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Terms and Conditions of Trade

1.     Definitions

1.1    Eversys shall mean Eversys SA its subsidiaries and assign or any person acting on behalf of and with the authority of Eversys SA.

1.2    Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by Eversys to the Client.

1.3    “Guarantor” shall mean that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.

1.4    “Equipment” shall mean all Equipment supplied by Eversys to the Client and is as described on any form(s) provided by Eversys to the Client (and where the context so permits shall include any supply of Services as hereinafter defined).

1.5    “Goods” shall mean Goods supplied by Eversys to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and includes Goods described on any invoices, quotation, work authorisation or any other forms as provided by Eversys to the Client.

1.6    “Coffee Machines” shall mean all finished products supplied by Eversys to the Client.

1.7    “Services” shall mean all services supplied by Eversys to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).

1.8    “Price” shall mean the price payable for the Goods as agreed between Eversys and the Client in accordance with clause 3 of this document.

 

2.     Acceptance

2.1    Any instructions received by Eversys from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by Eversys shall constitute acceptance of the terms and conditions contained herein.

2.2    Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.

2.3    Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of Eversys.

2.4    The Client shall give Eversys not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by Eversys as a result of the Client’s failure to comply with this clause.

 

3.     Price And Payment

3.1    At Eversys’ sole discretion the Price shall be either:

(a) as indicated on invoices provided by Eversys to the Client in respect of Goods supplied; or

(b) Eversys’ current Price at the date of delivery of the Goods according to Eversys’ current Price list; or

(c) Eversys’ quoted Price (subject to clause 3.2) which shall be binding upon Eversys provided that the Client shall accept Eversys’ quotation in writing within thirty (30) days.

3.2    Eversys reserves the right to change the Price in the event of a variation to Eversys’ quotation.

3.3    At Eversys’ sole discretion a deposit may be required.

3.4    At Eversys’ sole discretion:

(a) payment shall be due on delivery of the Goods; or

(b) payment for approved Client’s shall be due twenty (20) days following the end of the month in which a statement is posted to the Client’s address or address for notices.

3.5    Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If an invoice remained unpaid after expiry of the term specified in article 3.4, the Client shall be in default and the payment qualified as overdue seven (7) days following the expiration of such term, without any further notice.

3.6    Payment will be made in cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Client and Eversys.

3.7    VAT and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.

 

4.     Delivery Of Goods

4.1    At Eversys’ sole discretion delivery of the Goods shall take place when:

(a) the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are delivered by Eversys or Eversys’ nominated carrier); or

(b) the Client’s nominated carrier takes possession of the Goods even if the nominated carrier is arranged by Eversys, in which event the carrier shall be deemed to be the Client’s agent.

4.2    At Eversys’ sole discretion the costs of delivery are:

(a) in addition to the Price; or

(b) for the Client’s account.

4.3    The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Eversys shall be entitled to charge a reasonable fee for redelivery.

4.4    Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.

4.5    Eversys may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.

4.6    The Client shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that:

(a) such discrepancy in quantity shall not exceed 5%; and

(b) the Price shall be adjusted pro rata to the discrepancy.

4.7    The failure by Eversys to deliver shall not entitle either party to treat this contract as repudiated.

4.8    Eversys shall not be liable for any loss or damage whatever due to failure by Eversys to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Eversys.

4.9    For any discrepancy between order and delivery (wrong parts, difference in quantity) the customer has to inform Eversys in writing within five (5) working days from receipt of Goods. Claims after this delay will not be accepted.

 

5.     Risk

5.1    If Eversys retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client immediately once Goods leave Eversys’ premises irrespective of whose transport is used for delivery.

5.2    If any of the Goods are damaged or destroyed following or during delivery but prior to ownership passing to the Client, Eversys is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Eversys is sufficient evidence of Eversys’ rights to receive the insurance proceeds without the need for any person dealing with Eversys to make further enquiries.

 

6.     Loan/Test/Prototype Equipment

6.1    The Equipment shall at all times remain the property of Eversys and is returnable on demand by Eversys. In the event that the Equipment is not returned to Eversys in the condition in which it was delivered Eversys retains the right to charge the Price of repair or replacement of the Equipment.

6.2    The Client shall:

(a)  keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment nor be entitled to lien over the Equipment.

(b)  not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate, or number on or in the Equipment or in any other manner interfere with the Equipment.

(c)  keep the Equipment, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule as advised by Eversys to the Client.

