Dae Ha U.K (Performance Adhesives Ltd) - Supply Terms & Conditions (02.03.16)
1.1 The following defined terms shall have the meaning specified alongside them:
'PAL' Performance Adhesives Limited (registered number 07945436) whose registered office is Unit 3 The Forum, Icknield Way Industrial Estate, Tring, Hertfordshire, HP23 4JY, UK.
'This Agreement' these Supply Terms and any attachment to it and any related documentation including, without limitation, the Buyer Requirements and any Order which PAL accepts;
'Buyer' the entity named as such in the attached Quotation;
'The Buyer Requirements' the instructions (in any form of media and whether written or oral) supplied by Buyer to PAL and giving details of the Buyer's requirement for the relevant Goods and/or Services and/or Trial Samples as appropriate including for example and without limitation size and dimensions of those Goods, performance targets and an indication of Buyers intended use of those Goods;
'The Change Request' the written request for a change made by Buyer or PAL in accordance with Clause 5;
'The Goods' any goods requested by Buyer under this Agreement;
'The Order' any written instrument referable to this Agreement which gives details of Buyer's order of relevant Goods and/or Services and/or Trial Samples as appropriate and is sent by a duly authorised representative of Buyer;
'The Price' the fee specified in the Quotation payable to PAL by Buyer in consideration of the supply and delivery of the relevant Goods and/or Services as appropriate but subject to VAT and any other applicable tax or duty to be paid by the Buyer;
'The Quotation' any document named as such and referable to this Agreement which gives an indicative, non-binding indication of certain details of relevant Goods and/or Services and/or Trial Samples as appropriate based upon the Buyer Requirements including, without limitation, the Price;
'The Services' any services requested by Buyer to be provided by PAL; and
'The Trial Samples' any samples of the Goods or other product produced by PAL which is provided to Buyer by PAL in accordance with Clause 3.
1.2 In this Agreement:
1.2.1 The singular includes the plural and vice versa;
1.2.2 References to gender include references to all genders;
1.2.3 Unless otherwise stated, references to Clauses are to clauses of this Agreement;
1.2.4 The Clause headings are for reference only and shall not affect the construction or interpretation of this Agreement;
1.2.5 References to statutes, any statutory instrument, regulation or order shall be construed as a reference to such statute, statutory instrument, regulation or order as amended or re-enacted from time to time.
1.3 In the event of conflict between provisions comprised in these Supply Terms and provisions comprised in any related documentation (including without limitation any Quotation or Order) the provisions comprised in these Supply Terms shall prevail.
2. Scope of Agreement
2.1 In consideration of payment by Buyer of the Price and subject to Buyer discharging its obligations provided by this Agreement, PAL shall supply relevant Goods and/or Services and/or Trial Samples as appropriate in accordance with the terms of this Agreement.
2.2 Any Order placed by Buyer is subject to express written confirmation by PAL and no contract shall be formed until written acceptance of an Order has been sent to Buyer by a duly authorised representative of PAL.
3. Buyer Requirements / Trial Samples
3.1 Buyer shall indicate its requirements for the relevant Goods and/or Services and/or Trial Samples as appropriate by submitting to PAL the Buyer Requirements.
3.2 PAL may indicate at any stage before execution of an Order that the Buyer Requirements are deficient and/or insufficient and Buyer shall as soon as reasonably practicable rectify such deficiency and/or insufficiency to PAL's satisfaction.
3.3 Buyer shall be solely responsible for the accuracy of the Buyer Requirements and PAL shall not be under any obligation to indicate or correct errors in the Buyer Requirements.
3.4 Where a Trial Sample is requested pursuant to this Agreement:
3.4.1 PAL may supply such Trial Sample to Buyer within such timescale as the parties to this Agreement agree;
3.4.2 PAL shall determine what tests are required to evaluate the relevant Trial Sample and shall submit to Buyer a test schedule ('Test Schedule') based thereon to confirm whether or not the relevant Trial Sample complies with the Buyer Requirements;
3.4.3 Buyer shall provide PAL with all such assistance in drawing up the Test Schedule as PAL reasonably requests and shall carry out such tests in respect of the relevant Trial Sample as are set out in Test Schedule at Buyer's cost; and
3.4.4 Buyer shall carry out all further tests which it deems are necessary in order to verify whether or not the relevant Trial Sample complies with the Buyer Requirements including, without limitation, tests carried out within Buyer's production environment.
