days from shipment date with the exception of non-warranted wearable or disposable components, including belts, light bulbs, bushings, bearings, wear pads, etc.

• Rebuilt equipment, parts and components are warranted to be free from defects in material and workmanship for a period of (6) months from shipment date with the exception of non-warranted wearable or disposable components, including belts, light bulbs, bushings, bearings, wear pads, etc.

This warranty is void where equipment has been altered or modified by anyone other than Seller’s authorized agent, damaged in shipment, lack of or improper maintenance, improper use or application, accident, improper installation or improper storage.

Seller shall, at its option, repair or replace any nonconforming goods or parts.  The remedy of repair or replacement shall be the only remedy of Buyer.  In no event shall Seller be liable for any incidental or consequential damages of any kind, including loss of use, loss of profits, and injury to persons, caused by the nonconformity of goods or services.

All warranted parts proving defective during the warranty period, based on Seller’s examination, will be repaired or replaced within a reasonable timeframe, upon prompt written notice to Seller. 

Labor and freight costs to replace warranted parts are the responsibility of Buyer.  Seller must authorize all replacement or repaired parts as per the following return authorization procedure:

• Notify Seller in writing that Buyer is requesting a replacement part(s) under warranty.

• Provide model number, serial number, part number, part description and Seller’s invoice number.

• Replacement part(s) will be shipped with an invoice as per Buyer’s account terms.

• Buyer will receive a return authorization (RA) document, RA number and preprinted address label.

• Buyer will complete the RA document and return one (1) copy with the required defective part(s) within 45 days from the RA issuance date.  Buyer will list the model and serial number on the RA document and note the problem or fault.  If Buyer fails to return the required defective part(s) within 45 days, RA will be void and no credit will be issued and the Buyer will remain financially responsible for the replacement part(s).

• Seller will inspect the part(s) for warranty consideration upon receipt.  Seller will issue credit to Buyer’s account for the part(s) upon warranty approval or Seller will notify Buyer in writing of the reason any request for a warranty replacement is rejected. 

Goods are for Buyer’s account and shall be at the risk of Buyer before delivery while in the possession of Seller.  The goods become Buyer’s property upon receipt from the carrier.  It is Buyer’s responsibility to ascertain the condition of the goods on arrival.  The delivering carrier must note any signs of damage to container or contents on the freight bill before Buyer accepts the goods.  Buyer must notify the delivering carrier and request an inspection of goods within (15) days if concealed damage is discovered after Buyer has accepted the shipment. Buyer must note, on the freight bill, any discrepancy between the number of packages shown on the freight bill and the actual number of packages received by the delivering carrier before Buyer accepts the goods. 

Equipment will be designed and built to Seller’s prevailing standards unless Buyer’s specifications have been provided to Seller prior to acceptance of the proposal and unless these specifications have been incorporated into the proposal or specified separately in a change order request.  This includes, but is not limited to, mechanical and electrical components, materials of construction, equipment finish, enhanced safety guarding and enhanced equipment access features.  Unless  specified in a separate change order request, any changes to the scope of work as outlined in any proposal would void said proposal.

Seller’s equipment conforms to the latest federal standards and regulations governing design and operation of the equipment.  Seller does not guarantee compliance to state and local codes. These codes vary extensively from region to region.  It is Buyer’s responsibility to inform Seller of any state and local codes and regulations that may influence the design and/or operation of equipment.  Any costs or delays incurred to meet state and local codes will be at Buyer’s expense.

Seller shall not be liable for any damages sustained by Buyer due to delay in delivery caused by fire, explosion, war, insurrection, accidents, strikes, labor disputes, floods, riots, acts of God, or other causes beyond Seller's immediate and reasonable control. Seller shall be reimbursed of any losses or expenses incurred due to delays in shipping, installation or startup of the equipment when such delays or interruptions are beyond the control of Seller.  Such charges include, but are not limited to, demurrage, service expenses, etc.

In the event Seller should otherwise fail to deliver within the specified delivery date, then its sole and only liability shall be to return the part of the purchase price received from the Buyer.

Buyer shall pay or reimburse Seller, all applicable federal, state, local or municipal taxes that may be payable with respect to the sale, use, or possession of the property sold, regardless of whether or not any of such taxes are itemized in the sales order.

