1. Interpretation

1.1 Definitions: i. Business Day: a day other than a Saturday, Sunday or public holiday in Ireland, when banks in Dublin are open for business. ii. Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 11.3. iii. Contract: the contract between the Seller and the Customer for the sale and purchase of the Goods in accordance with these Conditions. Customer: the person or firm who purchases the Goods from the Seller as set out in the Order and/or below. iv. Force Majeure Event: an event, circumstance or cause beyond a party’s reasonable control including without limitation acts of God, flood, drought, earthquake or other natural disaster; epidemic or pandemic; terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition; collapse of buildings, fire, explosion or accident; any labour or trade disputes, strikes, industrial action or lockouts; and interruption or failure of utility service. v. Goods: the goods (or any part of them) set out in the Order. vi. Order: the Customer’s order for the Goods, as set out overleaf or in the Customer’s written acceptance of the Seller’s quotation as the case may be. vii. Seller: Beacon Medical Distribution viii. Seller’s Premises: the premises specified by the Seller at the time of delivery. 

Interpretation: (a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). (b) A reference to a party includes its successors and permitted assigns. (c) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.(d) Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.(e) A reference to writing or written excludes fax. 

Basis of contract 

1.2 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing. 

1.3 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order are complete and accurate. 

1.4 The Order shall only be deemed to be accepted when the Seller issues a written acceptance of the Order, at which point the Contract shall come into existence. 

1.5 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions. 

1.6 Any samples, descriptive matter or advertising produced by the Seller and any descriptions or illustrations contained in the Seller’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force. 

1.7 A quotation for the Goods given by the Seller shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue. 

1.8 Subject to prior agreement with the Seller, the Customer may amend or cancel an Order any time prior to the completion and delivery of the Order by the Seller. If the Customer amends or cancels an Order, its liability to the Seller shall be limited to payment to the Seller of all costs reasonably incurred by the Seller in fulfilling the Order up until the date of deemed receipt of the amendment or cancellation, except that the Customer shall have no liability to the Seller where the amendment or cancellation results from the Seller’s failure to comply with its obligations under this Contract. 

2. Goods

2.1 The Seller reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements. If such amendments will materially change the nature or quality of the Goods, the Seller shall notify the Customer who may then cancel the Order. 

3. Delivery

3.1 The Seller shall ensure that each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, any relevant Customer and Seller reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable). 

3.2 When notified by the Seller that the Goods are ready for collection, the Customer shall collect the Order from the Seller’s Premises at a date to be agreed with the Seller or alternatively, the Customer shall arrange for the collection of the Order from the Seller’s Premises in a manner and at a date to be agreed with the Seller. 

3.3 Delivery of the Order is completed on the collection of the Goods from the Seller’s Premises either by the Customer or by a transportation carrier for and on behalf of the Customer. 

3.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Seller shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods. 

3.5 If the Seller fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Seller shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods. 

3.6 If the Customer fails to take delivery of the Goods within three Business Days of the date agreed with the Seller under clause 4.2, then, except where such failure or delay is caused by a Force Majeure Event or the Seller’s failure to comply with its obligations under the Contract: (a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the date agreed with the Seller under clause 4.2; and (b) the Seller shall store the Goods until delivery takes place and charge the Customer for all related costs and expenses (including insurance). 

3.7 If ten Business Days after the date agreed with the Seller under clause 4.2 the Customer has not taken actual delivery of them, the Seller may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods. 

3.8 The Seller may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment. 

4. Quality and Acceptance of delivery

4.1 The Customer is responsible for ensuring that the terms of the Order are complete and accurate and shall notify the Seller, within two (2) Business Days of delivery, of any discrepancies with the Order (including without limitation Goods that were ordered or supplied in error). 

4.2 The Seller warrants that, on delivery and for the period running from the date of delivery to the expiration date for the Goods, the Goods shall be free from material defects in design, material and workmanship. 

4.3 Subject to clause 5.4, if: (a) the Customer gives notice in writing to the Seller (i) within two (2) Business Days of delivery, in the case of a defect that is apparent on normal visual inspection, or (ii) within a reasonable time of the latent defect having become apparent, in the case of a latent defect, that some or all of the Goods do not comply with the warranty set out in clause 5.2; and (b) the Customer (if asked to do so by the Seller) returns such Goods to the Seller’s place of business at the Seller’s cost, The Seller shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full and once done, the Seller shall have no further liability to the Customer for the defective Goods’ failure to comply with clause 5.2. 

4.4 The Seller shall not be liable for the Goods’ failure to comply with the warranty set out in clause 5.2 in any of the following events: (a) the Customer makes any further use of such Goods after giving notice in accordance with clause 5.3; (b) the defect arises because the Customer failed to follow the Seller’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same; (c) the defect arises as a result of the Seller following any drawing, design or specification supplied by the Customer; 

(d) the Customer alters or repairs such Goods without the written consent of the Seller; (e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or (f) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements. 

