Terms & Conditions of Robert Cullen Ltd

 

1. Definitions & Interpretation

In these Conditions the following terms have the following meanings:

“Cullen” Robert Cullen Ltd (registered as a company in Scotland with registered number “SC355707);

“Conditions” the terms and conditions of sate set out in this document;

“Contract” any agreement between Cullen and Customer for the sale and purchase of Goods incorporating these Conditions;

“Customer” the person who agrees to purchase Goods from Cullen subject to these Conditions (whose details may be set out in Contract);

“Delivery Address” the address for delivery of Goods which shall be Customer’s principal place of business unless specified otherwise in Contract;

“Estimated Delivery Date” the date on which Cullen estimates that Goods will be delivered to Delivery Address;

“Goods” Goods which Cullen is to supply to Customer as agreed in Contract.

2. Basis of Sale

These Conditions apply to all Contracts for the sale of Goods entered into by Cullen. Customer agrees to deal with Cullen on these Conditions, subject to any terms specified in writing in Contract and to exclusion of all other terms and conditions in any other document.

3. Sale & Purchase

(i) Customer agrees to purchase Goods from Cullen and Cullen agrees to sell Goods to Customer. (ii) Each order or acceptance of a quotation for Goods by Customer from Cullen shall be deemed to be an offer by Customer to buy Goods subject to these Conditions and shall be binding on Customer, but not bind Cullen until Cullen has accepted that order in the Acknowledgement of Order form. (iii) Customer shall ensure that terms of order and any applicable specification are complete and accurate.

4. Quotations

(i) Any quotation is given on the basis that it is not an offer, it may be withdrawn by Cullen at any time without notice, and no Contract shall exist until Cullen dispatches an acknowledgement of order to Customer or (if earlier) Cullen delivers Goods to Customer.  (ii) Any quotation is valid for a period of 30 (thirty) days only from its date, provided that Cullen has not previously withdrawn it. (iii) Customer shall not be entitled to cancel any order, accepted quotation or Contract, except where such cancellation has been accepted by Cullen and unless Customer fully indemnifies Cullen in respect of all losses, costs and expenses incurred up to acceptance of a notice of cancellation.

5. Description

(i) The quantity and description of Goods shall be as set out in Cullen’s quotation or acknowledgement of order although a superior quality of material may on occasion be substituted for quoted material.  (ii)  Any variation in  quantity of not  more than plus or minus ten per cent shall not constitute a breach or a failure to perform Contract and wilt be considered a good delivery. A pro rata charge or allowance at the quoted price will be made to cover any such variations.

6. Delivery

(i) Cullen shall use its reasonable efforts to deliver Goods to Customer at Delivery Address on or around an Estimated Delivery Date, but time of delivery shall not be of the essence. (ii) All pallets used to transport Goods shall remain the property of Cullen and if so desired shall be recovered by Cullen within a reasonable time and in good condition, unless otherwise agreed in writing by both parties. (iii) Delivery by instalments shall each be treated as an entirely separate contract and any default or breach by Cullen in respect of any instalment shall not entitle the Customer to cancel any other instalment or treat Contract as a whole as repudiated. (iv) Customer shall inspect Goods on delivery and if Goods are damaged or in a reduced quantity (subject to Condition 5 (ii) then, unless Customer notifies Cullen within 14 (fourteen) days of delivery no claim against Cullen may be made in respect of damage to or short delivery of such Goods. No claim will be considered unless signature of Customer on delivery note is appropriately qualified. (v) Off Loading – It is the Customer’s responsibility to advise Cullen prior to delivery of any special circumstances relating to delivery. (vi) Subject to the other provisions of these Conditions, Cullen shall not be liable for any direct, indirect or consequential loss (at three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss) whatsoever, or costs, damages, charges or expenses caused directly or indirectly by any delay in delivery of Goods (even if caused by Cullen’s negligence), nor shall any delay entitle Customer to terminate or rescind Contract unless such delay exceeds 30 (thirty) days. (vii) If for any reason Customer fails to accept delivery of any of Goods, or Cullen is unable to deliver Goods on time because Customer has not provided appropriate instructions, then Goods shall be held at Cullen’s premises for collection by Customer but risk in Goods shall pass to Customer and Cullen may invoice for Goods at any time which will be payable by Customer within 7 (seven) days of date of invoice.

7. Price & Payment

(i) The price of Goods shall be the price set out in Contract or, if not specified, the price quoted by Cullen. (ii) Cullen reserves the right, by giving notice to Customer at any time before delivery, to increase price of Goods to reflect any increase in cost to Cullen which is due to any factor beyond its control.

(iii) Cullen shall be entitled to invoice Customer for all amounts due under Contract on or at any time after delivery or uplift of Goods.  If Customer has not taken delivery of Goods after three months from month of manufacture then Cullen will invoice the Goods and Customer will confirm delivery or disposal of the Goods. (iv) Save as set out in Contract (and in Condition 6 (vii)), Customer shall make payment to Cullen in respect of all invoices in full and cleared funds, without any deduction whether by way of set-off, counterclaim,  discount, abatement or otherwise, at end of  the  month following the month in which invoice was raised. (v) All payments payable to Cullen under Contract shall become due immediately on its termination despite any other provision. (vi) If full payment is not received by Cullen by due date, then without prejudice to its rights Cullen shall be entitled:

a) to sue for entire price under Contract and any other Contract or agreement which Cullen has with Customer;
b) to charge statutory interest (before and after any judgment} as provided for in Late Payment of Commercial Debts (Interest) Act 1998;
c) to terminate or suspend Contract and/or to require immediate return to Cullen of all Goods agreed to be sold by Cullen to Customer in which property has not passed to Customer in accordance with Condition 9 and Customer hereby agrees to reimburse to Cullen upon demand Cullen’s costs or expenses in recovering such Goods.

