Terms of Sale
Applicable to quotations, price proposals, order acknowledgements and sales of goods by Toraphene Ltd
Important: These Terms apply to all sales of masterbatch, compounds, bags, bin liners, films, packaging products and related goods supplied by Toraphene Ltd unless Toraphene expressly agrees otherwise in writing.
1. Definitions
1.1 In these Terms: “Buyer” means the person, firm or company purchasing Goods from Toraphene; “Goods” means any masterbatch, compound, bin liners, bags, films, packaging products or related goods supplied by Toraphene; “Order” means the Buyer’s purchase order; “Contract” means the contract for sale formed in accordance with clause 2; “Specification” means any specification expressly agreed in writing by Toraphene; and “Force Majeure Event” has the meaning given in clause 14.
2. Basis of Contract
2.1 These Terms apply to all quotations, price proposals, order acknowledgements, sales and supplies by Toraphene and override any terms proposed by the Buyer unless expressly accepted in writing by a director of Toraphene.
2.2 A quotation or price proposal is an invitation to treat only, may be withdrawn at any time before acceptance, and is valid for 14 days unless stated otherwise.
2.3 No Order is binding on Toraphene unless and until accepted by Toraphene in writing or by dispatch of the Goods.
2.4 Once accepted by Toraphene, an Order may not be cancelled, suspended, reduced or varied by the Buyer without Toraphene’s prior written consent and on terms that fully indemnify Toraphene against all resulting loss, cost, liability, waste, storage, procurement, production and administrative expense.
2.5 Any samples, technical data, brochures, test data or marketing materials are illustrative only unless expressly stated otherwise in writing.
3. Goods and Specification
3.1 The Goods shall be supplied substantially in accordance with the agreed Specification, subject to normal manufacturing tolerances and reasonable formulation, processing or packaging changes that do not materially affect the agreed essential characteristics.
3.2 Toraphene may make changes to the Goods where required by law, safety, raw material availability, manufacturing practicality or quality improvement, provided the Goods remain materially consistent with the agreed essential characteristics.
3.3 Where Goods are made or adapted to the Buyer’s design, artwork, print, formulation request, dimensions or other requirements, the Buyer is solely responsible for the accuracy, legality and suitability of those requirements.
4. Price
4.1 Prices are exclusive of VAT and, unless otherwise agreed, exclusive of pallets, tooling, cylinders, origination, artwork, testing, certification, customs duties, expedited freight and special packaging.
4.2 Toraphene may invoice for reasonable charges arising from Buyer-requested changes to quantities, delivery dates, packaging, print, Specification or logistics.
4.3 Any typographical, clerical or manifest error in any quotation, acknowledgement, invoice or other document may be corrected by Toraphene at any time.
5. Feedstock, Energy and Exceptional Cost Increases
5.1 Prices are based on the costs of polymer resin, graphene, additives, pigments, packaging materials, labour, freight, utilities, exchange rates and other input costs prevailing at the date of quotation or Order acceptance.
5.2 If, before delivery or during any call-off, Toraphene’s cost of manufacture, conversion, procurement or supply increases directly or indirectly due to shortages or reduced availability of polymer, graphene, additives, pigments, packaging or other feedstocks; supplier allocation; force majeure; plant shutdown; transport disruption; port congestion; carrier restriction; war; armed conflict; terrorism; sanctions; embargoes; civil unrest; government intervention; spikes in energy, fuel, freight, storage, labour or insurance costs; currency volatility; or changes in law, tariffs, duties or compliance requirements, Toraphene may by written notice increase the price by an amount reasonably reflecting the cost increase.
5.3 Where the increase under clause 5.2 exceeds 10% of the agreed price for the affected Goods, Toraphene may alternatively suspend performance and require good faith renegotiation. If revised terms are not agreed within 7 days of notice, Toraphene may cancel the affected undelivered balance without liability other than repayment of sums paid for undelivered Goods.
5.4 During any shortage or supply disruption, Toraphene may allocate available stock and production capacity between customers in such manner as it considers fair and commercially reasonable.
