Geminate General Terms and Conditions
Version: 29 May 2024
1. Definitions
Certain definitions are used in these General Terms and Conditions. Their meaning is stated below.
1.1. Geminate, the general partnership (in Dutch: vof) of Martijn Dekker and Yasmine Bremer, established at Nijenoord 159 in Utrecht, under Ch. of Comm. number 92890911.
1.2. Customer: any legal entity or natural person who purchases one or more services/products from Geminate. In these General Terms and Conditions also referred to as ‘you’ or ‘your’.
1.5. Parties: Geminate and you as the Customer. In these General Terms and Conditions also referred to as ‘we’ or ‘our’.
1.6. Assignment: the assignment that you give to Geminate to provide one or more services.
1.7. Contract: the contract (for services) that we have concluded.
1.8. Subscription: the contract under which you pay Geminate a monthly fee for the offered services.
1.9. Subscription Month: a month in which your subscription is active.
Example: If you took out a subscription on 23 January, this means that every new subscription month starts on the 23rd.
1.10. Monthly Amount: the amount that is paid each month for a subscription.
1.11. Individual Project: a project under which you commission us to perform activities, that is not paid by means of a subscription.
2. Applicability
2.1. These General Terms and Conditions apply to:
- all contracts between us;
- the phase prior to the formation of the contract (e.g. if an offer is made);
- any new or supplementary contracts.
2.2. We may derogate from these General Terms and Conditions if we have expressly agreed to do so and as long as this is not contrary to mandatory law.
2.3. The applicability of your General Terms and Conditions is expressly excluded.
2.4. The applicability of Section 7:404 of the Dutch Civil Code has explicitly been excluded. That means that if an assignment has been given with one of the partners of Geminate in mind, this partner does not need to perform the assignment themself.
2.5. The applicability of Section 7:409 (2) of the Dutch Civil Code has explicitly been excluded. This means that if an assignment has been given with one of the partners in mind and this partner dies, the heirs of this partner are under no obligation to represent your interests after the death of this partner.
3. Offer/quotations & formation of the contract
3.1. An offer or a quotation includes a clear, complete and understandable description of the offered services.
3.2. Obvious mistakes or errors in an offer or quotation are not binding on Geminate.
3.3. An offer or quotation is valid for a maximum of 14 days, unless the offer or quotation includes another term for acceptance. An offer stated on Geminate’s website is valid as long as it is online.
3.4. If you do not accept an offer or quotation within the applicable period then the offer or quotation is no longer valid.
3.5. A contract is formed when you have accepted an offer or quotation.
3.6. You will confirm assignments in writing. If you agree in a way other than in writing that Geminate starts with the performance of the assignment, this means that the contents of the quotation or the offer are deemed to have been agreed on and these General Terms and Conditions apply. More detailed arrangements are only binding on Geminate after Geminate has confirmed them in writing.
4. Rates
4.1. All rates that Geminate applies are exclusive of VAT, in euros and exclusive of any other additional costs (such as but not limited to: travel expenses and costs of an overnight stay).
4.2. All rates that Geminate applies and that are stated on Geminate’s website or that have been communicated in any other way may be changed by Geminate at all times.
4.3. Geminate communicates any rate change no later than 3 months in advance.
4.4. Geminate may charge additional costs if, due to circumstances that were unknown at the time of the quotation or the offer, Geminate has to perform more work than was agreed on previously. In that case, Geminate will state the additional costs. If you object to the additional work to which the additional costs apply then you have the right to refuse this additional work. In that case, you still need to pay for the assignment originally agreed on.
5. Urgency
5.1. Geminate only performs urgent assignments if you have a subscription with Geminate.
5.2. If you state that an assignment is urgent, Geminate may charge an additional 30% of the monthly amount.
5.3. Urgency means that you state that you have a deadline that Geminate needs to meet.
5.4. Geminate is at liberty to refuse to perform an urgent assignment.
5.5. An urgent assignment can be performed once every quarter.
5.6. Together, we will agree when (the ‘urgent deadline’) the urgent assignment must have been completed.
5.7. The performance of the urgent assignment starts when Geminate has been given the go-ahead to perform the urgent assignment.
