Terms and Conditions Of Sale
VERNACARE INTERNATIONAL LIMITED TERMS AND CONDITIONS OF SALE
DEFINITIONS AND INTERPRETATION
1.1 In these Conditions, unless the context otherwise requires, the following definitions and rules of interpretation apply.
1.2 Definitions:
(a) Accepted Order means the Order accepted in writing by Verna as further described in Condition 2.4;
(b) Business Day means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;
(c) Conditions means these terms and conditions of sale as amended from time to time by Verna;
(d) Contract means the contract between Verna and the Customer for the supply of Goods in accordance with these Conditions and the Accepted Order;
(e) Customer means the person who purchases the Goods from Verna;
(f) Customer Materials means any Materials supplied or specified by the Customer;
(g) Default means any breach of these Conditions, or any other default, act, omission, negligence, breach of statutory duty or statement of a party in connection with or in relation to the subject matter of the Contract and in respect of which that party has a liability to the other;
(h) Delivery Date has the meaning given in Condition 6.1;
(i) Excluded Items means those items set out in Condition 4.2 and any other items that are stated to be excluded in the Accepted Order;
(j) Export Control Laws means all laws and regulations related to the regulation of imports, exports, re-exports, transfers, releases, shipments, transmissions or trading embargoes or other trading restrictions, related to the provision or receipt of goods, technology, software or services;
(k) Goods means the goods identified in the Accepted Order;
(l) Goods Warranty has the meaning given in Condition 9.1;
(m) Group means in relation to a company, that company, any subsidiary or holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company and references to Customer Group, Customer Group Member, Vernacare International group companies, Verna Group Members or similar term shall be construed accordingly;
(n) Impacted Goods Value means the aggregate Price of the impacted Goods to which the Default relates net of Excluded Items;
(o) Infringements has the meaning given in Condition 13.4;
(p) Insolvency Event means: (i) the Customer takes any step or action in connection with it : (A) entering into administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring); (B) being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring); or (C) having a receiver appointed to any of its assets or ceasing to carry on business; (ii) any step or action is taken in another jurisdiction in connection with any analogous procedure to those set out in the foregoing
(i) in the relevant jurisdiction; (iii) the Customer suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or (iv) the Customer’s financial position deteriorates to such an extent that in Verna’s opinion its ability to comply with the Contract has been placed in jeopardy;
(q) Macerator Warranty Procedure means Verna’s macerator warranty procedure as notified by Verna from time to time;
(r) Materials means any patterns, designs, tools, drawings, information, Specifications or other items or materials;
(s) Minimum Order Volume / Value means the minimum order volume or value notified by Verna from time to time;
(t) Order means the Customer’s order for the supply of Goods issued by the Customer;
(u) Order Value means the aggregate Price of the Goods to be supplied under an Accepted Order net of any Excluded Items;
(v) Price has the meaning given in Condition 4.1;
(w) Price Difference means the Price of the Goods less the amount that Verna actually receives when it resells such Goods net of any Excluded Items;
(x) Recall means any recall of any or all the Goods required by a Verna Group Member, the Customer Group (or any customer of any member of the Customer Group) or which is required by court order or other directive of a governmental or regulatory authority;
(y) Relevant Requirements has the meaning given in
Condition 15.1;
(z) Special Goods means Goods made or adapted to the Customer’s designs and/or Specification;
(aa) Specification means Verna’s standard specification for the Goods unless used in the context of the Special Goods in which case it means the description or specification supplied by the Customer;
(bb) Tolerance has the meaning given in Condition 6.4; (cc) Verna means Verna Group International Limited
(registered number 06449040) with its registered office
at 1 Western Avenue, Matrix Park, Buckshaw Village, Chorley, England, PR7 7NB or the Verna Group Member identified in the Accepted Order;
(dd) Verna IPR means: (i) all intellectual property rights in and to the Goods and any ancillary materials supplied by Verna (including Verna Materials and the Specification but excluding the Specification for Special Goods); and (ii) all other intellectual property rights of Verna or any other Verna Group Member or their licensors (as the context requires); and
(ee) Verna Materials means all Materials, equipment, documents and other property of Verna or any Verna Group Member.
1.3 References to:
(a) the singular include the plural and vice versa;
(b) a person includes a natural person, corporate or unincorporated body (whether or not having a separate legal personality);
(c) including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding them; and
(d) a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted and includes all subordinate legislation made under that statute or statutory provision.
1.4 Where these Conditions indicate that Verna’s agreement is required, such agreement must be in writing and signed by an authorised representative of Verna.
