Terms & Conditions

1. Definitions

1.1 The following capitalized definitions have the meanings below and can be used in both the singular and plural: 
- Additional Work: activities or other performances by Geminaes B.V. (including services and materials to be provided by it) in deviation of the activities or other performances (initially) agreed between the Parties in an Agreement;
- Agreement: any agreement between Geminaes B.V. and the Client, including attachments thereof, for the delivery of services and/or materials, including the accepted Offer;
- Client: the party with whom Geminaes B.V. enters into the Agreement or to whom Geminaes B.V. submits an Offer;
- Offer: an offer made by Geminaes B.V. to the Client for the delivery of services or materials;
- Parties: Geminaes B.V. and the Client together;
- Terms and Conditions: these general terms and conditions;
- Geminaes B.V.: the private limited company Geminaes B.V., with a registered address in (1015 DS) Amsterdam, at Prinsengracht 185 H, registered in the trade register of the Chamber of Commerce under number 95084800;
- Work: the result of the performance of this Agreement by or on behalf of the Client.

2. Applicability of the Terms and Conditions

2.1 These Terms and Conditions apply to all Offers and Agreements.
2.2 General (purchase) conditions of the Client do not apply.
2.3 Deviations from the Agreements or the Terms and Conditions are only valid if expressly agreed in writing.
2.4 Insofar as any provision of these Terms and Conditions is declared null, void or is nullified, this shall not affect the other provisions thereof which will remain in full force. In such an event, the Parties will consult with each other about a replacement provision, whereby the purport of the original provision will be observed as much as possible.
2.5 If and insofar as provisions from the Agreement and these Terms and Conditions are inconsistent, the relevant provisions from the Agreement will prevail.
2.6 Where in these Terms and Conditions reference is made to “Geminaes B.V.”, this also includes its management and employees, insofar as applicable.

3. Offer, Agreement and Additional Work

3.1 Offer(s) are without obligation unless explicitly stated otherwise in writing.
3.2 The Client guarantees the correctness and completeness of the information provided to Geminaes B.V., on which Geminaes B.V. bases its Offers or on the basis of which Geminaes B.V. executes the Agreement. Geminaes B.V. has no obligation to investigate the correctness or completeness thereof.
3.3 The Agreement is concluded by acceptance of an Offer by the Client.
3.4 The Client cannot claim any materials or services other than those agreed in the Agreement.
3.5 Geminaes B.V. is only held to take out insurance, including weather insurance and non-appearance insurance, if expressly agreed in writing between the Parties. The costs of such insurance are for the account of the Client.
3.6 The Client may request Geminaes B.V. for Additional Work. Geminaes B.V. can also conclude at its own discretion that there will be Additional Work and communicate this to the Client. In the latter case, the commencement of the performance of Additional Work requires the prior consent of the Client. Geminaes B.V. is never obliged to cooperate with a request for Additional Work. Geminaes B.V. is entitled to require that Additional Work is agreed upon in writing before it commences its execution. The Client will pay for Additional Work in accordance with the agreed rates and, failing that, in accordance with the usual rates of Geminaes B.V..

4. Price and payment

4.1 All prices stated by Geminaes B.V. are exclusive of VAT, other government levies, and costs to be incurred (such as but not limited to production, travel, storage, shipping and handling costs and costs for (usage rights of) rights, photography and media).
4.2 Estimates issued by Geminaes B.V. are only indicative, unless explicitly stated otherwise in writing. No rights or expectations can be derived from preliminary calculations issued by Geminaes B.V..
4.3 The available budget indicated by the Client never applies as a (fixed) price agreed between the Parties for the assignment to be performed by Geminaes B.V.
4.4. Composite Offers can only be accepted in full.
4.5. Geminaes B.V. is entitled to pass on price increases to the Client that have occurred before the performance of the Agreement has commenced.
4.6 Geminaes B.V. is entitled, also during the term of an Agreement, to increase its rates annually with effect from the 1st January with the consumer price inflation figure of the past year published by the CPB Netherlands Bureau for Economic Policy Analysis (“CPB”).
4.7 A request from the Client to provide services or materials is deemed to have been accepted by Geminaes B.V. by:
i) the acceptance thereof made known to the Client by Geminaes B.V., or
ii) the commencement by Geminaes B.V. of providing the requested services and/or materials.
4.8 If the Client has requested a change to the agreed services or materials to be provided by Geminaes B.V., Geminaes B.V. will only be held to provide such services or materials after its We acceptance thereof.
4.9 The Client agrees that in the event of a change in the services or materials to be provided by Geminaes B.V., the initially indicated deadlines for fulfilment by Geminaes B.V. may change.
4.10 Unless otherwise agreed, the Client must make payments within 15 calendar days of the invoice date, to the account designated by Geminaes B.V.
4.11 The Client makes the payments due to Geminaes B.V. without discount, offsetting or suspension of payment.
4.12 At Geminaes B.V.’s first request, the Client will provide sufficient security for the fulfilment of existing and future obligations.
4.13 If requested to do so, the Client will pay certain costs before Geminaes B.V. or continues the implementation of the relevant part of the Agreement. Alternatively, Geminaes B.V. is entitled to stipulate that these costs will be charged directly to the Client.
4.14 In the event of late or incomplete payment of any amount, the Client will owe to Geminaes B.V., in addition to the principal sum:
i) the legal commercial interest up to the date of full payment, and
ii) the collection costs for claiming the payment in or out of court, equal to fifteen per cent of the principal sum, with a minimum of € 250.

