SETTLEMENT DEED AND RELEASE

Transcription

1 DATED SETTLEMENT DEED AND RELEASE BETWEEN (1) GEN FIT LIMITED (2) PV FIT LIMITED (3) TIMOTHY [x] BIRT AND (4) SIAC WIND ENERGY (UK) LIMITED

2 CONTENTS CLAUSE 1. Definitions and interpretation Effect of this deed Payment Release Agreement not to sue Costs Warranties and authority Indemnities No admission Severability Entire agreement Confidentiality Publicity Governing law and jurisdiction Contracts (Rights of Third Parties) Act Co-operation Counterparts Variation... 6

3 THIS DEED is dated [DATE] PARTIES together the Reseller (1) GEN FIT LIMITED (Company No ) whose registered office is 20 Winmarleigh Street, Warrington, Cheshire, United Kingdom, WA11JY ( GEN FIT ); (2) PV FIT LIMITED (Company No ) whose registered office is 20 Winmarleigh, Street,Warrington, Cheshire United, Kingdom WA11JY ( PV FIT ), (3) TIMOTHY [x] BIRT of Stone House Farm, The Street, Ovington, Thetford, Norfolk. IP25 6RT ( End User ); and (4) SIAC WIND ENERGY (UK) LIMITED (Company No ) whose registered office is Regus House, Central Boulevard, Blythe Valley Park, Shirley, Solihull, West Midlands, United Kingdom, B908AG ( SIAC ) each a Party, together the Parties BACKGROUND (A) (B) (C) (D) A dispute has arisen between the Parties relating to the supply of a 20m Hydraulic Monopole Tower (the Tower ) which was sold together with a Bergey Excel-S 10kW Wind Turbine, Powersync II Single Phase Inverter, Hydraulic Ram Kit (including brackets, pins and hoses) and ancillary equipment (including ADS and TIS) (the "Goods") by SIAC to the Reseller. The Reseller, relying on its own skill and expertise sold the Tower and Goods to the End User and installed them at the End User s property at Stone House Farm, The Street, Ovington, Thetford, Norfolk, IP25 6RT (the Site ). The End User is dissatisfied with the noise levels created by the Tower resonating under the local conditions at the Site and neighbouring properties to the Site have complained about the noise created by the Tower and the End User now wishes for the Tower and Goods to be removed from the Site (the Dispute ). SIAC has agreed to remove the Tower and Goods from the Site and refund to the End User thirty nine thousand two hundred and fourteen pounds eighty pence ( 39, this is inclusive of the sum of the VAT amount paid by the Reseller to SIAC) ( SIAC s Settlement Amount ) in full and final settlement of any and all claims between the Parties in relation to the Tower, Goods and the legal and equitable relationship between the Parties and the Dispute. 1

4 (D) (E) The Reseller has acknowledged and agreed that it shall have no actions, claims, rights, demands and/or any set-offs, whether in this jurisdiction or any other, whether or not presently known to the Parties or to the law, and whether in law or equity, against SIAC in relation to the Tower and the Goods. The Parties have accordingly settled their differences and have agreed terms for the full and final settlement of any and all claims between the Parties in relation to the Tower, Goods and the legal and equitable relationship between the Parties and the Dispute. They wish to record those terms of settlement, on a binding basis, in this deed. AGREED TERMS 1. DEFINITIONS AND INTERPRETATION In this deed, unless the context otherwise requires, the following words and expressions have the following meanings: Dispute has the meaning given in recital C; Goods has the meaning given in recital A; Related Parties means a Party s parent, subsidiaries, assigns, transferees, representatives, principals, agents, officers or directors; Released Claims has the meaning given in clause 4; Representatives has the meaning given in clause 13.2; SIAC s Settlement Amount has the meaning given in recital E; Site has the meaning given in recital B; and Tower has the meaning given in recital A. 2. EFFECT OF THIS DEED The Parties hereby agree that on executing this deed it shall immediately be fully and effectively binding on them. 3. PAYMENT SIAC shall, within thirty (30) days from the date on which SIAC removes the Tower and Goods from the Site, pay the End User SIAC s Settlement Amount by way of bank transfer to: 2

