BES Healthcare Ireland Limited
1. Definitions
In this document the following words shall have the following meanings:
1.1 "Agreement" means these Terms and Conditions together with the terms of any applicable Specification Document.
1.2 "Customer" means the organisation or person who purchases goods and services from BES.
1.3 "Intellectual Property Rights" means all patents, registered and unregistered designs, copyright, trade marks, know-how and all other forms of intellectual property wherever in the world enforceable.
1.4 "Specification Document" means a statement of work, quotation, price list, or other similar document describing the goods and services to be provided by BES.
1.5 "BES" means BES Healthcare Ireland Limited whose registered office is c/o Nathan Trust, First Floor, Penrose 1, Penrose Dock, Cork T23 KW81, Ireland.
2. General
2.1 These Terms and Conditions shall apply to all contracts for the supply of goods and services by BES to the Customer.
2.2 Before the commencement of the services BES shall submit to the Customer a Specification Document which shall specify the goods and services to be supplied and the price payable. The Customer shall notify BES immediately if the Customer does not agree with the contents of the Specification Document. All Specification Documents shall be subject to these Terms and Conditions.
2.3 BES shall use all reasonable endeavours to complete the services within estimated time frames, but time shall not be of the essence in the performance of any services.
2.4 BES may at its discretion suspend or terminate the supply of any goods or services as set out in the Specification Document if the customer fails to make any payment when and as due or otherwise defaults in any of its obligations under this Contract or any other agreement with BES or becomes insolvent or has an Administrative Receiver appointed of its business or is compulsorily or voluntarily wound up or ceases or threatens to cease trading or BES bona fide believes that any of these events may occur and in case of termination may forfeit any deposit paid.
3. Price and Payment
3.1 The price for the supply of goods and services are as set out in the Specification Document. BES shall invoice the Customer on delivery of all goods.
3.2 Invoiced amounts shall be due and payable within 30 days of receipt of invoice. BES shall be entitled to charge a Late Payment Surcharge of 10%, and interest on overdue invoices from the date when payment becomes due from day to day until the date of payment at a rate of 3% per month or part of month. In the event that the Customer's procedures require that an invoice be submitted against a purchase order to payment, the Customer shall be responsible for issuing such purchase order before the goods and services are supplied.
3.3 Failed or reappointed service visits will be charged at BES nominal day rate prevalent at the time.
4. Specification of the Goods
All goods shall be required only to conform to the specification in the Specification Document. For the avoidance of doubt no description, specification, or illustration contained in any product pamphlet or other sales or marketing literature of BES and no representation written or oral, correspondence, or statement shall form part of the contract.
5. Delivery
5.1 The date of delivery specified by BES is an estimate only. Time for delivery shall not be of the essence of the contract and BES shall not be liable for any loss, costs, damages, charges, or expenses caused directly or indirectly by any delay in the delivery.
5.2 All risk in the goods shall pass to the Customer upon delivery.
6. Title
6.0 Title in the goods shall not pass to the Customer until BES has been paid in full for the goods.
6.1 Loss of goods or misplacement which causes failure to conduct prearranged service visits will result in the prevalent day rate charge for BES staff lost time.
7. Customer's Obligations
7.1 To enable BES to perform its obligations under this Agreement the Customer shall: (a) co-operate with BES during prearranged service visits and have all equipment timely available for the visiting BES staff member; (b) provide BES with any information reasonably required by BES; (c) obtain all necessary permissions and consents which may be required before the commencement of the services; and (d) comply with such other requirements as may be set out in the Specification Document or otherwise agreed between the parties.
7.2 The Customer shall be liable to compensate BES for any expenses incurred by BES as a result of the Customer's failure to comply with Clause 7.1.
7.3 Without prejudice to any other rights to which BES may be entitled, in the event that the Customer unlawfully terminates or cancels the goods and services agreed to in the Specification Document, the Customer shall be required to pay to BES as agreed damages and not as a penalty the full amount of any third party costs to which BES has committed and in respect of cancellations on less than five working days' written notice the full amount of the goods and services contracted for as set out in the Specification Document, and the Customer agrees this is a genuine pre-estimate of BES's losses in such a case.
7.4 In the event that the Customer or any third party, not being a sub-contractor of BES, shall omit or commit anything which prevents or delays BES from undertaking or complying with any of its obligations under this Agreement, then BES shall notify the Customer as soon as possible and: (a) BES shall have no liability in respect of any delay to the completion of any project; (b) if applicable, the timetable for the project will be modified accordingly; (c) BES shall notify the Customer at the same time if it intends to make any claim for additional costs.
8. Alterations to the Specification Document
8.1 The parties may at any time mutually agree upon and execute new Specification Documents. Any alterations in the scope of goods and/or services to be provided under this Agreement shall be set out in the Specification Document, which shall reflect the changed goods and/or services and prices, and any other terms agreed between the parties.
8.2 The Customer may at any time request alterations to the Specification Document by notice in writing to BES. On receipt of the request for alterations, BES shall, within 5 working days or such other period as may be agreed between the parties, advise the Customer by notice in writing of the effect of such alterations, if any, on the price and any other terms already agreed between the parties.
