1.1 Unless explicitly stated otherwise, the following terms with the following meanings are used in these general terms and conditions:
Ambiance: Ambiance Technology BV, Het Zuiderkruis 9F, 5215 MV ’s-Hertogenbosch, selling party
Buyer: the other party of Ambiance, acting in the course of a profession or of a business
Agreement: every agreement between Ambiance and Buyer.
2. Applicability of the conditions and conclusion of an agreement
2.1 These terms and conditions shall apply to every offer and agreement between Ambiance and Buyer, in so far as not provided otherwise in this agreement by parties, explicitly and in writing. The applicability of the general terms and conditions stipulated by Buyer shall be excluded.
2.2 These terms and conditions shall also apply to agreements with Ambiance for the execution of which third parties need to be involved.
2.3 In the event one or more provisions in these general terms and conditions are declared null and void or will be nullified, the remaining provisions of these general terms and conditions remain unimpaired. In that case Ambiance and Buyer will agree on new provisions to replace the null and void or nullified provisions, in which process the objective and meaning of the original provision will be taken into consideration if and in so far as possible.
2.4 All offers from Ambiance are revocable unless a period of validity has been stated in the written offer, without prejudice to the provisions of Article 11. Orders, agreements and arrangements shall only be binding to Ambiance if and in so far as these have been confirmed in writing by Ambiance. If there is no written confirmation from Ambiance, an agreement will nevertheless be considered concluded under the conditions stipulated by Ambiance if Ambiance has already supplied. Terms of delivery are by approximation only, unless it has been agreed upon otherwise.
2.5 All images, drawings, information about weights, measures, colours etc. listed in the price lists, circulars and other information material are by approximation only.
3.1 Unless stated otherwise in price lists, offers or order confirmations, the prices stated by Ambiance are excluding order costs and/or transport costs, turnover tax or other levies that are due in connection with the execution of the agreement.
4. Risk and delivery
4.1 The goods will remain at risk of Ambiance until they have passed to the actual control of Buyer. Damage caused to goods in transit and/or shortage of delivery must be reported by Buyer to Ambiance in writing (email or fax) within 24 hours of the moment that Buyer was given the actual control over the goods, in default whereof the goods are considered to have reached Buyer in a good condition and quantity.
4.2 Other complaints about the wrongful execution of orders for which Ambiance is liable according to these terms and conditions must be notified to Ambiance in writing within eight days of the moment that Buyer was given the actual control over the goods. As soon as this term expires, Ambiance will no longer be liable for possible defects in the delivery. In the event that after investigation Ambiance finds a complaint justified, Ambiance will provide for repair, make the goods necessary for repair available or deliver missing goods at no charge, at Ambiance’s option.
4.3 If Buyer used a third party to take possession of the goods, the moment the actual control over the goods passes to Buyer is considered to be the moment the goods were made available to this third party.
5.1 Payment shall be made without any discount or settlement no later than ten days of the date of invoice, unless otherwise agreed upon. If payment is not received in time, Buyer is in default de jure. Without prejudice to her other rights, Ambiance is entitled to charge Buyer all costs for collection and protection of her rights as from the moment said term is exceeded, without notice of default, including the costs for lawyers as well as extra costs, incurred by Ambiance for, among others, administration, storage and legal advice. Also the statutory interest on the amount due will be charged. Where appropriate, Ambiance reserves the right to supply goods no sooner than when its payment has been received.
6.1 Ambiance reserves the ownership of all goods delivered or yet to be delivered to Buyer following any agreement until the purchase price and other costs related to this delivery for all these goods have been settled. If Ambiance carries out work within the framework of this agreement/these agreements that must be compensated by Buyer, the said retained ownership applies until Buyer has also completely settled these claims from Ambiance regarding the consideration herefor. The retained ownership also applies to those claims that Ambiance may have against Buyer for failing in the performance of such agreement(s). As long as the ownership of the delivered goods has not passed to Buyer, Buyer cannot process the goods, take the goods outside Ambiance’s actual control, alienate or pledge the goods or grant a third party any right thereto.