5 Bank: Nationwide Building Society Sort Code: Account Number: RELEASE This deed is in full and final settlement of, and each Party hereby releases and forever discharges, all and/or any actions, claims, rights, demands and set-offs, whether in this jurisdiction or any other, whether or not presently known to the Parties or to the law, and whether in law or equity, that it, its Related Parties or any of them ever had, may have or hereafter can, shall or may have against the other Party or any of its Related Parties arising out of or connected with: (a) (b) (c) (d) (e) the Dispute; the underlying facts relating to the Dispute; any agreement between or act or omission by the Parties or their Related Parties or any of them; any other matter arising out of or connected with the sale, resale, supply and/or installation of the Tower and/or the Goods at the Site between the Parties; and any other matter arising out of or connected with the relationship between the Parties. (Collectively the Released Claims ) 5. AGREEMENT NOT TO SUE Each Party agrees, on behalf of itself and on behalf of its Related Parties not to sue, commence, voluntarily aid in any way, prosecute or cause to be commenced or prosecuted against the other Party or its Related Parties any action, suit or other proceeding concerning the Released Claims, in this jurisdiction or any other. 6. COSTS 6.1 The Parties shall each bear their own legal costs in relation to the Released Claimsand this deed. 6.2 This clause 6 supersedes and overrides any and all previous agreements between the Parties and any court order regarding the legal costs in relation to the Released Claims and in relation to this deed (including the implementation of all matters provided by this deed). 3

6 7. WARRANTIES AND AUTHORITY 7.1 Each Party warrants and represents that it has not sold, transferred, assigned or otherwise disposed of its interest in the Released Claims. 7.2 Each Party warrants and represents to the other with respect to itself that it has the full right, power and authority to execute, deliver and perform this deed. 8. INDEMNITIES Each Party hereby indemnifies, and shall keep indemnified, each other Party against all costs and damages (including the entire legal expenses of the Parties) incurred in all future actions, claims and proceedings in respect of any of the Released Claims which it or its Related Parties or any of them may bring against the other Party or its Related Parties or any of them. 9. NO ADMISSION This deed is entered into in connection with the compromise of disputed matters and in the light of other considerations. It is not, and shall not be represented or construed by another Party as, an admission of liability or wrongdoing on the part of any Party to this deed or any other person or entity. 10. SEVERABILITY If any provision of this deed is found to be void or unenforceable, that provision shall be deemed to be deleted from this deed and the remaining provisions of this deed shall continue in full force and effect and the Parties shall use their respective reasonable endeavours to procure that any such provision is replaced by a provision which is valid and enforceable, and which gives effect to the spirit and intent of this deed. 11. ENTIRE AGREEMENT 11.1 This deed constitutes the entire understanding and agreement between the Parties in relation to the subject matter of this deed Each Party acknowledges that it has not entered into this deed in reliance wholly or partly on any representation or warranty made by or on behalf of the other Party (whether orally or in writing) other than as expressly set out in this deed. 4

7 12. CONFIDENTIALITY The terms of this deed, and the substance of all negotiations in connection with it, are confidential to the Parties and their advisers, who shall not disclose them to, or otherwise communicate them to, any third party without the written consent of the other Party other than: (a) (b) (c) to the Parties' respective auditors, insurers and lawyers on terms which preserve confidentiality; pursuant to an order of a court of competent jurisdiction or pursuant to any proper order or demand made by any competent authority or body where they are under a legal or regulatory obligation to make such a disclosure; and as far as necessary to implement and enforce any of the terms of this deed. 13. PUBLICITY 13.1 Neither Party shall make any press announcements or publicise (by any means) the existence or details of this deed, the Released Claims or any part thereof in any way, except with the prior written consent of the other Parties All Parties shall take all reasonable steps to ensure the observance of the provisions of clause 13.1 by all their servants, employees, agents, professional advisors, consultants and/or any Related Party (the relevant Party s Representatives ). Each Party shall take all reasonable steps to ensure the observance of the provisions of clause Each Party shall be liable to an affected Party for the actions or omissions of its Representatives in relation to any disclosure as if they were the actions or omissions of the Party The Party acknowledges that damages alone would not be an adequate remedy for the breach of any of the provisions of this deed. Accordingly, without prejudice to any other rights and remedies it may have, each Party shall be entitled to the granting of equitable relief (including without limitation injunctive relief) concerning any threatened or actual breach of any of the provisions of this deed Each Party hereby waives in full their right to defend and/or contest any such claim for equitable relief Each Party shall indemnify and shall keep fully indemnified on demand each Party at all times against all liabilities, costs (including legal costs on an indemnity basis), expenses, damages and losses including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and other costs and 5