5. Execution

5.1 Commitments for Geminaes B.V. are best efforts obligations (“inspanningsverplichtingen”), not result obligations (“resultaatsverplichtingen”).
5.2 Deadlines for the execution by Geminaes B.V. are indicative only. Geminaes B.V. will endeavour to meet these deadlines, but will not be in default by the expiry thereof.
5.3 Performing tests, applying for permits, assessing whether legal or quality standards are met, conducting (trademark) research and registering trademarks or domain names are explicitly not part of Geminaes B.V.'s tasks. The Client is obliged to conduct its own investigation in this regard.
5.4 The Client is automatically in default if it does not fully or timely perform its obligations. Without prejudice to the other provisions herein, Geminaes B.V. will then be entitled without notice of default to suspend the performance of the Agreement, to (partially) not perform it, to suspend the issue or making available of information or other goods, without prejudice to its right (partial or otherwise) dissolution of the Agreement and compensation.
5.5 The Client will do all that is reasonably necessary or desirable to enable a timely and correct delivery by Geminaes B.V., in particular by the timely delivery of complete, reliable and clear data and materials.
5.6 If Geminaes B.V. provides services that consist of organizing deliveries by one or more third parties or the delivery or making available of materials or services of third parties, the following applies to those services:
a) Geminaes B.V. will select the relevant third party as well as possible,
b) if the third party concerned does not deliver or delivers incorrectly, it does not lead to a default on the part of Geminaes B.V., and
c) the (general) terms and conditions of those third parties apply to the Agreement in addition to these Terms and Conditions. If and insofar as a provision from the (general) terms and conditions of the third party is in conflict with a provision from these Terms and Conditions, Geminaes B.V. is entitled to determine applicable the provision that is most favourable.
5.7 If the execution by Geminaes B.V. depends on the provision of data or materials by the Client, the Client will take care of this correctly, completely and/or in a timely manner. The Client guarantees that the data and materials, even if they come from a third party, are correct and complete and that their use does not infringe any rights of third parties. The Client shall indemnify Geminaes B.V. and hold Geminaes B.V. harmless from and against all damage, losses, costs and external costs and expenses relating thereto suffered, paid or incurred by or imposed upon or instituted against in respect of the incorrectness or incompleteness of the said guarantee.
5.8 If Geminaes B.V. carries out all or part of its work at an external location requested by the Client, the Client will provide a suitable, safe space, equipped with all necessary equipment, free of charge.

6. Approvals

6.1 Geminaes B.V. is entitled to stipulate that, before continuing the execution of the Agreement, the Client approves the services and materials already performed and/or delivered at that time, which approval will not be unreasonably withheld or delayed. If the Client does not respond within three working days after that request, the Client is deemed to have given the aforementioned approval.
6.2 The Client has the right to be present during the shoots, recording and/or post-production sessions to give advice and approval, whether or not through its representatives as described in the short form agreement between the Parties. If none of these representatives of the Client can be reached and also no otherwise demonstrably authorized (final) responsible party on the side of the Client can give advice or approval and the (temporary) delay of production entails significant costs, Geminaes B.V. is entitled to make the decisions that appear to be reasonably appropriate in its sole discretion.

7. Post-production

If the Parties have agreed that the Client will perform the post-production, Geminaes B.V. will ensure that the agency producer or the authorized representative on the part of the Client as stated in the short form is always informed of technical and/or cinematic changes of any kind that occur during production that, as reasonably foreseeable to Geminaes B.V., may materially affect the post-production process.

