Pasante Healthcare Limited is a leading international supplier of healthcare products. All such products are supplied by Pasante Healthcare Limited on the terms and subject to the conditions set out below.
1. Interpretation
1.1 Definitions:
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Acceptance: means acceptance by Pasante of an Order whether through Pasante’s electronic data interchange, by email, by telephone or receipt of an invoice or despatch notice by the Customer in respect of the Order, whichever is the first to occur.
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Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
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Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 4.
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Contract: the contract between Pasante and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
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Customer: the person or firm who purchases the Goods from Pasante.
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Delivery Location: has the meaning given in clause 1.
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Force Majeure Event: an event, circumstance or cause beyond a party's reasonable control.
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Goods: the goods (or any part of them) set out in the Order.
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Order: the Customer's order for the Goods, as set out in the Customer's purchase order form or overleaf or EDI or in the Customer's written acceptance of Pasante's quotation, as the case may be.
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Pasante: Pasante Healthcare Limited (registered in England and Wales with company number 04409735).
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Specification: any specification for the Goods that is agreed in writing by the Customer and Pasante.
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Trade Marks: means Pasante’s registered and unregistered trademarks including (but not limited to) UK00003063785
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 includes fax and email.
2. Basis of contract
2.1. 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.
2.2. 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 and any applicable Specification are complete and accurate.
2.3. The Order shall only be deemed to be accepted when Pasante issues an Acceptance, such as but not limited to confirmation via email, acceptance of EDI, or Goods are received in the event that a formal acceptance has not been provided, at which point the Contract shall come into existence.
2.4. 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.
2.5. Any samples, drawings or advertising produced by Pasante and any illustrations contained in Pasante's catalogues, brochures or websites 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.
2.6. A quotation for the Goods given by Pasante shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.
2.7. The Customer warrants that each Order contains up-to-date information relating to it including but not limited to contact details, address details (including delivery address) and VAT details.
3. Goods
3.1. The Goods are described in Pasante's catalogue and/or website as modified by any applicable Specification.
3.2. To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify Pasante against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by Pasante in connection with any claim made against Pasante for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with Pasante's use of the Specification. This clause 2 shall survive termination of the Contract.
3.3. Pasante reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
4. Regulatory Requirements and Trade Marks
4.1. In so far as they relate to the Goods, the Customer shall comply with the provisions of the Medical Device Regulation (EU) 2017/745, In Vitro Diagnostic Medical Devices Directive 98/79/EC, Medical Device Directive 93/42/EEC, BSI Kitemark any other relevant regulation relating to the sale of products supplied by Pasante and without prejudice to the generality of the foregoing shall:
(a) comply with all instructions and recommendations of Pasante relating to storage or transport of the Goods;
(b) not modify the Goods during transport or storage such that their characteristics and performance would be compromised during their intended use;
(c) not breakdown packs for the purpose of reselling without the prior written approval of Pasante; and
(d) not distribute products without an instruction for use and within a region whereby the instructions for use and language on the packaging is not in the language of the end consumer to whom the product is intended to be used by.
4.2. Pasante hereby grants to the Customer the non-exclusive right to use the Trade Marks in the promotion, advertisement and sale of the Goods. The Customer acknowledges and agrees that all rights in the Trade Marks shall remain in Pasante, and that the Customer has and will acquire no right in them by virtue of the discharge of its obligations under this Contract, except for the right to use the Trade Marks as expressly provided in this Contract.
4.3. All representations of the Trade Marks that the Customer intends to use shall be submitted to Pasante for written approval before use.
4.4. The Customer shall comply with all rules for the use of the Trade Marks issued by Pasante and shall not, without the prior written consent of Pasante, alter or make any addition to the labelling or packaging of the Goods displaying the Trade Marks. The Customer shall not alter, deface or remove any reference to the Trade Marks, any reference to Pasante or any other name displayed on the Goods or their packaging or labelling.
4.5. Pasante makes no representation or warranty as to the validity or enforceability of the Trade Marks nor as to whether they infringe any intellectual property rights of third parties.
4.6. The Customer shall not sub-license, transfer or otherwise deal with the rights of use of the Trade Marks granted under the Contract.
4.7. The Customer shall not do, or omit to do, anything in its use of the Trade Marks that could adversely affect their validity or reputation.
4.8. The Distributor acknowledges that nothing in these Conditions or the Contract operates to vest any right, title or interest in the Trade Marks in the Customer. The Customer shall immediately on request enter into any further agreements with Pasante, in a form satisfactory to Pasante, necessary for the recording, registration or safeguarding of Pasante’s Trade Mark rights for the marketing of the Goods under the Trade Marks.
