General terms and conditions

GENERAL TERMS AND CONDITIONS for export Gemini BV

Article 1 General
The stipulations of the present terms and conditions shall apply to each and every offer and agreement between Gemini BV and a buyer, to which Gemini BV has declared the present terms and conditions applicable, insofar as parties have not explicitly deviated from the present terms and conditions in writing.

The stipulations of the present terms and conditions shall also apply to all agreements with Gemini BV, the execution of which calls for the services of third parties.

The stipulations of the present terms and conditions shall also apply to all employees and management of Gemini BV.

The terms and conditions of the buyer are explicitly rejected.

If one or more stipulations in the present general terms and conditions should be null and void or declared null and void, then the other stipulations of the present general terms and conditions shall remain fully applicable. The case ensuing, Gemini BV and buyer shall enter into negotiation to agree upon new stipulations replacing the null and void conditions, or, as the case may be, the conditions declared null and void, whereby the purpose and the meaning of the original conditions shall be heeded as far as possible.

If there is any vagueness regarding the interpretation of one or more stipulations in the present terms and conditions, explanation will take place “in the spirit” of the present terms and conditions.

If a situation occurs between Gemini and buyer which has not been regulated in the present terms and conditions, this situation will be judged “in the spirit” of the present terms and conditions.

If Gemini BV does not always require strict compliance of the terms and conditions, this does not mean that the stipulations thereof are not applicable, or that Gemini BV in any degree will loose the right to require strict compliance of the terms and conditions in other cases.

Article 2 Offers and tenders
The offers and tenders made by Gemini BV shall be free of obligation, unless a deadline for acceptance is mentioned in the offer or tender. An offer or tender will expire if the product to which the offer or tender applies to in the meantime is no longer available.

Gemini BV can not be held liable for it's offers and tenders if buyer can reasonably understand that the offer or part of it contains apparantly a mistake or a slip in writing.

The prices given in offers and tenders shall be exclusive of VAT and other government levies, as well as of shipment costs and possible packaging and administration costs, unless explicitly stated otherwise.

If the acceptance deviates (on secondary items) from the offer given, Gemini BV shall not be bound by it. The agreement shall in such event not be concluded in accordance with said deviating acceptance, unless Gemini BV indicates otherwise.

A compound quotation shall not oblige Gemini BV to execute part of the assigment against a corresponding part of the given quotation. Offers and tenders shall not apply automatically to repeat orders.

Gemini BV can not be held liable for errors in and deviations from prices and product details mentioned of the website of Gemini BV.

Article 3 Contract duration; delivery terms, execution and alteration of the agreement
The agreement of Gemini BV and buyer is made for indefinitely, unless the nature of the agreement states otherwise or if both parties explicitely agree upon in writing otherwise.

If Gemini BV  has given a term of delivery, it shall only be indicative. A given term of delivery shall therefor never constitute a term to be observed on penalty of forfeiture of rights. If a term is exceeded, the buyer must give Gemini BV notice of default in writing. Gemini BV shall be given a reasonable time to still execute the agreement.

If, in the framework of the execution of the agreement, Gemini BV requires data to be given by the buyer, the term of delivery shall commence after the buyer has provided Gemini BV with said data.

All products shall be delivered ex-works. Buyer shall be held to take delivery of the goods the moment that Gemini BV delivers them to him or has them delivered, or the moment at which the goods are put at buyer's disposal under the agreement. If the buyer refuses to take delivery or fails to give the information or instructions necessary to the delivery, Gemini BV shall be entitled to store the goods at buyer's risk and expense.

If and in so far required for the proper execution of the agreement, Gemini BV shall have the right to have certain work done by third parties.

Gemini BV shall be entitled to deliver the goods in parts, unless such is deviated from in writing in the agreement or if the partial delivery does not represent an independent value. Gemini BV shall be entitled to invoice the thus delivered goods seperately.