3.5 For the avoidance of doubt, both parties to this Agreement acknowledge that PAL will not be liable to Buyer in respect of any matters or costs arising from testing of any Trial Sample and Buyer will indemnify PAL in full on demand in respect of any costs, claims, liabilities or expenses incurred or suffered by PAL arising out of any claims by third parties in connection with testing of any Trial Sample.
3.6 All rolls supplied are to within +/- 1% accuracy in length and width.
3.7 All rolls (where possible) will be supplied in a continuous* roll, up to the maximum permissible length by film type as described in the product information tabs. * Rolls greater than 4m in length, may contain a splice which will be marked by a tab on the edge of the film. NB A splice is an industry standard method of joining master rolls of film based products.
4.1 Upon approval of the Buyer Requirements by PAL or otherwise upon agreement by the parties to this Agreement, PAL will supply to the Buyer a Quotation indicating certain details in respect of relevant Goods, Services and/or Trial Samples.
4.2 The parties to this Agreement expressly agree that any Quotation supplied by PAL shall be indicative only and not binding in respect of the matters specified therein.
5. Change Request
5.1 If either party to this Agreement identifies a requirement for a change (including without limitation a change to the relevant Goods, Services, Quotation and/or Trial Samples as appropriate) it shall send a Change Request to the other party to this Agreement detailing the change requirements.
5.2 If a Change Request is sent by PAL, the Change Request shall state the effect such a change shall have upon the relevant Goods, Services, Trial Samples and/or Price.
5.3 If a Change Request is sent by Buyer, the receipt of the Change Request by PAL will constitute a request to PAL to state in writing the effect such a change shall have upon the relevant Goods, Services, Trial Samples and/or Price. PAL shall use reasonable endeavours to supply the necessary details within 60 days from receipt of the Change Request.
5.4 If the parties to this Agreement agree to implement the change, the amended specification, goods and/or services and/or trial sample and/or price shall then become the relevant Goods, Services, Trial Samples and/or Price and the Quotation shall be deemed amended accordingly.
6.1 PAL shall notify Buyer that the relevant Goods and/or Trial Samples are ready for collection by the Buyer or by delivery to the delivery address specified in the Order.
6.2 Any dates quoted for delivery of the relevant Goods and/or Trial Samples or for performance of the relevant Services are approximate only and PAL shall not be liable for any delay in delivery of the relevant Goods and/or Trial Samples, and/or performance of the relevant Services, however caused.
6.3 Time for delivery of the relevant Goods and/or Trial Samples and/or performance of the relevant Services as appropriate shall not be of the essence unless previously agreed by PAL in writing.
6.4 PAL may deliver the relevant Goods and/or Trial Samples in advance of the quoted delivery date upon giving reasonable notice to Buyer.
6.5 In addition to the delivery costs which are set out in the Quotation, PAL shall be entitled to charge Buyer for the cost of any expedited or out of normal working hours delivery requested by Buyer at cost.
6.6 A good delivery shall be assumed unless:
6.6.1 Any damage or short delivery of the relevant Goods and/or Trial Samples is notified to PAL within 7 days of delivery; or
6.6.2 Non delivery of a whole consignment of the relevant Goods is notified to PAL within 21 days of the date of an invoice is sent to Buyer in respect of those Goods.
6.7 A good performance of relevant Services shall be assumed unless any defect in performance of those Services is notified to PAL with 7 days of performance of those Services.
7. Risk and Property
7.1 Risk of damage or loss of relevant Goods and/or Trial Samples shall pass to Buyer:
7.1.1 in the case of relevant Goods and/or Trial Samples to be collected by Buyer, at the time when Buyer collects those Goods and/or Trial Samples; or
7.1.2 in the case of relevant Goods and/or Trial Samples to be delivered otherwise than by collection by Buyer, at the time of delivery or, if Buyer wrongfully fails to take delivery of them, at the time when PAL has tendered delivery of those Goods and/or Trial Samples.