5. Delivery
5.1. Pasante shall ensure that each delivery of the Goods is accompanied by a delivery note that shows the Order number and the type and quantity of the Goods (including the code number of the Goods, where applicable).
5.2. Pasante shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location).
5.3. Delivery is completed on the completion of unloading of the Goods at the Delivery Location.
5.4. Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Pasante 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 Pasante with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.5. If Pasante 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. Pasante 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 Pasante with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.6. If the Customer fails to accept delivery of the Goods within three Business Days of Pasante notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or Pasante'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 day on which Pasante notified the Customer that the Goods were ready; and
(b) Pasante shall store the Goods until delivery takes place and charge the Customer for all related costs and expenses (including insurance).
5.7. If ten Business Days after the day on which Pasante notified the Customer that the Goods were ready for delivery the Customer has not accepted actual delivery of them, Pasante 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 (where the Customer has already paid for the Goods and Pasante is selling as agent for the Customer or charge the Customer for any shortfall below the price of the Goods (where the Customer has not paid for the Goods and Pasante is selling as owner of the Goods).
5.8. If Pasante delivers up to and including 5% more or less than the quantity of Goods ordered the Customer may not reject them, but on receipt of notice from the Customer that the wrong quantity of Goods was delivered, a pro rata adjustment shall be made to the Order invoice.
5.9. Pasante 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.
6. Quality
6.1. Pasante warrants that on delivery, and for a period of 3 months, unless otherwise expressly agreed in writing by the Customer, from the date of delivery (warranty period), the Goods shall:
(a) conform with their description and the Specification; and
(b) be free from material defects in design, material and workmanship ; and
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
(d) be fit for any purpose held out by Pasante.
6.2. Subject to clause 6.3, if:
(a) the Customer gives notice in writing to Pasante during the warranty period that some or all of the Goods do not comply with the warranty set out in clause 6.1;
(b) Pasante is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by Pasante) returns such Goods at Pasante’s expense to Pasante's place of business.
Pasante shall, at its option, replace the defective Goods, or refund the price of the defective Goods in full.
6.3. Pasante shall not be liable for the Goods' failure to comply with the warranty set out in clause 6.1 in any of the following events:
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 6.2
(b) the defect arises because the Customer failed to follow Pasante's oral or written instructions or recommendations as to the storage, transport and use of the Goods or (if there are none) good trade practice regarding the same;
(c) the defect arises as a result of Pasante following any drawing, design or Specification supplied by the Customer;
(d) the Customer alters such Goods without the written consent of Pasante;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or use (including but not limited to use after any “use by” date on the Goods); or
(f) the Goods differ from their description [the Specification] as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
6.4. Except as provided in this clause 6, Pasante shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 6.1.
6.5. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
6.6. These Conditions shall apply to any replacement Goods supplied by Pasante.
7. Title and risk
7.1. The risk in the Goods shall pass to the Customer on completion of delivery.
7.2. Title to the Goods shall not pass to the Customer until the earlier of:
(a) Pasante receives payment in full (in cash or cleared funds) for the Goods and any other goods that Pasante has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and
(b) the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 7.4.
7.3. 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 Pasante'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 Pasante immediately if it becomes subject to any of the events listed in clause 10.1(b) to clause 10.1(d); and
(e) give Pasante such information relating to the Goods as Pasante may require from time to time.
7.4. Subject to clause 5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Pasante receives payment for the Goods. However, if the Customer resells the Goods before that time:
(a) it does so as principal and not as Pasante’s agent; and
(b) title to the Goods shall pass from Pasante to the Customer immediately before the time at which resale by the Customer occurs.
7.5. If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 10.1(b) to clause 10.1(d), then, without limiting any other right or remedy Pasante may have:
(a) the Customer's right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
(b) Pasante may at any time:
(i) require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and
(ii) 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.
8. Price and payment
8.1. 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 Pasante's price list in force as at the date of delivery or the pricing agreed between the Customer and Pasante as the case may be.
8.2. Pasante may, by giving notice to the Customer at any time up to 20 Business Days 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 Pasante'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 Pasante adequate or accurate information or instructions.
8.3. The price of the Goods:
(a) excludes amounts in respect of value added tax (VAT), which the Customer may additionally be liable to pay to Pasante 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 at the rates prevailing on the date of invoicing for the Goods. By way of example only, at the date of adoption of these Terms, the following carriage charges apply:
(i) £15 for UK mainland (excluding Scottish Highlands) orders under £250 (excluding VAT); and
(ii) £30 for Republic of Ireland, Scottish Highlands & Channel Islands orders under £500 (excluding VAT).