8. Engaging third parties

If Geminaes B.V. engages services or materials from third parties for the performance of the Agreement at the request of the Client or on its own initiative (if it is necessary for the performance of the Agreement in the opinion of Geminaes B.V. or because such engagement results from the Agreement), Geminaes B.V. is entitled to do so on behalf of, at the expense at, and/or at the risk of the Client. The costs will be charged to the Client, possibly plus a surcharge agreed, if any.

9. (Intellectual property) rights

9.1 If the services of Geminaes B.V. consist of the realization of a film work within the meaning of Article 45a of the Dutch Copyright Act (“Auteurswet”), Geminaes B.V. will be deemed by the Parties as a producer within the meaning of the named article.
9.2 Geminaes B.V. reserves all copyrights, database rights and other (intellectual and industrial property) rights with regard to the goods and services (including works within the meaning of the Copyright Act) that it uses, develops or makes available to the Client in the performance or of the Agreement, including the Work and the services and goods supplied/made available by Geminaes B.V.
9.3. The Client only has those (user) rights to the Works and the services and goods supplied/made available by Geminaes B.V. as expressly agreed between the Parties, under the suspensive condition that the Client has fulfilled all its obligations towards Geminaes B.V..
9.4 If the Client wishes to use the Work, services and/or goods supplied/made available by Geminaes B.V. in a manner other than that expressly agreed in writing, including but not limited to a different purpose, during a different period or via other media, prior written permission from Geminaes B.V. will be required, to which Geminaes B.V. may impose additional conditions. If such use takes place without the aforementioned prior permission, Geminaes B.V. is entitled to 150% of the usual rate, without prejudice to Geminaes B.V.'s other claims for performance and compensation.
9.5 The Client will not remove or change designations of Geminaes B.V. or its suppliers regarding copyrights, brands, trade names or other rights of (intellectual) property.
9.6. Geminaes B.V. is entitled to use the Work or have it used for submission to prize festivals, curriculum, museum and editorial purposes, internal use and self-promotion of Geminaes B.V.. This also applies to performances by the Client and others who have made a creative or technical contribution.
9.7 The Client is not entitled to adapt the Works without the prior written consent of Geminaes B.V..
9.8 If the Client wishes to make use of a Work or a part thereof for the production of new recordings or the further processing or post-production of the Works, including the making of a version for the cinema or other media, it will be instructed to do so be the first to offer Geminaes B.V.. The aforementioned does not affect the provisions of the third paragraph of this article.
9.9 Insofar as the Client has made materials and suchlike available or designated to Geminaes B.V. for the performance of the Agreement, the Client guarantees that their use does not infringe the rights of third parties or is contrary to laws or regulations.
9.10 The Client indemnifies Geminaes B.V. against all possible claims from third parties and damage, loss, costs, recourse and claims of whatever nature, due to infringement of rights by the Client, including but not limited to intellectual property rights, unless such infringement is the direct result of use by the Client of services or materials provided by Geminaes B.V. to the Client in accordance with the applicable conditions and Geminaes B.V. has granted the Client rights of use therefor.

10. Confidentiality

10.1. The Parties will in no way whatsoever disclose confidential information of the other to third parties or make it public, or allow others to do so. Confidential is, in any case, all financial information, ideas, advice, concepts and other proposals made available by Geminaes B.V., information that is identified as confidential by the other and all other information of which the confidential nature is known or could reasonably be expected.
10.2 The confidentiality obligations do not apply insofar as the other party has given permission for the disclosure, if the disclosure of the information is necessary for the performance of the Agreement if the disclosure takes place on the basis of a legal obligation to do so, insofar as the information is disclosed to advisers of the Parties bound by materially the same confidentiality obligations as the Parties are, or when the information is already public and generally accessible other than due to default of the disclosing party.
10.3. The Parties will ensure that their representatives, employees, contractors or other persons to whom confidential information of the other is or will be made available by or through them will be bound by the duty of confidentiality contained herein.

11. Compliance with legislation and regulations

11.1 The Client will not use the Work, services, goods and information provided by Geminaes B.V. or allow it to be used in violation of laws and regulations, including but not limited to the Media Act 2008 (“Mediawet 2008”) and the Advertising Code (“Reclame Code”).
11.2 Geminaes B.V. is entitled, but never obliged, to take measures with regard to (alleged) unlawful behaviour of the Client or infringements that are made with the Works, including the removal of publications or data or the discontinuation of its services or the publication of Works, without becoming liable for compensation as a result.
11.3. The Client indemnifies Geminaes B.V. against all claims, costs and damage, including legal costs, for whatever reason, in connection with the non-fulfilment of the Client's obligations under this article.

