Christopher Rushbrooke Associates Limited ("CRA")of Avalon House, Marcham Road, Abingdon, Oxon, Oxfordshire, England (English company registration no:-05447255, UK VAT registration no:- 860 582809) agrees to provide Services to its customers on the basis of the following conditions, which are also made available to customers to view on CRA’s website:- www.christopherrushbrooke.com
Customers are deemed to have accepted these terms and conditions and to have placed a validly binding order with CRA (a) by verbal, written or email consent to a CRA quotation or (b) where a Purchase Order has been issued with a reference to CRA quotation or (c) by conduct e.g. asking CRA by verbal or written or email communication, to begin work in accordance with a written quotation provided by CRA or (d) by payment on account or payment for services rendered or (e) by giving a deposit for third party goods.
It is therefore agreed as follows:
1. Definitions and Interpretation
2. Scope of this Agreement
4. Intellectual Property Rights
5 Intellectual Property Rights Indemnity
6. Limitation of Liability
8. Consequences of Termination
9. Payment Terms
10. Assignment and Subcontracting
11. Dispute Resolution
13. Technical and Design Assistance
14. Force Majeure
15. Shop Terms and Conditions
Top | 1.
Definitions and Interpretation
In this Agreement capitalized words are defined in this clause or in the clause in which they first appear: “Agreement” means these standard terms and conditions, all written Quotations including any Changes agreed between the customer and CRA; “Change (s)” means any change to an existing Quotation provided by CRA and agreed in writing by CRA in accordance with a customer’s request or the issuance of a new Quotation to cover the specific work requested; ‘Equipment’ means any audio-visual components and associated control devices supplied by CRA and/or any software application specially customised at customer request, for such components and/or associated control devices; “Intellectual Property Rights” means any copyright, design rights, whether registered or unregistered, patents, trade marks and service marks, whether registered or unregistered, applications for any of those rights, trade and business names (including domain names and email addresses), database rights, rights in inventions; “Project” means the design, development, consultancy and implementation and any other services provided by CRA for a Customer as part of a Quotation; “Quotation” means the detailed summary of work and equipment to be provided to the Customer by CRA, and to which these standard terms and conditions relate, including any applicable Changes; “Services” means the services to be supplied by CRA to the Customer under this Agreement in accordance with the Quotation; ‘Smart Home Installation’ means customisation of a customer’s home or a building development composed of separate units through the provision of CRA Services as detailed in a Quotation. In this Agreement where the context permits: masculine includes feminine and vice versa; singular includes plural and vice versa; references to a party include that party’s successors and assigns; reference to a statute or regulation includes all amendments and re-enactments; and headings are for convenience only and do not affect interpretation of this Agreement. For the avoidance of doubt, all references to ‘written format’ or documents in writing also covers all email and digital communications such as, inter alia, mobile text messaging.
Top | 2. Scope of this Agreement
2.1 These standard terms and conditions govern and are to be read in conjunction with the applicable Quotation detailing the Services to be supplied by CRA to the Customer.
2.3 CRA will provide the Services using reasonable skill and care, and the Customer will pay CRA in accordance with the Quotation.
Top | 3. Warranties
3.1 CRA warrants that: a) it has the right and authority to enter into this Agreement; b) it shall carry out its obligations under this Agreement with reasonable skill and care, including any installation work. c) in relation to the Equipment, detailed in the Customer’s Quotation, all speakers are guaranteed (with normal or specified usage) for five years, and other Equipment for two years (or more according to Quotation) from delivery date, unless a normal manufacturer’s warranty is already in place.
3.2 The warranties provided at Clause 3.1 above will not apply in the event that:- a) the Equipment is physically damaged, modified or otherwise abused; b) The Equipment is not operated within the terms of the original Quotation, or under specified operating conditions supplied with the Equipment, or in accordance with any accompanying instructions contained in manuals or media provided to the customer; c) Any cabling or installation work is carried out by a third party not being CRA or its sub-contractors.
3.3 CRA accepts no liability for costs incurred by the Customer in repairing Equipment without its prior written consent.
3.5 The warranty at Clause 3.1 in no way affects the statutory rights of the Customer.
3.6 All other conditions, warranties, representations or terms concerning the performance of the Services which might otherwise be implied into this Agreement, whether by law, statute or otherwise, are hereby expressly excluded as far as legally permissible.
