Terms and conditions
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GENERAL TERMS AND CONDITIONS SPRAYBEST EUROPE B.V.
ARTICLE 1: GENERAL
1.1 In these general terms and conditions, the following definitions shall apply:
Spraybest: The private company with limited liability Spraybest Europe B.V., established at Zwanenburgerdijk 335, 1161 NN Zwanenburg, and registered in the Trade Register of the Chamber of Commerce (KvK) under number 34067307. Spraybest can be reached via telephone number +31 (0)20 497 67 80 or via email info@spraybest.nl. For general information, Spraybest refers to its website.
Customer: A natural person acting in the exercise of a profession or business, or legal entity to whom Spraybest has submitted a Quotation and/or with whom Spraybest enters into an Agreement regarding the delivery of goods and/or services.
Services: Any work to be performed by Spraybest, including but not limited to the design, maintenance and installation of goods;
Goods: The products offered by Spraybest. These are offered both for sale and for rent by Spraybest;
Defect: Deviations in an item already present before delivery as a result of which the item does not or no longer complies with the Agreement, such as deficiencies or faults resulting from manufacturing and/or material faults or the absence of the (agreed) specific, essential requirements and/or features. A Defect shall expressly not include deficiencies or faults that occur after delivery, including but not limited to damage caused by dropping, deficiencies and faults caused by improper use or storage, inexpert or insufficient maintenance or normal wear and tear. A Defect is furthermore not understood to mean: damage caused during or by transport.
Quotation: A non-binding offer made by Spraybest in writing and/or on their website.
Agreement: The written Agreement concluded between Spraybest and the Customer regarding the delivery or rental of goods and/or services to which these general terms and conditions apply.
Price/Price: The price agreed by the Parties in the Agreement.
ARTICLE 2: APPLICABILITY
2.1 These general terms and conditions shall apply to all Quotations, Agreements and deliveries of goods and/or services by Spraybest.
2.2 The applicability of the Customer's general terms and conditions is expressly excluded.
2.3 Clauses that deviate from or supplement these general terms and conditions shall only be binding if agreed in writing and shall only apply on a case-by-case basis.
2.4 Any failure of Spraybest to require strict compliance with these general terms and conditions in any case shall not imply that these general terms and conditions do not apply or that Spraybest loses the right to require strict compliance with these general terms and conditions in future cases, whether similar or not.
2.5 Any Customer with whom Spraybest has contracted using these general terms and conditions on one occasion agrees to the applicability of these general terms and conditions to subsequent Quotations, Agreements and deliveries of goods and/or services between them and Spraybest.
2.6 The possible nullity or voidability of a clause in these general terms and conditions shall not affect the validity of the remaining clauses. In that case, the void or nullified clause shall be replaced by a valid clause that corresponds as closely as possible to the purpose and purport of the void or nullified clause.
ARTICLE 3: QUOTATIONS
3.1 All Quotations, stock lists and price lists are entirely without obligation and shall not bind Spraybest in any way, unless expressly and unambiguously stipulated otherwise in the Quotation.
3.2 A Quotation issued by Spraybest shall remain valid for the period stated in the Quotation, failing which a period of 30 (thirty) days from the date of the Quotation shall apply.
3.3 Every Quotation is revocable, even if a deadline for acceptance has been set.
3.4 Any details provided by Spraybest only serve as examples from which no rights can be derived. Statements by Spraybest regarding weights, colours, dimensions, performance, properties, capacity, technical data, etc. are deemed to be approximate and are non-binding. Such statements and indications shall only bind Spraybest when expressly agreed. Illustrations, descriptions, photographs, etc. and information mentioned on the Spraybest website, in any form whatsoever, shall not bind Spraybest.
ARTICLE 4: AGREEMENT AND CANCELLATION
4.1 An Agreement shall only be established when Spraybest receives a Quotation signed in time by the Customer and Spraybest confirms it in writing.
4.2 Spraybest's order confirmation shall be deemed to fully and correctly reflect the content of the concluded Agreement.