8.3 Where BES gives written notice to the Customer agreeing to perform any alterations on terms different to those already agreed between the parties, the Customer shall, within 5 working days of receipt of such notice or such other period as may be agreed between the parties, advise BES by notice in writing whether or not it wishes the alterations to proceed.
8.4 Where BES gives written notice to the Customer agreeing to perform alterations on terms different to those already agreed between the parties, and the Customer confirms in writing that it wishes the alterations to proceed on those terms, the Specification Document shall be amended to reflect such alterations and thereafter BES shall perform this Agreement upon the basis of such amended terms.
9. Warranty
9.1 BES warrants that as from the date of delivery for a period of 1 month the goods and all their component parts, where applicable, are free from any defects in design, workmanship, construction or materials.
9.2 BES warrants that the services performed under this Agreement shall be performed using reasonable skill and care, and of a quality conforming to generally accepted industry standards and practices.
9.3 Except as expressly stated in this Agreement, all warranties whether express or implied, by operation of law or otherwise, are hereby excluded in relation to the goods and services to be provided by BES.
10. Indemnification
The Customer shall fully and effectively indemnify BES against all and any claims, costs and expenses arising out of or in connection with the provision of the goods and/or services contained or referred to in the Specification Document and which arise, directly or indirectly, from the Customer's breach or arising from any third party claim or any other of its obligations under this Agreement, including any claims for consequential loss, personal injury or death and any claim brought against BES alleging that any goods and/or services provided by BES in accordance with the Specification Document infringes a patent, copyright or trade secret or other similar right of a third party.
11. Limitation of Liability
11.1 Except in respect of death or personal injury due to negligence for which no limit applies, the entire liability of BES to the Customer in respect of any claim whatsoever or breach of this Agreement, whether or not arising out of negligence, shall be limited to the price paid by the Customer to which the claim relates.
11.2 In no event shall BES be liable to the Customer for any loss of business, loss of opportunity or loss of profits or for any other indirect or consequential loss or damage whatsoever. This shall apply even where such a loss was reasonably foreseeable or BES had been made aware of the possibility of the Customer incurring such a loss.
11.3 Nothing in these Terms and Conditions shall exclude or limit BES's liability for death or personal injury resulting from BES's negligence or that of its employees, agents or sub-contractors.
12. Termination
Either party may terminate this Agreement forthwith by notice in writing to the other if: (a) the other party commits a material breach of this Agreement and, in the case of a breach capable of being remedied, fails to remedy it within 30 calendar days of being given written notice; (b) the other party commits a material breach which cannot be remedied under any circumstances; (c) the other party passes a resolution for winding up (other than for solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect; (d) the other party ceases to carry on its business or substantially the whole of its business; or (e) the other party is declared insolvent, or convenes a meeting of or makes any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.
13. Intellectual Property Rights
All Intellectual Property Rights produced from or arising as a result of the performance of this Agreement shall, so far as not already vested, become the absolute property of BES, and the Customer shall do all that is reasonably necessary to ensure that such rights vest in BES by the execution of appropriate instruments or the making of agreements with third parties.
14. Force Majeure
Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, the act or omission of government, highway authorities or any telecommunications carrier, operator or administration or other competent authority, or the delay or failure in manufacture, production, or supply by third parties of equipment or services, and the party shall be entitled to a reasonable extension of its obligations after notifying the other party of the nature and extent of such events.
15. Independent Contractors
BES and the Customer are contractors independent of each other, and neither has the authority to bind the other to any third party or act in any way as the representative of the other, unless otherwise expressly agreed to in writing by both parties. BES may, in addition to its own employees, engage sub-contractors to provide all or part of the services being provided to the Customer and such engagement shall not relieve BES of its obligations under this Agreement or any applicable Specification Document.
16. Assignment
The Customer shall not be entitled to assign its rights or obligations or delegate its duties under this Agreement without the prior written consent of BES.
17. Severability
If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction such provision shall be severed and the remainder of the provisions herein shall continue in full force and effect as if this Agreement had been agreed with the invalid illegal or unenforceable provision eliminated.
18. Waiver
The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement.
19. Notices
Any notice to be given by either party to the other may be served by email, fax, personal service, or by post to the address of the other party given in the Specification Document or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent, if sent by fax shall be deemed to be served on receipt of an error free transmission report, if given by letter shall be deemed to have been served at the time at which the letter was delivered personally, or if sent by post shall be deemed to have been delivered in the ordinary course of post.
20. Entire Agreement
This Agreement contains the entire agreement between the parties relating to the subject matter and supersedes any previous agreements, arrangements, undertakings or proposals, oral or written. Unless expressly provided elsewhere in this Agreement, this Agreement may be varied only by a document signed by both parties.
21. No Third Parties
Nothing in this Agreement is intended to, nor shall it confer any rights on a third party.
22. Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the law of England and the parties hereby submit to the exclusive jurisdiction of the English courts.