1.5 If there is an inconsistency between any provisions in these Conditions and the Accepted Order then the provisions in these Conditions shall take precedence unless the Accepted Order expressly states that a provision within it shall take precedence in which case that specific provision shall take precedence.
CONTRACT
2.1 Any quotation or estimate given by Verna shall not constitute an offer. Unless agreed otherwise by Verna, quotations and estimates are only valid for the remainder of the month in which they are issued.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions.
2.3 The Customer shall ensure that the terms of the Order and any Customer Materials are complete, suitable and accurate and the Order either meets or exceeds any applicable Minimum Order Volume / Value.
2.4 No Order of the Customer placed with Verna shall be binding on Verna unless and until it is accepted by Verna in writing (Accepted Order), at which point and on which date the Contract shall come into existence.
2.5 Each Accepted Order shall constitute a separate contract and, where delivery is made by instalments, each instalment shall constitute a separate contract. Any default by Verna (or by a Verna Group Member) in relation to one Accepted Order or instalment shall not entitle the Customer to terminate any other Accepted Order or instalment.
2.6 Verna shall have the right to cancel an Order, after the acceptance of such Order, should any government authority fail to approve or subsequently withdraw any licences, permissions, authorisations, certifications, consents or permits required under Export Control Laws and which are necessary for the performance of the Order.
2.7 No amendment or variation of the Contract shall be effective unless it is in writing and signed by the parties.
GOODS AND SPECIAL GOODS
3.1 Subject to Condition 11.3, Verna accepts no responsibility for the accuracy or suitability of any Customer Materials or for any defect in the Goods arising from use of such Customer Materials. Verna shall be entitled to accept the Customer Materials as being without defect.
3.2 Verna reserves the right at any time without notice to amend or otherwise make alterations to the Goods and their Specifications but shall use reasonable endeavours to notify the Customer of any material amendments or alterations to the same.
3.3 Verna shall be entitled to reject any Customer Material which Verna considers unsuitable. Verna may charge the Customer for any related costs and expenses incurred by Verna if Verna considers such Customer Material is unsuitable or subsequently discovered to be unsuitable.
3.4 The Customer represents and warrants to Verna that neither the Special Goods (nor the manufacture or supply thereof) nor the Customer Materials infringe any intellectual property right of any third party.
3.5 The Customer shall indemnify Verna and keep Verna and each Verna Group Member indemnified on demand from and against all liabilities, actions, proceedings, claims, costs, damages, expenses and loss (including any loss of profit, loss of reputation, and any indirect and consequential losses, and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Verna and its Group arising out of or in connection with:
(a) any defect in the Special Goods whether due to quality, design, fitness for purpose or otherwise unless the same is due to the direct negligence of Verna; and
(b) any claim made against Verna and/or its Group for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with Verna’s or its Group’s manufacture, supply or use of the Special Goods and/or Customer Materials.
3.6 Where the Goods supplied by Verna include macerators:
(a) the Customer shall comply with the Macerator Warranty Procedure and shall ensure that all its employees and representatives (and of any approved sub-contractor) who are installing, repairing and/or maintaining the macerators are fully trained and certified by Verna to ensure the proper fulfilment of their roles; and
(b) Verna will provide reasonable training to the Customer’s relevant employees and representatives in matters relating to the macerators (and their maintenance and repair) and shall provide such after-sales services and support to the Customer as is reasonably required by the Customer and as Verna considers to be reasonably appropriate.
3.7 At Verna’s request, the Customer shall return any Verna Materials. If the Customer fails to do so, then Verna may enter the Customer’s or third party’s premises where they are stored and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and shall not use them for any purpose not connected with the Contract.
- PRICES
4.1 Unless otherwise stated in the Accepted Order, the price for the Goods shall be the price set out in Verna’s quotation or estimate (as applicable) or if no price is quoted, the price set out in Verna’s published price list as at the date the Contract comes into existence (Price).
4.2 Unless otherwise stated in the Accepted Order, the Price of the Goods is exclusive of value added tax, which shall be charged at the applicable rate, and of all costs and charges of packaging, insurance and transport.