4.3 Any additional agreements or amendments made after the conclusion of the Agreement shall only bind Spraybest if they have confirmed them in writing.
4.4 Spraybest shall be entitled to engage third parties for the execution of the Agreement.
4.5 Oral promises by and agreements with employees of Spraybest shall only bind Spraybest if they have confirmed them in writing.
4.6 For goods or services for which by their scope or nature no Agreement has been drawn up, the delivery note and/or the invoice shall be considered to constitute the Agreement.
4.7 The Customer shall be entitled to cancel the Agreement before Spraybest has started its execution provided that the Customer compensates the damage incurred by Spraybest. The amount payable for the damage by the Customer shall be at least 25% of the agreed Price. Spraybest shall be entitled to set off the deposit (if any) made by the Customer against the amount of the damage.
ARTICLE 5: PRICES
5.1 Unless expressly agreed otherwise in writing, all prices quoted by Spraybest are exclusive of sales tax (VAT), import duties, transport costs, packaging, insurance and other levies imposed by the government.
5.2 In the case of multi-part Quotations/Agreements, there shall be no obligation to deliver part of the total performance corresponding to the amount specified for this part in the Quotation/Agreement or for a prorated part of the Price specified for the whole.
5.3 Spraybest shall at all times, without prior notice and even after an Agreement has been concluded, be entitled to change the prices of the services and/or goods with immediate effect. The above applies in any case when prices and/or rates increase, for whatever reason, due to price-determining factors such as currency differences, transport costs or insurance rates;
5.4 In the event that, after the date of the Agreement, an import tax, import duty increase or similar trade barrier is introduced or increased, which has a substantial impact on the cost of the goods and/or services, Spraybest shall be entitled to adjust the contract price accordingly;
5.5 An increase shall be deemed substantial if it exceeds 5% of the total cost of the relevant goods and/or services at the time of signing the Agreement;
5.6 Spraybest shall notify the Customer in writing within ten (10) working days of Spraybest becoming aware of such a change, including documented evidence of the increase in the charge and its financial impact;
5.7 Following such notification, both parties shall enter into negotiations in good faith to agree on a price adjustment or cost-sharing mechanism. If no agreement can be reached within five (5) working days, Spraybest may suspend the performance of the relevant obligations until a solution is found;
5.8 If no agreement is reached within the five-day negotiation period, Spraybest may terminate the relevant part of the Agreement without liability, except for obligations incurred up to the date of termination.
ARTICLE 6: PAYMENT AND SECURITY
6.1 Payment of an invoice issued by Spraybest must be made within 30 (thirty) days of the invoice date, unless otherwise agreed in writing. Fourteen (14) days after the date of issue, the Customer shall be deemed to have accepted an invoice as correct, provided the Customer has not complained or complained without substantiation. Payment shall be made by transferring the invoice amount to Spraybest's bank account as specified on the invoice and in the currency specified in the Agreement. Any exchange rate risk shall be borne by the Customer.
6.2 The Customer shall not be entitled to set off invoices of Spraybest, nor shall the Customer be entitled to suspend their (payment) obligations.
6.3 If the Customer fails to pay within the set payment term, they shall be in default by operation of law without notice of default being required. The Customer shall then owe interest set at 3% per month, or equal to the statutory (commercial) interest rate, whichever is the higher. When calculating the interest, a part of the month shall count as a full month. In addition, the Customer shall be obliged to fully reimburse the extrajudicial and judicial collection costs, including the costs for lawyers, bailiffs and/or collection agencies, at a minimum of 15% of the outstanding invoices.
6.4 The Customer shall be obliged at all times and regardless of the agreed payment terms, to provide security at Spraybest's first request for the payment of the amounts to be paid to Spraybest under the Agreement. The security offered must be such that Spraybest's claim with any accompanying interest and costs is properly covered and that Spraybest will be able to recover it without difficulty. Any security that subsequently becomes insufficient will have to be supplemented to amount to sufficient security at Spraybest's first request. If the Customer does not comply with the provisions of this paragraph within the stipulated period, the Customer shall immediately be in default. Spraybest shall in that case have the right to terminate the Agreement. In that case, the Customer shall automatically owe Spraybest a penalty of 50% of the agreed Price, which is not subject to mitigation, irrespective of Spraybest's right to recover their damages in full from the Customer and to offset any down payment already paid.
