1.1 “CR Smith”, ”we”, “us” or “ours” each refer to CRSmith Manufacturing Limited, registered in Scotland (No. SC380922) and having its registered office at Gardeners Street, Dunfermline, Fife KY12 ORN.
1.2 “you” or “yours” each refer to CR Smith’s customers.
2.1 You represent that you are engaged in a business which installs doors, windows and/or conservatories, sealed glass units, PVC trims and timber, are purchasing the goods in the course of carrying on that business and are not purchasing CR Smith goods for your own, or a relative’s, domestic or private enjoyment and use.
2.2 CR Smith prices its goods, assesses its liability and contracts with you in reliance upon the representation in condition 2.1. You will therefore free, relieve, indemnify, hold harmless and pay to CR Smith all losses, damages, costs and expense of whatever nature , whether direct or indirect or consequential (“Liabilities”), and whether arising from our negligence or breach of contract, and those Liabilities shall include, but not be limited to, any statutory criminal or civil liability to a consumer (as the term “consumer” is defined in the statute which gives rise to the liability) but only to the extent the Liabilities arise from the representation in condition 2.1 being inaccurate or untrue.
2.3 Unless one of our directors agrees otherwise in writing, these conditions of sale apply to the exclusion of any terms or conditions proposed by you.
2.4 The contract is for the sale of goods only. Those goods will be manufactured to the sizes and specifications requested by you.
2.4 CR Smith prices do not cover any services apart from manufacturing and therefore exclude any obligation to (A) apply for any required local authority or title consents; (BJ check that the goods comply with any legalrequirements relating to the property to which you intend to fit the goods; (CJ visit, survey or assess the suitability of the property; (DJ check that your measurements of the goods and the relevant parts of the property are correct; or (El deliver or fit the goods to the property.
3.1 The prices are stated exclusive of (A) any delivery or storage charges; and (B) VAT (which shall be payable at the rate applicable on the later of when payment is made or delivery takes place).
3.2 CR Smith shall be entitled to correct arithmetical and factual errors or inaccuracies in any of the contract documents or in any pre-contract proposal, quotation, order or other representation.
3.3 If the period between the date of your order and the date of delivery exceeds 4 weeks, CR Smith will be entitled to increase the price but only to cover increases in the labour, components and raw materials costs charged to CR Smith by our suppliers.
3.4 If an agreement has been made for payment by instalments, payment of any instalment on the due date is a condition precedent to future performance by us and we reserve the right to suspend work on, or cancel, your order if any instalment is not paid on the agreed date.
3.5 Whether or not an agreement has been made for payment by instalments, CR Smith always reserve the right, in their sole and absolute discretion, to invoice and require payment in full at any time prior to delivery (which right shall include the right to require payment in full before manufacturing of the goods is commenced and the right, without incurring any liability to you of any sort, to suspend work on, or cancel, your order if any such payment is required but not paid).
3.6 The balance of the price (if any) outstanding after manufacture shall be paid before delivery. CR Smith, in our sole and absolute discretion, may require either cleared funds or payment by credit card before delivery.
3. 7 If you do not collect or accept delivery of the Goods within 7 days of being requested to do so, a storage charge of 1 % of the price of the goods + VAT will be payable for each day thereafter.
3.8 In addition to charging interest at the then current statutory rate for commercial debts, failure to make any payment on any due date shall entitle us to require payment of the whole price and to withdraw any discount previously given by us in any pre-contract proposal, quotation, order, representation or in the contract itself.
4.1 Unless otherwise agreed, delivery will be effected when you or your carriers collect the goods at our premises.
4.2 We may deliver in instalments. Any delivery date given by us is provided in good faith but is approximate and is not guaranteed unless one of our directors has agreed otherwise in writing.
4.3 We will in any event have no liability for any delay, loss, cost or damage caused by (A) late, wrong, short or damaged delivery of goods by your carriers; or (B) shortage or lack of goods, materials or labour due to act of God, war, riot, malicious damage, terrorism, accident, strike, lockout or other industrial action, fire, flood, drought, disease or any cause beyond our reasonable control; or (C) dealing with amendments made to your order at your request.
4.4 You will inspect the goods on delivery and be deemed to have accepted that the goods are of satisfactory quality, free of obvious defects and conform to contract and that the quantity of the goods is correct unless you notify us in writing to the contrary within two working days after delivery. Any such notice must give reasonable specification of the nature and extent of any obvious defect, damage or shortage failing which we shall be entitled to ignore the notice and treat the goods as having been accepted as being conform to contract in all respects.
4.5 In the case of a latent defect not obvious at delivery and which is to be the subject of guarantee or other claims by you, it shall be an essential condition precedent to such claims being met that you notify us in writing within fourteen days of first becoming aware of the latent defect. Any such notice must give reasonable specification of the nature and extent of the latent defect failing which we shall be entitled to ignore the notice and treat it as having not been given.
The risk of damage to, or destruction of, the goods passes to you when the goods are collected byyou or uplifted by your carriers or unloaded by our carriers (if we have agreed to deliver the goods).
6.1 Title to the goods shall not pass to you until CR Smith have received all sums due to CR Smith under this and any other contract between you and CR Smith.