5.8. The responsibility for the actual completion before the agreed urgent deadline lies with you as well as with Geminate. You are expected to respond as soon as possible, including but not limited to any questions asked by Geminate, so that Geminate can meet the requirement of completing the assignment before the urgent deadline.
5.9. If, due to your acts/omissions, Geminate cannot complete the work before the urgent deadline you must still pay the urgency fee.
5.10. If it becomes apparent after the start of the performance of the assignment that the assignment is no longer urgent, you must still pay the urgency fee.
6. Payment
6.1. Geminate may invoice the services in advance, both the total amount agreed on and a down payment or the monthly amount.
6.2. If you have a subscription, the payment thereof is made by direct debit. If the payment does not concern a subscription, payment must be made within 30 days of the invoice date, without any setoff or suspension.
6.3. Any objection to the amount of the invoice does not suspend the payment obligation.
6.4. If you do not fulfil your payment obligation(s) then you are in default by operation of law.
6.5. If you are in default, you must pay statutory interest and Geminate may charge the extrajudicial costs. The amount in extrajudicial costs consists of a minimum of €40 and you must pay this without any notice from the day after the agreed last date of payment has lapsed.
6.6. If you do not make payment, or if you do not do so in full or in good time, then Geminate may suspend the activities or remaining activities in performance of the assignment.
6.7. In case of winding-up, liquidation, statutory debt restructuring or suspension of payments on your end, your obligations towards Geminate are due immediately. Geminate may also suspend the activities or terminate the contract.
7. Performance of assignments
General
7.1. Geminate performs an assignment with the care and expertise that may reasonably be expected of Geminate under the given circumstances.
7.2. Geminate performs an assignment at its discretion.
7.3. You must follow Geminate’s instructions so that Geminate can perform the assignment at its discretion.
7.4. Geminate has an obligation to use reasonable endeavours, and not an obligation to achieve a result.
Your provision of information, media, documents and data
7.5. You make sure that you provide all relevant information, media, documents and data of which you understand or must reasonably understand that such is necessary for a correct performance of the contract to Geminate in good time, in the required form and manner.
7.6. If you do not make the requested information, media, documents and/or data available or if you do not do so in good time or properly, and this results in a delay in the performance of the assignment, then Geminate may suspend the activities.
7.7. Costs incurred because requested information, media, documents and/or data are not provided, not provided in good time or not provided properly are at your expense.
7.8. You guarantee the correctness, completeness and reliability of the information, documents and data made available, also if these originate from third parties. 7.9. You make sure that upon providing and/or uploading images, logos, videos, designs, etc. you are not acting in violation of the intellectual property rights of third parties.
7.10. Geminate’s assignment does not include researching the existence of intellectual property rights relating to information, data, media and documents that you provide.
Delivery date
7.12. A delivery date stated by Geminate is always an estimated date, unless it has expressly been agreed that this concerns a strict delivery date. If a stated estimated delivery date is exceeded, this does not give you the right to terminate the contract and/or to compensation.
7.13. Geminate is no longer bound by an expressly agreed strict delivery date if you require changes to the assignment or if it becomes apparent that additional work needs to be performed.
Third parties
7.14. Geminate is not liable for changes, errors or defects in products or services of third parties engaged by you or on your behalf, regardless of whether they have been introduced by Geminate.
7.15. Geminate is not liable for damage or loss caused by third parties (engaged by Geminate).
8. Feedback rounds
General
8.1. A feedback round takes place after you have been provided with a draft version.
Individual projects
8.2. Geminate carries out two feedback rounds in case of individual projects.
8.3. Unless otherwise agreed, you have 3 working days to give feedback for each feedback round.
8.4. During the first feedback round, you may give feedback about the following for the following services:
- UX services: the sitemap and wireframes;
- UI services: you may choose the presented visual style;
- Motion design: the storyboard.
During the second feedback round, you may give feedback about the adjustments made following your feedback from the first round.
8.5. Geminate suspends the activities if you do not meet the feedback deadline. If, because of a strict delivery date, suspending the activities is not an option, Geminate invoices the hours that Geminate must work additionally.