4.3 Verna reserves the right to vary the Price by giving notice to the Customer at any time before delivery, to reflect any:
(a) increased costs arising from any Customer request to change the Contract including changes to Accepted Order quantities, types of Goods, Specification and/or delivery dates;
(b) any delay arising from any Customer instructions or failure by the Customer to give Verna adequate or accurate information or instructions; and/or
(c) increased costs of manufacture or supply (including labour, materials and/or energy costs) or any other matter beyond Verna’s reasonable control including foreign exchange fluctuations and increases in taxes and duties. - PAYMENT
5.1 Verna shall be entitled to invoice the Customer on or at any time after the Contract comes into existence.
5.2 Unless otherwise agreed by Verna, the Customer shall pay each invoice within 30 days of its date.
5.3 The Customer shall pay each invoice in the currency stated in the Accepted Order and in full and in cleared funds.
5.4 Any failure by the Customer to make payment to Verna on the due date shall entitle Verna at its sole option to:
(a) suspend performance of its obligations (including delivery of any outstanding Goods) under the Contract and/or any other contracts entered into with the Customer;
(b) charge interest on the outstanding sum from the due date until payment of the overdue sum, whether before or after judgment. Such interest shall: (i) accrue each day at a rate per annum of 5% above the base rate of HSBC from time to time, but at 5% a year for any period when that base rate is below 0%; and (ii) be calculated and compounded monthly. Verna shall be entitled to apply all monies received after the due date in satisfying any outstanding interest before applying any balance towards discharge of the original debt; and/or terminate the Contract pursuant to Condition 12.1(a).
5.5 Verna reserves the right at any time to require satisfactory references as to the Customer’s financial status.
5.6 The Customer shall notify Verna immediately if the Customer becomes subject to an Insolvency Event.
5.7 All amounts payable under the Contract shall be paid in full. The Customer shall not be entitled to set off, counterclaim, deduct or withhold against any monies due to Verna under the Contract or on any other account whatsoever (other than any deduction or withholding of tax as required by law). - DELIVERY
6.1 Unless otherwise stated in the Accepted Order, Verna shall deliver the Goods ex works by making available the Goods at Verna’s premises for collection by or on behalf of the Customer between the hours of 9.00 am to 4.00 pm on the date notified by Verna (Delivery Date). Where delivery is made ex works, Verna shall have no liability for or in connection with any damage to or loss of the Goods in transit.
6.2 Delivery of the Goods shall be completed on being made available by Verna pursuant to Condition 6.1 or, if the Accepted Order requires Verna to deliver the Goods, when the Goods arrive at the delivery location specified in that Accepted Order.
6.3 Verna shall use reasonable endeavours to comply with any dates for delivery of the Goods stated in the Contract or communicated to the Customer however any such dates are approximate only, and time of delivery is not of the essence. Accordingly, any failure by Verna to deliver the Goods by such date shall not be a breach or repudiation of the Contract and, subject to Condition 11.3, Verna shall not be liable for any loss or damage suffered by the Customer as a result of such failure.
6.4 Verna reserves the right to supply 10% more or less than the exact quantity of the Goods specified in the Accepted Order (Tolerance). In the case of:
(a) under or over delivery within the Tolerance, Verna shall amend the charges pro rata to reflect the quantities actually supplied and the Customer must take the quantities delivered;
(b) over delivery in excess of the Tolerance, the Customer may either: (i) take and pay for the quantities actually supplied; or (ii) reject the Goods in excess of the Tolerance (and make them available for collection by Verna) and take and pay the Price for the quantities supplied up to the Tolerance; and
(c) under delivery in excess of the Tolerance, the Customer may require Verna to either: (i) replace the Goods in excess of the Tolerance free of charge; or (ii) refund to the Customer a credit equal to the Price of the Goods in excess of the Tolerance, such credit to be used by the Customer against future Orders only.
6.5 Subject to Condition 11.3, the remedies set out in Condition
6.4 are the Customer’s exclusive remedies for over or under delivery and in any event Verna shall have no liability for any claim unless notified in accordance with Condition 6.7.
6.6 The Customer shall undertake a reasonable inspection of the Goods delivered (taking into account the quantity and nature of the Goods) within 3 days of receipt of the Goods with a view to checking for any obvious breaches of the Goods Warranty and any over or under delivery of the Goods.
6.7 Any under or over delivery of the Goods must be notified to Verna in writing within 14 days of receipt of the Goods.
6.8 In the event that a breach of the Goods Warranty is identified by the Customer, the provisions of Condition 9 shall apply. - STORAGE
7.1 In the event of the Customer:
(a) notifying Verna of its inability to accept delivery of or collect any Goods on the Delivery Date;
(b) failing to give adequate delivery instructions when required to do so;
(c) refusing or failing to accept delivery of or collect the Goods on the Delivery Date; or
(d) requesting postponement of delivery of or collection of the Goods which is agreed to by Verna,
the Goods shall be stored at the sole risk and expense of the Customer as from the time of the relevant notification, failure or agreement, and the Customer shall reimburse Verna for all related costs and expenses (including return transport and storage costs) on demand.
