TERMS AND CONDITIONS
1. BASIS OF CONTRACT
These conditions of sale (Conditions) apply to all sales made between Torus Pak Europe S.àr.l. (Torus Pak) and the Customer and supersede any prior agreement.
2. ORDERS FOR PRODUCTS
2.1 Each order placed with Torus Pak by the Customer constitutes an offer by the Customer to pur- chase packaging units for pre-prepared foods (the Products) in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the order and any applicable specifica- tion requirements quantities or terms required by the Customer are complete and accurate and correspond with any formal requirements specified by Torus Pak from time to time.
2.2 A contract of sale shall come into effect when Torus Pak sends an acceptance to the Customer in accordance with these terms.
2.3 The Customer shall be responsible for any additional cost or expense incurred in the performance of the contract caused by errors in an order.
2.4 Each form of acceptance shall evidence a separate contract of sale and breach or non-perfor- mance of any one contract shall not affect any other contract.
2.5 Any samples drawings descriptive matter or advertising produced by Torus Pak and any descrip- tions or illustrations contained in Torus Pak’s catalogues or brochures are produced for the sole purpose of giving an approximate description of the Products and shall not form part of the contract or have any contractual force.
2.6 Torus Pak reserves the right to amend the specification of the Products after it has accepted an order if required in order to comply with any applicable statutory or regulatory requirements.
2.7 Orders may not be cancelled by the Customer or varied once Torus Pak has accepted them.
3. PRICE AND PAYMENT
3.1 The price for the product will be that set out in the acceptance of the order. The Customer shall be responsible for checking that this price is in accordance with its expectations and must notify Torus Pak within 48 hours of any discrepancy. If the Customer does not do so, in the absence of manifest error the price stated will be binding.
3.2 Torus Pak shall invoice for payment upon acceptance of each order and payment shall be due 14 days from the date of the invoice or delivery whichever is the later. Torus Pak and the Customer agree that time for payment shall be of the essence. Payment shall be deemed to have been made when the monies due are received by Torus Pak in cleared funds. All costs of transfer bank charges and risk of loss shall be borne by the payer.
3.3 The price quoted for the Products is exclusive of the costs of insurance and transport of the Prod- ucts, which shall be charged in addition thereto. In the event that the actual cost of insurance and transport exceeds that stated in acceptance of order or invoice Torus Pak may require payment of those additional charges no later than the payment for the Product or if later than the date specified in clause 3.2 upon demand.
3.4 The price of the Products excludes VAT. The Customer shall, on receipt of a valid VAT invoice from Torus Pak, pay to Torus Pak such additional amounts in respect of VAT as are chargeable on the supply of the Products.
3.5 If the Customer fails to make any payment due to Torus Pak under the contract by the due date for payment (due date), then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above BNP Paribas Belgium’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
3.6 The Customer shall pay all amounts due under the contract in full without any set off deduction or withholding including any cross claim or counterclaim howsoever arising
3.7 Torus Pak may at any time, without limiting any other rights or remedies it may have, set off any amount owed to it by the Customer against any amount payable by Torus Pak to the Customer and at Torus Pak’s option Torus Pak may suspend further performance until any outstanding sums owed by the Customer to Torus Pak have been paid.
4.1 Any date for delivery stated in an order or acceptance shall be an estimated delivery date only and time shall not be of the essence. Torus Pak may at its discretion deliver the totality of an order in separate shipments provided that if it does so otherwise than in response to a request by the Customer, Torus Pak will bear any additional costs of transport and insurance
4.2 If the Customer modifies the desired delivery date or location or any shipment schedule after the order has been accepted Torus Pak shall be entitled to be reimbursed for any additional delivery and storage charges.
5. QUALITY AND PRODUCTS SPECIFICATIONS
5.1 Torus Pak warrants that on delivery, and for a period of three (3) months from the date of delivery (Warranty Period), the Products shall:
- conform in all material respects withtheir description and any applicable specification;
- be free from material defects in design, material and workmanship; and
- comply with EC Regulations 1935/2004 and 2023/2006, EC Directive 2002/72/EC and EEC Directive 82/711/EEC.
5.2 The Customer will promptly fully examine the Products and in any event within 5 days of delivery. If the Products do not comply with the warranty set out in clause 5.1 as a result of defective workmanship then Torus Pak shall at its option replace the defective Products or refund the price of the defective Products in full provided always that the Customer must use the Products in accordance with the intended use as prescribed by Torus Pak and with the specifications as published from time to time.
6.1 If the Customer witholds payment after the due date on any contract with Torus Pak or Torus Pak reasonably believes that the Customer is unlikely to be able to pay its debts as they fall due, or the Customer becomes subject to any act of insolvency, without limiting any other right or remedy available to Torus Pak, Torus Pak may seek security for payment and/or cancel or sus- pend all further deliveries under the contract or under any other contract between the Customer and Torus Pak without incurring any liability to the Customer, and all outstanding sums in respect of Products delivered to the Customer shall become immediately due.
6.2 Termination of any contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the contract shall continue in full force and effect.
7. LIMITATION OF LIABILITY
7.1 Save as provided below Torus Pak’s liability shall be limited to a maximum of 100% of the price of the defective Products and Torus Pak shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the contract.
7.2 Any contract terms implied by applicable law are, to the fullest extent per- mitted by law, excluded from the contract. For the avoidance of doubt, the United Nations Convention on the International Sale of Goods shall not ap- ply to this Agreement.
7.3 Nothing in these Conditions shall limit or exclude Torus Pak’s liability for death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; fraud or fraudulent misrepresenta- tion; loss caused by defective products under the applicable consumer leg- islation; or any matter in respect of which it would be unlawful for Torus Pak to exclude or restrict liability.
8. FORCE MAJEURE
Neither party shall be liable for any failure or delay in performing its obligations under the contract to the extent that such failure or delay is caused by any force majeure event beyond a party’s reasonable control, which could not have been foreseen, or, if it could have been foreseen, was unavoidable by reasonable dil- igence.
9.1 Torus Pak may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the contract.
9.2 The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the contract without the prior written consent of Torus Pak.
9.3 If any court or competent authority finds that any provision of the contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the contract shall not be affected.
9.4 If any invalid, unenforceable or illegal provision of the contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
9.5 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 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.
9.6 Third party rights. A person who is not a party to the contract shall not have any rights under or in connection with it.
9.7 Variation. Except as set out in these Conditions, any variation to the con- tract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by Torus Pak. Torus Pak reserves the right to amend these Conditions and shall publish its terms and conditions in force from time to time on its website.
10. Governing law and jurisdiction.
The contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the laws of England and Wales, and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of England and Wales.