8.6. Where possible and if reasonable, feedback is incorporated in a new draft version or a final version.
8.7. Non-reasonable feedback includes but is not limited to: feedback that differs or differs much from what has been discussed previously.
8.8. If you would like non-reasonable feedback to be incorporated then Geminate may charge additional costs for incorporating this feedback, whether or not based on an hourly rate. Moreover, Geminate reserves the right to refuse to incorporate non-reasonable feedback.
8.9. If you would like an extra feedback round, then Geminate may charge additional costs for the additional work performed by Geminate, whether or not based on an hourly rate.
Subscriptions
8.10. You may give feedback as frequently as you like.
8.11. Geminate only starts with a new activity if another activity has been completed. An activity has not been completed as long as you are still giving feedback about it.
8.12. You may take as much time giving feedback as you like, except in case of urgency. Geminate states the feedback deadline in case of urgency.
8.13. If you do not give feedback in good time in case of an urgent assignment, Geminate will suspend the activities until you have done so. Any consequences or financial consequences are for you. In this case, you must also still pay the urgency fee.
9. Subscriptions
9.1. A subscription is taken out for an indefinite period of time.
9.2. A subscription is paid monthly, prior to the new subscription month.
9.3. If it becomes apparent during the first subscription month that Geminate does not want to work with you, Geminate will terminate the subscription and refund any payment already made.
9.4. You may pause a subscription as long as you want. If you want to continue the subscription, you need to inform Geminate of this in writing.
9.5. If a subscription is paused, you still have the number of days of the subscription month left that you did not use.
Example: If your subscription starts on the 1st of the month, and you discontinue your subscription on 20 June, you still have 10 days left of that subscription month.
10. Rescheduling appointments / no show
10.1. In this article, appointments are understood to include: telephone meetings, in-person meetings or video calls that are necessary for Geminate for the performance of the activities.
By you
10.2. You may reschedule an appointment twice at no cost. If you reschedule an appointment for the third time or more frequently, Geminate may charge the hours scheduled for the appointment each time that you reschedule an appointment. An exception applies in case of demonstrable force majeure.
10.3. An appointment must be rescheduled at least 24 hours in advance. If you reschedule the appointment within 24 hours before the appointment takes place, Geminate may charge the hours scheduled for the appointment. An exception applies in case of demonstrable force majeure.
10.4. If you reschedule an appointment, the new date must be within one month of the original appointment, except if this is impossible due to demonstrable force majeure. If the new appointment nonetheless takes place later than one month after the original date, Geminate may charge additional costs, except in case of demonstrable force majeure. Geminate may also terminate the contract.
By Geminate
10.5. Geminate is at liberty to reschedule an appointment, without being liable to pay you compensation.
10.6. If Geminate needs to reschedule an appointment because you did not provide the requested information, media, data or documents in good time before the appointment, Geminate may charge the hourly rate for the scheduled hours each time that the appointment needs to be rescheduled for this reason.
No show
10.7. If you fail to show up at an appointment (no show) you are not entitled to a full or a partial refund. If you have not made payment yet, in case of a no show you must still pay the full amount agreed on for the assignment.
10.8. No show means that you do not show up within 20 minutes from the time of the appointment without any notice. If you do notify that you are not coming in advance or within those 20 minutes, this is also considered a no show.
10.9. Geminate may request compensation in case of a no show. For example in the form of the current hourly rate for the scheduled hours and the expenses already incurred.
11. Non-disclosure
11.1. Geminate is obliged to keep secret all confidential information that Geminate has obtained from you in the context of the assignment. Information is in any case deemed to be confidential if you have communicated its confidential nature or if such confidentiality ensues from the nature of the information. Your login details are an example of confidential information.
11.2. Non-disclosure does not apply if the relevant information:
- is already publicly or generally known;
- is not confidential;
- was not disclosed to Geminate during the contract; and/or
- was otherwise obtained by Geminate.
11.3. Non-disclosure does not apply to the extent that a statutory obligation to provide information has been imposed on Geminate. In this case, Geminate does not owe you any compensation. You cannot terminate the contract in such case either.