6. Delivery, Call-Offs and Tolerance
6.1 Any delivery date is an estimate only. Time for delivery is not of the essence unless expressly agreed in writing.
6.2 Toraphene is not liable for delay in delivery, and delay does not entitle the Buyer to cancel, reject or withhold payment.
6.3 Unless otherwise agreed, delivery is ex works Toraphene’s premises and risk passes in accordance with clause 8.
6.4 Toraphene may deliver in instalments, and each instalment may be invoiced separately.
6.5 Toraphene may over-deliver or under-deliver by up to 10% on custom manufactured, printed or made-to-order Goods, with the invoice adjusted pro rata.
6.6 If the Buyer fails to accept delivery, collect the Goods or provide adequate instructions, Toraphene may store, insure or resell the Goods at the Buyer’s risk and expense.
7. Payment
7.1 Unless otherwise agreed in writing, payment in full is due within 30 days of invoice date. Toraphene may require pro forma payment, deposits, stage payments, security or shorter credit terms at any time.
7.2 Time for payment is of the essence.
7.3 Interest shall accrue on overdue sums at 6% per annum above the Bank of England base rate, calculated daily, from due date until payment.
7.4 The Buyer shall pay all sums in full without set-off, counterclaim, deduction or withholding, except as required by law.
7.5 Toraphene may suspend deliveries, revoke credit, require advance payment or terminate the Contract if the Buyer fails to pay on time or Toraphene reasonably believes the Buyer’s creditworthiness has deteriorated.
8. Risk and Title
8.1 Risk in the Goods passes to the Buyer on delivery or, if the Buyer fails to take delivery, when Toraphene first makes the Goods available.
8.2 Title to the Goods does not pass until Toraphene has received in cleared funds all sums due from the Buyer to Toraphene on any account.
8.3 Until title passes, the Buyer shall store the Goods separately and clearly identify them as Toraphene’s property, keep them properly stored and insured, not remove or obscure identifying marks, and permit Toraphene on request to inspect the Goods.
8.4 If payment is overdue or the Buyer becomes insolvent or financially distressed, Toraphene may enter premises where the Goods are stored to recover them.
9. Inspection, Claims and Acceptance
9.1 The Buyer shall inspect the Goods immediately on delivery.
9.2 Any claim for short delivery, transit damage, visible defect or non-conformity must be notified in writing within 3 Business Days of delivery.
9.3 Any latent defect claim must be notified in writing within 30 days of delivery and in any event before the Goods are processed, blended, printed, converted, sold on or used in production.
9.4 Failure to notify within the applicable period is deemed irrevocable acceptance of the Goods.
9.5 The Buyer shall preserve the Goods for inspection and provide batch numbers, samples, processing records and all reasonably requested evidence.
9.6 No Goods may be returned without Toraphene’s written authorisation.
10. Warranty and Remedy
10.1 Toraphene warrants only that at delivery the Goods will materially conform to the agreed Specification.
10.2 This warranty does not apply where any non-conformity arises from Buyer-provided designs, print, artwork, formulation requests or instructions; improper storage, handling, transport, blending, drying, processing, sealing, printing, use or testing; use with non-approved substrates, polymers, additives, machines or process parameters; normal manufacturing tolerances; contamination or degradation after delivery; or compliance changes required by law or raw material substitution under clause 3.2.
10.3 If Toraphene accepts a valid claim, Toraphene may at its option replace the affected Goods, repair or rework them, credit or refund the price of the affected Goods, or allow a reasonable price reduction.
10.4 This clause sets out the Buyer’s exclusive remedies.
11. Buyer Responsibilities and Suitability
11.1 The Buyer is responsible for determining whether the Goods are suitable for the Buyer’s intended process, end use, regulatory setting, performance requirements and shelf-life needs.
11.2 Any technical advice or assistance is given in good faith but without separate liability unless expressly incorporated into the Specification.
11.3 The Buyer shall carry out its own production trials, compatibility testing and regulatory assessment for the intended application.
12. Intellectual Property, Tooling and Artwork
12.1 All intellectual property rights in Toraphene’s formulations, know-how, compositions, process parameters, technical documents, data, quotations, drawings and samples remain vested in Toraphene.