7.2 In the event the Customer fails to collect or accept delivery of the Goods or any part thereof within 30 days of the Delivery Date, Verna shall be entitled, at its sole option, to either destroy or sell the Goods. For the avoidance of doubt, the Customer shall not be relieved of its obligation to pay for such Goods and for all related costs and expenses (including return transport and storage costs) save that if Verna does resell the Goods then the Customer shall only be required to pay the Price Difference. - TITLE AND RISK
8.1 Risk in the Goods shall pass to the Customer on completion of delivery.
8.2 Title to the Goods shall not pass to the Customer until Verna receives payment in full for the Goods.
8.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) hold the Goods on a fiduciary basis as Verna’s bailee;
(b) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Verna’s property;
(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full Price on Verna’s behalf; and
(e) give Verna such information relating to the Goods as Verna may require from time to time,
but, subject to Condition 8.4, the Customer may use the Goods in the ordinary course of its business as from the date they were delivered.
8.4 If before title passes the Customer becomes subject to an Insolvency Event or Verna reasonably believes that any such event is about to happen and notifies the Customer, then:
(a) the Customer shall immediately deliver up the Goods to Verna or Verna’s nominee;
(b) if the Customer fails to deliver up the Goods immediately, Verna may acting itself or via its nominee enter any premise of the Customer or any third party where the Goods are stored to recover such Goods; and
(c) the Customer shall pay all sums due to Verna immediately upon Verna’s demand. - QUALITY OF THE GOODS
9.1 Subject to Condition 9.6, Verna warrants to the Customer that the Goods shall when delivered conform in all material respects (and subject to such tolerances as are normally accepted in the trade) with their description and, if applicable, the Specification (Goods Warranty).
9.2 Provided the Customer complies with Condition 9.4 and subject at all times to Condition 9.6, where any Goods are shown to the reasonable satisfaction of Verna to be in breach of the Goods Warranty within a period of 12 months (unless there is a different relevant period set out in the applicable Accepted Order) from the date of their delivery Verna shall at its sole option either:
(a) where such Goods Warranty breach relates to a macerator:
(i) replace free of charge any defective parts of the macerator within a reasonable period of time, in order for the Customer to carry out repair works, with the costs of such repair work being agreed by the parties in accordance with Condition 9.5(a) below;
(ii) where it is not commercially viable to repair the macerator, replace the non-conforming macerator itself within a reasonable period of time at Verna’s expense; or
(iii) at Verna’s option, instead of replacement pursuant to the above, grant to the Customer a credit equal to the price paid by the Customer for the applicable non-conforming macerator; or
(b) for all other Goods Warranty breaches:
(i) replace or repair the defective Goods free of charge;
(ii) refund to the Customer a credit equal to the Price of the applicable defective Goods, such credit to be used by the Customer against future Orders only; or
(iii) require the Customer to retain the defective Goods and grant to the Customer a reasonable reduction to the Price of such Goods in respect of such defects.
9.3 Subject to Condition 11.3, the remedies in Condition 9.2 represent the Customer’s exclusive remedy in respect of a breach of the Goods Warranty. These Conditions shall apply to any repaired or replacement Goods supplied by Verna.
9.4 The Customer shall;
(a) notify Verna in writing within 14 days of becoming aware of any breach of the Goods Warranty;
(b) ensure Verna is given reasonable opportunity to examine the defective Goods;
(c) if so required by Verna and at all times at Verna’s sole option, return the defective Goods to Verna’s premises at the Customer’s expense (to be refunded by Verna if Verna is satisfied that the Goods are defective) within 5 days of such request or destroy the defective Goods; and
(d) if the defective Goods are macerators, comply with the Macerator Warranty Procedure.
9.5 Where pursuant to Condition 9.2(a) the Customer is performing repair work, the Customer shall:
(a) agree with Verna the costs of such repair work in respect of the non-conforming macerator which in any event shall not exceed the purchase price paid by the Customer for such non-conforming macerator; and
(b) raise any invoice for the costs of the repair work agreed under Condition 9.5(a) above in accordance with the Macerator Warranty Procedure.
1.1 Verna shall not be liable for any of the Goods failure to comply with the Goods Warranty if:
(a) the Goods have not been properly and correctly transported, stored and/or used by the Customer;
(b) the Good is a macerator and the Customer has failed to register such Good in accordance with the Macerator Warranty Procedure or has failed to comply with the terms of the Macerator Warranty Procedure;
(c) the Customer makes any further use of the Goods after giving notice in accordance with Condition 9.4;
(d) the defect arises because the Customer failed to follow Verna’s instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
(e) the defect arises as a result of Verna following or using any Customer Materials;
(f) the Customer alters or repairs the Goods without the written consent of Verna other than where the Good is a macerator and such alteration and repair is permitted by Verna in accordance with these Conditions;
(g) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
(h) the Goods differ from their description and/or Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards. - RECALL
10.1 The Customer shall, at its own cost, maintain or procure the maintenance of a recall procedure in connection with the subject matter of the Contract in accordance with good trade practice and Verna’s requirements from time to time.