If execution of the agreement in stages has been agreed upon, user can suspend the execution of the parts belonging to a following stage until the buyer has approved in writing the results of the stage prior to it.

If during execution of the agreement it turns out that for a proper execution thereof it is necessary to alterate or supplement the agreement, both parties shall in due time go into consideration to adjust the agreement. If the nature, extension or content of the agreement, whether or not requested by buyer, certified authorities et cetera, is modified and the agreement because of that modifies in a financial and/ or qualitative aspect, this can also have consequences for what has been agreed upon originally. Through this the originally agreed upon price can be increased or decreased. Gemini BV shall as much as possible make a quotation thereof in advance. Through modification of the agreement the originally agreed term of delivery can be altered. Buyer accepts  the possibility of alteration of the agreement, including alteration of price and term of delivery.

If the agreement is altered, including an addition, Gemini shall be entitled to execute the agreement after approval has been given by an autorized employee of Gemini BV and buyer has agreed with the prices and other stipulations needed for the execution, including the then to be determined term on which the agreement will be executed. Failure or delay of execution of the altered agreement does not imply Gemini BV is in default and is neither a ground for buyer to discontinue the agreement. Without being in default, Gemini BV is entitled to refuse an alteration of the agreement, if this has financial and/or qualitative consequences for the work or goods to be delivered in that context.

If buyer is in default with regard to a sound compliance to which buyer is obligated towards Gemini BV, buyer is responsible for all damage directly or indirectly (including costs) caused to Gemini BV.

If Gemini BV and buyer have agreed upon an administered price, Gemini BV shall nevertheless be entitled to increase said price without buyer being entitled to dissolute the agreement for said reason if the increase in price is authorised in accordance with law and regulations, or is a result of an increase in the price of raw materials, salary etcetera or on other grounds which were not reasonably foreseeable at the time the agreement was made.

If the increase in price is the result of someting other than due to a change in the agreement and more than 10% or takes place within 3 months after the agreement has been concluded, the buyer is entitled to terminate the agreement in writing, unless Gemini BV is willing to execute the agreement on the basis of the original agreement or if the increase in price was a result of an obligation towards Gemini BV by law and regulations or when delivery was stipulated 3 months after sale.

Article 4 Suspension and dissolution
Gemini BV shall be autorised to suspend the fulfilment of the obligations under the agreement or to dissolve the agreement, in the event that:
buyer does not fulfil, does not fully fulfil or does not fulfil in time his obligations resulting from the agreement;
after the agreement has been concluded, Gemini BV learns of circumstances giving good ground to fear that the buyer will not fulfil his obligations;
buyer was asked to furnish security to guarantee the fulfilment of his obligations resulting from the agreement when the contract was concluded and that this security is not provided or insufficient.

If due to delay on the side of buyer it can no longer be demanded of Gemini BV to execute the agreement against the originally agreed upon conditions, Gemini BV shall be entitled to dissolute the agreement.
Gemini BV shall furthermore be authorized to dissolve the agreement (have the agreement dissolved) if circumstances arise of such a nature that fulfilment of the obligations becomes impossible or can not longer be demanded in accordance with the requirements of reasonableness and fairness, or if other circumstances arise of such a nature that the unaltered maintenance of the agreement can no longer be demanded in all reasonableness.

If the agreement is dissolved, Gemini BV claims against the buyer shall be forthwith due and payable. If Gemini BV suspends fulfilment of his obligations, he shall retain his rights und the law and the agreement.

If Gemini BV proceeds to suspend or dissolve the agreement, hij is in no whatsoever way liable for
compensating damage or costs originated thereof.

If disolvement of the agreement is due to buyer, Gemini BV is autorized to recieve compensation for damage, including costs, originated thereof directly or indirectly.

If buyer does not fulfil the obligations under the agreement, and this non-fulfilment justifies dissolvement, Gemini BV is authorized to dissolve the agreement immediately without having any obligation to compensate buyer while buyer under default is obligated to compensation of damage.