12.2 Where Toraphene develops any colour match, formulation, print layout, artwork adaptation, process adjustment or technical solution in connection with an Order, all related intellectual property rights belong to Toraphene unless expressly agreed otherwise in writing.
12.3 Buyer-owned trademarks and artwork remain the Buyer’s property, but the Buyer grants Toraphene a non-exclusive licence to use them solely to perform the Contract.
12.4 The Buyer warrants that any materials or instructions supplied by it do not infringe third-party rights and shall indemnify Toraphene against all resulting claims, losses and costs.
13. Limitation of Liability
13.1 Nothing in these Terms excludes liability for death or personal injury caused by negligence, fraud, fraudulent misrepresentation or any liability that cannot lawfully be excluded.
13.2 Subject to clause 13.1, Toraphene shall not be liable for any indirect, consequential or special loss, or for loss of profit, revenue, production, business, contracts, goodwill, reputation, anticipated savings or data.
13.3 Subject to clause 13.1, Toraphene’s total aggregate liability arising out of or in connection with any Contract shall not exceed the price paid for the specific batch or instalment of Goods giving rise to the claim.
13.4 Toraphene is not liable for any loss caused by delay in delivery, supply interruption, or the Buyer’s failure to carry out adequate incoming inspection, production trials or suitability testing.
14. Force Majeure
14.1 Toraphene is not in breach of Contract and has no liability for any failure, delay, reduction in supply or inability to perform caused by a Force Majeure Event.
14.2 A Force Majeure Event means any event beyond Toraphene’s reasonable control, including act of God, flood, fire, explosion, epidemic, pandemic, extreme weather, war, armed conflict, terrorism, riot, civil commotion, malicious damage, cyber incident, sanctions, embargo, governmental action, export or import restriction, breakdown of plant, utility interruption, transport failure, port congestion, shortage or unavailability of labour, carrier capacity, packaging, polymers, graphene, additives or other feedstocks, or default or failure of suppliers or subcontractors.
14.3 During a Force Majeure Event, Toraphene may suspend performance, extend time for performance, make partial deliveries, allocate stock and production or cancel the affected part of the Contract without liability.
14.4 If the Force Majeure Event continues for more than 60 days, Toraphene may terminate the affected part of the Contract by written notice.
15. Trade-remedy and material-cost adjustment
15.1 If an anti-dumping or other trade-remedy duty increases Toraphene’s cost of materials used in the Goods, Toraphene may increase the agreed price by the documented additional cost attributable to those Goods. This includes duty assessed retrospectively on registered imports and applies even if the Goods have already been delivered or invoiced under an order incorporating these Terms. Toraphene may issue a supplementary invoice, payable within 30 days, and will credit the Customer if the corresponding duty or cost is subsequently refunded. Toraphene will not recover the same cost twice.
16. Suspension and Termination
16.1 Toraphene may suspend or terminate any Contract immediately by written notice if the Buyer fails to pay on time, commits a material breach, becomes insolvent or appears likely to do so, or ceases or threatens to cease business.
16.2 On termination, all sums due become immediately payable and Toraphene may cancel outstanding deliveries.
17. Confidentiality and Reverse Engineering
17.1 The Buyer shall keep confidential all non-public commercial, technical and pricing information received from Toraphene, including formulations, technical data, samples, trial results and quotations, and shall use such information only for evaluating or using the Goods.
17.2 The Buyer shall not reverse engineer, analyse or have analysed the Goods for the purpose of replicating Toraphene’s formulations or circumventing Toraphene.
18. General
18.1 No waiver is effective unless in writing.
18.2 If any provision is unenforceable, the remaining provisions remain in effect.
18.3 The Buyer may not assign the Contract without Toraphene’s written consent. Toraphene may assign or subcontract any part of the Contract.
18.4 The Contract constitutes the entire agreement in relation to its subject matter.
18.5 The Contract and any dispute arising from it shall be governed by the laws of England and Wales, and the courts of England and Wales shall have exclusive jurisdiction.