6.2 You undertake to make the goods available for collection by us, and authorise us to enter any premises owned or occupied by you for the purpose of uplifting the goods, if any payment under any contract between you and CR Smith is overdue or if you become the subject of bankruptcy or liquidation proceedings or have administrators or trustees appointed to manage your assets and liabilities or have become unable to pay your debts or if we receive a credit report about you which, in our sole and absolute discretion, is unsatisfactory.
7 .1 Descriptions, weights, dimensions, colours, prices, illustrations etc, in our domestic or trade sales literature or in any correspondence preceding this contract or on our website are solely for information and do not make or imply any representation or warranty beyond the express warranties in these conditions of sale.
7.2 Our agents and employees are not authorised to make any representations as to the quality, or fitness for any particular purpose, of any goods. If any representation made, or opinion expressed, by any such agent or employee is a material matter you shall ensure that it is confirmed in writing at the time the contract between us is made, failing which we can accept no liability therefor.
8.1 Information that you provide or that is obtained by CR Smith in its dealings with you may be held on CR Smith’s computers and in any other way. This will be used for market and product analysis to enable CR Smith to review, develop and improve the services it offers.
8.2 CR Smith may inform you (by mail, telephone, SMS text message, e-mail or otherwise) about products and services (including those available from other suppliers) which may be of interest to you. Your details may also be passed to other companies who may inform you directly (by mail, telephone, SMS text message, e-mail, or otherwise) about their offers, goods or services. CR Smith still reserves the right to contact you by mail, telephone, SMS text message, email or other means in connection with the services and products we are contracted to provide to you.
8.3 In its sole and absolute discretion CR Smith may, subject to satisfactory credit checks on you over such periods as CR Smith deems appropriate, grant you credit facilities. In such cases, additional documentation varying these conditions of sale will be provided. CR Smith reserves the right thereafter, in its sole and absolute discretion and without giving you any reason, to withdraw the credit facilities at any time.
9.1 You unconditionally undertake not to (and not to cause or permit anyone associated with you or your business to) use or copy or refer to any CR Smith trademarks, registered or unregistered design rights, copyright or promotional information in any website, e-mail or
documentation you issue or use.
9.2 You accept that you are not an agent of CR Smith nor are you in partnership with CR Smith nor are you entitled to make any statements or representations about, or on behalf of, CR Smith.
9.3 You will free, relieve, indemnify, hold harmless and pay to CR Smith all liabilities, which result from any breach of condition 9.1 or 9.2 or from any damage caused to the reputation of CR Smith or any director, employee or agent of CR Smith as a result of any act or omission by you or your agents or associates or employees which, in CR Smith’s sole and absolute discretion, damages or harms the reputation of CR Smith and/or those associated with CR Smith.
10.1 Provided the price and all other sums due under the contract have been paid to us on the relevant due date, and subject to Conditions 4.3, 4.4, 4.6 and 10.2, the goods are guaranteed against defects in materials or workmanship within the goods for 12 months from the date of delivery and any defect in whole or in part which is notified to us by you in writing within that 12 month period will be repaired or, if
beyond economic repair, replaced by CR Smith free of charge.
10.2 The guarantee does not cover (A) damage or defects caused by those fitting the goods to the relevant property; (B) damage or defects caused by anyone other than a CR Smith supplier, employee or authorised agent; and (C) damage caused by accident, malicious act or any risk capable of being insured under a typical household buildings and contents policy.
10.3 This guarantee is personal to you and is not transferable.
10.4 In the event of a claim under the guarantee, CR Smith will inspect the goods but charge £65 (excluding VAT) in the event that there is no valid claim under the guarantee.
11.1 The liability of CR Smith for death or personal injury caused by its negligence shall be unlimited.
11.2 The liability of CR Smith for damage to, or the loss of, your property or any property towhich the goods have been fitted, which is caused by the negligence or breach of contract of CR Smith, is limited to the price of the goods purchased by you under this contract.
11.3 All other liability to you, except our liability under conditions 1 o, 11.1 and 11.2, whether arising in contract, in delict or otherwise, for any loss, damage, expense or injury of any kind whatsoever, whether consequential, direct, indirect or otherwise, however caused and whether arising out of or in connection with the manufacture, sale, fitting or use of the goods and, except in the case of death or personal injury, whether or not due to our negligent act or omission or that of our agents and employees is excluded.
11.4 Except in the case of consumer sales (where the consumer’s statutory rights will not be affected but you will indemnify us against any additional liabilities under condition 2.2), the provisions in conditions 1 0 and 11 are accepted in substitution for, and to the entire exclusion of, all duties, conditions and warranties whatsoever express or implied by statute, common law or otherwise. In any event, our whole liability will be to you, and is not transferable to any third party, nor will we have any liability to any third party under the contract.
12.1 You represent and undertake to us that all CR Smith goods will be fitted in a proper, workmanlike manner by properly qualified trades people in accordance with all legal requirements, good building practice and any instructions or guidance issued by CR Smith.