3.7 Any work required to maintain or repair the Equipment after the expiry of the warranty period, will be subject to CRA’s applicable hourly rates unless a maintenance agreement is already in place.
3.8 All Equipment will be subject to availability and CRA reserves the right to modify the Equipment at any time or substitute them with goods of equivalent functionality without notice.
Top | 4. Intellectual Property Rights
4.1 The Intellectual Property Rights in any Services, including but not limited to any design wiring schematics and equipment specifications, design drawings, graphics, software programs, executable program files, end-user instructions, end-user brochures and related documentation related thereto, are and shall remain vested in CRA or its licensor(s)as the case may be.
4.2 Provided the Customer has paid all fees and disbursements to CRA relating to a Project and is not otherwise in breach of this Agreement, CRA grants to the Customer a non-exclusive and non-transferable licence to use and copy any element of a Smart Home Installation, as specified below: a) the license is limited to enable the Customer to use the Smart Home Installation for the purposes contemplated by the Project; b) the Customer may not sell, transfer or sub-license any element of the Smart Home Installation to third parties (including without limitation any parent, affiliate, or subsidiary company of the Customer) without the prior written consent of CRA or otherwise commercially exploit the Smart Home Installation System in a way that is not contemplated by the Quotation; c) Notwithstanding the previous paragraphs of this clause, the Customer shall not modify, amend, vary/alter, translate or adapt the Smart Home Installation and/or Equipment. Furthermore, the Customer, shall not, save where permitted by law, decompile, reverse-engineer or disassemble any software contained in the Smart Home Installation and/or the Equipment in order to reveal any of its underlying source code; d) the Customer may not remove or amend any references to copyrights, trademarks, trade names or other intellectual or industrial property rights embedded in the Deliverable, including references to the confidential nature of the Deliverable. 4.2 With respect to any part of the Equipment (e.g. control devices) which are produced by third party vendors, but typically where the interface has been set up, in accordance with the manufacturer’s instructions, and then supplied by CRA to the customer, the warranty and licence arrangements are as dictated by that third party vendor’s own terms and conditions.
4.3 In situations where it makes most sense and is practical, CRA reserves the right to request the customer to buy and enter into third party licensing arrangements directly with a third party vendor, and as the case maybe, ensure that, where necessary, CRA benefits from a sub-licence, for the performance of its obligations under a Project.
4.4 The Customer warrants that it will ensure that at all times appropriate permissions are gained from third party suppliers to allow CRA to be able to incorporate that third party’s components or products or software into CRA’s Services and Equipment so that CRA’s use of those components does not infringe third party Intellectual Property Rights or impair the performance and functionality of CRA’s services to the Customer.
Top | 5 Intellectual Property Rights Indemnity
5.1 Provided the Customer complies with clause
5.2 and subject to clause 6, CRA shall indemnify the Customer against loss, liability and cost incurred by the Customer, arising out of any claim of infringement of any third-party Intellectual Property Rights arising as a result of the use of the Equipment and/or CRA’s documentation by the Customer (an “IPR Claim”). 5.2 The Customer shall: notify CRA promptly in writing of an IPR Claim; permit CRA to control the defence of the IPR Claim; agree to any reasonable settlement of the IPR Claim; provide CRA with all necessary information, support and powers of attorney enabling CRA to control the defence of the IPR Claim; and not make any commitments to or agree to any settlement with the claiming party with respect to an IPR Claim without the prior written consent of CRA.
5.3 Clause 5.1 will not apply in the event that any loss, liability or costs arises due to the Customer updating, amending or incorrectly using the Equipment and/or relevant documentation or using the Equipment in combination with other non-authorised or incompatible software or in the event that the IPR claim relates to any material or work product which has been provided to CRA by the Customer or by third parties designated by the Customer (“Customer Materials”). The Customer shall indemnify CRA against loss, liability and cost incurred by CRA, arising out of any claim of infringement of any third-party Intellectual Property Rights arising as a result of the use of Customer Materials by CRA.