6.3    The Client accepts full responsibility for the safekeeping of the Equipment and the Client agrees to insure, or self-insure, Eversys’ interest in the Equipment and agrees to indemnify Eversys against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property or persons arising out of the use of the Equipment. Furthermore, the Client will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.

 

7.     Ownership of the Goods

7.1    Eversys and Client agree that ownership of the Goods shall not pass until:

(a) the Client has paid Eversys all amounts owing for the particular Goods; and

(b) the Client has met all other obligations due by the Client to Eversys in respect of all contracts between Eversys and the Client.

7.2    Receipt by Eversys of any form of payment other than cash, or cheque, or bank cheque, or direct credit, shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then Eversys’ ownership or rights in respect of the Goods shall continue.

7.3    It is further agreed that:

(a) where practicable the Goods shall be kept separate and identifiable until Eversys shall have received payment and all other obligations of the Client are met; and

(b) until such time as ownership of the Goods shall pass from Eversys to the Client Eversys may give notice in writing to the Client to return the Goods or any of them to Eversys.  Upon such notice being given the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and

(c) the Client is only a bailee of the Goods and until such time as Eversys has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods on trust for Eversys; and

(d) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that Eversys will be the owner of the end products; and

(e) if the Client fails to return the Goods to Eversys then Eversys or Eversys’ agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Goods are situated as the invitee of the Client and take possession of the Goods, and Eversys will not be liable for any reasonable loss or damage suffered as a result of any action by Eversys under this clause.

 

8.     Client’s Disclaimer

The Client hereby disclaims any right to rescind, or cancel any contract with Eversys or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by Eversys and the Client acknowledges that the Goods are bought relying solely upon the Client’s skill and judgment.

9.     Client’s obligation

The Client has the obligation to ensure the proper training of its own employees on Eversys products.

 

10.    Defects

10.1  The Client shall inspect the Goods on delivery and shall within five (5) working days of delivery (time being of the essence) notify Eversys of any alleged defect, shortage in quantity, damage, or failure to comply with the description or quote.  The Client shall afford Eversys an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way.  If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Eversys has agreed in writing that the Client is entitled to reject, Eversys’ liability is limited to either (at Eversys’ discretion) replacing the Goods or repairing the Goods.

Goods will not be accepted for return other than in accordance with 10.1 above.

11.     Returns

1.1    Returns, except in case of defects according to clause 10.1 above, will only be accepted (at Eversys’ discretion) provided that:

(a) the Client has complied with the provisions of clause 7.1; and

(b) Eversys has agreed in writing to accept the return of the Goods; and

(c) the Goods are returned at the Client’s cost within ten (10) days of the delivery date; and

(d) Eversys will not be liable for Goods which have not been stored or used in a proper manner; and

(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures, and instruction material in as new condition as is reasonably possible in the circumstances.

1.2    Eversys may (at its discretion) accept the return of Goods for credit but this may incur a handling fee of ten percent (10%) of the value of the returned Goods plus any freight.

 

12.     Warranty

2.1    Each Coffee Machine manufactured by Eversys is guaranteed to be free of defects in workmanships and material when leaving the factory. The guarantee is valid for a period of 24 months or 100’000 products per group head (whichever comes first) from the date of installation.

2.2    Eversys will repair or replace at its discretion part or all of the product not conforming to this warranty. Eversys’ responsibility under this warranty is limited to the repair or replacement of defective parts and not to wear and tear parts and maintenance products. Furthermore, the warranty is not provided if:

● The instructions on how to handle, install or operate the machines or spare parts are disregarded

● The Coffee Machines have been disassembled or modified or repaired with non-original components by a person and/or company not

approved by Eversys

● The Coffee Machines have been utilised for an application for which it was not intended to be used

● Installation and regular maintenance have not been done properly and on time and conducted by a person and/or company duly approved by Eversys

● Water quality does not correspond to Eversys criteria.

12.3    Each spare part manufactured by Eversys is guaranteed to be free of defects in workmanships and material when leaving the factory for a period of 12 months valid from date of shipment.

12.4    Each refurbished part manufactured by Eversys is guaranteed to be free of defects in workmanships and material when leaving the factory for a period of 6 months valid from date of shipment.

12.5    In order to be able to claim against our warranty you have to send us back the completed installation form for each machine. Any Spare Part delivered under warranty will have to be sent to Eversys within 90 days, after which Eversys will be obliged to invoice it.