Article 5 Force majeur
Gemini BV shall not be held to fulfil any of his obligations if he is hindered to do so due to a circumstance through no fault of his own and which cannot be attributed to him by virtue of law,  legal action or generally accepted practice.

In addition to the provision of the law and the judge-made law in this respect, force majeur shall in the present general terms and conditions furthermore be understood to be any external circumstance, be it envisaged or not, on which user cannot have any influence but which prevents user from fulfilling his obligations. Industrial action at user's company shall also be understood to be a circumstance of force majeur.

Gemini BV shall also be entitled to invoke force majeure if the circumstance rendering (further) fulfilment of the obligation(s) impossible, commences after the point in time on which Gemini BV should have fulfilled his obligation.

Throughout the duration of the circumstances of force majeure, Gemini BV shall be entitled to suspend the fulgilment of his obligations. if this period lasts for more than two months, either of the parties shall be entitled to dissolve the agreement without any obligation to pay the opposite party damages.

Insofar Gemini BV has already partially fulfilled his obligations resulting from the agreement at the moment the circumstance of force majeure commenced or shall be able to fulfil them and insofar seperate value can be attributed to the part already fulfilled or still to be fulfilled respectively, Gemini BV shall be entitled to invoice the part already fulfilled or still to be fulfilled respectively. The buyer shall be held to pay his invoice as if it were a seperate agreement.

Article 6 Payment
Payment is in advance unless stated otherwise, in a way indicated by user and in the currency in which the goods were invoiced.

Article 7 Retention of title
All goods delivered by user shall remain property of Gemini BV until buyer has fulfilled all of his obligations under all agreements concluded with Gemini BV.

Goods deliverd by Gemini BV falling under the retention of title by virtue of the stipulations under 1. of the present article, may not be sold and must never be used as instrument of payment.

Buyer shall not be authorised to pledge or encumber in any way the goods falling under the retention of title.
Buyer shall always do what can reasonably be expected to secure the retention of title of Gemini BV.

If third parties seize goods delivered subject to retention of title or wish to establish or assert a right to them, buyer shall be held to inform Gemini BV thereof as soon as can reasonably expected.

The buyer shall undertake to insure the goods delivered subject to retention of title and to keep them insured against damage caused by fire, explosion and water as well as against theft and make this insurance policy available for inspection on first demand.

In the event that Gemini BV wishes to exercise his ownership rights mentioned in the present article, buyer shall give Gemini BV or third parties to be appointed by Gemini BV, now for then, unconditional and irrevocable permission to acces all sites and locations where Gemini BV's property might be found and to take these goods back.

Article 8 Guarantee
User shall guarantee that the goods to be delivered shall meet the usual requirements and standards that can be set for and made upon them and as long as they are used within the Netherlands. When used outside the Netherlands, the buyer has to verify whether the goods are suitable for use and satisfy the conditions on which they are made. The guarantee mentioned in paragraph 1 is liable for a period of 1 month after delivery, unless the nature of the goods indicate otherwise or the parties have agreed otherwise. If the guarantee given by the user concerns a product produced by a third partie, the guarantee is limited to the guarantee given by the manufacturer unless stated otherwise.

The guarantee mentioned for this purpose shall not apply when the defect originated as the result of injudicious or improper use, improper storage or maintenance or when buyer and / or third parties have introduced changes or tried to introduce changes to the good without user consent in writing or if they have used it for purposed for which the good was not intended.

Buyer is not entitled to guarantee if the defect is caused by or arising from circumstances where user could exert no influence on, including weather conditions (for example,  but not exclusively extreme rainfall of temperature) etc.

Buyer shall be held to examine the delivered goods (to have the delivered goods inspected) the moment of delivery (handing over), but in any case in as short a period of time as possible. In this respect, buyer must examine whether the quality and the quantity of the delivered goods comply with what was agreed upon, or at least whether they meet the requirements applying to said goods in normal (business) transactions.