5.4 In the event of an IPR claim against the Customer which will be sustained in whole or in part, or which will be acknowledged in whole or in part pursuant to a settlement, CRA may choose to: cure the infringement by acquiring the rights which the Customer may require pursuant to this Agreement; replace or amend the relevant Equipment and/or related documentation in order to cure the infringement on which the IPR Claim is based; or take back the relevant Equipment and/or relating documentation on payment to the Customer of all costs paid by the Customer for the relevant Equipment.
Top | 6. Limitation of Liability
6.1 To the extent permitted at law, CRA accepts no liability for loss or damage incurred by the Customer as a result of third party claims (except for third party claims referred to in clause 5) or loss of profit or revenue or any consequential loss, indirect or special damages including without limitation loss of opportunity and it is expressly agreed that the entire liability of CRA for all loss, costs, damages or expenses arising out of the Services (regardless of whether the cause of action is in contract, tort, statute or otherwise) shall be limited to the fees payable to CRA in respect of the Project to which the claim relates.
6.2 Nothing in this Agreement shall exclude or in any way limit CRA’s liability for fraud, death or personal injury caused by its sole negligence, or any breach of the obligation implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Goods and Services Act 1982, or any other liability to the extent the same may not be excluded or limited as a matter of law.
Top | 7. Termination
7.1 Either party may terminate this Agreement on 14 days written notice to the other party (the “defaulting party”) if: a) the defaulting party breaches a material obligation under this Agreement and where such breach is capable of being remedied, does not remedy it within 30 days after notice of breach is given to it; b) the defaulting party is dissolved or liquidated or involved in a statutory merger or de-merger; c) an order is made declaring the defaulting party bankrupt or insolvent, or granting a moratorium over repayment of the defaulting party’s debts; or d) the defaulting party suffers a change of control.
7.2 The parties may terminate this Agreement on a non-contentious basis subject to three weeks prior written notice to the other party, and subject to full payment of all fees and disbursements owed to CRA as set out in more detail in Clauses 8.1 and 8.2 below.
Top | 8. Consequences of Termination
8.1 The Customer must pay CRA for all Services provided up to and including the date of termination, including payment of any Equipment delivered or ordered by CRA on the customer’s instructions including any unpaid third party disbursements.
8.2 Additionally, the parties agree to negotiate a fair fee to be paid for any partially completed Services which have not yet been delivered to the customer, but where a substantive amount of time and effort have been expended on the customer’s behalf.
Top | 9. Payment Terms
9.1 All Quotations are valid for 30 days only. CRA reserves the right to revise the price of any Quotation, during the course of carrying out a Project, subject to a seven (7) day written notification to the customer, if:- (i) due to unforeseen circumstances, the costs of any raw materials or any part of the Services specified in a Quotation, have increased beyond the normal applicable rate of inflation. (ii) the building project or any part thereof, to which the Quotation relates to, is itself delayed beyond a reasonable period of time.
9.2 If the parties cannot agree the revised new cost of the Quotation relating to the original Project, CRA’s Services may be terminated by either party, subject to Clause 8.1 or 8.2. (Termination). 9.2 The Customer or his/her representative shall pay CRA in accordance with the terms detailed on the Quotation. In the event of late payment by the Customer, CRA reserves the right to levy a surcharge equivalent to 2% above Lloyds TSB Bank Plc. annual base rate, pro-rated as appropriate on the outstanding debt. CRA may also require the Customer to pay further sums on account prior to CRA completing any further work under the terms of the relevant Quotation.
9.3 CRA reserves the right to charge additionally for any work not within the scope of the Quotation. Such additional work will be regarded as a Change and will be subject to written agreement by CRA in relation to timelines, process and cost.
9.4 CRA reserves the right to immediately suspend work on a Project and demand full payment of its fees and outstanding disbursements to date, if there is non-payment or continued late payment by the customer or failure to pay for Equipment in advance if so requested by CRA. Specially customised Equipment if ordered by customer may not be cancelled and must be fully paid for, if CRA has already processed an order for such customised Equipment.
Top | 10. Assignment and Subcontracting
10.1 Neither Party may assign nor transfer a right or obligation under this Agreement without first obtaining written consent from the other party. CRA shall have the right to subcontract its obligations under this Agreement, without prejudice to its ultimate responsibility for these obligations.