10.2 The Customer shall notify Verna immediately upon any Customer Group Member becoming aware of a requirement for a Recall or that a Recall may be required.
10.3 The Customer shall procure that each Customer Group Member shall at the written request of Verna, provide such assistance and support as Verna shall require in respect of any Recall. The cost of such assistance and support shall be borne by the Customer unless the Customer can demonstrate to the reasonable satisfaction of Verna that the Recall was not attributable directly or indirectly to any act or omission of the Customer, any Customer Group Member, any of their customers or any person acting on behalf of the Customer or its Group. - LIABILITY
11.1 Subject to Conditions 11.2 and 11.3, the total liability of Verna in respect of all Defaults (when taken together and not for each individual Default) shall not exceed 100% of the Order Value save that should the Default(s) relate to part only of the Goods supplied under the Contract, Verna’s total liability shall not exceed 100% of the Impacted Goods Value.
11.2 Subject to Condition 11.3, Verna shall not be liable to the Customer for any:
(a) loss of production;
(b) loss of profits;
(c) loss of sales or business;
(d) loss of agreements or contracts;
(e) loss of opportunity;
(f) loss of bargain;
(g) loss of anticipated savings;
(h) claims made by employees or representatives of the Customer in respect of any loss commission or other similar payments;
(i) loss of use or corruption of software, data or information;
(j) loss or damage to goodwill; or
(k) indirect or consequential loss.
11.3 Nothing in these Conditions shall limit or exclude liability which cannot be legally limited including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; or
(c) any matter in respect of which it would be unlawful to exclude or restrict liability. - TERMINATION
12.1 Verna may terminate the Contract (in whole or in part) with immediate effect and/or suspend further performance of its obligations under the Contract by giving written notice to the Customer if:
(a) the Customer fails to pay any sums when due under the Contract and fails to remedy such failure within 14 days of Verna’s notice requiring such payment;
(b) the Customer commits a material breach of any of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 14 days of the Customer being notified to do so;
(c) the Customer is subject to an Insolvency Event; and/or
(d) a reference provided in accordance with Condition 5.5
is unacceptable to Verna.
12.2 Upon giving written notice of such termination or suspension, the Contract shall be deemed to have been terminated or suspended (as the case may be) from the date specified by Verna in such notice.
12.3 On termination of the Contract, the Customer shall:
(a) immediately pay to Verna all outstanding unpaid invoices in respect of the Goods and any accrued interest and, in respect of Goods supplied but for which no invoice has been submitted, Verna shall submit an invoice, which shall be payable by the Customer immediately on receipt; or
(b) at Verna’s request and subject to Condition 12.4, return Goods which have not been fully paid for. If the Customer fails to do so, then Verna may enter the Customer’s or third party’s premises where they are stored and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and shall not use them for any purpose not connected with the Contract. If the Customer fails to return Goods which have not been paid for then the Price for such Goods will become immediately payable as a debt due.
12.4 Verna’s recovery of the Goods pursuant to Condition 12.3(b) shall not relieve the Customer of its obligation to pay for such Goods and for all related costs and expenses (including return transport and storage costs) save that if Verna does resell the Goods then the Customer shall only be required to pay the Price Difference and Verna shall issue appropriate credits to its invoices or make a required reimbursement where invoices have been paid by the Customer prior to resale of the applicable Goods by Verna.
12.5 On termination of the Contract, Verna may terminate any or all other outstanding orders for Goods placed by a Customer Group Member. If Verna exercises this right the provisions set out in Condition 12.3 shall apply to such terminated orders.
12.6 Termination or expiry of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
12.7 Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect after termination or expiry including Conditions 3.5, 3.7, 10, 12.3, 12.4, 12.5, 12.6,
12.7, 13, 14, 18, 19, 20, 22 and 23. - INTELLECTUAL PROPERTY RIGHTS
13.1 All Verna IPR and all intellectual property rights arising out of or in connection with the performance of the Contract shall be owned by Verna (but excluding any intellectual property rights in Materials supplied by the Customer ).
13.2 The sale by the Customer of any Goods under any of Verna’s trade marks or names (whether registered or not) shall not confer upon the Customer any right or licence to use or apply such trade mark or name unless the parties agree that the Customer may resell the Goods in which case Verna grants the Customer a royalty free, non-exclusive, personal and non-assignable licence to use Verna IPR solely for the promotion, advertising and sale of the Goods in accordance with the terms of and for the duration of the Contract provided such use is in accordance with Verna’s guidelines and requirements as notified to the Customer from time to time.