7.2 Notwithstanding delivery and passing of risk in relevant Goods and/or Trial Samples or any other provision of this Agreement, the property in those Goods and/or Trial Samples shall not pass to Buyer until PAL has received in cash or cleared funds payment in full of the Price and of all other payments which Buyer is due to pay to PAL.
7.3 Until such time as the property in relevant Goods and/or Trial Samples passes to Buyer, Buyer shall hold them as PAL's fiduciary agent and bailee and shall keep those Goods and/or Trial Samples separate from those of Buyer and third parties and properly stored, protected and identified as PAL's property. Until property in the relevant Goods and/or Trial Samples passes to Buyer, Buyer shall be entitled to resell or use them in the ordinary course of its business, but shall account to PAL for the proceeds of sale or otherwise of those Goods and/or Trial Samples whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any monies or property of Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
7.4 Until such time as the property in relevant Goods and/or Trial Samples as appropriate passes to Buyer (and provided that they are still in existence and have not been resold), PAL shall be entitled at any time to require Buyer to deliver up those Goods and/or Trial Samples to PAL and, if Buyer fails to do so forthwith, to enter upon the Buyer's premises where they are stored and repossess them.
7.5 Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any Goods and/or Trial Samples which remain the property of PAL but, if Buyer does so, all monies owing by Buyer to PAL shall (without prejudice to any other right or remedy of PAL) forthwith become due and payable.
8. Terms of Payment
8.1 Sums due from Buyer to PAL shall be paid no later than 30 days from the end of the calendar month in which an invoice from PAL is dated or otherwise as agreed in writing between Buyer and PAL.
8.2 If Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to PAL, PAL shall be entitled to:
8.2.1 cancel the contract or suspend further deliveries to Buyer;
8.2.2 interest from Buyer on all late payments under this Agreement at a rate of six percent (6%) per annum above the prevailing base rate of Barclays Bank plc (both before and after any judgement in respect of the same) from time to time.
8.3 All payments hereunder shall be made in the currency specified in the Quotation.
9.1 Save as expressly specified in this Agreement or required by law, all terms, conditions, warranties, representations, or guarantees whether express or implied relating to the performance, quality or fitness for purpose of all or any part of the Goods, Services and Trial Samples (as appropriate) are hereby excluded. The application, use and processing of Goods and/or Trial Samples is the absolute responsibility of Buyer. Any technical or other advice, information or date provided by PAL whether verbally, in writing or by way of trials or test, is given without warranty and Buyer shall be deemed to have carried out its own tests to ensure the suitability of the relevant Goods and/or Trial Samples for their intended purposes and applications.
9.2 Any claim of Buyer which is based on any defect in the quality or condition of relevant Goods and/or Trial Samples or their failure to correspond with specification shall (whether or not delivery is refused by Buyer) be notified to PAL within 7 days from the date of delivery or (where the defect was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure.
9.3 Where a valid claim in respect of Goods or Trial Samples, which is based on any defect in their quality or condition or their failure to meet specification, is notified to PAL in accordance with this Agreement, PAL shall be entitled to replace those Goods or Trial Samples (or the part in question) free of charge or, at PAL's sole discretion, refund to Buyer the Price (or a proportionate part of the Price), but PAL shall have no further liability to Buyer. The liability will be for the film only, not the product it is applied to.
9.4 Neither party to this Agreement excludes or limits liability to the other party to this Agreement for death or personal injury or any breach of any obligations implied by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982.
9.5 The aggregate liability of PAL in respect of breaches of this Agreement or of any other duty to Buyer or for negligence in connection with the subject matter of this Agreement (whether arising before, during or after the date of this Agreement) shall be limited to the Price provided that in no event shall PAL be liable to Buyer for any of the following however and whenever arising:
9.5.1 loss of profits, business, revenue, data, goodwill or anticipated savings; and/or
9.5.2 indirect or consequential loss or damage.