ARTICLE 7: DELIVERY
7.1 Delivery shall be made in the manner specified in the Quotation and/or the Agreement.
7.2 The Customer is obliged to take delivery of the goods at the agreed time. Costs incurred due to refusal to take delivery or failure to take delivery on time, including costs of storage (and transhipment), shall be borne by the Customer.
7.3 The Customer is obliged to cooperate fully with the delivery. The Customer will also be in default without further notification if they fail to collect the deliverables from Spraybest after Spraybest's first request or, if delivery to their or another address has been agreed, the Customer refuses to take delivery of the deliverables.
7.4 If the Customer remains in default of accepting an item even after a notice of default from Spraybest, Spraybest is entitled to charge the resulting costs to the Customer, without prejudice to Spraybest's right to terminate the Agreement.
7.5 In case of delivery at their or any other address specified by the Customer, the Customer guarantees that the specified location is suitable for the delivery of the goods.
7.6 If, at the request of the Customer, Spraybest's employees or materials are used when loading or unloading the goods, this shall be done entirely at the Customer's risk.
7.7 If transport of the goods to be delivered has been agreed, this shall be done at the Customer's expense, unless carriage-paid delivery has been agreed. Spraybest is free in their choice of loading, means of transport and forwarder/carrier, unless agreed otherwise in writing.
7.8 The goods shall be for the account and risk of the Customer from the moment of delivery without any prejudice to Spray best’s retention of title.
7.9 If the Parties agree on an expedited delivery, Spraybest shall be able to charge the Customer for the extra costs incurred for this in addition to the regular transport costs.
ARTICLE 8: DELIVERY TIME
8.1 Unless stipulated in writing to be a deadline, any time of delivery announced by Spraybest shall only be an approximate indication and can therefore never be regarded as a deadline. Spraybest shall only be in default after the Customer has issued a notice of default and delivery is not made within a reasonable period after the notice of default. This also applies to any agreed deadline.
8.2 The delivery time is based on the facts known at the time of entering into the Agreement and on timely delivery of any items required for the performance of the Agreement by third parties.
8.3 If delays occur through no fault of Spraybest, the delivery time shall be extended as necessary. Without prejudice to the foregoing, the delivery time shall be extended by the duration of a delay that arises on the part of Spraybest due to the non-fulfilment by the Customer of any obligation arising from the Agreement.
8.4 The delivery time shall also be extended if additional work is required, in which case the delivery time shall be extended by the time required to carry out the additional work or if the Agreement is amended subsequently by written consensus between the Parties.
8.5 In the execution of the Agreement by Spraybest, the Customer is obliged to do everything that is reasonably necessary or desirable to enable timely delivery by Spraybest. Failure to comply with this obligation means that an agreed deadline for delivery shall be no longer binding and the Customer shall be in default without the need for a written notice of default by Spraybest. Spraybest is then, without prejudice to their rights under the law, entitled to suspend the performance of the Agreement until the Customer has remedied this default. Following that, Spraybest will still perform the Agreement within a reasonable period of time.
8.6 Regardless of whether there is a fatal or indicative deadline, exceeding the delivery time shall not entitle the Customer to any damages, suspension of their obligations under the Agreement, set-off or deduction, unless expressly agreed otherwise in writing.
8.7 Exceeding the delivery time shall not entitle the Customer to terminate the Agreement in whole or in part, unless this delay exceeds 20 weeks plus the extension. If the latter is exceeded, the Customer may terminate the Agreement by written notice to Spraybest and shall then only and exclusively be entitled to a refund of the part of the Price already paid by them.
ARTICLE 9: OBLIGATION TO INVESTIGATE AND COMPLAIN
9.1 At the time of acceptance, the Customer shall inspect the goods for externally visible Defects and sign the delivery note/transport document to confirm good receipt. The Customer shall note any Defects (and/or damage) on the relevant document. The goods shall be deemed to have been delivered in good condition and in accordance with the Agreement, unless and to the extent that the aforementioned documents state otherwise.