6.2 If Buyer does not fulfil its payment obligations to Ambiance or gives Ambiance good reasons to fear that Buyer will not fulfil its obligations, Buyer is obliged to return at her own expense to Ambiance the goods that are still the property of Ambiance. Following the return of the goods to Ambiance, Buyer will be credited for an amount equal to the actual purchase price for Buyer on the day of the return, however, for not more than the amount that was invoiced to Buyer at the time. Ambiance may deduct from the amount to be credited the decrease in value due to damage, ageing, missing packaging and costs. Subsequently, Buyer grants Ambiance or an authorized representative at all times access to the areas where the goods delivered subject to retention of title are kept.
7.1 Ambiance guarantees that the goods produced and delivered by her are made of sound materials and with good workmanship. However, should a defect occur in goods produced and delivered by Ambiance due to manufacturing or material defects, Ambiance will, at Ambiance’s option, repair these defects, have these defects repaired or make the parts necessary for repair available or have the entire good replaced. In so far as not agreed upon otherwise, this guarantee is valid for twelve months following delivery. Buyer may only invoke the guarantee if Buyer paid the purchase price of the product involved within the agreed term.
7.2 Subject to the provisions in Articles 8 and 9, no other obligation rests with Ambiance in this respect. Only if Ambiance does not (timely or adequately) fulfils her guarantee obligation even after a written demand to that effect, Buyer can dissolve said agreement for the inadequate part, however, without claiming compensation for the damage incurred by Buyer. In so far as the dissolution results in undoing obligations for Ambiance, these will only serve to refund the purchase price paid by Buyer for the goods excluding VAT and excluding other compensations paid by Buyer for the delivery.
7.3 Goods or parts thereof that are replaced following the provisions in this Article can be taken in possession by Ambiance without compensation other than described in Article 7.2 and these will then be Ambiance’s property. As a condition for the fulfilment of her guarantee obligation following this Article, Ambiance may require that Buyer sends the guaranteed article carriage paid to her or to an address provided by her or that Buyer issues an order for regular maintenance. Different guarantee obligations may apply to certain goods.
8. Rights of third parties
8.1 Ambiance guarantees that the products produced and delivered by her as such do not infringe intellectual property or other rights of third parties. However, in the event that Ambiance acknowledges or a Dutch court established in a legal action against Ambiance by means of a irrevocable decision that a product delivered by Ambiance does indeed infringes such right of a third party, Ambiance will, at Ambiance’s option and after consultation with Buyer, replace said product by a product that does not infringe that right or will acquire a right of use for the product.
8.2 In this respect, Ambiance does not have any other obligation than the obligation to replace or to acquire as stated in Article 8.1. Only when it has been established that replacement of the good or the acquisition of a right to use is not a reasonable option, or if Ambiance does not timely or appropriately fulfils the obligation, even after a written demand thereto, Buyer may dissolve said agreement for the said part, however, without claiming compensation for damage incurred by Buyer. In so far as the dissolution results in undoing obligations for Ambiance, these will only serve to refund the purchase price paid by Buyer for the goods minus the normal depreciation and excluding VAT and excluding other compensations paid by Buyer for the delivery. In case of dissolution Ambiance will take back the delivered goods.
8.3 In the event an order must be carried out based on designs, drawings or other instructions issued by Buyer, Buyer guarantees that this shall not be an infringement of intellectual proprietary or other rights of third parties. Buyer will indemnify Ambiance against claims of third parties who are of the opinion that rights accruing to the third party have been infringed and will compensate Ambiance for all damage incurred on first demand.
8.4 If a third party notifies Buyer of the fact that a product, produced by Ambiance, infringes the intellectual or industrial property or other rights of the third party, Buyer must inform Ambiance in writing about this complaint on penalty of cancellation of his rights as described in Articles 7, 8 and 9 of this Terms and Conditions and, if applicable, give Ambiance the opportunity to join as a party to the action or to intervene in a proceeding between the third party and Buyer.
9.1 Ambiance is not liable for damage suffered by Buyer as a result of any failure in the performance of an agreement by Ambiance, unless this damage is the result of intent or intentional recklessness on the part of Ambiance. Buyer will indemnify Ambiance against claims from third parties due to defects in the products of Ambiance, without prejudice to the provisions in Articles 9.2 and 9.3 and will compensate all damage suffered by Ambiance as a result of claims from third parties, on first demand.
