Terms and conditions of supply.
Gemini Framework Solutions
Dated: 7April 2022
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Conditions: the terms and conditions set out in this document.
Contract: the contract between Gemini and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from Gemini.
Delivery Location: has the meaning given in clause 4.2.
Force Majeure Event: an event, circumstance or cause beyond a party's reasonable control.
Goods: the goods (or any part of them) set out in the Order.
Gemini: Gemini Framework Solutions, Company number 01919831, registered office Unit K1, Westwood Industrial Estate, Arkwright Street, Oldham, OL9 9LZ.
Order: the Customer's order for the Goods, as set out in the Order Form Acknowledgement.
Order Acknowledgement: the order acknowledgement form completed by Gemini to the customer.
Order Form: the order form completed by the customer and provided to Gemini.
Specification: any specification for the Goods, including any related plans and drawings, comprised in the Order Acknowledgement.
Order Form: the order form completed by the customer and provided to Gemini.
- A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
- A reference to a party includes its personal representatives, successors and permitted
- A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative
- Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
- A reference to writing or written includes
2. Basis of contract
- These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
- The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and
- The Order shall only be deemed to be accepted when Gemini issue the Order Acknowledgement, at which point the Contract shall come into existence.
- The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
- Any samples, drawings, descriptive matter or advertising produced by Gemini and any descriptions or illustrations contained in Gemini's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
- A quotation for Goods given by Gemini shall not constitute an offer. A quotation shall only be valid for a period of 30 days from date of quotation.
- To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify Gemini against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by Gemini in connection with any claim made against Gemini for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with Gemini's use of the Specification. This clause 1 shall survive termination of the Contract.
- G reserves the right to amend the Specification if required by any applicable statutory or regulatory requirement, and Gemini shall notify the Customer in any such event.
- Gemini shall ensure that:
- each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, all relevant Customer and Gemini reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
- if Gemini requires the Customer to return any packaging materials to Gemini, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as Gemini shall reasonably request. Returns of packaging materials shall be at Gemini's expense.
- Gemini shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after Gemini notifies the Customer that the Goods are ready. OR The Customer shall collect the Goods from Gemini's premises at Unit K1, Westwood Ind Estate, Arkwright Street, Oldham, OL9 9LZ or such other location as may be advised by Gemini prior to delivery within five Business Days of Gemini notifying the Customer that the Goods are ready.
- Delivery is completed on the completion of unloading of the Goods at the Delivery
- Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Gemini shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide Gemini with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
- If Gemini fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. Gemini shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide Gemini with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
- If the Customer fails to take or accept delivery of the Goods within five Business Days of Gemini notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or Gemini's failure to comply with its obligations under the Contract in respect of the Goods:
- delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which Gemini notified the Customer that the Goods were ready; and
- Gemini shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
- If five Business Days after the day on which Gemini notified the Customer that the Goods were ready for delivery the Customer has not taken or accepted actual delivery of them, Gemini may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
- If Gemini delivers up to and including 5% more or less than the quantity of Goods ordered the Customer may not reject them, but on receipt of notice from the Customer that the wrong quantity of Goods was delivered, Gemini shall make a pro rata adjustment to the invoice for the Goods.
- Gemini may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
- Gemini warrants that on delivery, and for a period of 12 months from the date of delivery (warranty period), the Goods shall:
- conform with their description and any applicable Specification; and
- be free from material defects in design, material and workmanship; and
- be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
- Subject to clause 3, if:
- the Customer gives notice in writing to Gemini during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 1;
- Gemini is given a reasonable opportunity of examining such Goods; and
- the Customer (if asked to do so by Gemini) returns such Goods to Gemini's place of business at the Customer's cost,
Gemini shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
- Gemini shall not be liable for the Goods' failure to comply with the warranty set out in clause 1 i:
- the Customer makes any further use of such Goods after giving notice in accordance with clause 2;
- the defect arises because the Customer failed to follow Gemini's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
- the defect arises as a result of Gemini following any drawing, design or Specification supplied by the Customer;
- the Customer alters or repairs such Goods without the written consent of Gemini;
- the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
- the Goods differ from their description or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
- Except as provided in this clause 5, Gemini shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 1.
