Terms & Conditions
- Definitions and Interpretation
1.1 In these Terms and Conditions, the following expressions shall have the following meanings:
Agreement: the Order Form agreed between the parties incorporating these Terms and Conditions.
Buyer: the Buyer purchasing Services from Breakfast Enterprises as specified on the Order Form.
Deliverable Materials: any audio-visual or similar works and the mediums embodying them to be supplied to the Buyer by Breakfast Enterprises as a result of the Services as listed on the Order Form.
Breakfast Enterprises: Breakfast Enterprises Limited, incorporated and registered in England and Wales with company number 11414686 whose registered office is 15-19 Park House, Greenhill Crescent, WD18 8PH
Order Form: the document or invoice setting out and specifying the details of the Services to be performed by Breakfast Enterprises for the Buyer and the Charges.
Project: the photographic and/or audio-visual shooting session as specified on the Order Form.
Project Price: the payment due for the Services and any other fees, charges, costs or expenses arising under an Agreement.
Services: the services to be provided by Breakfast Enterprises as described in the Order Form relating to the Project.
Shoot Day(s): the date or dates on which the photographic and/or audio-visual shoot will occur as specified on the Order Form or subsequently agreed in writing between the parties.
Terms and Conditions: these terms and conditions as set out in clauses 1 to 12 (inclusive).
Venues: means the Buyer locations at which the Project will be undertaken as specified on the Order Form.
1.2 Any reference to a person shall include an individual, partnership, corporate or unincorporated body.
1.3 References to any party shall include its personal representatives, lawful successor in title and permitted assigns.
1.4 A reference to writing or written includes email.
1.5 The words and phrases “other”, “including” and “in particular” shall not limit the generality of any preceding words or be construed as being limited to the same class as the preceding words where a wider construction is possible.
- Terms and Conditions and Order Forms
2.1 Following discussion between the parties Breakfast Enterprises may, at its discretion, produce an Order Form and send the same to the potential client. A Buyer’s signature and return of the Order Form constitutes an offer by the Buyer to purchase the Services on these Terms and Conditions and Breakfast Enterprises’s signature of the Order Form shall establish a contract for the supply of the Services on these Terms and Conditions.
2.2 No addition to, variation of, exclusion or attempted exclusion of any provision of an Order Form shall be binding on Breakfast Enterprises unless signed in writing by a duly authorized representative of Breakfast Enterprises. These Terms and Conditions will be incorporated into each Order Form, to the exclusion of any other terms or conditions implied by law, trade custom, practice or course of dealing or any other standard terms and conditions.
2.3 In the event Breakfast Enterprises agrees more than one Order Form with the same Buyer, then each Order Form constitutes a separate agreement and termination of any one Order Form shall not affect termination of any other Order Form (although this shall not prevent more than one Order Form being subject to termination if termination circumstances apply to them). Each Order Form incorporating these Terms and Conditions shall be referred to as an Agreement in these Terms and Conditions.
2.4 If there is any conflict or inconsistency between any provision of these Terms and Conditions and an Order Form, then the provisions of these Terms and Conditions shall prevail unless specifically stated in writing on the relevant Order Form with reference to this clause 2.4.
- The Services
3.1 In consideration of payment to Breakfast Enterprises of the Project Price, the Buyer engages Breakfast Enterprises, and Breakfast Enterprises agrees, to perform the Services.
3.2 Breakfast Enterprises shall perform the Services in a timely manner and with reasonable skill and care and in accordance with good industry practice and applicable laws and regulations.
3.3 Breakfast Enterprises may subcontract or delegate to a third party the performance of the Services without the prior written consent of the Buyer. Breakfast Enterprises will retain management of such subcontractors or third parties and is otherwise responsible for their conduct, the performance of the Services and production of the Deliverable Materials.
3.4 The parties agree to consult in good faith with each other over the creative and artistic direction of the Project. The Buyer is encouraged to provide a suggested shot list to Breakfast Enterprises, or approve the suggested shot list provided by Breakfast Enterprises, no less than 7 days prior to start of the Project to confirm the shots that Buyer would like Breakfast Enterprises to capture. Breakfast Enterprises has no obligation to capture any of the shots on the list, but will use its best endeavors to capture all requested and agreed shots.
3.5 The Buyer accepts and acknowledges that Breakfast Enterprises’s performance of the Services depends on the full and timely co-operation of the Buyer. If Breakfast Enterprises’s performance of its obligations under an Agreement is prevented or delayed by any act or omission of the Buyer, Breakfast Enterprises shall not be liable for any costs, charges or losses sustained or incurred by the Buyer that arise directly or indirectly from such prevention or delay. The Buyer shall be liable to pay to Breakfast Enterprises, on demand, all reasonable costs, charges or losses sustained or incurred by Breakfast Enterprises that arise directly or indirectly from the Buyer negligence or failure to perform or delay in the performance of any of its obligations under an Agreement.