12.2 You will therefore free, relieve, indemnify, hold harmless and pay to CR Smith all losses, damages, costs and expense of whatever nature, whether direct or indirect or consequential (“Liabilities”), civil or criminal, to the extent the liabilities arise from the representation and undertaking in Condition 12.1 being inaccurate or untrue.
13.1 CR Smith may terminate the contract with immediate effect by giving you a notice of termination if any of the following events occur:
13.1.1 CR Smith, in its sole and absolute discretion, decides that continuing the contract might harm the brands “CRSmith” or otherwise adversely affect the reputation and goodwill of CR Smith;
13.1.2 CR Smith, in its sole and absolute discretion, decides that you are, or may be, unable to pay your debts as they fall due;
13.1.3 any payment due by you under this or any other contract between you and CR Smith is not paid on the date required by CR Smith;
13.1.4 you breach this or any other contract with CR Smith and, in the sole and absolute discretion of CR Smith, the breach is not capable of being remedied either at all or in a manner which CR Smith considers acceptable;
13.15 CR Smith has served a notice advising you of a breach of contract on your part and requiring same to be remedied to the satisfaction of CR Smith within such period as CR Smith, in its sole and absolute discretion, directs and, at the expiry of that notice, the breach has not been so remedied;
13.1.6 CR Smith becomes aware that any information given by you was misleading and, in the sole and absolute discretion of CR Smith, has led to CR Smith entering the contract on terms, including those relating to price, which are prejudicial to CR Smith; or
13.1.7 you purport to terminate or cancel the contract except pursuant to your right of termination under condition 13.3 or a mutually agreed termination under condition 13.4.
13.2 In the case of a termination under any of the provisions of condition 13.1, CR Smith shall be entitled, but not bound, to:
13.2.1 recover all losses, costs, damages and expenses directly or indirectly incurred or to be incurred as a result of the termination including, but not limited to, any consequential losses, loss of profit, cancellation charges, sums due in respect of suppliers, labour, rescheduling of manufacturing, scrapping of components and part-finished goods, storage charges, disposal charges and legal, accountancy and diligence charges all with interest at the statutory rate for commercial debts;
13.2.2 within eight weeks after the termination produce a certificate signed by a CR Smith director certifying the amount due to CR Smith in respect of the termination under condition 13.1 (“Certificate”) which Certificate shall (except for any manifest arithmetical error) be final and conclusive as to the sums due by you to CR Smith and as to the refund, if any, due to you from any deposit or monies paid to account up to the date of termination (including any payments received as a result of disposal of the goods);
13.2.3 dispose of (including by destruction) or store the whole or partly finished goods in such a manner and on such terms as CR Smith, in its sole and absolute discretion, may think fit;
13.2.4 retain any deposit or monies received by CR Smith in respect of the contract and its termination until the Certificate has been produced;
13.2.5 require you to pay any sums due to CR Smith under the Certificate upon demand; and
13.2.6 in the event the Certificate brings out a balance due to you, to insist that you sign the Certificate so as to indicate that all matters in dispute have been fully and finally settled between you and CR Smith and, upon such signed Certificate being received by CR Smith, to pay you, without interest, any balance due to you under the Certificate.
13.3 If CR Smith fail to deliver the goods within four weeks of the estimated delivery date or otherwise fail to perform the contract, you shall be entitled, unless the delay or failure is covered by any of the causes provided for in condition 4.4 (in which case the notices referred to in this condition may not be given), to give CR Smith a notice requiring that the failure or delay be remedied within a reasonable period (being not less than four weeks). In the event that CR Smith fail to remedy the matter within that period, you shall be entitled to serve a notice terminating the contract with immediate effect and to recover the losses incurred by you to the extent that the losses equal or do not exceed the lower of (A) sums paid by you to CR Smith at the date of termination or (B) the price of the goods.
13.4 You and CR Smith shall also be entitled by agreement in writing to terminate the contract on such terms as are recorded in writing but, unless such an agreement is signed by both parties, neither CR Smith nor you shall be entitled to any right of termination other than the respective rights provided for by this condition 13 and all other rights of termination, whether arising under statute or common law are excluded to the maximum extent permitted by law.
14.1 All notices under the contract shall be in writing and, to be effective, must be given either by delivery by hand or by recorded delivery to the addresses shown overleaf or as notified under, and by reference to, this condition 14
14.2 These conditions of sale constitute the entire agreement between the parties in respect of its subject matter and supersede any previous agreement or understanding in respect of its subject matter. All other terms and conditions, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law, and neither party is relying on any representation other than expressly set out in writing and signed by the parties.
14.3 If any condition of these conditions of sale is held by a competent authority to be invalid or unenforceable in whole or part, the remaining conditions will continue in full force.
14.4 References to the singular shall, where the context requires, include the plural.
14.5 The headings in these conditions of sale are inserted for convenience only and shall not affect or limit the interpretation of any provision.
14.6 Words following the word “including” are illustrative and non-exhaustive examples only and shall not limit the interpretation of the word preceding “including”.
14.7 These conditions of sale and any contract between CR Smith and you shall be governed by Scots law.
14.8 You and CR Smith prorogate and submit to the non-exclusive jurisdiction of the Sheriffdom of Tayside, Central and Fife at Dunfermline.