9.6 Each party to this Agreement agrees that the limitations of liability contained in this Clause 9 have been discussed, negotiated and agreed between the parties to this Agreement in the context of the other provisions of this Agreement and satisfy the requirement of reasonableness within the meaning of sub-section 2(2) and Section 11 of the Unfair Contract Terms Act 1977.
9.7 The parties to this Agreement expressly agree that should any limitation or provision contained in this Agreement be held to be invalid under any applicable statute or rule of law it shall to that extent be deemed omitted but if any party to this Agreement thereby becomes liable for loss or damage which would otherwise have been excluded such liability shall be subject to the other limitations and provisions set out herein.
10. Copyright, Patent, Trademarks and other Intellectual Property Rights
10.1 Buyer acknowledges that (save as to the Buyer Requirements) any and all of the copyright, trademarks, trade names, patents and other intellectual property rights subsisting in or used in connection with the Goods, Services and Trial Samples (as appropriate) or any part of them shall be and shall remain the sole property of PAL and Buyer shall not at any time dispute such ownership and Buyer shall not act or assist a third party to act in any manner which infringes those rights.
10.2 In the event that new inventions, designs or processes evolve in performance of or as a result of this Agreement, Buyer acknowledges that the same shall be the property of PAL unless otherwise agreed in writing by PAL.
10.3 Buyer warrants that it is the owner of all intellectual property rights in the Buyer Requirements and shall indemnify PAL fully against all liabilities, costs and expenses which PAL may incur as a result of preparations made or work undertaken in accordance with the Buyer Requirements involving infringement of any proprietary rights.
11. Confidential Information
11.1 PAL and Buyer shall use all reasonable endeavours to keep confidential (and ensure that their employees and agents keep confidential) all information received by them relating to any part of the business and affairs of the other party to this Agreement and, in the case of Buyer, any aspect of the Goods.
Services and/or Trial Samples designated as confidential by PAL provided that these obligations shall not apply to information which is:
11.1.1 or becomes publicly known through no wrongful act of the party concerned; or
11.1.2 required to be disclosed by an order of law or other binding authority; or
11.1.3 disclosed to any adviser of either party bound by a professional duty of confidentiality.
12. Force Majeure
PAL will not be under any liability to Buyer for damage, delay or any other matters of that nature whatsoever arising out of war, rebellion, civil commotion, strikes, lock outs and industrial disputes, fire, explosion, earthquake, acts of God, flood, drought, or bad weather or the requisitioning or other act or order by any Government department, council or other constituted body ('Force Majeure'), provided always that PAL will use all reasonable endeavours (but without an obligation to incur cost) to minimise the period of disruption caused by the Force Majeure.
13. Termination and Suspension
13.1 Notwithstanding any other provisions herein contained, and without prejudice to any other rights PAL may have, PAL may forthwith terminate this Agreement by written notice to Buyer if any of the following events shall occur:
13.1.1 The Buyer commits a material breach of this Agreement; or
13.1.2 If Buyer commits any breach of this Agreement (other than a breach referred to in Clause 13.1.1) and fails to remedy such breach, or insofar as such breach is not capable of remedy, to offer compensation for such breach which is accepted by PAL, within 30 days after receiving written notice of the breach; or
13.1.3 If Buyer becomes bankrupt or compounds or makes any arrangement with or for the benefit of its creditors or (being a company) enters into compulsory or voluntary liquidation or amalgamation (other than for the purpose of a bone fide reconstruction or amalgamation without insolvency) or has a receiver or manager appointed of the whole or substantially the whole of its undertakings or if any distress or execution will be threatened or levied upon any property of Buyer or if Buyer is unable to pay its debts in accordance with the law relating to this Agreement; or
13.1.4 If Buyer ceases or threatens to cease to carry on business; or
13.1.5 A Force Majeure continues for a period of more than 3 months.
13.2 Without prejudice to any right of termination PAL shall be entitled by immediate notice to suspend performance of some or all of the obligations specified in this Agreement upon the occurrence of any of the circumstances specified in Clause 13.1, and this Agreement will in any event be deemed suspended in the event of Force Majeure, and in such circumstances if relevant Goods have been delivered but not paid for, the price payable for those Goods shall be due and payable notwithstanding any previous agreement or arrangement to the contrary.