4.5 Except as provided in this clause 5, the Seller shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.2. 

4.6 Any implied terms under the applicable law are, to the fullest extent permitted by law, excluded from the Contract. 

4.7 These Conditions shall apply to any repaired or replacement Goods supplied by the Seller. 

4.8 If the Customer fails to give notice in accordance with clause 5.3, it shall be deemed to have accepted the Goods. 

5. Title and risk

5.1 The risk in the Goods shall pass to the Customer on completion of delivery. 

5.2 Title to the Goods shall not pass to the Customer until the earlier of (i) the Seller receives payment in full (in cash or cleared funds) for the Goods; and (ii) the Customer resells the Goods in which case title to the Goods shall pass to the Customer at the time specified in clause 6.4. 

5.3 Until title to the Goods has passed to the Customer, the Customer shall: (a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Seller’s property; (b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; (c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; (d) notify the Seller immediately if it becomes subject to any of the events listed in clause 9.1(b) to clause 9.1(d); and (e) give the Seller such information as the Seller may reasonably require from time to time relating to the Goods and the ongoing financial position of the Customer. (f) Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Seller receives payment for the Goods. However, if the Customer resells the Goods before that time: (g) it does so as principal and not as the Seller’s agent; and (h) title to the Goods shall pass from the Seller to the Customer immediately before the time at which resale by the Customer occurs. 

5.4 At any time before title to the Goods passes to the Customer: (a) the Seller may by notice in writing, terminate the Customer’s right under clause 6.4 to resell the Goods or use them in the ordinary course of its business; and (b) require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them. 

6. Price and payment

6.1 The price of the Goods shall be the price set out in the Order or, if no price is quoted, the price set out in the Seller’s published price list in force as at the date of delivery. The Seller shall give the Customer 14 days’ notice of any changes in the prices of the Goods and if notified, the Customer may cancel any Order or balance of any Order before the changes take effect and receive a refund for any Goods paid for but not received. 

6.2 The Seller may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to: (a) any factor beyond the Seller’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs); (b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or (c) any delay caused by any instructions of the Customer or failure of the Customer to give the Seller adequate or accurate information or instructions. 

6.3 The price of the Goods: (a) excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Seller at the prevailing rate, subject to the receipt of a valid VAT invoice; and (b) excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer, unless otherwise agreed with the Customer. 

6.4 The Seller may invoice the Customer for the Goods on or at any time after collection of the Goods. 

6.5 Unless expressly set out in the Order Form, the Customer shall pay each invoice submitted by the Seller: (a) within ( 30 DAYS CHEQUE AFTER MONTH END ; and (b) in full and in cleared funds to a bank account nominat ed in writing by the Seller, and time for payment shall be of the essence of the Contract. 

6.6 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law) unless otherwise agreed, in advance, with the Customer. 

7. Limitation of liability

7.1 Nothing in the Contract limits any liability which cannot legally be limited, including liability for: (a) death or personal injury caused by negligence; (b) fraud or fraudulent misrepresentation; (c) any liability which cannot be excluded or limited under law. 

7.2 Subject to clause 8.1, the Seller’s total liability to the Customer arising under or in connection with the Contract, whether arising in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, shall in all circumstances be limited to the price paid by the Customer to the Seller for the Goods under the Contract. 

7.3 Subject to clause 8.1, the following types of loss are wholly excluded: (a) loss of profits; 

(b) Loss of sales or business; (c) loss of agreements or contracts; (d) loss of anticipated savings; (e) loss of use or corruption of software, data or information; (f) loss of or damage to goodwill; and (g) indirect or consequential loss. 

7.4 This clause 8 shall survive termination of the Contract. 

8. Termination

8.1 Without limiting its other rights or remedies, the Seller may terminate this Contract with immediate effect by giving written notice to the Customer if: (a) the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so; (b) the Customer becomes the subject of a petition in bankruptcy or any proceeding related to its insolvency, receivership or liquidation, in any jurisdiction, or any composition or arrangement with its creditors (other than in relation to a solvent restructuring); (c) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or (d) the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Contract is in jeopardy. 

8.2 Without limiting its other rights or remedies, the Seller may suspend provision of the Goods under the Contract or any other contract between the Customer and the Seller if the Customer becomes subject to any of the events listed in clause 9.1(b) to clause 9.1(d), or the Seller reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment. 

8.3 Without limiting its other rights or remedies, the Seller may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment. 

8.4 On termination of the Contract for any reason the Customer shall immediately pay to the Seller all of the Seller’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Seller shall submit an invoice, which shall be payable by the Customer immediately on receipt. 

8.5 Termination or expiry of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry. 

8.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect. 

9. Force majeure

Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from a Force Majeure Event. In such circumstances, the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 6 months, the party not affected may terminate this Contract by giving seven (7) days’ written notice to the affected party. 

10. General

10.1 Assignment and other dealings. The Seller at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract. The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Seller. 

10.2 Entire agreement. This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Contract. 

10.3 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives). 

10.4 Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy. 

10.5 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. If any provision of the Contract is deemed deleted under this clause, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision. 

10.6 Notices. 

(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be by hand or by registered post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case). 

(b) Any notice or communication shall be deemed to have been received (i) if delivered by hand, on signature of a delivery receipt; or (ii) if sent by registered post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service. 

(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. 

10.7 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the laws of Ireland. 

10.8 Jurisdiction. Each party irrevocably agrees that the courts of Ireland shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.