9.2 Ambiance only accepts liability with respect to products that have been delivered to her by Buyer for damage as a result of death of physical injury suffered by (employees of) Buyer and for material damage to installations and property of Buyer if this damage is the direct result of a demonstrable defect as referred to in Article 6:186 CC. The extent of the liability is limited to a maximum of € 2,500,000.= per defect that resulted in damage. Buyer as referred to in Article 9.2 is also understood to mean the contracting party of Buyer, not being a final Buyer, who bought products from Buyer.
9.3 If Buyer is obliged to a third party to compensate due to a defect as referred to in Article 6:185 CC in a product produced by Ambiance, damage (i) as a result of death or physical injury or (ii) damage inflicted by the product to another object that is typically intended for private use or consumption and is mainly used by the injured party as such, Ambiance will compensate this damage to Buyer after application of the fixed sum as referred to in Article 6:190 section 1 under b CC.
9.4 If Buyer is held liable by a third party because of a defect as stated in Article 9.3, she will inform Ambiance hereof immediately en will give Ambiance the opportunity to join as a party to the action or to intervene in a proceeding between the third party and Buyer.
10. Ownership and use of offers and documentation, secrecy, intellectual property Ambiance
10.1 All offers, drawings, schemes, designs, material lists etc., issued by Ambiance as well as programs made available by her, remain her property. Without Ambiance’s permission, these cannot be copied in whole or in part other than as a file copy for internal use by Buyer and these cannot be shown, made available to, handed over to or made public in any way to third parties, nor can these be used by Buyer or made available other than for the purpose for which they were issued by Ambiance.
10.2 The agreement between Ambiance and Buyer does not include – unless explicitly stipulated otherwise in writing – a transfer of intellectual property rights to Buyer. In so far as required for the normal use of the products, Buyer will be granted a non-exclusive licence to use these rights. Buyer will – on penalty of a fine of € 100,000.= per violation – not decompile or use the software present in products supplied by Ambiance for other purposes and she will keep all that she learns about the operation of the products of Ambiance – in so far as protected by intellectual property rights – a secret and not use this for the production of other products.
11. Price adjustments
11.1 Ambiance reserves the right at all times to change the prices without prior notification. In that case Buyer has the right to cancel any order already given and if not already delivered within eight days of the announcement of these adjustments, except when these adjustments are beneficial to Buyer. In the event that any governmental measure results in cost-price-increasing taxes, levies or import duties, Ambiance has the right to pass on these adjustments, even if it has been agreed that the price is fixed, while this cannot lead to a cancellation of orders given by Buyer.
12. Suspension, dissolution and termination
12.1 Ambiance has the right to suspend the fulfilment of the obligations or to immediately dissolve the agreement if:(a) Buyer (partly) fails in the performance of the obligations of the agreement with Ambiance;(b) after entering into the agreement circumstances were brought to the attention of Ambiance that give good reason to fear that Buyer will not fulfil its obligations of the agreement; there are good reasons to fear that Buyer will only partly or not duly fulfil its obligations, then the suspension is only allowed in so far as justified by the shortcoming;(c) Buyer was requested while entering into the agreement to furnish security for the fulfilment of its obligations of the agreement and this security is not given or is insufficient;(d) circumstances arise that are of such nature that performance of the agreement is impossible or, according to criteria of reasonableness and fairness, cannot be required anymore, or if other circumstances arise that are of such nature that unaltered maintenance of the agreement cannot reasonably be expected;(e) it appears that there is a (petition for) (a provisional) suspension of payment, a (filing of) bankruptcy, a halt or dissolution of Buyer.
12.2 If Ambiance dissolves the agreement, Buyer is obliged to compensate the damage suffered by Ambiance as a result of the termination of the agreement. Ambiance is not obliged to refund the amounts paid by Buyer to Ambiance.
12.3 In the event of a bankruptcy or a suspension of payment of Buyer, any claims of Ambiance are immediately due and payable for the whole by operation of law.
12.4 If Ambiance suspends the fulfilment of the obligations, it retains her claims arising from the law and the agreement.
13. Article 14: Applicable law and forum agreed upon
13.1 These general terms and conditions and the agreements to which these apply, shall be governed by Dutch law. In the first instance, disputes will be brought before the Den Bosch Court, in so far as the imperative rules of competence and jurisdiction do not appoint another court.
14. Article 15: Final stipulation
14.1 The UN Convention on Contracts for the International Sale of Goods, negotiated in Vienna on 11 April 1980 shall not apply.