9. Installation and Functionality of the Goods.
9.1 The Goods may be installed by the Seller, which will be carried
out without any delay occasioned by the Buyer in accordance
with the Seller’s working procedure.
9.2 Without limiting the Buyer’s obligations under clause 14, it is the
sole responsibility of the Buyer to prepare/ready the site for
installation in accordance with the instructions specified by the
Seller.
9.3 The operation and functionality of the Goods may be dependent
on third party system(s). The Seller is not liable for any loss or
damage arising from a defect in any third party system or for any
loss or damage arising if the operation of the third party system is
incompatible with the Goods.
9.4 The Seller warrants that installation (if applicable) will be
provided by competent personnel consistent with industry
norms. Training provided on installation does not constitute
upon the Buyer (or any of its employees, servants or agents) a
certificate of competence or licence to practice.
9.5 Where applicable, the Seller will connect the Goods to the mains
outlet provided by the Buyer in an approved location. Unless
otherwise agreed in Writing, the Buyer shall be responsible for
the proper electrical current to be brought to the mains outlet and
will provide all structural plumbing, carpentry work, primary
mains wiring, pull through of interface cables, fixing of outlet
boxes and attaching of wall or ceiling mountings along with any
other ancillary works required for the installation of the Goods.
10. Warranties & Liability
10.1 The Seller as a re-seller of the Goods shall use all reasonable
endeavours to pass on the benefit of any warranties in relation to
the Goods which are received by the Seller from the
manufacturer of the Goods, it being for the Buyer to ensure it
complies with the terms (including manufacturer’s instructions as
to use of the Goods) applicable to those warranties as
communicated by the Seller to the Buyer.
10.2 The Seller shall use reasonable endeavours to provide the
Services with all due care, skill and diligence.
10.3 The Seller shall not in any event be liable in respect of any defect
in the Goods arising from any specification supplied by the
Buyer, willful damage to, misuse, alteration or repair of the Goods
without the Seller’s approval.
10.4 The Seller shall not be liable under clause 10.1 or 10.2 (or any
other warranty, condition or guarantee) until the total price for
the Goods and/or Services has been paid by the Buyer.
10.5 Save as expressly provided in these Conditions or otherwise
agreed in Writing by the Seller with the Buyer, all warranties,
representations, statements, conditions or other terms express or
implied by statute, common law or otherwise are hereby
excluded to the fullest extent permitted by law.10.6 Any claim by the Buyer which is based on any defect in the
quality or condition of the Goods or their failure to correspond
with specification shall be notified to the Seller within a
reasonable time after discovery of the defect or failure. If
delivery is not refused and the Buyer does not notify the Seller
accordingly, the Buyer shall not be entitled to reject the Goods
and the Seller shall have no liability for such defect or failure and
the Buyer shall be bound to pay the price as if the Goods had
been delivered in accordance with the Contract.
10.7 Where any valid claim in respect of any of the Goods or Services
which is based on the Seller’s liability in respect of:
(a) any defect in the quality or condition of the Goods;
(b) any defect in the performance of the Services; or
(c) the failure of the Goods and/or Services to meet
specification;
is notified to the Seller in accordance with these Conditions, the
Seller shall be entitled to either:
(i) repair the Goods (or the part in question);
(ii) replace the Goods (or the part in question);
(iii) re-perform or procure the re-performance of
the Services; or
(iv) at the Seller’s sole discretion, refund to the
Buyer the price of the Goods and/or Services
(or a proportionate part of the price).
and, to the fullest extent permitted by law, the Seller shall have
no further liability to the Buyer.
10.8 Nothing in these Conditions shall limit the Seller’s liability for
death or personal injury caused by the Seller’s negligence, fraud,
fraudulent misrepresentation or any other matter for which
liability may not be limited under applicable laws.