12. Liability and indemnification

12.1. Without limitation, Geminaes B.V. is in no way liable for:
i) direct or indirect damage, loss, costs, recourse and claims, damage due to business interruption, loss of profit, missed savings, reduced goodwill, damage due to claims from customers of the Client, mutilation, destruction or loss of information, on whatever grounds;
ii) damage resulting from Force Majeure, failures of suppliers prescribed by the Client, the use of incorrect or incomplete information provided by or on behalf of the Client, the conduct of the Client or persons appointed by him or natural or legal persons for which the Client is otherwise responsible;
iii) damage to the Client or third parties that is the result of an act or omission by third parties engaged by Geminaes B.V. (not including employees of Geminaes B.V.), even if they work for an organization affiliated with Geminaes B.V.
12.2 Insofar as the aforementioned limitation of liability would be contrary to reasonableness and fairness, public morality or otherwise contrary to compulsory law, then the liability of Geminaes B.V. is limited to direct damage suffered by the Client up to a maximum of the amount by Geminaes B.V. the amount received from the Client for the damage-causing part of the performance of the Agreement, minus the out-of-pocket costs incurred, (advanced) costs and amounts, whether or not for the payment of third parties engaged.
12.3. Insofar as the limitation of liability referred to in the previous paragraph would be contrary to reasonableness and fairness, morality or compulsory law, then the total liability of Geminaes B.V. will in no case exceed the amount for which Geminaes B.V. is insured for the damage-causing event on the basis of its liability insurance. The total amount for which Geminaes B.V. can be held liable can in no case exceed € 50,000.
12.4 Geminaes B.V.'s limitation of liability does not apply in the case of intent or deliberate recklessness, or in the case of damage through death or physical injury.
12.5 In the context of the provisions herein, “Force majeure” means anything that should reasonably be understood to be force majeure, including but not limited to defective goods, equipment, software or materials of third parties, government measures, power failure, malfunction or maintenance of the Internet, computer network or telecommunication facilities, war, workforce, strike, general transportation problems, unavailability of one or more Geminaes B.V. employees or contractors, another stagnation in the normal course of Geminaes B.V.'s business, natural disasters, explosions and acts of God from Geminaes B.V. suppliers.
12.6 Without prejudice to Article 6:89 of the Dutch Civil Code, all liability of Geminaes B.V. will end if the Client does not make a legal claim for damage within one year of the harmful event.

13. Termination

13.1 The termination of the Agreement does not release the Parties from their current obligations thereunder, including provisions and obligations that by their nature are intended to continue even after termination or dissolution.
13.2 In the event of premature termination of the Agreement by Geminaes B.V. due to the Client not performing the Agreement, not performing it on time or not completely, Geminaes B.V. is entitled to compensation for the (already) incurred costs in connection with the execution of the Agreement, including amounts advanced and fees owed, without prejudice to its other rights.
13.3 If, for whatever reason, the Client terminates the Agreement prematurely before Geminaes B.V. has fully delivered the agreed goods and services, the Client is obliged to Geminaes B.V. for all reasonable costs already incurred by Geminaes B.V., including the hours already spent and all amounts owed to third parties by Geminaes B.V. as a consequence of the premature termination, as well as the lost profit of Geminaes B.V., all this without prejudice to Geminaes B.V.'s other rights under the Agreement, these Terms and Conditions and the law.
13.4 The amounts due at the time of early termination will be immediately due and payable to Geminaes B.V.

14. Miscellaneous

14.1 Unless otherwise agreed in writing, Geminaes B.V. is not obliged to keep or insure the original or copies of the Work or other materials created by order of the Client.
14.2 The Client is not entitled to transfer rights or obligations under the Agreement in whole or in part to third parties.
14.3 The electronic or non-electronic administration of Geminaes B.V. provides full proof of the statements of Geminaes B.V., subject to written proof to the contrary by the Client.
14.4. Should one or more provisions of these Terms and Conditions become wholly or partially invalid or void, the remaining provisions of these Terms and Conditions shall remain fully in force. In that case, the Parties will agree on new provisions to replace the invalid or voided provisions, whereby the purport of the original provisions is observed as much as possible.
14.5 The Agreement and these Terms and Conditions, and all related agreements and obligations between the Parties are governed by Dutch law. The competent court in Amsterdam is competent with regard to disputes arising from or in connection with the aforementioned agreements and commitments.
14.6 Geminaes B.V. is entitled to change these Terms and Conditions from time to time and declare them applicable. The most recent general terms and conditions can also be consulted via: www.geminaes.com.