10.2 Where the Customer requests CRA to work with a third party, whether or not as its subcontractor, CRA will accept no liability for any loss or damage arising out of or in connection with goods or services provided by such third party and the Customer will indemnify CRA against such loss or damage incurred by CRA.
Top | 11. Dispute Resolution
11.1 The parties will use all reasonable endeavours to negotiate in good faith and settle any dispute that may arise out of or in relation to this Agreement, or any breach of it. If any such dispute cannot be settled amicably through negotiations at the level at which meetings are usually held, then the dispute shall be referred to the senior representatives nominated by the Managing Director or Chief Executive Officer of each party who will meet in good faith in order to try and resolve the dispute.
11.2 If the dispute or difference is not resolved as a result of such meeting, either party may (at such meeting or within fourteen days of its conclusion) propose to the other in writing that structured negotiations be entered into with the assistance of a neutral advisor or mediator before resorting to litigation.
11.3 Nothing contained herein shall restrict either party’s freedom to commence legal proceedings before any competent court to preserve any legal right including debt collection or remedy or protect any proprietary right or trade secret.
Top | 12. Confidentiality
12.1 The parties agree to treat as confidential any information which comes into their possession as a result of this agreement (whether directly or indirectly and regardless of its form) where such information relates to the business, sales, financial, marketing, other operations, products, software, services or customers of the other party (“Confidential Information”).
12.2 Neither party shall: (1) disclose to any other person (except its employees, directors, contractors and advisors on a need- to- know basis with an obligation to abide by the confidentiality obligations set out in this Agreement) any Confidential Information of the other without the disclosing parties’ prior written consent; (2) use Confidential Information other than for the purposes of completing the Services; (3) copy, reverse engineer, reverse compile or attempt to derive the composition or underlying information of any Confidential Information; or (4) export such information except in accordance with applicable laws and regulations.
12.3 Confidential Information shall not include: a) any information that comes into the public domain other than by breach of this agreement; b) is rightfully received from a third party who has a right to disclose without a restriction on disclosure; c) is independently developed without reference to the Confidential Information; and d) is already known to the receiving party without any obligation of confidentiality.
12.4 Either party may disclose the Confidential Information to a third party if and to the extent that it is required to do so by law, provided the receiving party gives notice of such requirement to the party who has disclosed the Confidential Information immediately after such requirement has arisen and prior to disclosing the Confidential Information to such third party.
12.5 The disclosing party retains title to, ownership of and all rights and control over the Confidential Information and, except as provided in this Agreement, no right or license to the Confidential Information is granted.
12.6 The parties agree to promptly return or destroy all Confidential Information belonging to the other party upon written request.
Top | 13. Technical and Design Assistance
13.1 In relation to design and technical assistance, CRA will supply the following, providing the Customer has complied with its obligations under Clause 9 (Payment):- a) such drawings, diagrams and cable or equipment samples as necessary to install the equipment; b) appropriate training and/or operating instructions and manuals to enable the Customer to use the equipment successfully; c) a trained member of staff to deal with other contractors, designers etc. - charged hourly at CRA’s then applicable "consultancy rate".
13.2 Delivery and Installation CRA will confirm cabling dates and a delivery and installation date at the time an order is received subject to: a) obtaining necessary technical approval from the Customer or his/her representative; b) receipt of advance payment as detailed in the note accompanying the Quotation; c) (in the case of commercial Customers) an official purchase order.
13.3 In the event of delays in delivery caused by the Customer, its employees, agents, sub-contractors or any third parties associated with the Customer (e.g. planning permissions problems, delays due to the main contractor) CRA shall arrange appropriate insurance and storage of the Equipment at the Customers’s own risk and expense, where possible, otherwise CRA will notify the Customer, who will be responsible for making its own arrangements.
13.4 Confirmed delivery dates during the course of a Project represent CRA’s best estimates. No liability will be accepted for failure to meet these dates including but not limited to loss of profit, costs, damages, and charges, expenses caused directly or indirectly by a delay in Delivery (even if caused by our negligence).
13.5 CRA will of course do everything it can to ensure it meets target delivery dates and, where possible, if necessary, it will lend without charge Equipment of similar specification.