12.6    All cleaning materials used for Eversys machines must have been authorised by the manufacturer. Not using Eversys cleaning materials will make the warranty null and void.

 

 

13.     Intellectual Property

13.1    Where Eversys has designed, drawn or written Goods for the Client, then the copyright in those designs and drawings and documents shall remain vested in Eversys, and shall only be used by the Client at Eversys’ discretion.

13.2    The Client warrants that all designs or instructions to Eversys will not cause Eversys to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Eversys against any action taken by a third party against Eversys in respect of any such infringement.

 

14.     Default & Consequences of Default

14.1    Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 1.5% per calendar month and such interest shall compound monthly at such a rate after as well as before any judgment.

14.2    If the Client defaults in payment of any invoice when due, the Client shall indemnify Eversys, in addition to the interest provided under clause 14.1 above, from and against all costs and disbursements incurred by Eversys in pursuing the debt including legal costs on a solicitor and Eversys’ collection agency costs.

14.3    Without prejudice to any other remedies Eversys may have, if at any time the Client is in breach of any obligation (including those relating to payment), Eversys may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions.  Eversys will not be liable to the Client for any loss or damage the Client suffers because Eversys has exercised its rights under this clause.

14.4    If any account remains overdue after thirty (30) days, then an amount of the greater of CHF50.00 or 10.00% of the amount overdue (up to a maximum of CHF2000) shall be levied for administration fees which sum shall become immediately due and payable.

14.5    Without prejudice to Eversys’ other remedies at law Eversys shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Eversys shall, whether or not due for payment, become immediately payable in the event that:

(a) any money payable to Eversys becomes overdue, or in Eversys’ opinion the Client will be unable to meet its payments as they fall due; or

(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

 

15.     Cancellation

15.1    Eversys may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice Eversys shall repay to the Client any sums paid in respect of the Price. Eversys shall not be liable for any loss or damage whatever arising from such cancellation.

15.2    In the event that the Client cancels delivery of the Goods the Client shall be liable for any loss incurred by Eversys (including, but not limited to, any loss of profits) up to the time of cancellation.

 

 

16.     Unpaid Eversys’ Rights

16.1    Where the Client has left any item with Eversys for repair, modification, exchange or for Eversys to perform any other Service in relation to the item and Eversys has not received or been tendered the whole of the Price, or the payment has been dishonoured, Eversys shall have:

(a) a lien on the item,

(b) the right to retain the item for the Price while Eversys is in possession of the item,

(c) a right to sell the item.

16.2    The lien of Eversys shall continue despite the commencement of proceedings, or judgement for the Price having been obtained.

 

17.     Premium Support

17.1    If the Client has not complied with one of the provisions listed under: 12.2, or has failed ensuring either the training of its own employees on Eversys products and/or an appropriate level of service to its own customers (for instance, through a sufficient number of technicians), Eversys is able to charge CHF 100.00 by hour for all support provided to the Client, plus any travel expenses if needed. It includes also the provision of Services that have not been agreed contractually. 

 

18.     General

18.1    If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality, and enforceability of the remaining provisions shall not be affected, prejudiced, or impaired.

18.2    These terms and conditions and any contract to which they apply shall be governed by the laws of Switzerland and are subject to the jurisdiction of the courts of Switzerland.

18.3    Eversys be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Eversys of these terms and conditions.

18.4    In the event of any breach of this contract by Eversys the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.

18.5    The Client shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Client by Eversys.

18.6    Eversys may license or sub-contract all or any part of its rights and obligations without the Client’s consent.

18.7    Eversys reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Eversys notifies the Client of such change.

18.8    Neither party shall be liable for any default due to force majeure, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm, or other event beyond the reasonable control of either party.

18.9    The failure by Eversys to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Eversys’ right to subsequently enforce that provision.

18.10  Upon request, Eversys organizes in-house training sessions in Switzerland and delivers individual training certificates.

 

19.     Governing law and disputes

19.1    The agreement between the parties shall be governed by and construed in accordance with Swiss law.

19.2    Any disputes arising out of the agreement between the parties shall be finally and exclusively settled by the courts of the seat of Eversys.

 

20.    Data protection

20.1  The Client consents to share its personal data with Eversys for internal use only.

20.2  Eversys shall use the said data in a safe manner and only for the purpose of internal commercial or technical business with the Client.

20.3  The Client has the right, at any time, to withdraw its consent, or to request rectification, or deletion of its data.