If Seller is obligated with respect to installation, then Seller shall not be responsible for any loss, liability or charge of any kind by reason of any delay in the completion of such installation occasioned by unavailability of trained personnel, defects in the equipment, unavailability of parts, or any other circumstances beyond the immediate control of the Seller.  Buyer agrees to reimburse Seller for any loss incurred by it by reason of any delays in starting the apparatus or completing the work that is not chargeable to Seller; and to reimburse Seller for all expenses incurred by Seller for required overtime work not due to Seller's delay.   

Seller shall, for credit reasons or Buyer's default, have the right to withhold shipments, in whole or in part, and recall equipment in transit, retake equipment, and repossess all equipment which may be stored with Seller for Buyer's account, without the necessity of taking any other proceedings.  Buyer consents that all the equipment so recalled, retaken, or repossessed, shall become the absolute property of Seller, provided that Buyer is given credit therefore.  An event of default, shall include, but not be limited to Buyer’s failure to perform any provision of this agreement and/or Buyer becoming insolvent or subject to proceedings under any law relating to bankruptcy or the relief of debtors.

Seller’s not taking action on any event of default shall not be considered a waiver of default, or preclude Seller from seeking relief available to it for such event of default.  Seller may refuse, on Buyer’s default, to perform under this and any other existing agreement between the parties.  Seller may rescind any agreement and hold Buyer liable for all damages and losses caused by the rescission.  Seller may resell undelivered goods.  Seller shall not be liable to Buyer for any profit on any resale, but Buyer shall remain liable to Seller for the difference between the agreement price of the goods plus all expenses for Buyer’s account specified in this agreement, expenses of storage and resale, and resale price of the goods.

In the event that this sales order provides for any part of the purchase price to be paid at any future time or in installments, Buyer agrees that Seller shall have a security interest in the property sold to secure payment of the unpaid purchase price, and Buyer agrees to execute and deliver to Seller forms of security agreements, financing statements, promissory notes, or any other documents and instruments which Seller shall prepare and submit and which shall contain such terms, conditions and finance charges as Seller in its sole discretion shall determine. The transaction set forth in this sales order shall be deemed a cash sale payable immediately and before delivery upon the failure of Buyer to execute the same upon presentation.  Buyer hereby authorizes Seller to file financing statements at any time with or without the signature of Buyer.  Upon any default, Seller shall have the right and remedies of a secured party under the uniform commercial code.

This sales order, after acceptance by Seller, shall not be subject to cancellation in whole or in part by the Buyer, except upon written notice sent to Seller by certified or registered mail and upon the following terms and conditions:

• If notice of cancellation is received prior to Seller purchasing component parts and/or manufacture, Buyer will pay to Seller 20% of the total amount of the sale price specified in the proposal as and for its liquidated damages.

• If notice of cancellation is received after Seller commences purchasing of component parts and/or manufacture, Buyer will pay to seller actual costs incurred to date of cancellation including reimbursement for reasonable overhead and profit on such work plus necessary expenses resulting from the termination, disposition of work and material on hand, as and for its liquidated damages.

• If notice of cancellation is received after Seller completes manufacture and/or commences and/or completes delivery or installation Buyer will pay to Seller the entire amount of the sale price specified in the proposal as and for its liquidated damages.

• If Buyer breaches this agreement, or enforcement of it, or a provision of it, or the collection of any monies due thereunder is turned over to an attorney, Buyer agrees to pay, in addition to all of Seller’s expenses, a reasonable counsel fee, expenses and litigation costs.

Seller is entitled to all damages, including but not limited to, unpaid sums, losses for materials, labor, profits, incidental damages and/or consequential damages, in connection with any breach by Buyer.  Incidental damages shall include interest at the rate of 1 ½ percent per month on all amounts not paid by Buyer when due.  Seller is further entitled to any commercially reasonable expenses incurred in stopping delivery, in the transportation, care and custody of goods after Buyer’s breach, or in connection with return or resale of the goods; and all other commercially reasonable expenditures incurred by Seller as a result of the breach including, but not limited to, commercially reasonable release payments made to Seller’s supplier in the event of Buyer’s repudiation.

In the event that part of this sales order shall be declared void or unenforceable, then such parts shall be deemed deterred and the balance shall remain unaffected and enforceable according to their terms.

In the event of any dispute between the parties arising out of the agreement, the matter shall be settled by arbitration in the state of Pennsylvania and in the city of Philadelphia, in accordance with the rules then obtaining of the American Arbitration Association.  Buyer may not rely on a course of performance, prior course of dealings and/or trade usage to imply an agreement to extend the time of its obligations and/or alter its obligations under this agreement.   The Pennsylvania law, including but not limited to Pennsylvania’s uniform commercial code governs this agreement.