9.2 Complaints relating to outwardly observable Defects to the goods that have been discovered or could reasonably have been discovered during the inspection referred to in paragraph 1 must be reported and clearly specified by the Customer to Spraybest in writing and notified by email within three (3) working days after delivery.
9.3 Defects that were not discovered at the time of the aforementioned inspection and could not have been discovered at this time must be notified by the Customer to Spraybest, in the same manner as provided for in the previous paragraph, within three (3) working days after the date of their discovery or the date on which they should have been discovered .
9.4 Any right of claim of the Customer vis-à-vis Spraybest relating to Defects in the goods delivered by Spraybest shall expire if the Defects have not been made known to Spraybest within the periods specified above in Clauses 9.2 and 9.3 and/or in the manner indicated there. Any right of claim of the Customer vis-à-vis Spraybest relating to Defects in the goods delivered by Spraybest shall also expire if:
a. the Customer does not cooperate and/or cooperates only insufficiently with Spraybest regarding an investigation into the merits of the complaints;
b. the Customer has not properly set up, handled, used, stored, or maintained the goods or if they have used or handled the goods under conditions that are unsuitable for the goods;
c. the Customer has carried out/performed repairs and/or modifications to the goods without the prior express consent of Spraybest;
d. the item or items are put into use by the Customer after the discovery of the Defects referred to in Article 9.2.
9.5 Spraybest’s performance shall in any case be deemed as proper by the Parties if the Customer has taken into use, treated or processed the delivered or a part of the delivered Goods, delivered them to third parties, or has had them taken into use, or has treated or processed or delivered them to third parties respectively, subject to any complaints asserted by the Customer in accordance with the provisions of Articles 9.2, 9.3 and 9.4(d).
9.6 Spraybest's performance shall also be considered proper if there are insignificant Defects, deficiencies or deviations to the delivered goods that do not prevent the proper functioning and normal use of the delivered goods.
9.7 If Spraybest sells used goods, they are sold and delivered on an 'as-is' basis in the condition in which they are, with or without evident and hidden Defects, unless otherwise agreed in writing. The Customer accepts 'as-is' basis as the contractual basis for the purchase and accepts that Spraybest does not provide any warranty for such goods. The Customer shall have the right to inspect the goods prior to purchase and delivery.
ARTICLE 10: WARRANTY
10.1 Spraybest provides warranty on the goods they deliver if this is included in the Agreement.
10.2 Unless otherwise stipulated in the Agreement, Spraybest shall provide a guarantee for a period of 12 (twelve) months on the good quality and functioning of the Goods they deliver, starting on the date of delivery.
10.3 Spraybest shall not be bound to any warranty obligation if the Customer has not complied with their own (payment) obligations under the Agreement in full, properly or in time at the time they invoke a warranty obligation vis-à-vis Spraybest.
10.4 Furthermore, the following shall apply:
a. If any Defects become apparent in new goods sold and delivered by Spraybest during the agreed warranty period, the Customer may require Spraybest to repair it and, if repair is not possible, to provide a replacement item or part, in the latter case, against simultaneous return of the defective item(s) or parts. The Customer may only return goods with the written consent of Spraybest.
b. The Customer may only request replacement after Spraybest has been offered a reasonable period to rectify the Defects and rectification appears to be possible. Replacement cannot be claimed if the deviation is too insignificant to justify replacement.
c. The warranty/repair work mentioned under sub b. shall be performed by Spraybest free of charge on the understanding that the transport costs and any travel and accommodation expenses incurred in connection with the performance of the warranty/repair work shall (may) be charged to the Customer by Spraybest if the work is to be performed outside Spraybest's premises. Spraybest is entitled to have warranty/repair work performed by a third party;
10.5 The Customer cannot invoke the warranty provision in case of improper use of the goods such as abnormal, rough, injudicious or incorrect use, or in case of wear and tear, corrosion, melting, neglect, failure to comply with instructions in the user manual or if the Customer themself makes changes or repairs to the goods or causes them to be made.