13.6 Clause 13.5 will not apply if the delay in meeting target delivery dates is due to the Customer or its employees or agents or sub-contractors or any third parties associated with the Customer.
13.7 CRA’s liability for any loss or damage to Equipment, ceases on delivery of that Equipment to the agreed site or venue or authorised personnel of the Customer.
13.8 The Customer will ensure that any site permissions or right to enter private property in order to perform the Services, (including the ability for CRA to enter a site or private property to carry any preliminary work required for a Quotation), will be sorted out in advance of such site visit.
13.9 CRA shall not be liable for any delay or failure to perform or comply with any obligation under this Agreement caused by acts or omissions by the Customer or its employees, agents or contractors (including without limitation any breach by the Customer or its employees, agents or sub-contractors of any Customer obligation set out in this Agreement).
13.10 Title to Goods Title in the Equipment or any goods (‘Goods’) shall not pass to Customer until CRA has received in full (in cash or cleared funds) all the charges and all other sums which are or which become due to CRA from Customer on any account. Until ownership of the Goods has passed to Customer, Customer must: a) hold the Goods on a fiduciary basis as CRA’s bailee; b) store the Goods (at no cost to CRA) separately from all other goods in such a way that they remain readily identifiable as CRA’s property; c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; d) maintain the Goods in satisfactory condition and keep them insured on CRA’s behalf for their full price against all risks to CRA’s reasonable satisfaction. On request Customer shall produce the policy of insurance to CRA; and hold the proceeds of this insurance on trust for CRA and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
13.11 Customer’s right to possession of the Goods shall terminate immediately if: (a) it makes a voluntary arrangement under Part I of the Insolvency Act 1986, or makes or proposes any other composition, scheme or arrangement with (or assignment for the benefit of) its creditors; or if (b) it is the subject of an administration order under the Insolvency Act 1986; or (c) it enters into administrative receivership; or (d) it is the subject of a resolution for voluntary winding up otherwise than for the purpose of amalgamation or reconstruction when solvent; or (e) it has a winding up order made against it; or (f) it is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986; (g) it has an encumbrancer taking possession of any of its assets; (h) it ceases or threatens to cease to exist; (i) in relation to it, there occurs in any jurisdiction any event or process (by whatever name called) equivalent or similar to any event or process mentioned in this clause 13.11.
13.12 Customer grants to CRA, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Customer’s right to possession has terminated, to recover them.
Top | 14. Force Majeure
14.1 Neither party shall be liable for any loss or damage suffered or incurred by the other party arising from the first party's delay in performing or failure to perform its obligations under this Agreement to the extent that such delay or failure results from any cause or circumstance whatsoever beyond the affected party's reasonable control, provided that the affected party notifies the other party as soon as reasonably practicable after becoming aware of a force majeure event and the manner and extent to which its obligations are likely to be prevented or delayed. Notwithstanding the foregoing, the occurrence of any force majeure event shall not effect or discharge or delay any payment obligations under this Agreement.
14.2 If any force majeure event occurs, the date(s) for performance of the obligation(s) affected shall be postponed for as long as the force majeure event lasts provided that if any force majeure event continues for a period of or exceeding one (1) month, the affected party shall have the right to terminate this Agreement immediately on written notice to the non-affected party. Each party shall use its reasonable endeavours to minimise the effects of any force majeure event.
Top | 15. Shop Terms and Conditions
When you place an order with us we do business together under the following terms:
15.1 Price We offer goods for sale through our website www.christopherrushbrooke.com. Prices vary from time to time and printed material such as advertisements will always show the dates when the prices are valid. During the valid period of an advertisement we may offer things at a lower price. This could be a special offer or just an everyday price cut. Our website will always show one price, and if you order we undertake to process your order at the price shown on our web site.
15.2 VAT The prices we quote always include VAT at the applicable rate.
15.3 Payment All of our goods are offered to you on a payment with order basis. Your payment is due to us when you order and is accepted by most credit cards, debit cards, Paypal or by cheque. We will only accept your order if it is accompanied by payment in full.. Upon placing an order, via the website, telephone, e-mail or in person you are automatically agreeing to the terms and conditions listed here within.
Our payment system is supplied by Lloyds TSB. The Lloyds TSB Cardnet system is 100% safe and secure.