11.4. Geminate also imposes an obligation on the third parties/suppliers that Geminate engages for your benefit or to whom Geminate outsources work to comply with this article.
12. Force majeure
At Geminate
12.1. Geminate does not need to fulfil the obligations under the contract if fulfilment has temporarily or permanently become impossible due to force majeure.
12.2. Force majeure is understood to include any non-attributable impossibility to fulfil the obligations of the contract, which includes but is not limited to: fire, accidents, software malfunctions, computer breakdowns, unexpected road works, traffic delays, illness, government measures, epidemics and pandemics.
12.3. Geminate informs you of the situation of force majeure as soon as possible.
12.4. In case of force majeure, Geminate tries to find a suitable solution together with you, whether or not to as yet fulfil the contract.
12.5. In case of force majeure, Geminate does not need to pay you compensation.
12.6. Unless otherwise agreed, you are not entitled to full or partial termination of the contract in case of force majeure.
12.7. Unless otherwise agreed, you are not entitled to suspend your obligations in case of force majeure.
On your end
12.8. You must also notify Geminate as soon as possible of a situation of force majeure on your end.
13. Early termination
Notice of termination
13.1. We may both terminate the contract early with immediate effect by giving notice. If notice of termination of a subscription is given, it ends after the subscription month in which you give notice. Example: If your subscription month starts on 11 May and you give notice on 20 June, the subscription ends after 11 July.
13.2. If you give notice to terminate a contract, Geminate remains entitled to the following for the following services:
- Subscription
payment until the subscription month in which notice of termination is given.
Example: If your subscription month starts on 11 May and you give notice on 20 June, you must pay for all subscription months taken out until 11 July. - Individual project
payment of hours already worked (calculated at an hourly rate) and expenses already incurred.
13.3. If Geminate gives notice to terminate a contract, Geminate remains entitled to the following for the following services:
- Subscription
payment until the day on which notice of termination is given.
Example: If your subscription month starts on 1 May and Geminate gives notice on 20 May, you must pay 20/31st of the monthly amount. If payment has already been made, Geminate refunds 11/31st of the amount - assuming in this example that the payment for the other months has already been made. - Individual project
payment of hours already worked (calculated at an hourly rate) and expenses already incurred.
Termination
13.4. We may both terminate the contract if the other party fails to perform the contract, unless the failure, given its special nature or minor importance, does not justify this termination and its consequences. The party in default must first be given notice of default, and allowed a reasonable period for performance, except if performance is permanently or temporarily impossible.
13.5. In case of termination of a contract by either of us based on the previous paragraph, Geminate always remains entitled to payment in accordance with paragraph 3 of this article.
13.6. If the contract is terminated based on paragraph 4 of this article, and at the time of termination you have already received performance in execution of the contract, this performance cannot be undone.
Compensation
13.7. Geminate does not need to pay you compensation if Geminate terminates or gives notice to terminate a contract with you.
14. Indemnity & Liability
Indemnity
14.1. You indemnify Geminate against all claims of third parties who state that they have suffered damage or loss because of or in connection with the activities carried out by Geminate or by third parties engaged by Geminate for you.
14.2. You indemnify Geminate against all third-party claims relating to intellectual property rights in respect of all information, data, media and documents that you provided and that are used in the performance of the assignment.
Liability
14.3. Geminate is not liable for damage or loss caused because Geminate based itself on incomplete, unreliable and/or incorrect data that you provided.
14.4. Geminate is not liable for damage or loss caused if you make adjustments to the work that Geminate has delivered.
14.5. Geminate is not liable for indirect damage or loss, i.e. damage or loss not directly causally related to an attributable failure on Geminate’s part. This includes but is not limited to: consequential loss, lost profit or damage to third parties.
14.6. Geminate is only liable for damage or loss that you suffer if and to the extent that this damage or loss was caused by Geminate with intent or deliberate recklessness.