13.3 The Customer shall not:
(a) modify, alter, remove or tamper with Verna IPR (including any trade marks, numbers or other means of identification) used on or in relation to the Goods;
(b) make any alterations or additions to the Goods or the labelling or packaging of the Goods displaying Verna IPR;
(c) alter, deface or remove any reference to Verna IPR, any reference to Verna or any other name attached or affixed to the Goods or their packaging or labelling;
(d) do or permit to be done or omit to do any act which would or might jeopardise or invalidate any registration of any Verna IPR (or any application for registration of any Verna IPR) or be inconsistent with Verna IPR;
(e) do or permit to be done or omit to do any act which might assist or give rise to an application to remove any Verna IPR from the register or which might prejudice the right or title of Verna to any of Verna IPR; or
(f) use Verna IPR in any way which might prejudice its distinctiveness, validity or Verna’s goodwill in that Verna IPR.
13.4 The Customer shall immediately notify Verna of any infringement or possible infringement or misuse of Verna IPR of which it becomes aware and of any allegation that the registration of any Verna IPR is invalid or that use of any Verna IPR and/or the marketing, advertising, promotion
and/or sale of the Goods infringes any rights of any third party (Infringements).
13.5 Verna shall have conduct of all negotiations and proceedings relating to Infringements and shall in its sole discretion decide what action, if any, to take in respect thereof. The Customer shall not be entitled to bring any action in its own name and shall make no comment or admissions in respect thereto. The Customer shall, at the request of Verna, provide such assistance as Verna reasonably requires in respect of any action taken by Verna.
13.6 The Customer grants Verna a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any Customer Materials for the purpose of performing the Contract. - CONFIDENTIALITY
14.1 Subject to Condition 14.2, each party agrees that it shall not during or after the Contract disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party.
14.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives, subcontractors or advisers who need to know such information to carry out the party’s obligations under the Contract. Each party shall ensure that such employees, officers, representatives, subcontractors or advisers comply with this Condition 14; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
14.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract. - ANTI-BRIBERY AND CORRUPTION
15.1 The Customer shall:
(a) comply with Verna’s anti-corruption policies as notified to the Customer from time to time. Verna’s anti-corruption policies shall be made available for the Customer upon request;
(b) comply with all laws, regulations and codes relating to anti bribery and anti-corruption including the Bribery Act 2010, the Foreign Corrupt Practices Act 1977 and laws enacted in accordance with the Organisation for Economic Co operation and Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (Relevant Requirements);
(c) have and maintain in place, its own policies and procedures, to ensure compliance with the Relevant Requirements, and shall enforce them where appropriate; and
(d) notify Verna immediately upon becoming aware of any actual or potential breach of this Condition 15.
15.2 The Customer warrants that it has not offered any form of bribe, inducement or other incentive to Verna in return for Verna entering into the Contract or for the provision of any other services.
15.3 Verna may terminate the Contract (in whole or in part) with immediate effect on written notice for the Customer’s irremediable breach if:
(a) the Customer, any of its personnel, agents, representatives or sub-contractors or any other person acting on its behalf (and whether with or without the Customer’s knowledge) accepts, solicits, agrees to receive, promises, offers or gives a bribe, facilitation payment, kickback or other improper payment; or
(b) the Customer, any of its personnel, agents, representatives or sub-contractors or any other person acting on its behalf (and whether with or without the Customer’s knowledge) commits an offence under the Relevant Requirements.
15.4 If Verna does terminate any or all of the Contract pursuant to Condition 15.3, the Customer shall indemnify Verna in respect of losses incurred by Verna as a result of such termination and the related breach of this Condition 15.
15.5 For the purpose of this Condition 15, the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively. - FORCE MAJEURE
Verna shall not 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 events, circumstances or causes beyond its reasonable control. - ASSIGNMENT AND OTHER DEALINGS
17.1 Verna may at any time assign, sub-contract or deal in any other manner with any or all of its rights and obligations under the Contract.
17.2 The Customer shall not assign, sub-contract or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of Verna. - WAIVER
No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitutea waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy. - RIGHTS AND REMEDIES
The rights and remedies under the Contract are cumulative and in addition to and, except where otherwise expressly provided in the Contract, do not exclude, any rights and remedies provided by law (including equitable remedies) or otherwise. - ENTIRE AGREEMENT
20.1 The 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. Accordingly, these Conditions shall 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.
