Article 1: Definitions

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.

Article 2: Applicability

These terms and conditions shall apply to every offer and agreement between Ambiance and Buyer, in so far as not provided otherwise by parties, explicitly and in writing.

These terms and conditions shall also apply to agreements with Ambiance for the execution of which third parties need to be involved.

The general terms and conditions of the Buyer shall only apply in the event it has been agreed explicitly and in writing that those terms and conditions shall apply to the agreement with the exception of these general terms and conditions. In that case possible contradictory stipulations in the general terms and conditions of Ambiance and the Buyer shall only apply if and in so far as these form part of the general terms and conditions of Ambiance.

In the event one or more stipulations in these general terms and conditions are declared null and void or will be nullified, the remaining stipulations of these general terms and conditions remain unimpaired. Ambiance and Buyer will then consult in order to agree on new stipulations to replace the null and void or nullified stipulations, in which process the objective and meaning of the original stipulation will be taken into consideration if and in so far as possible.

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. Terms of delivery are by approximation only, unless it has been agreed upon otherwise.

Article 3: Prices

Unless stated otherwise in price lists, offers or order confirmations, the prices stated by Ambiance are excluding turnover tax or other levies that are due in connection with the execution of the agreement. These prices are for delivery free domicile albeit that order and/or transport costs will be charged for orders under an amount to be specified.

Article 4: Risk and delivery

The goods shall remain at the risk of Ambiance until they are passed to the actual control of the Buyer or of a third party, called in by the Buyer. Transport damage and/or defects must be reported to Ambiance immediately upon receipt by the Buyer, in default of which the goods are considered to have been received by Buyer in good condition and in correct numbers. Other complaints about the wrong execution of orders should be lodged in writing to Ambiance within eight days of receipt of the goods. After expiration of this term Ambiance is no longer obliged to handle the complaint. In the event that after investigation Ambiance finds a complaint justified, Ambiance will provide for repair, make the good necessary for repair available or deliver missing goods at no charge, at Ambiance’s option.

Article 5: Payment

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, the 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.

Article 6: Ownership

Ambiance reserves the ownership of all goods delivered or yet to be delivered to Buyer following any agreement until all claims regarding the consideration 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 hereof. The retained ownership also applies to those claims that Ambiance may have against Buyer for failing in the fulfilment 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. 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 their 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.

Article 7: Guarantee

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. Subject to the provisions in Article 8 regarding damages, no other obligation rests with Ambiance in this respect. Only if Ambiance does not (timely or adequately) fulfils her guarantee obligation even after a demand to that effect, Buyer can dissolve said agreement for the inadequate part, however, without claiming compensation for dissolution damage. Goods or parts thereof that are replaced following the provisions in this Article can be taken in possession by Ambiance without compensation and these are thus 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. Buyer may only invoke the guarantee after paying the purchase price of the product involved.

Article 8: Rights of third parties

1. Ambiance guarantees that the products produced and delivered by her as such do not infringe intellectual or industrial proprietary rights 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 the Buyer, replace said product by a product that does not infringe that right or acquires a right of use for the product.
2. In this respect, Ambiance does not have any other obligation than the obligation to replace or to acquire as stated in the previous paragraph. 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) fulfils the obligation, even after a written demand thereto, Buyer may dissolve said agreement for the inadequate part, however, without claiming compensation for dissolution damage. In the latter case, Ambiance will take back the relevant good and pay back the price paid for the product, minus the normal depreciation.
3. In the event an order must be carried out based on designs, drawings or other instructions issued by the Buyer, the Buyer guarantees that this shall not be an infringement of intellectual proprietary or other rights of third parties.

Article 9: Liability

1. Ambiance assumes no liability for physical injury and for material damage to installations and properties of Buyer, unless this injury or damage is the direct result of a demonstrable defect in the goods produced and delivered by Ambiance and only if these do not offer the safety that may reasonably be expected, taking all circumstances into consideration.
2. Compensation paid to third parties by Buyer for damage that was caused in the manner as described under 1 shall only be compensated by Ambiance to Buyer if and in so far as Buyer is legally obliged to pay this compensation to the third party. Payment of compensation to third parties by Buyer for any damage as stated in the previous sentence requires the prior permission of Ambiance.
3. Ambiance assumes no liability for damage as described before under 1. and 2. that exceeds a total amount of € 2,500,000.-- per incident.
Ambiance will not be liable for any direct or indirect damage for which Ambiance did not explicitly accept liability in these terms and conditions. Buyer indemnifies Ambiance in this matter against all claims from third parties.

Article 10: Property and use of offers and documentation

All images, drawings, information about weights, measures, colours etc. listed in the price lists and circulars are by approximation only. 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.

Article 11: Price adjustments

Ambiance reserves the right at all times to change the prices without prior notification. In that case the Buyer has the right to cancel any order already given 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 the Buyer.

Article 12: Suspension, dissolution and termination

1. Ambiance has the right to suspend the fulfilment of the obligations or to dissolve the agreement if:
- the Buyer (partly) fails in the performance of obligations of the agreement with Ambiance;
- after entering into the agreement circumstances were brought to the attention of Ambiance that give good reason to fear that the Buyer will not fulfil its obligations of the agreement. In the event there are good reasons to fear that the Buyer will only partly or not duly fulfil its obligations, the suspension is only allowed in so far as justified by the shortcoming;
- the 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.
2. Furthermore, Ambiance has the right to dissolve the agreement if circumstances arise that are of such nature that fulfilment of the obligations 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.
3. The agreement is considered dissolved if (a petition for) (provisional) suspension of payment, (a petition for) liquidation, a stop or dissolution of the Buyer has become manifest.
If the agreement is dissolved, the claims of Ambiance on the client become immediately due and payable.
4. If Ambiance suspends the fulfilment of the obligations, it retains her claims arising from the law and the agreement.
5. Ambiance always has the right to claim damages.

Article 13: Deviant stipulations

Deviations from these general terms and conditions and/or from conditions in price lists, catalogues, circulars and such from Ambiance shall only apply if these have been confirmed by Ambiance in writing. The applicability of a referral to general (purchase) conditions from Buyer is explicitly dismissed by Ambiance.

Article 14: Applicable law and forum agreed upon

These general terms and conditions and the agreements to which these apply, shall be governed by Dutch law. With respect to disputes, the competent court in The Netherlands has exclusive jurisdiction.

Article 15: Final stipulation

The UN Convention on Contracts for the International Sale of Goods, negotiated in Vienna on 11 April 1980 shall not apply.