13.3 Termination or suspension of this Agreement will be without prejudice to any accrued rights or obligations of either party to this Agreement.
14. Data Protection
14.1 Each party to this Agreement warrants to the other that it shall, in connection with this Agreement, comply with the provisions of the Data Protection Act 1998 and any modification, consolidation or re-enactment thereof and shall indemnify the other party to this Agreement against any reasonable losses, liabilities and costs which it suffers or incurs as a result of a breach of this Clause.
14.2 PAL processes all personal information ('Information') as defined in the Data Protection Act 1998 ('DPA') in accordance with applicable data protection law.
14.3 By submitting Information to PAL, Buyer (and each individual as applicable) consent to such Information being processed by PAL in accordance with this Clause 14. If Information changes Buyer (and each individual as applicable) are responsible for informing PAL of the change so that PAL can update its records.
14.4 PAL will use Information as follows:
1. To supply such Goods and/or Services and/or Trial Samples as are requested by Buyer including such transfer of Information to employees, agents and third parties as required for this purpose.
2. For PAL internal administration purposes.
3. To market PAL Goods and/or Services and/or Trial Samples to Buyer (and each individual as applicable).
PAL reserves the right to:
1. Transfer PAL's business assets (which include Information) on sale or merger of the whole or part of the PAL business.
2. Transfer Information as required to obtain legal advice, comply with legal requirements, protect PAL rights and property, and the safety of PAL employees, clients, suppliers and others.
3. Transfer Information outside the European Economic Area to PAL group companies as is necessary for the purposes listed in this Clause 14.
15.1 The terms of this Agreement represent the whole agreement between the parties to this Agreement in respect of the matters referred to and shall override any other prior verbal or written understandings except in the case of fraud.
15.2 No amendment to this Agreement shall be binding unless made in writing and signed by duly authorised representatives of both parties to this Agreement.
15.3 Buyer shall not assign, charge or otherwise transfer to a third party any of its rights or obligations hereunder without the prior written consent of PAL.
15.4 No waiver of any breach of the other party's obligations hereunder shall represent a waiver of the waiving party's rights hereunder or of any subsequent breach.
15.5 The parties to this Agreement respectively shall and shall procure that any other necessary party shall execute and/or do all such documents, acts and things (as applicable) as may reasonably be required on or subsequent to completion of this Agreement for securing each of the obligations of the parties under this Agreement.
15.6 None of the provisions of this Agreement are intended to or will operate to confer any benefit pursuant to the Contracts (Rights of Third Parties) Act 1999 on a person who is not named as a party to this Agreement.
15.7 Any notice given under this Agreement:
15.7.1 shall be made in writing and either delivered personally or sent by first class postage to the recipient's address as set out in this Agreement or such other address as the recipient may specify by notice in writing to the other party to this Agreement;
15.7.2 in the absence of evidence of earlier receipt, notice shall be deemed to have been duly given:
a) if delivered personally, when left at the address referred to in 15.7.1; or
(b) if sent by first class postage, 48 hours after delivery.
15.8 For the avoidance of doubt electronic mail shall be deemed to be 'writing' for the purpose of this Agreement but this shall not prejudice the express requirements for delivery of notices under Clause 15.7.
15.9 If any provision of this Agreement is held to be void or unenforceable in whole or in part, this Agreement shall continue to be valid as to the other provisions thereof and the remainder of the affected provision.
15.10 This Agreement shall be binding on and shall continue for the benefit of the permitted successors and permitted assignees (as the case may be) of each of the parties hereto.
15.11 All provisions of this Agreement shall so far as they are capable of being performed and observed continue in full force and effect notwithstanding any expiry or earlier termination.
16. Applicable Law
This Agreement shall be governed by and construed in accordance with English law and each party to this Agreement submits to the exclusive jurisdiction of the English courts.