15.4 Dispatch We will normally dispatch your goods on the same working day, provided that your order is received by us before 12pm. Orders received later than this will be dispatched the next working day. The goods become your property as soon as they are dispatched to you. Some goods are non-stock items and will normally be dispatched within 3 working days. These items are normally listed as so, on the relevant web site page.
15.5 Delivery Wee will deliver your order to any UK mainland address via a 48hour service. Our standard delivery uses a national carrier and in most cases you will receive your goods within 72hours. If a quicker delivery is important you may select one of our premium delivery options. Availability of these depends on where you are and in some cases the time of day. This will be confirmed with you at the time you place your order. We also reserve the right to use a different carrier should the need arise. We may also use the Royal Mail postal service if it is deemed to be a better option for a particular item or for promotional items that may have been offered, e.g. on a postage free scheme or similar.
15.6 Receiving Orders Unless we have your written authorisation, we will always require an authorised signature when delivering goods to you.
15.7 Availability We aim to keep sufficient stock so that we never run out. However, on occasions of unexpectedly high demand, we may unfortunately run out. If this happens we may delay dispatch of your order for a couple of days while new stock is obtained. If you have opted for a premium delivery option, or we are expecting a longer delay we will use the information you have provided with your order to keep you informed of progress. You may contact us at any time to check on the progress of your order.
15.8 Cancellation If you wish to cancel the order you should do so by telephone and we will confirm that it has been possible.
15.9 Refund Once your order has been dispatched you may return the goods for a full refund, provided the goods are in the original packaging and condition and you do so within 7 days of the purchase. In this situation it is your responsibility to return the goods to us. We can assist you in arranging the return of goods if you wish.
15.10 12 Month Guarantee If any of the goods we supply fails to perform satisfactorily due to faulty materials or workmanship you may return them to us for a refund at any time in the first 28 days.. All we ask is that you provide an explanation of the problem and details of the purchase, including your receipt. Some of the goods we sell carry longer manufacturers warranties, and our guarantee is intended to give you additional peace of mind and not as a substitute for the manufacturer’s warranty.
15.11 Mistakes We are constantly updating our products, prices and offers. We are confident of our technology and staff but acknowledge that human error is always possible. If goods are offered for sale incorrectly we will always try to honour our offer. There may be rare circumstances where it is not possible for us to do so. In such cases we will contact you and explain the situation. If we are unable to resolve the matter fairly with you we reserve the right to refuse your order and refund any payment you may have made.
15.12 Liability Nothing in these Terms of Business is intended to affect your statutory rights. If there is a problem you may receive a refund or replacement under the terms of our Guarantee. Our liability to you will always be limited to a full refund of the goods purchased. We will not compensate for delivery delays or failures unless you have requested a premium delivery option. In these circumstances our liability to you will be limited to a refund of the delivery charges you have paid. Our liability to you specifically excludes compensation for indirect or consequential loss or damage however it arises and except as described above will always be limited to a refund of your payment.
Top | 16.
16.1 This Agreement is governed by English law and the parties submit to the exclusive jurisdiction of the English Courts.
16.2 If any provision of these standard terms and conditions conflict with or are inconsistent with any conditions in any Quotation, the provisions of these standard terms and conditions will supersede.
16.3 These standard terms and conditions cannot be amended except by notification of any changes to them by CRA via updates to its website.
16.4 Provisions of this Agreement from which it is contemplated by their nature or context are to survive termination, shall remain in full force and effect notwithstanding such termination.
16.5 If any term of this Agreement is found to be illegal, invalid or unenforceable under any applicable law, insofar as it is severable, it will be deemed omitted from this Agreement and will not affect the legality, validity and enforceability of the remaining terms.
16.6 The failure of either party to enforce or exercise any right pursuant to this Agreement does not constitute a waiver of such right and will not affect that party’s right later to enforce or exercise it.
16.7 The entire contractual relationship between the parties is formed by this Agreement and all documents defined herein.
16.8 No person who is not a party to this Agreement, shall acquire any rights under it or be entitled to benefit from any of its terms even if that person has relied on any such term or has indicated to any party to this Agreement its assent to any such term.
Christopher Rushbrooke Associates Ltd - Standard Terms and Conditions