GEMINI SURVEYS general conditions:
Clause 1 General
1. Unless expressly otherwise agreed upon in writing, these conditions shall apply to all offers, tenders, assignments and contracts, as well as to the execution of assignments by the survey office, as well as to anything that might arise as a result of or in connection with those offers and/or assignments.
2. If the principal refers to his own general conditions at the conclusion of the contract, the survey office rejects those conditions, except in the case where the survey office expressly declares in writing that it accepts those conditions.
3. Wherever the term the principal is used in these conditions, this term shall include all principals who have collectively given one assignment, as well as his or their authorized representatives.
Clause 2 Assignment
An assignment shall only relate to the matter specified in it; consequences for any other matter cannot be attached to it.
Clause 3 Agreement of assignment /Contract
1. The contract shall have been concluded only after the principal has received a written acknowledgement of the assignment from the survey office in which a specification is given of the object or loss incident in question, unless the principal himself has given an adequately clearly described assignment in writing,
2. Alterations in the contract shall be binding only if they have been confirmed and/or agreed to by writing by Gemini Surveys sprl.
Clause 4 Obligations on the part of the survey office
Gemini Surveys sprl shall carry out the assignment accepted by it to the best of its knowledge and ability, accurately and impartially, as to be expected from an unbiased adjuster/surveyor and intermediary.
Clause 5 Surveyors
1. If and inasmuch as deemed necessary by Gemini Surveys sprl for the pro- per execution of its assignment, they shall be entitled to obtain the assistance of one or more experts.
2. Inasmuch as this is customary, the surveyors shall be appointed by Gemini Surveys sprl only after consultations with and with the written permission of the principal: the fees of these surveyors shall be chargeable to the principal.
Clause 6 Confidentiality
1. Gemini Surveys sprl is bound to observe secrecy towards third parties in respect of all information brought to or having come to its knowledge in connection with the assignment, as well as in respect of the contents of its report to the principal; all this unless the proper execution of the assignment requires the appointment of one or more surveyors by Gemini Surveys sprl.
2. If Gemini Surveys sprl has appointed one or more surveyors, secrecy as referred to in paragraph 1 of this clause shall be imposed upon these surveyor(s) by Gemini Surveys sprl.
3. The principal shall deal with all reports etc. received from Gemini Surveys sprl strictly confidentially and with the greatest possible care.
Clause 7 Conditions for the execution of an assignment
The principal shall see to it that the assignment can take place under such conditions as rendered reasonably necessary by the nature of the assignment.
Clause 8 Information furnished by the principal
1. Upon giving the assignment, or as soon as possible afterwards, the principal shall furnish Gemini Surveys sprl with all data and information required for the proper execution of the assignment.
If so required by Gemini Surveys the principal shall, in particular, furnish written information to Gemini Surveys in the manner specified by the survey office.
2. Gemini Surveys sprl must be able to assume that the information received is correct and complete. If Gemini Surveys and/or the surveyors appointed by Gemini Surveys sprl as referred to in clause 5 sustain damage and/or loss in consequence of incorrectness and/or incompleteness of that information, the principal shall be liable to indemnify the injured party/parties for that damage and/or loss.
Clause 9 Premature termination
1. Gemini Surveys sprl shall be entitled to terminate, for urgent reason of its own, the further execution of the already accepted assignment, without being bound to indemnify damage and/or loss possibly sustained by the principal in consequence of it, and under production of a verbal or written – this at the option of Gemini Surveys sprl report to the principal about the activities already carried out.
2. The principal shall indemnify Gemini Surveys sprl for the expenses already incurred and for the activities already carried out, with respect to which the stipulations of clause 13 shall apply.
Clause 10 Termination and annulment
1. Gemini Surveys sprl is entitled to terminate its activities at instant notice and to annul the not yet executed part of the contract by means of a written statement to the principal without any judicial interposition being required, and without prejudice to its right to compensation of expenses, damage and/or loss and interest;
a. if the principal is declared bankrupt, assigns his property to his creditors, applies for a moratorium or if his property is fully or partly placed under attachment or if he proceeds to the partial or complete liquidation of his business:
b. if the principal dies or is put in ward or, should the principal be a legal entity, if a resolution for dissolution is taken;
c. in case of attachment of whatever nature;
d. if the principal fails to meet any obligation incumbent on him by virtue of the law or of these conditions;
e. it the principal fails to pay an invoiced amount or part thereof within the prescribed time, or fails to meet one or more of his obligations towards Gemini Surveys sprl;
f. if the principal proceeds to the cessation or conveyance of his business or an important part thereof, including the transfer of his business to a company to be formed, or if he changes the aims and objects of his business;
g. generally in all those cases where, after the conclusion of the contract, Gemini Surveys sprl learns of circumstances which give it good grounds to fear that the principal will not meet his obligations.
2. If the principal meets, after all, his obligations towards Gemini Surveys sprl after the occurrence of one or more of the aforementioned cases, for which reason Gemini Surveys sprl has terminated its activities, Gemini Surveys sprl shall be obliged only to report verbally or in writing – this at the option of Gemini Surveys sprl about the activities already carried out.
3. In the cases mentioned in paragraph 1 the survey office also has the right, at its option, to postpone the compliance with its obligations until the sum due, inclusive of any interest and expenses, has been received in full,
Clause 11 Report
1. In conclusion of the execution of the assignment, Gemini Surveys sprl shall submit a written report to the principal describing its findings and the condition and/or quality of the object and/or purpose of the assignment.