3.6 The Buyer is responsible for preparing and making the Venues available for the purposes of the Project, including:
3.6.1 ensuring there is adequate and appropriate space to undertake the Project and safely store Breakfast Enterprises’s equipment during the Project;
3.6.2 monitoring, removing and disposing of any dangerous or hazardous material before and during the supply of Services;
3.6.3 establishing and implementing all health and safety rules and regulations and any other reasonable security requirements;
3.6.4 obtaining and paying for any relevant local permits and permissions to film at the Venue;
3.6.5 informing customers, guests, staff and other personnel present at the Venue of the Project and procuring the completion of any necessary release forms (such forms are available on request from the Breakfast Enterprises).
- Post Production and Deliverable Materials
4.1 Breakfast Enterprises shall deliver the Deliverable Materials to the Buyer on completion of the post production activity and payment of any outstanding element of the Project Price in accordance with clause 10.4. The Buyer shall confirm either its acceptance or non-acceptance of the Deliverable Materials with reasons in writing within fourteen (14) days of receipt. If Breakfast Enterprises does not receive notice of such acceptance or non-acceptance within that period, the Buyer will be deemed to have accepted the Deliverable Materials.
4.2 If the Buyer declines to accept any of the Deliverable Materials, Breakfast Enterprises will then have thirty (30) days in which to make all necessary changes to them, in consultation with the Buyer. Breakfast Enterprises will then submit to the Buyer the revised material or replaced materials and the provisions of clause 4.1 and this clause 4.2 will apply again save that any further request for amendment by the Buyer after the second review shall be subject to charge by Breakfast Enterprises to cover reasonable costs incurred as a result of the further amendments. All requests for amendments must be made in writing, via e-mail or via Breakfast Enterprises’s custom video-editing software.
4.3 The Buyer agrees that Breakfast Enterprises is not liable for any perceived deficiencies in the final products caused by actual or perceived deficiencies or imperfections in the physical attributes, facial expressions, wardrobe or performances of artists, performers, customers, employees or extras selected, hired or brought to the Project by the Buyer. The Buyer is liable for any additional costs incurred by re-shooting or additional shooting caused by the actions of such artists, performers, customers, employees or extras.
4.4 Breakfast Enterprises will make the Deliverable Materials available to the Buyer for download as a 1080p JPEG file on the Vimeo platform (or such other platform as Breakfast Enterprises may select from time to time) for a period of 12 months from completion of the post production activity.
- Changes, Cancellation Fees and Postponement Charges
5.1 The parties agree and acknowledge that a Project is a creative and artistic activity and the Buyer may request changes or additions to the Services from time to time. Breakfast Enterprises will use reasonable endeavors to comply with such requests and the Buyer shall reimburse Breakfast Enterprises for any associated changes to the Project Price (an “Approved Overage”). The parties will reduce variations to the Services and Approved Overages to writing, including by exchange of email, whereupon the Approved Overage shall form part of the Project Price.
5.2 In the event Services are cancelled, postponed or rescheduled on the Buyer’s request, the Buyer shall reimburse Breakfast Enterprises in full for all costs and expenses that Breakfast Enterprises suffers or incurs. The Buyer also acknowledges a request to postpone or reschedule a Project may also result in additional Approved Overages and a change in the Project Price. In addition, in the event the Buyer cancels, postpones or reschedules a particular Shoot Day or series of Shoot Days with less than 5 days prior written notice to Breakfast Enterprises, the Buyer shall be liable to pay as an additional cancellation fee a sum equivalent to the element of the Project Price attributable to the affected Shoot Day(s) or 50% of the Project Price, whichever is the greater.
5.3 Breakfast Enterprises reserves the right to postpone, extend or reschedule a Project on written notice to the Buyer, provided the original Project Price is not affected.
6.1 Either party may terminate an Agreement with immediate effect by giving written notice to the other if:
6.1.1 the other party commits a material breach of any term of an Agreement which is incapable or remedy or (if such breach is capable of remedy) fails to remedy that breach within a period of 30 days after being notified in writing to do so; or
6.1.2 an order is made or a resolution is passed for the winding-up of either party, or an administrator/receiver/administrative receiver is appointed in relation to the assets of either party, or either party enters into an arrangement, whether formal or informal, with its creditors.
6.2 Any provision of an Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Agreement shall remain in full force and effect.
6.3 Upon termination (or expiry) of an Agreement for any reason:
6.3.1 the Buyer shall immediately pay to Breakfast Enterprises all of Breakfast Enterprises’s outstanding unpaid invoices and interest and, in respect of Services which have been performed but for which no invoice has been submitted, Breakfast Enterprises may submit an invoice, which shall be payable immediately on receipt; and
6.3.2 subject as otherwise provided herein and to any rights, obligations or liabilities which have accrued prior to termination, neither party shall have any further obligation to the other under the Agreement.
- Limitation of Liability
7.1 The following provisions set out the entire financial liability of Breakfast Enterprises (including without limitation any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
7.1.1 any breach of an Agreement howsoever arising;
7.1.2 any use made by the Buyer of the Services, the Deliverable Materials or any part of them; and
7.1.3 any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including without limitation negligence) arising under or in connection with an Agreement.