- The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
- These Conditions shall apply to any repaired or replacement Goods supplied by
6. Title and risk
- The risk in the Goods shall pass to the Customer on completion of
- Title to the Goods shall not pass to the Customer until the earlier of:
- Gemini receives payment in full (in cash or cleared funds) for the Goods and any other goods that Gemini has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and
- the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 4.
- Until title to the Goods has passed to the Customer, the Customer shall:
- store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Gemini's property;
- not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
- maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
- notify Gemini immediately if it becomes subject to any of the events listed in clause 1(b) to clause 9.1(d); and
- give Gemini such information as Gemini may reasonably require from time to time relating to:
- the Goods; and
- the ongoing financial position of the
- Subject to clause 5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Gemini receives payment for the Goods. However, if the Customer resells the Goods before that time:
- it does so as principal and not as Gemini’s agent; and
- title to the Goods shall pass from Gemini to the Customer immediately before the time at which resale by the Customer occurs.
- At any time before title to the Goods passes to the Customer, Gemini may:
- by notice in writing, terminate the Customer's right under clause 4 to resell the Goods or use them in the ordinary course of its business; and
- require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7. Price and payment
- The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in Gemini's published price list in force as at the date of delivery.
- Gemini may, by giving notice to the Customer at any time up to 5 Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
- any factor beyond Gemini's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
- any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
- any delay caused by any instructions of the Customer or failure of the Customer to give Gemini adequate or accurate information or instructions.
- The price of the Goods:
- excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to Gemini at the prevailing rate, subject to the receipt of a valid VAT invoice; and
- excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
- Gemini may invoice the Customer for the Goods on or at any time after the completion of
- The Customer shall pay each invoice submitted by Gemini:
- in accordance with the payment terms set out in the Order Acknowledgement or any credit terms agreed by Gemini and confirmed in writing to the Customer; and
- in full and in cleared funds to a bank account nominated in writing by Gemini, and time for payment shall be of the essence of the Contract.
- If the Customer fails to make a payment due to Gemini under the Contract by the due date, then, without limiting Gemini's remedies under clause 9, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 6 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
- All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8. Limitation of liability
- Gemini has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £5,000,000 per claim. The limits and exclusions in this clause reflect the insurance cover Gemini has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
- The restrictions on liability in this clause 8 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
- Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
- death or personal injury caused by negligence;
- fraud or fraudulent misrepresentation;
- breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
- defective products under the Consumer Protection Act
- Subject to clause 3, Gemini's total liability to the Customer shall not exceed the price of the goods (excluding VAT).
- Subject to clause 3, the following types of loss are wholly excluded:
- loss of profits;
- loss of sales or business;
- loss of agreements or contracts;
- loss of anticipated savings;
- loss of use or corruption of software, data or information;
- loss of or damage to goodwill; and
- indirect or consequential
- This clause 8 shall survive termination of the
- Without limiting its other rights or remedies, Gemini may terminate this Contract with immediate effect by giving written notice to the Customer if:
- the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing to do so;
- the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
- the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
- the Customer's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
- Without limiting its other rights or remedies, Gemini may suspend provision of the Goods under the Contract or any other contract between the Customer and Gemini if the Customer becomes subject to any of the events listed in clause 1(b) to clause 9.1(d), or Gemini reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
- Without limiting its other rights or remedies, Gemini may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
- On termination of the Contract for any reason the Customer shall immediately pay to Gemini all of Gemini's outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, Gemini shall submit an invoice, which shall be payable by the Customer immediately on receipt.
- Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
- Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
10. Force majeure
Gemini shall not be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from a Force Majeure Event. In such circumstances Gemini shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 8 weeks, the Customer may terminate the Contract by giving 14 days' written notice to Gemini.
Assignment and other
- Gemini may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
- The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of Gemini.
- Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or Geminis of the other party, except as permitted by clause 2(b).
- Each party may disclose the other party's confidential information:
- to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 2; and
- as may be required by law, a court of competent jurisdiction or any governmental or regulatory
- Neither party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
11.3 Entire agreement.
- The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
- Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
- No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
- No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
- If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause 11.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
- Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
- delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
- sent by email to the address specified in Order Form and Order
- Any notice shall be deemed to have been received:
- if delivered by hand, at the time the notice is left at the proper address;
- if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
- if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 7(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
- This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
11.8 Third party rights.
The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
- Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
- Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.