2. Whenever this is deemed necessary by Gemini Surveys sprl or agreed between parties, Gemini Surveys sprl shall submit an interim report to the principal.
Clause 12 Termination and retention duty
1. The activities of Gemini Surveys sprl shall end (except in case of pre- mature termination as described in clause 10) with the submission of the final report relating to the assignment accepted by Gemini Surveys sprl.
2. Gemini Surveys sprl shall retain all data, correspondence, documents and such-like records that have a bearing on the acceptance and the execution of the assignment for a period of five years after the submission of the report; other material objects relating to the subject of the assignment shall not need to be retained by Gemini Surveys sprl for more than twelve months after the submission of the report.
Clause 13 Payment
1. Unless otherwise agreed in writing, payment shall be made, without any deductions, by deposit into or remittance to the bank account specified by Gemini Surveys sprl within 30 days after the invoice date. The settlement date mentioned on the bank’s statement of account is the determining one and shall thus be deemed to be the date of payment.
2. Gemini Surveys sprl has the right to demand at all times advance payment, cash payment or security for the payment.
3. Each payment made by the principal shall serve in the first place to pay off any interest due by him, as well as the collecting charges and/or accounting costs incurred by Gemini Surveys sprl and shall then be deducted from the oldest outstanding debt.
4. If one of the circumstances specified in clause 10 paragraph 1 occurs, the principal shall be legally in default by the mere occurrence of one of the aforementioned circumstances. In that case all debts due to Gemini Surveys sprl by the principal shall mature immediately.
Clause 14 Interest and costs
1. lf the term of payment is exceeded, the principal shall be legally in default and Gemini Surveys sprl shall be entitled to charge to the principal, as from the invoice date, an interest of 1.5% per month or, if this should be higher, the statutory interest; part of a month shall be deemed to be a full month.
2. In case of non-payment or late payment or non-observance of any of the principal’s other obligations, all collecting charges resulting from the non- payment or non-observance, both judicial and extra-judicial, shall be payable by the principal to Gemini Surveys sprl, in addition to the invoice amount and the interest.
The extrajudicial collecting charges shall amount to at least 15% of the amount due by the principal, inclusive of the aforementioned interest, with a minimum of EUR 250,00 and they shall be due in all cases in which Gemini Surveys has engaged the services of a third party for the collection. The mere engagement of a third party is proof of the extent of and the principal’s liability to payment of the extrajudicial collecting charges, without Gemini Surveys sprl being obliged to produce evidence that such costs have actually been incurred.
Clause 15 Liability
1. Gemini Surveys sprl shall never be liable towards the principal if the assignment complies with the provisions of clause 2 as well as clause 4; this subject to the further provisions of this clause and those of clause 16.
2. Except for liability on the part of Gemini Surveys sprl by virtue of imperative legal stipulations and generally accepted rules of reasonableness and fairness, Gemini Surveys sprl shall not be liable for, and thus never be bound to, indemnify mediate or immediate damage and/or loss of whatever nature, sustained directly or indirectly, including business interruption loss in respect of movable or immovable property, or by persons both at the principal’s and at third parties’ in consequence of:
a. improper conditions, as referred to in clause 7, and incorrect and/or incomplete information, as referred to in clause 8;
b. incorrect and/or incomplete information as referred to in clause 8, more specifically, where information asked for by Gemini Surveys sprl is concerned, inasmuch as it has reasonably not been possible for Gemini Surveys sprl to witness the circumstances in order to obtain the information in question;
c. activities not carried out by Gemini Surveys, inasmuch as it has in reason not been necessary for Gemini Surveys sprl, by virtue of the provisions of clause 2 and of clause 4, to carry out those activities.
d. errors and/or delays resulting from the incorrect operation of equipment used by Gemini Surveys sprl in the execution of its assignment, unless the principal proves satisfactorily that Gemini Surveys sprl has been negligent in the care of that equipment. This exclusion applies both if the incorrect operation referred to is due to the failure or malfunctioning of the power supply and/or other outside causes affecting the equipment, the prevention of which is not within the control of Gemini Surveys sprl, and if it is due to defects to the equipment itself, including software.
e. the non-completion or late completion of the report.
f. the operations and activities of the experts appointed within the scope of clause 5 of these general conditions.
3. Gemini Surveys sprl shall not be liable either for damage and/or loss caused to equipment and other objects placed at its disposal by or on behalf of the principal.
4. The principal shall protect Gemini Surveys sprl against claims from third parties in respect of damage to equipment and other objects placed at its disposal by or on behalf of the principal for the execution of the activities by Gemini Surveys sprl, as well as in respect of damage and/or loss to objects to be inspected.
5. Any liability including gross negligence or willful misconduct, if any, on the part of Gemini Surveys sprl shall be limited in all cases to maximum 3 times of the amount of the fee and expenses charged or to be reasonably charged by Gemini Surveys sprl to the principal, but shall never be in excess of the amount paid out in the case in question under the professional liability insurance of Gemini Surveys sprl.
Any concurrence of assignments shall in this connection be deemed to be one single case.
6. Any claims against Gemini Surveys sprl shall be barred by limitation one year after the date of submission of the report to the principal.
Clause 17 Indemnity
The principal shall indemnify Gemini Surveys sprl against all claims of third parties, both in respect of the execution of the assignment and in respect of the report issued by Gemini Surveys sprl.
Clause 18 Applicable law and disputes
Claim, if any, of whatever legal basis and/or nature for whatever extent and/or type of liability is subject to Belgian law and exclusive jurisdiction of Nivelles Courts even in case of plurality of defendants or guarantee or hold harmless proceedings.