10.9 Subject to clause 10.6, in no event shall the Seller have any
liability whatsoever to the Buyer, whether in contract, tort
(including negligence), or otherwise for any indirect, special,
incidental, economic or consequential loss or damage including,
without limitation, loss or damage incurred as a result of loss of
time, loss of savings, loss of data, loss of goodwill, loss of
business or loss of profits.
10.10 Subject to clause 10.6, the Seller’s entire liability for any claim,
whether in contract, tort (including negligence) or otherwise, for
any loss or damage whatsoever, arising out of or in connection
with the Contract or otherwise shall not in any event exceed the
price of the Goods and/or Services in respect of any event or
series of connected events.
10.11 The Seller shall not be liable to the Buyer or be deemed to be in
breach of the Contract by reason of any delay in performing, or
any failure to perform, any of the Seller’s obligations under the
Contract, if the delay or failure was due to any cause beyond the
Seller’s reasonable control. Without prejudice to the generality of
the foregoing, the following shall be regarded as causes beyond
the Seller’s reasonable control:
(a) Act of God, explosion, flood, tempest, fire or accident;
(b) war or threat of war, sabotage, insurrection, civil
disturbance or requisition or malicious damage;
(c) acts, restrictions, regulations, bye-laws, prohibitions or
measures of any kind on the part of any governmental,
parliamentary or local authority;
(d) import or export regulations or embargoes;
(e) strikes, lock-outs or other industrial actions or trade
disputes (whether involving employees of the Seller or
of a third party);
(f) failure of a utility service or transport or
telecommunications network; or
(g) difficulties of the Seller’s suppliers in obtaining raw
materials, labour, fuel or parts of machinery.
11. Insolvency of Buyer
11.1 This clause applies if:
(a) the Buyer makes any voluntary arrangement with its
creditors or becomes subject to administration or is in
examination or (being an individual or firm) becomes
bankrupt or (being a body corporate) goes into
liquidation (otherwise than for the purposes of
amalgamation or reconstruction);
(b) any action is taken by any person to appoint a receiver,
administrator, administrative receiver, examiner,
trustee, or similar officer of the Buyer or any of the property or assets of the Buyer or any such receiver,
administrator, administrative receiver, examiner,
trustee, or similar officer is appointed;
(c) the Buyer ceases, or threatens to cease, to carry on
business;
(d) the Seller reasonably apprehends that any of the events
mentioned above is about to occur in relation to the
Buyer and notifies the Buyer accordingly; or
(e) anything analogous to any of the foregoing occurs in
any applicable jurisdiction.
11.2 If clause 11.1 applies then the Seller shall, without prejudice to
any other rights of the Seller, be entitled to terminate the Contract
with immediate effect and/or suspend any further deliveries
under the Contract without any liability to the Buyer, and if the
Goods and/or Services have been delivered and/or performed
but not paid for the price shall become immediately due and
payable not withstanding any previous agreement or
arrangement to the contrary.
11.3 In the event that the Seller exercises any rights it may have to stop
the Goods in transit because of the Buyer's financial condition,
the Seller may, at its option, resell such goods at public or private
sale without notice to the Buyer and without affecting the Seller's
rights to hold the Buyer liable for any loss or damage caused by
breach of contract by the Buyer.
12. Order Cancellation
Any cancellation of a Purchase Order that occurs after the Seller
has issued a Sales Order will be subject to the provisions set out
in clause 13.
13. Return of Goods
Save as set out in clause 10.6, there is no right of return of the
Goods and the Buyer remains fully liable for validly delivered
Goods and Services but the Seller may agree at their own
absolute discretion, and only in writing, to accept the return of
Goods subject to the prevailing re-stocking fee and other terms
quoted in the Seller’s return of goods policy.