(iii) For other locations, carriage charged at the prevailing rate
8.4. Pasante may invoice the Customer for the Goods on or at any time after the completion of delivery.
8.5. The Customer shall pay each invoice submitted by Pasante:
(a) within 30 days of the date of the invoice or in accordance with any credit terms agreed by Pasante and confirmed in writing to the Customer; and
(b) in full and in cleared funds to a bank account nominated in writing by Pasante, and
time for payment shall be of the essence of the Contract.
8.6. If the Customer fails to make a payment due to Pasante under the Contract by the due date, then, without limiting Pasante's remedies under clause 10 (Termination), the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 6 will accrue each day at 8% a year above the Bank of England's base rate from time to time, but at 8% a year for any period when that base rate is below 0%.
8.7. 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).
9. Limitation of liability
9.1. Pasante has obtained insurance cover in respect of its own legal liability for individual claims not exceeding The limits and exclusions in this clause reflect the insurance cover Pasante has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
(a) Product Liability - £5 million per claim
(b) Public Liability - £5 million per claim
9.2. The restrictions on liability in this clause 9 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
9.3. 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) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
(d) defective products under the Consumer Protection Act 1987.
9.4. Subject to clause 9.3, Pasante's total liability to the Customer shall not exceed Pasante’s insurance liability
9.5. Subject to clause 9.3, 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.
9.6. Subject to clause 9.3, Pasante shall have no liability arising from a breach by the Customer of any of these Conditions.
9.7. This clause 9 shall survive termination of the Contract.
10. Termination
10.1 Without limiting its other rights or remedies, Pasante 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 10 days of that party being notified in writing to do so;
(b) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(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 to such an extent that in Pasante's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
10.2.Without limiting its other rights or remedies, Pasante may suspend provision of the Goods under the Contract or any other contract between the Customer and Pasante if the Customer becomes subject to any of the events listed in clause 1(b) to clause 10.1(d), fails to comply with any of the provisions of clause (Regulatory Requirements) or Pasante 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.
10.3. Without limiting its other rights or remedies, Pasante 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.
10.4. On termination of the Contract for any reason the Customer shall immediately pay to Pasante all of Pasante's outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, Pasante shall submit an invoice, which shall be payable by the Customer immediately on receipt.
10.5. 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.
10.6. 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.
11. 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.
12. General
12.1 Assignment and other dealings.
(a) Pasante may 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.
(b) 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 Pasante.
12.2 Confidentiality
(a) Each party undertakes that it shall not at any time during the Contract and for a period of three years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 12.2(b).
(b) Each party may disclose the other party's confidential information:
(i) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 12.2; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
12.3 Entire agreement.
(a) 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.
(b) 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 or negligent misstatement based on any statement in this agreement.
12.4 Distribution Route and Territory Agreement.
(a) The Customer is not permitted to offer, sell, distribute to or solicit customers for Goods outside of agreed territories or routes to market, without the prior approval of Pasante; the above provision shall also apply to any branch offices or other bases of the customer has outside of agreed territories or routes to market. Any means of advertising which is also intended for use beyond the borders agreed territories or routes to market of shall be excepted from the above provision.
12.5 Variation
Variation of this Contract is at the discretion of Pasante unless it is in writing and signed by the parties (or their authorised representatives).
12.6 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.
12.7 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 12.6 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.
12.8 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:
(i) delivered by hand or by pre-paid first-class 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); or
(ii) sent by email to the address specified in the Order (in respect of the Customer or if there is no address specified the last email address of the Customer known to Pasante) and to sales@pasantehealthcare.com (in respect of Pasante).
(b) Any notice or communication shall be deemed to have been received:
(i) if delivered by hand, on signature of a delivery receipt; and
(ii) if sent by pre-paid first-class 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; and
(iii) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 7(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
(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.
12.9 Data Protection
The Customer and Pasante shall comply with all the obligations imposed on them under the UK Data Protection Legislation, and any material breach of the UK Data Protection Legislation by one party shall, if not remedied within 30 days of written notice from the other party, give grounds to the other party to terminate the Contract with immediate effect.
12.10 Third party rights.
(a) 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.
(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
12.11 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 law of England and Wales.
12.12 Jurisdiction
Each party irrevocably agrees that the courts of England and Wales 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.