20.2 Each party acknowledges that in entering into the Contract it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Accordingly, each party agrees that any samples, drawings, descriptive matter or advertising issued by Verna (including any descriptions or illustrations contained in Verna’s catalogues or brochures) are issued or published for the sole purpose of giving an approximate idea of the Goods described in them and shall not form part of the Contract, and that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract. This Condition 20.2 is subject to Condition 11.3. - SEVERANCE
If at any time any one or more of the provisions (or part of any provision) of the Contract becomes invalid, illegal, or unenforceable in any respect it shall not affect the legality, validity and enforceability of the remaining provisions of the Contract and the parties shall negotiate in good faith to amend such provision (or part provision), such that as amended it is legal, valid and enforceable and to the greatest extent possible achieves the intended original commercial intention of the original provision. - THIRD PARTY RIGHTS
Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract. - 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 English law. The Customer hereby irrevocably submits to the exclusive jurisdiction of the English courts to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation. - NOTICES
24.1 Any notice given to a party under or in connection with the Contract shall be in writing in English and shall be delivered by hand or by prepaid first class registered post or other next day recorded delivery to the other party’s last known registered office or principal place of business.
24.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time of delivery; and
(b) if sent by prepaid first class registered post or other next day recorded delivery, at 9.00 am on the second Business Day after the date of posting.
24.3 This Condition 24 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.
24.4 Verna shall be entitled to reject any Customer Material which Verna considers unsuitable. Verna may charge the Customer for any related costs and expenses incurred by Verna if Verna considers such Customer Material is unsuitable or subsequently discovered to be unsuitable.
24.5 The Customer represents and warrants to Verna that neither the Special Goods (nor the manufacture or supply thereof) nor the Customer Materials infringe any intellectual property right of any third party.
24.6 The Customer shall indemnify Verna and keep Verna and each Verna Group Member indemnified on demand from and against all liabilities, actions, proceedings, claims, costs, damages, expenses and loss (including any loss of profit, loss of reputation, and any indirect and consequential losses, and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Verna and its Group arising out of or in connection with:
(a) any defect in the Special Goods whether due to quality, design, fitness for purpose or otherwise unless the same is due to the direct negligence of Verna; and
(b) any claim made against Verna and/or its Group for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with Verna’s or its Group’s manufacture, supply or use of the Special Goods and/or Customer Materials.
24.7 Where the Goods supplied by Verna include macerators:
(a) the Customer shall comply with the Macerator Warranty Procedure and shall ensure that all its employees and representatives (and of any approved sub-contractor) who are installing, repairing and/or maintaining the macerators are fully trained and certified by Verna to ensure the proper fulfilment of their roles; and
(b) Verna will provide reasonable training to the Customer’s relevant employees and representatives in matters relating to the macerators (and their maintenance and repair) and shall provide such after-sales services and support to the Customer as is reasonably required by the Customer and as Verna considers to be reasonably appropriate.
24.8 At Verna’s request, the Customer shall return any Verna Materials. If the Customer fails to do so, then Verna may enter the Customer’s or third party’s premises where they are stored and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and shall not use them for any purpose not connected with the Contract. - PRICES
25.1 Unless otherwise stated in the Accepted Order, the price for the Goods shall be the price set out in Verna’s quotation or estimate (as applicable) or if no price is quoted, the price set out in Verna’s published price list as at the date the Contract comes into existence (Price).
25.2 Unless otherwise stated in the Accepted Order, the Price of the Goods is exclusive of value added tax, which shall be charged at the applicable rate, and of all costs and charges of packaging, insurance and transport.
25.3 Verna reserves the right to vary the Price by giving notice to the Customer at any time before delivery, to reflect any:
(a) increased costs arising from any Customer request to change the Contract including changes to Accepted Order quantities, types of Goods, Specification and/or delivery dates;
(b) any delay arising from any Customer instructions or failure by the Customer to give Verna adequate or accurate information or instructions; and/or
(c) increased costs of manufacture or supply (including labour, materials and/or energy costs) or any other matter beyond Verna’s reasonable control including foreign exchange fluctuations and increases in taxes and duties. - PAYMENT
26.1 Verna shall be entitled to invoice the Customer on or at any time after the Contract comes into existence.
26.2 Unless otherwise agreed by Verna, the Customer shall pay each invoice within 30 days of its date.
26.3 The Customer shall pay each invoice in the currency stated in the Accepted Order and in full and in cleared funds.
26.4 Any failure by the Customer to make payment to Verna on the due date shall entitle Verna at its sole option to:
(a) suspend performance of its obligations (including delivery of any outstanding Goods) under the Contract and/or any other contracts entered into with the Customer;
(b) charge interest on the outstanding sum from the due date until payment of the overdue sum, whether before or after judgment. Such interest shall: (i) accrue each day at a rate per annum of 5% above the base rate of HSBC from time to time, but at 5% a year for any period when that base rate is below 0%; and (ii) be calculated and compounded monthly. Verna shall be entitled to apply all monies received after the due date in satisfying any outstanding interest before applying any balance towards discharge of the original debt; and/or
SCHEDULE 4 – MACERATOR RESPONSIBILITIES
For the purposes of this Schedule, defined terms shall have the meaning given to them in the Agreement unless stated otherwise.