8 expenses suffered or incurred by the relevant Party arising from any breach (whether actual or anticipated) of this clause 13 and from the actions or omissions of any Representative of that Party. 14. GOVERNING LAW AND JURISDICTION This deed shall be governed by, and construed in accordance with, the law of England and Wales. Any dispute arising out of or in connection with, or concerning the carrying into effect of, this deed shall be subject to the exclusive jurisdiction of the courts of England and Wales, and the Parties hereby submit to the exclusive jurisdiction of those courts for these purposes. 15. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT No other person who is not a Party to this deed shall have any rights, whether under the Contract (Rights of Third Parties) Act 1999 or otherwise, to enforce any terms of this deed. 16. CO-OPERATION The Parties shall deliver or cause to be delivered such instruments and other documents at such times and places as are reasonably necessary or desirable, and shall take any other action reasonably requested by the other Party for the purpose of putting this deed into effect. 17. COUNTERPARTS This deed may be signed in any number of counterparts, each of which, when executed and delivered, shall be an original and all of which together evidence the same deed. Any Party who provides a scanned ed, signed counterpart to the other party on completion agrees to provide original, signed counterparts to the other Party within [5] days of completion. 18. VARIATION Any variation of this deed shall be in writing and signed by or on behalf of each Party. This document has been executed as a deed and is delivered and takes effect on the date stated at the beginning of it. Executed as a deed by GEN FIT LIMITED acting by [NAME OF FIRST [SIGNATURE OF FIRST DIRECTOR] 6

9 DIRECTOR], a director and [NAME OF SECOND DIRECTOR OR SECRETARY], [a director OR its secretary] OR Executed as a deed by GEN FIT LIMITED acting by [NAME OF DIRECTOR], a director, in the presence of: [SIGNATURE OF WITNESS] [NAME, ADDRESS [AND OCCUPATION] OF WITNESS] Executed as a deed by PV FIT LIMITED acting by [NAME OF FIRST DIRECTOR], a director and [NAME OF SECOND DIRECTOR OR SECRETARY], [a director OR its secretary] OR Executed as a deed by PV FIT LIMITED acting by [NAME OF DIRECTOR], a director, in the presence of: [SIGNATURE OF WITNESS] [NAME, ADDRESS [AND OCCUPATION] OF WITNESS] Director [SIGNATURE OF SECOND DIRECTOR OR SECRETARY] [Director OR Secretary] [SIGNATURE OF DIRECTOR] Director [SIGNATURE OF FIRST DIRECTOR] Director [SIGNATURE OF SECOND DIRECTOR OR SECRETARY] [Director OR Secretary] [SIGNATURE OF DIRECTOR] Director Executed as a deed by SIAC WIND ENERGY (UK) LIMITED acting by [NAME OF FIRST DIRECTOR], a director and [NAME OF SECOND DIRECTOR OR SECRETARY], [a director OR its secretary] OR Executed as a deed by SIAC WIND ENERGY (UK) LIMITED acting by [NAME OF DIRECTOR], a director, in 7

10 the presence of: [SIGNATURE OF WITNESS] [NAME, ADDRESS [AND OCCUPATION] OF WITNESS] Executed as a deed by TIMOTHY [x] BIRT, in the presence of: [SIGNATURE OF WITNESS] [NAME, ADDRESS [AND OCCUPATION] OF WITNESS] 8