10.6 The Customer’s right to terminate the Agreement on any grounds whatsoever is expressly excluded.
ARTICLE 11: RENTAL OF GOODS
11 If Spraybest rents out one or more goods, such rental will take place by signing a rental agreement to which these general terms and conditions will apply.
11.1 The goods for rent will be provided by Spraybest in good condition. The renter is entitled to inspect the goods or have them inspected before taking them into use. If the renter does not make use of this possibility, the items are deemed to have been made available in good condition.
11.2 The renter shall insure the goods for the benefit of Spraybest against loss or damage, unless otherwise agreed in writing.
11.3 The goods remain the property of Spraybest at all times. If the renter fails to comply with the rental agreement or the stipulations in these general terms and conditions, Spraybest has the right to terminate the rental agreement prematurely, take possession of the items and to proceed to recovery of the rent for the entire agreed rental period.
11.4 The renter may only exceed the agreed rental period if Spraybest has consented thereto in writing. After the expiry of the rental term, the renter shall owe Spraybest a daily compensation in accordance with the agreed daily price for a minimum of one week.
11.5 The renter shall not be entitled to transfer the rights under the rental agreement to third parties unless Spraybest has consented thereto in writing.
11.6 In the event of any loss, disappearance, damage or any defect of the goods, the lessee shall immediately and in the quickest way possible inform Spraybest, while the renter shall remain liable.
11.7 At the end of the rental agreement, the renter is obliged to return the rental goods to Spraybest in an undamaged and cleaned condition. Spraybest will inspect the goods within fourteen days of their return. After the inspection, Spraybest will inform the renter in writing of any defects or damage. The renter shall remain liable for any defects or damage. Spraybest’s assessment during the inspection shall be binding.
ARTICLE 12: FORCE MAJEURE
12.1 If Spraybest is prevented in their performance of the Agreement due to force majeure, Spraybest shall be entitled without judicial intervention to suspend the performance of the Agreement or to terminate the Agreement in whole or in part, without Spraybest being obliged to pay any damages to the Customer.
12.2 Force majeure means any circumstance independent of the will of Spraybest, as a result of which the fulfilment of their obligations vis-à-vis the Customer is prevented in whole or in part or as a result of which the fulfilment of their obligations cannot reasonably be required of Spraybest, regardless of whether that circumstance could have been foreseen at the time of the conclusion of the Agreement.
12.3 Force majeure shall in any case include: War, threat of war, pandemics and epidemics, mobilisation, riots, floods, storm damage, transport congestion, stagnation in, respectively restriction or discontinuation of deliveries by public utility companies, fire, breakdown of machinery and other accidents, strikes, lockouts, import and export bans, actions of employee organisations that make production impossible, government measures, non-delivery of necessary materials and semi-finished products to Spraybest by third parties and other unforeseen circumstances, also in the country of origin of the materials and/or semi-finished products, which disrupt the normal course of business and delay the execution of an order or make it reasonably impossible.
ARTICLE 13: SUSPENSION AND TERMINATION
13.1 If the Customer fails in any way in the fulfilment of any obligation under the Agreement, as well as in the event of an application for a suspension of payments, a suspension of payments granted, a bankruptcy application, filing or claim, bankruptcy, liquidation of the Customer or a strike at the Customer’s premises, Spraybest shall be authorised without notice of default or judicial intervention and without prejudice to their due rights or damages:
a. to suspend all or part of the execution of the Agreement until payment of all outstanding amounts owed by the Customer to Spraybest have been sufficiently secured;
b. to suspend all or part of their own possible obligations or payment obligations;
c. to terminate any Agreement with the Customer in whole or in part;
d. all the foregoing is without prejudice to Spraybest's ability to claim damages and assert any other rights.
ARTICLE 14: LIABILITY
14.1 Spraybest's liability is limited to fulfilment of the warranty obligations stipulated in Article 10;
14.2 Spraybest shall not be liable for damage caused by directions, instructions, material or construction choices or preferences of the Customer.