Defective Macerator Claims
5.1 If the defective Goods are macerators, the Partner shall (or shall procure that the relevant customer shall) comply with the Macerator Warranty Procedure in addition to any other claims requirements set out in this Agreement.
To the extent that the Products include macerators, the Partner shall:
1.1.1 ensure that all its employees and representatives (and any approved sub-contractor) who are selling, installing, repairing and/or maintaining the macerators are fully trained and certified by Verna to ensure the proper fulfilment of their roles and to enable the Partner to meet its obligations under this Agreement and effectively promote, sell and maintain the macerators and provide the macerator support services;
1.1.2 provide a full, national after-sales service and support to its customers to the reasonable satisfaction of Verna;
1.1.3 provide visibility of installed pulp disposal unit base, including facility name, ward and machine serial number in accordance with the Macerator Warranty Procedure and as part of the monthly reporting process;
1.1.4 comply with the Macerator Warranty Procedure and shall ensure that all its employees and representatives (and of any approved sub-contractor) who are installing, repairing and/or maintaining the macerators are fully trained and certified by Verna to ensure the proper fulfilment of their roles; and
1.1.5 provide visibility of installed pulp disposal unit base, including facility name, ward and machine serial number in accordance with the Macerator Warranty Procedure and as part of the monthly reporting process.
1.1.6 on a quarterly basis, provide a written report setting out:
1.1.6.1 details of Macerator Responsibilities performed by the Partner, taking into account the Partner’s performance by reference to any applicable targets;
1.1.6.2 details of macerator support services performed for its customers, including reports on pipeline sales and information on average monthly market selling price; and
1.1.6.3 such other information relating to the Macerator Responsibilities as Verna may reasonably require from time to time.
1.2 To the extent that the Products include macerators, Verna shall:
1.2.1 provide the Partner with reasonable technical service and commercial support in respect of the macerators for the benefit of the Partner’s customers; and
1.2.2 provide reasonable training to the Partner’s relevant employees and representatives in matters relating to the macerators (and their maintenance and repair) and shall provide such after-sales services and support to the Partner as is reasonably required by the Partner and as Verna considers to be reasonably appropriate.
Macerator Warranty Remedies
2.1 Where any Goods that are macerators are shown to the reasonable satisfaction of Verna to be in breach of the applicable warranty within a period of 12 months from the date of their delivery (unless a different period is set out in the relevant order), Verna shall at its sole option either:
2.1.1 replace free of charge any defective parts of the macerator within a reasonable period of time, in order for the Partner (or its customer, as the case may be) to carry out repair works, with the costs of such repair work being agreed by the parties in accordance with clause 3.1;
2.1.2 where it is not commercially viable to repair the macerator, replace the non-conforming macerator itself within a reasonable period of time at Verna’s expense; or
2.1.3 at Verna’s option, instead of replacement pursuant to clauses 2.1.1 or 2.1.2, grant a credit equal to the price paid for the applicable non-conforming macerator.
Macerator Repair Costs
3.1 Where pursuant to clause 2, the Partner or its customer is performing repair work, the Partner shall (or shall procure that its customer shall):
3.1.1 agree with Verna the costs of such repair work in respect of the non-conforming macerator, which in any event shall not exceed the purchase price paid for such non-conforming macerator; and
3.1.2 raise any invoice for the costs of the repair work agreed under clause 3.1.1 in accordance with the Macerator Warranty Procedure.
Macerator Warranty Exclusions
4.1 Verna shall not be liable for any failure of a macerator to comply with the applicable warranty if:
4.1.1 the macerator has not been registered in accordance with the Macerator Warranty Procedure or the terms of the Macerator Warranty Procedure have not been complied with; or
4.1.2 the macerator has been altered or repaired without the written consent of Verna, other than where such alteration or repair is permitted by Verna in accordance with this Agreement.
5. Defective Macerator Claims
If the defective Goods are macerators, the Partner shall (or shall procure that the relevant customer shall) comply with the Macerator Warranty Procedure in addition to any other claims requirements set out in this Agreement