8. Origination

All Origination or Tooling remains the property of Cullen unless prior property rights have been negotiated and agreed with the Customer. Payment of initial costs by the Customer does not itself constitute ownership. Tooling and Origination not used within a 2 year period is deemed redundant and may be destroyed without prior notice.

9. Intellectual Property

(i) All Intellectual property rights (to include (without limitation) any patent, copyright, design, trade mark or registered or unregistered Industrial or intellectual property rights and any know-how) in Goods are owned exclusively by Cullen (save as approved in Condition 8 (ii)). (ii) To the extent that Goods are to be manufactured or a process is to be applied to them by Cullen in accordance with specifications or instructions submitted by a Customer (and in which intellectual property rights may subsist), or to the extent that Goods are to be marked with any trade mark, trade name or service mark at request of the Customer, Customer will grant Cullen an irrevocable licence to use such intellectual property rights and shall indemnify and hold Cullen harmless against all damages, costs and expenses awarded against or incurred by Cullen, or paid or agreed to be paid by Cullen, in connection with any claim or settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights.

10. Risk & Title

(i) Unless otherwise stated in these Conditions Goods are risk of Customer from time of delivery. (ii) Ownership of Goods shall not pass to Customer until Cullen has received funds in fu!I for the price of goods and all other sums due. Cullen shall be entitled to recover payment for Goods not withstanding that ownership of any Goods has not passed from Cullen. {iii) Until ownership has passed to Customer, Customer shall (a) grant Cullen, its agents and employees an irrevocable licence at any time to enter premises to inspect stored Goods or, to recover them; and (b} maintain Goods in a satisfactory and original condition, and keep them insured on Cullen’s behalf. (iv) Cullen or their agents may recover the Goods if an Administrator, Receiver or Liquidator is appointed in the case of a Limited Liability Company or in the case of an individual or partnership if the individual or partnership, or any of them, are sequestrated in bankruptcy. (v) Cullen shall be entitled to resell or otherwise dispose of recovered Goods in any way Cullen thinks fit. Customer hereby grants Cullen a non­exclusive, worldwide, royalty free, irrevocable licence to use all trademarks applied to Goods by Customer or any third party for purposes of such disposal.

11. Warranty

(i) Cullen warrants that Goods will correspond in all material respects with any specifications set out in Contract at time of delivery and will be free from major defects In material and workmanship for a period of 1 (one) month from date of delivery provided that:

a) Cullen shall be under no liability in respect of any defects in Goods arising from any drawing, design or specifications supplied by Customer;
b) Cullen shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage or negligence by Customer or persons using Goods, or misuse or alteration or repair of Goods without Cullen’s instruction or approval;
c) Cullen shall be under no liability if total price of Goods has not been paid by due date for payment.

(ii) In the event of any valid claim under Condition 10 (i) being made by Customer, Cullen shall be entitled (at Cullen’s sole discretion) to replace Goods (or the part in question) free of charge or refund to Customer the price of Goods (or a proportionate part of the price as appropriate) but Cullen shall have no further liability to Customer. (iii) In the event that Cullen replaces Goods under Condition 10 (ii), Customer shall permit Cullen to retake possession of Goods originally supplied and Cullen shall deliver replacement Goods within a reasonable time.

12. Liability

(i) Cullen’s total aggregate liability to Customer in respect of all causes of action arising out of or in connection with Contract (whether for breach of contract, strict liability, tort (including, without limitation, negligence), misrepresentation or otherwise) shall not exceed total invoice price of Goods paid or payable by Customer under Contract. (ii) Cullen shall not be liable to Customer for loss of profit; loss of revenue; loss of or depletion of goodwill; loss of anticipated savings; loss of business opportunity; loss of data or use of data; injury to reputation; or any indirect, consequential or special loss or damage, regardless of form of action, whether  in  contract, strict liability or tort  (including,  without  limitation, negligence) and  regardless of whether Cullen knew  or had reason to know of possibility of the loss, damage or injury in question. (iii) Nothing in Contract shall limit or exclude either party’s liability for death or personal injury resulting from negligence; for fraud or fraudulent misrepresentation; and for any other liability the exclusion or limitation of which is not permitted by Scottish law.

13. Force Majeure

Cullen reserves the right to defer date of delivery or to cancel Contract or reduce volume of Goods ordered by Customer (without liability to Cullen) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of Cullen provided that, if the circumstances in question continue for a continuous period in excess of 180 (one hundred and eighty) days, Customer shall be entitled to give notice in writing to Cullen to terminate Contract. “Circumstances beyond the reasonable control of Cullen include an act of god, riot or civil commotion, strike, lock out, fire, flood, drought, act of government, any inability to secure labour materials or supplies or any of the foregoing.

14. Termination & Cancellation

Cullen shall be entitled to terminate Contract immediately by notice in writing to Customer if:

a) Customer commits an irremediable breach of Contract, persistently repeats a remediable breach or commits any remediable breach and fails to remedy it within 30 (thirty) days of receipt of notice of breach; or
b) Customer makes an arrangement or compromise with its creditors, becomes the subject of insolvency, bankruptcy or any other similar process or event; or
c) There is at any time a material change in management, ownership or control of Customer.

15. Legal Construction

These conditions shall in all respects be construed in accordance with the Laws of Scotland and shall be subject to the non-exclusive jurisdiction of Scottish Courts.