Possible visible shortcomings must be communicated in writing to user within three days following delivery. Non-visible shortcomings must be reported in writing within five days following their detection but no later than 1 month following delivery. Possible shortcomings shall be reported in detail, so user is able to give a proper response. The recieving of and attending to a declaration of shortcomings does not imply that user acceeds the complaint. Buyer shall give user the opportunity to investigate the complaint.

If in accordance with the previous paragraph, buyer files his complaint in due time, he shall still be held to take delivery and effect payment of the goods purchased. If buyer does file his complaint in due time, buyer is no longer entitled to repair, replacement or compensation.

If the goods to be delivered do not comply with said guarantee, user shall, at his discretion, replace or see to repair of the good, within a reasonable period of time following receipt thereof. If returning the goods is reasonably not possible, user shall after receipt of writing by buyer repair, ensure repair or meet a replacement fee to buyer. In the event the good is replaced, the buyer shall return the replaced good to user and transfer ownership to user, unless Gemini BV states otherwise.

If it is established that a complaint is not grounded, the costs – including research costs - made by Gemini BV, come for the account of buyer.

After the period of guarantee all costs for repair or replacement, including administrationcosts, shipping costs and call out costs will be charged to buyer.

Notwithstanding the statutory limitation periods, the limitation period for all claims and defenses against user and third parties involved by the user in the execution of the contract, one year.

Article 9 Liability
If user is liable, the liability is limited to the terms made in this stipulation.

User is not liable for damages of any kind that occur because the user based himself on incorrrect and/ or incomplete information given by buyer or on behalf of the buyer.

If user is liable for any damages, the liability shall be limited to a maximum of twice the invoice value of the order which the liability applies to.

Users liability shall at all times be limited to a maximum equalling the amount of the payment to be made by user's insurer in the occuring event.

User is exclusively liable for direct damage.

Direct damage shall be understood to be exclusively:
the reasonable costs incurred to establish the cause and the volume of the damage, in so far said establishement relates to damage in the sense of the present terms and conditions.
the reasonable costs possibly incurred to have user's faulty performance meet the conditions of the agreement, unless such faulty performance cannot be attributed to user.
the reasonable costs incurred to prevent or limit the damage, in so far buyer demonstrates that said costs have led to the limitation of direct damage as meant in the present general terms and conditions.

User shall never be liable for indirect damage, including consequential damage, loss of profit, lost savings and damage due to business stagnation.

Article 10 Transfer of risk
The risk of loss of, or damage to the products being the subject of the agreement, shall be transferred to buyer the moment said products are judicially and/ or actually delivered to buyer and therefore fall into the power of buyer or of third parties to be appointed by buyer.

Article 11 Safeguarding
The buyer shall safeguard user against claims filed by third parties concerning intellectual property rights on material or data provided by the buyer, which shall be used for and during the execution of the agreement.

If user for that reason should be addressed by third parties, buyer is kept to assist user both outside and in law and immediately do all that can be expected from him in that case. Should buyer fail to take adequate measures, user – without notice - shall be entitled to proceed. All costs and damage arising thereof for user and third parties, come for the account of buyer.

Article 12 Intellectual property
User reserves the rights and responsibilities for which he is entitled under the copyright and other intellectual laws and regulations. User has the right to use his increased knowledge arising from the execution of the agreement for other purposes, as far as no strictly confidential information of the buyer is brought to the attention of third parties.

Article 13 Applicable law
Dutch law shall apply to each and every agreement between user and the buyer, even if the agreement is concluded fully or partially abroad or if the buyer is domiciled there. The Vienna Sales Convention shall be explicitly excluded.

Article 14 Changes to the Terms of Conditions, interpretation and their location
The present terms and conditions have been filed at the office of the Chamber of Commerce in Enschede (number 08072607).

The most recently filed version shall always apply, or, as the case may be, the version valid at the time the agreement was concluded.

The Dutch version of these general terms and conditions prevails at all time in case of disputes with regard to the interpretation and purpose of these terms and conditions.