14.7. If Geminate is liable for any damage or loss, Geminate is only liable for damage or loss directly resulting from or connected with the contract (‘direct damage or loss’). Direct damage or loss is understood to mean:
- reasonable costs incurred to determine the damage or loss and liability, in so far as the determination relates to damage or loss within the meaning of these General Terms and Conditions;
- reasonable costs incurred to have a defective performance by Geminate conform to the contract, to the extent that these can be attributed to Geminate;
- reasonable costs incurred to prevent or limit damage or loss, in so far as you prove that these costs have led to a prevention or limitation of direct damage or loss within the meaning of this article.
14.8. If Geminate is liable, this liability is limited to the amount that is paid out by the professional liability insurance or liability insurance that has been taken out. If an insurance company does not pay out the amount of the claim, or does not pay out the full amount of the claim, then Geminate’s liability is limited to the invoice amount or the part of the invoice amount to which the liability pertains. If an insurance company does not pay out in case of subscriptions, liability is limited to the monthly amount of the subscription month in which the damage or loss occurred.
14.9. Any liability expires by the lapse of one year from the time that the contract has ended as a result of completion, notice of termination or termination. If you have a subscription, liability expires one year after the harmful event occurred.
15. Intellectual property rights
15.1. Unless expressly otherwise agreed in writing, Geminate or one of the partners reserves the rights and powers that are vested in Geminate or one of the partners pursuant to intellectual property law.
15.2. You may not, without the prior written consent of the maker of a work, multiply, make public or otherwise disclose to third parties any works produced by the maker, unless otherwise agreed or if the nature of the contract provides otherwise. Produced works include but are not limited to: web designs, logos, corporate identities, illustrations, motion design, apps and infographics.
15.3. The works produced by Geminate or one of its partners may be used for any purpose whatsoever.
15.4. The works produced by Geminate or one of its partners may be adapted/adjusted.
15.5. The intellectual property rights vested in the works produced by Geminate or one of its partners remain vested in Geminate or one of its partners and are not transferred to you.
15.6. You may never multiply draft versions or make them public.
15.7. You may not transfer to third parties intellectual property rights or a licence from a contract concluded with Geminate, except when Geminate gives its written consent.
15.8. Unless the consequences thereof are contrary to the principles of reasonableness and fairness, you may not use or have the works produced by the maker worked out in more detail without the maker’s consent, and the licence expires:
- if you do not or not fully fulfil your payment obligations or if you are otherwise in default;
- if the assignment is terminated prematurely within the meaning of Article 13;
- in case of your bankruptcy or liquidation, unless the intellectual property rights have been transferred to you in full.
15.9. You are responsible for keeping the works produced that are delivered by Geminate.
15.10. Geminate remains at liberty, with due regard for your interests, to use any works produced by Geminate or one of its partners immediately after delivery to you for: Geminate’s online portfolio (e.g. on social media and the website), Geminate’s offline portfolio, own publicity, obtaining assignments, and other ways of self-promotion. An exception is made if you expressly object to this in advance and written arrangements about this have been made between us.
16. Complaints
16.1. Complaints about the contract or its performance must be submitted to Geminate in full and clearly described within a reasonable period after you have discovered a defect or reasonably should have discovered it.
16.2. If a defect is reported later than the period stated in the previous paragraph, you cannot rely on any termination of the contract or compensation anymore.
16.3. Geminate responds to complaints within a period of 14 days, calculated from the date on which the complaint is received. If the complaint requires a longer processing time, Geminate informs you within 14 days of receipt of the complaint when you may expect a response.
16.4. You must give Geminate at least 4 weeks to resolve the complaint in joint consultation.
16.5. Filing a complaint does not suspend the payment obligation.
17. Other provisions
17.1. Our legal relationship is governed by Dutch law.
17.2. We will only apply to the court after we have done our utmost to settle a dispute in joint consultation.
17.3. Geminate is authorised to make changes to these terms and conditions at any time, which take effect at the announced time. Geminate sends you the changed terms and conditions in good time.
17.4. If you have not been informed of a time when the changes take effect, the changes take effect towards you when the change has been announced.
17.5. In case of the nullity or voidability of one or more provisions of these General Terms and Conditions, the other provisions remain in effect.
17.6. In case of the nullity or voidability of a provision, we will consult with the purpose of reaching agreement on new provisions to replace the void or voided provisions, taking into consideration as much as possible the objective and purport of the void or voided provisions.