14.3 Any liability of Spraybest is limited to the amount paid out under their (professional or business) liability insurance, including the applicable excess.
14.4 Spraybest shall not be liable for consequential damages. This includes loss of business, reputation damage, loss of data, profit and revenue. Spraybest shall also not be liable for any damage caused by delays in delivery, except in the event that the delay in delivery is due to intent or gross negligence of Spraybest.
14.5 The Customer shall indemnify or compensate Spraybest in respect of all third-party claims for compensation of any damage.
ARTICLE 15: TRANSFER OF OWNERSHIP, RETENTION AND LIEN
15.1 From the moment the goods are delivered, the Customer shall bear the risk for all direct and indirect damage that may be caused to or by the goods, unless the damage is attributable to intent or wilful recklessness on the part of Spraybest.
15.2 Without prejudice to the provisions in the previous paragraph, all goods delivered and to be delivered remain the sole property of Spraybest until all present and future claims of Spraybest against the Customer, including the claims as mentioned in Article 3:92(2) of the Dutch Civil Code, have been paid in full.
15.3 In the event that Spraybest can no longer invoke the retention of title because the goods have been mixed, deformed, copied or the like, the Customer is obliged at Spraybest's first request to pledge the newly formed item(s) to Spraybest or otherwise provide security regarding the fulfilment of their obligations under the Agreement.
15.4 As long as the ownership of the goods has not passed to the Customer, the Customer may not pledge the goods or grant third parties any right thereto, except in the normal course of business. The Customer undertakes to cooperate on first request to establish a pledge on the claims that the Customer obtains or will obtain vis-à-vis their customers or buyers by virtue of the resale of goods.
15.5 In case of bankruptcy, suspension of payment or attachment, the Customer is obliged to inform the curator, administrator or attaching party about Spraybest's retention of title to the goods to the curator, the administrator or the attaching party.
15.6 Spraybest is entitled to take back the goods delivered under retention of title and still present at the Customer’s premises if the Customer fails to fulfil their obligations under the Agreement, including their payment obligations, or if the Customer is in current or imminent payment difficulties. After Spraybest has invoked the retention of title, the Customer is obliged to give Spraybest access to the goods so that the goods can be repossessed by Spraybest.
15.7 Spraybest shall not be liable for any damage on the part of the Customer or third parties due to the exercise of the retention of title. The Customer shall indemnify Spraybest for claims of third parties who claim to have suffered damage as a result of the exercise of the retention of title.
ARTICLE 16: INTELLECTUAL PROPERTY
16.1 Unless otherwise agreed in writing, Spraybest is and remains entitled to all intellectual property rights that rest on, arise from, are related to and/or belong to the drawings and items delivered or manufactured by them as part of the Agreement. The exercise of these rights, both during and after the Agreement, is expressly and exclusively reserved to Spraybest. This means, inter alia, that the Customer may not imitate, modify, reproduce, provide to third parties or use for other purposes the drawings, models and items or parts thereof made and/or manufactured by Spraybest.
16.2 The Customer guarantees that the information and documents provided by them to Spraybest do not infringe the copyright or any other intellectual property right of third parties. The Customer is liable for any damages suffered by Spraybest as a result of such infringements and shall indemnify Spraybest for such claims.
ARTICLE 17: PRIVACY
17.1 Spraybest guarantees the privacy of the Customer and third parties. Spraybest has a privacy policy and will only process personal data in accordance with the applicable privacy legislation, including the General Data Protection Regulation (GDPR). The privacy policy is available on the Spraybest website and can be accessed and consulted by anyone. The Customer is familiar with and agrees to Spraybest's privacy policy.
ARTICLE 18: APPLICABLE LAW AND COMPETENT COURT
18.1 All Agreements and legal relationships between Spraybest and the Customer shall be governed exclusively by Dutch law.
18.2 The applicability of the Vienna Convention on the International Sale of Goods is excluded.
18.3 All disputes that might arise from or relate to any Agreement or legal relationship between Spraybest and the Customer shall be settled by the competent court in the district where Spraybest has their seat of business.