14. Buyer Duties
The Buyer shall:
(a) provide free of charge adequate and safe access to the
Buyer's premises, information, documents and facilities
(including resources for loading and unloading of
goods and equipment) to enable the Seller to carry out
its duties and responsibilities under the Contract;
(b) be responsible for the safe custody of the Seller's (and
its sub-contractors') property retained on the Buyer's
site for the purposes of installation, commissioning,
maintenance and/or removal of equipment;
(c) obtain all necessary consents and comply with all legal
obligations in connection with installation or use of any
Goods supplied or equipment provided to the Buyer or
work done on the Buyer's site; and
(d) the Buyer shall be responsible for complying with any
legislation or regulations governing the importation of
the Goods into the country of destination and for the
payment of any duties thereon.
15. Dispute Resolution
15.1 Any dispute arising out of or in connection with these Conditions
or a Contract including, without limitation, the existence or
formation of a Contract (a “Dispute”) shall be referred at first
instance to senior representatives of each of the parties who shall
endeavour in good faith to resolve the Dispute.
15.2 In the event that a Dispute cannot be resolved by such senior
representatives within fourteen (14) days of referral of the
Dispute to them, then either party shall be entitled to refer the
Dispute to mediation in accordance with the Centre for Effective
Dispute Resolution (“CEDR”) procedures then in force. The
mediation process will be commenced by service by one party on
the other of a notice in Writing that the issue is to be referred to
mediation (the “Mediation Notice”), but in the event that the
parties are unable to agree on a choice of mediator within seven
(7) days of the date of service of the Mediation Notice, the parties
shall accept a mediator nominated by CEDR. Each party shall
bear its own costs in respect of the mediation.
15.3 In the event that a Dispute remains unresolved sixty (60) days
after the date of service of the Mediation Notice, then the Dispute
shall be referred to and finally resolved by arbitration in
accordance with the UNCITRAL Rules, as adopted by the
Arbitration Act 2010, which Rules are deemed to be incorporated
by reference into this clause 15.3.15.4 Nothing in these Conditions shall prevent either party from
seeking injunctive or other relief in a court of law to protect or
enforce its legal rights.
16. General
16.1 Any notice required to be given to the Buyer under these
Conditions shall be in Writing addressed to the Buyer at its
registered office or principal place of business.
16.2 Any notice required to be given to the Seller shall be in Writing
addressed to the Company Secretary, Gemini Surgical, 4-5 Southern Cross Business Park, Bray, Co. Wicklow or any other address
notified in Writing by the Seller to the Buyer.
16.3 All data that is acquired, exchanged or retained will be subject to
the provisions of the Data Protection Acts 1988- 2003 as reflected
in the Seller’s own data protection policies.
16.4 The Contract constitutes the entire agreement between the parties
with respect to its subject matter. The Buyer acknowledges and
agrees that in entering into the Contract it does not rely on and
shall have no remedies in respect of, any advice,
recommendation, undertaking, promise, assurance, statement,
representation, warranty or understanding (whether in writing or
not) of any person (whether party to the Contract or not) relating
to the subject matter of the Contract, other than as expressly set
out in these Conditions.
16.5 No waiver by the Seller of any breach of the Contract by the
Buyer shall be considered as a waiver of any subsequent breach
of the same or any other provision.
16.6 All Waste Electrical and Electronic Equipment will be handled in
accordance with legislation as reflected in the Seller’s
Environmental Policies.
16.7 If any provision of these Conditions, or any part of a provision of
these Conditions, is or becomes illegal, invalid or unenforceable
in any respect under the law of any jurisdiction, then the legality,
validity and enforce-ability of the other provisions of these
Conditions and the remainder of the provision in question shall
not be affected thereby.16.8 Nothing in these Conditions shall create, or be deemed to create,
a partnership or the relationship of principal and agent or
employer and employee between the parties. No party shall have
authority or power (and shall not represent themselves as having
such authority or power) to contract in the name of the other
party or to undertake any liabilities or obligation on behalf of or
to pledge the credit of the other party save insofar as expressly
provided in these Conditions.
16.9 The Contract shall be governed by and construed in accordance
the laws of Ireland and, subject to clause 15, the Buyer agrees to
submit to the non-exclusive jurisdiction of the Courts of Ireland
for the resolution of disputes under or in relation to the Contract.
