Unless otherwise agreed in writing, the following terms and conditions shall be read together with any invoice, quote or any other agreement; in writing; between the Customer and Gemini Machine Works Inc. (“GEMINI”) to form the entire agreement between the Customer and GEMINI for all orders of GEMINI’s Services by the Customer (the “Agreement”). There are no verbal, express, or implied promises, representations, agreements, or terms between GEMINI and the Customer for GEMINI’s Services, other than the Agreement.
- Definitions: “Services” means manufacturing, repair, maintenance, and testing services performed by GEMINI, including, without limitation, part manufacturing & refurbishment, assembly & sub-assembly repair & refurbishment, gear box repair, mechanical, hydraulic & pneumatics, designing, engineering, custom manufacturing, custom machining, fabricating & welding, testing, and emergency repair
- Extended Meanings: Words importing the singular include the plural and vice versa and words importing gender include all
- Governing Law: The Agreement shall be construed and governed in accordance with the laws of Alberta, Canada and the parties attorn to the exclusive jurisdiction of the Alberta Courts in connection with any
- Severability: The invalidity or unenforceability of any provision of the Agreement shall not affect the validity or enforceability of any other provision
- Assignment: The delegation or assignment by the Customer of any or all of its duties or rights within these terms and conditions is prohibited without GEMINI’s prior written consent, which may be withheld by GEMINI in its absolute discretion.
- Relationship: GEMINI acts solely as independent contractor in performing Services. Nothing herein shall create an agency, employment, joint-venture, or partnership relationship between GEMINI and the
- Waiver: Failure by either party to enforce any of its rights under the Agreement in a particular instance shall neither constitute a waiver of its rights under the Agreement, nor shall it constitute a continuing waiver or preclude subsequent enforcement
- Delivery by Facsimile or Email: The execution of these terms and conditions may be communicated by facsimile transmission or email and documents executed and/or delivered by electronic means shall be deemed to be an original
2. Prices and Payment
- Unless otherwise stated by Gemini and agreed by Gemini and Customer, prices are in Canadian
- GST, other taxes, permits and other government authorization of any kind are not included in the quoted The parties shall assist each other in every commercially reasonable manner in securing such authorizations as may be required. GEMINI shall not be responsible if any authorization is delayed, denied, revoked, restricted or not renewed and the Customer shall not be relieved of its obligation to pay GEMINI for the Services.
- Gemini Invoices are due for payment upon receipt. A Customer credit account application will be considered at Gemini’s discretion. Non-credit account clients shall pay the full invoice at time of delivery. Credit account balances remaining unpaid past thirty (30) days after date of invoice shall bear interest at 1½% per month (18% per annum).
- GEMINI, at its option, may retain possession of any of the Customer’s property repaired, on which it performs Services under the Agreement or any other contract until its charges for Services are The Customer acknowledges that if such charges remain unpaid after ninety
(90) days following the completion of the work and the invoicing of the Customer, GEMINI may, upon at least fourteen (14) days’ notice by registered mail to the Customer at the Customer’s last known address, sell the Customer’s property at public or private sale and apply the net proceeds to the Customer’s charges. Proceeds in excess of the billed amount will be to the Customer; less any overdue interest owed.
- To secure the payment of all amounts and performance of all of its obligations hereunder, the Customer hereby grants GEMINI a security interest in all of its present and after-acquired personal property (the “Collateral”); acknowledges that it has rights in the Collateral, the security interest in the Collateral attaches forthwith, and that it has received a copy of these terms and conditions, which is a security agreement as defined under the Personal Property Security Act (Alberta); and waives the right to receiving a financing registration statement from GEMINI.
3. Delivery and Waiting Times
- All deliveries are “EX WORKS” unless otherwise stated. GEMINI will make all commercially reasonable efforts to complete the Services and make delivery, if any, within the times quoted but does not guarantee delivery or Services completion time and, subject to paragraph 4 herein, will not be liable for any damages, losses, claims or expenses caused by any delay in delivery or Services
- GEMINI and the Customer may agree to designate select orders as rush orders which will be subject to overtime and expediting
- GEMINI and the Customer agree that the Customer shall pay all reasonable charges for any equipment which is left on Gemini’s location to await GEMINI’s Services at a later
- Any arrangement as to insurance, carriage or shipment of any property of the Customer shall be made by the Customer and shall be at the sole cost and expense of the Customer and such arrangements shall not alter the delivery terms applicable to the
- Any property provided by the Customer to GEMINI shall be at the sole risk of the Customer from the time of receipt at GEMINI’s facility to the Customer or to his agent or to any carrier acting on behalf of the Customer; including any such agent of carrier instructed by GEMINI and acting on behalf of the Customer. GEMINI will provide the Customer reasonable assistance in connection with any customer claim for loss of or damage to c u s t o m e r
4. Force Majeure
- GEMINI shall not be liable for delay in or non-performance of the Agreement or any
part thereof, resulting directly or indirectly from earthquakes; epidemics; act of any governmental authority, domestic or foreign, including but not limited to war, declared or undeclared, priorities, quarantines, embargoes, licensing controls or production or distribution restrictions; accidents and disruptions including but not limited to fires, explosions, breakdowns of essential machinery or equipment and power shortages; labor difficulties including but not limited to strikes, slowdowns, lockouts, sabotage and labor shortages; failure or delay in its source of supply;
acts or omissions of the Customer, including but not limited to the provision of any required
equipment, material, evidence or information; or any cause beyond its reasonable control whether
similar or dissimilar to those above mentioned.
Dates of delivery shall be extended for a period equal to the time lost by reason of any cause set forth above even though such cause may occur after GEMINI’s performance has been delayed for other causes. If any such delay lasts for more than ninety (90) days, the parties shall immediately consult with one another for the purpose of agreeing on the basis upon which GEMINI shall resume production at the end of the delay. If they do not agree upon a solution of the problems involved, including adjustment of the price, within 150 days from the beginning of such delay, then notwithstanding any other provision of the Agreement, either party may, by written notice, cancel that portion of the order which is delayed and in such event the purchaser shall pay to GEMINI reasonable and proper cancellation charges. All of the provisions of this paragraph shall apply, all other provisions notwithstanding, whether the disrupting cause is total or partial in its effect upon the ability of GEMINI to perform.
5. Customer Information, Changes or Cancellation
- The Customer shall provide GEMINI with all information required to enable GEMINI to perform the Services safely and efficiently. The Customer shall pay GEMINI for all expenses, parts, labor, and otherwise, incurred by GEMINI, over and above any amounts agreed to between GEMINI and the Customer for any delays or additional work resulting from the Customer’s failure to provide the required
- GEMINI may agree to the Customer’s request to change the specifications of its order for Services, and reserves the right to charge the Customer for any increase in the costs of material, labor or administration resulting from the
Cancelled Customer orders are subject to commercial charges by Gemini for all materials, labor, and administrative costs incurred by Gemini, including 3rd party charges, plus a reasonable profit. The minimum cancellation charge for orders already started shall be 10%. Where no work has been started and no materials have been ordered or supplied; the cancellation charge shall be zero.
6. Price Adjustments
Any price quoted by GEMINI is subject to adjustment in the event of substantial rises in the price of materials due to any cause not in GEMINI’s control or not avoidable by reasonable diligence. GEMINI shall notify the Customer within 7 days of realization any actual change in GEMINI’s cost of any material that would result in an adjustment. Any such adjustment will require seven (7) days written notice to the Customer. If requested by the Customer, GEMINI shall provide written substantiation of any material cost increases resulting in the price adjustment.
Throughout the term of the Agreement, the Customer shall fully insure all property which it provides, or has provided, to GEMINI, against all losses, including third party liability, as a reasonable owner of such property would obtain.
8. Limitation of Liability and Indemnification
Notwithstanding anything to the contrary contained herein, the Customer and GEMINI further agree as follows:
- GEMINI makes no warranty (express or implied, whether under common law, statute, or otherwise), representation, or guarantee relating to the results from the use of any property on which GEMINI has performed Services or from GEMINI’s performance of
- GEMINI shall have no liability whatsoever on any claim, whether in contract, tort (including negligence) or otherwise, for any loss or damage arising out of, connected with, or resulting from any Services it performs hereunder, including without limitation, the manufacture, delivery, repair, replacement or use of any product, part or equipment. In no event shall GEMINI be liable for special, indirect or consequential
- GEMINI shall in no event be liable to the Customer or to any other party for lost profits or revenue, loss of business, loss of goodwill, loss by reason of shutdown or non-operation, increased expenses of operation, damage to any equipment, or any other loss or damage relating in any way to products or Services, whether direct or consequential, special, indirect or punitive, even if advised of the possibility of such losses or damages, or for any claim by any third party. The foregoing limitations apply regardless of the causes or circumstances giving rise to such loss, damage or liability, even if such loss, or damage or liability is based on negligence or other torts or breach of contract including, without limitation, fundamental breach or breach of a fundamental
- The Customer shall indemnify, defend, and hold GEMINI, its employees, agents, subcontractors, officers, directors and shareholders (the “GEMINI Parties”) harmless from and against any and all liabilities, losses and damages, claims, demands, causes of actions, suits, and associated expenses (including all legal fees on a solicitor and his own client basis) arising directly or indirectly in connection with damage to or loss of use of property and financial loss of any kind, in any way occurring, incident to, arising out of, or in connection with:
- Personal injury, including illness, bodily injury or death;
- Services provided by GEMINI; or
- Any and all claims, liabilities, costs and expenses arising out of or based upon: any misstatement or omission in any material, information or representation supplied or approved by the Customer (items referred to in this sub paragraph 7(d) are hereinafter called the “Events”).
The Customer hereby releases the GEMINI Parties from all liability in any way occurring, incident to, arising out of (directly or indirectly), or in connection with the Events.