7.2 Subject to Clause 7.5 below, Breakfast Enterprises’s total aggregate liability to the Buyer in connection with an Agreement shall be limited to the amount payable as the Project Price.
7.3 Subject to Clause 7.5, neither party shall, in any event, be liable or responsible to the other for any:
7.3.1 loss of documentation, loss or corruption of data, loss of profits or of contracts, remedial costs, loss of operation or staff time, costs of obtaining substitute products or services and loss of goodwill or anticipated savings (in each case whether direct or indirect); or
7.3.2 any indirect, incidental, special or consequential loss, damage, cost or expense of any kind whatsoever;
and in each case howsoever caused and even if it has been advised of the possibility of such loss.
7.4 The express warranties given in an Agreement are in lieu of all warranties, conditions, terms, representations, undertakings and obligations (express or implied) imposed by statute, common law or otherwise all of which are hereby excluded to the maximum extent permitted by law.
7.5 The above exclusions and limitations shall apply to the fullest extent permissible at law but neither party excludes or limits liability for death or personal injury caused by its negligence or that of its employees or agents and for which it is responsible, or for fraud.
- Confidentiality and Publicity
8.1 Each party undertakes that it will not at any time hereafter use, divulge or communicate to any person, except to its professional representatives or advisers or as may be required by law, or any legal or regulatory authority, any confidential information concerning the business or affairs of the other party (or of any member of the group of companies to which the other party belongs) which may have (or may in future) come to its knowledge and each of the parties shall use its reasonable endeavours to prevent the publication or disclosure of any confidential information concerning such matters.
8.2 The obligations in clause 8.1 shall continue to apply notwithstanding termination or expiry of an Agreement, but shall not apply to any confidential information that comes into the public domain other than through a breach of an Agreement.
8.3 The Buyer agrees its name may to be added to Breakfast Enterprises’s client list, and for Breakfast Enterprises to refer to the Buyer as a client and user of Breakfast Enterprises’s services in its marketing and public relations materials. The Buyer agrees Breakfast Enterprises may use the Deliverable Materials or images or extracts from the Deliverable Materials or other photographs and audio-visual material created at the Project for its own promotional use in internal and client and prospective client presentations, showreels and on Breakfast Enterprises’s website.
- Intellectual Property
9.1 Upon full payment of the Project Price, Breakfast Enterprises hereby grants the Buyer a perpetual, worldwide, royalty free, non-transferrable license to use all intellectual property rights belonging to Breakfast Enterprises and comprised in the Deliverable Materials for the purposes of promoting the Buyer through the Buyer’s website, local or national advertising campaigns, press releases, advertisements in publications, internal documents, and social media websites.
9.2 The Buyer acknowledges the license grant in clause 9.1 does not allow the Buyer to use the Deliverable Materials for promotional activity on behalf of, in combination with, or for the benefit of any third party. Any such use is subject to the prior written approval of Breakfast Enterprises and may be subject to additional charge.
9.3 The Buyer acknowledges the Deliverable Materials may include components that are owned by third parties (for instance stock footage or music) and use of such components will be subject to and governed by the applicable third-party licensing terms.
9.4 The Buyer agrees to credit the Breakfast Enterprises as ‘Breakfast Enterprises’ in all videos, videography and post-production services wherever asked or appropriate to do so.
- Price and payment
10.1 In consideration of the provision of the Services the Buyer must pay the Project Price without deduction or set off and in accordance with the terms of the Order Form and these Terms and Conditions.
10.2 Unless agreed in advance by the parties or as set out in an Order Form, all rates detailed in the Order do not include travel, accommodation, subsistence and the cost of materials and third-party services or reasonable out of pocket expenses. The Buyer shall reimburse Breakfast Enterprises for any reasonable expenses that Enable necessarily incurs in connection with the provision of the Services.
10.3 Upon execution of an Agreement, payment obligations are non-cancellable and the Buyer shall make a non-refundable advance payment to Breakfast Enterprises of the amount specified on the Order Form in accordance with the time period specified on the Order Form. Breakfast Enterprises reserves the right at its sole discretion not to commence performance of, or begin any preparations to perform, the Services until the Buyer has made the advance payment. The Buyer acknowledges any failure to make the advance payment may negatively affect the timing and performance of the Services and may lead to an increase to the Project Price.
10.4 Breakfast Enterprises will issue a balancing invoice to the Buyer for the remainder of the Project Price prior to the delivery of the Deliverable Materials. The Buyer must pay this invoice before delivery of the Deliverable Materials and in accordance with the payment terms specified on the Order Form.
10.5 The Buyer shall pay each invoice submitted to it by Breakfast Enterprises, in full and in cleared funds, in accordance with the payment terms specified on an Order Form. All Project Price and other fees are exclusive of Value Added Tax and other sales taxes, which will be added at the appropriate rate. The Buyer shall make all payments under an Agreement without withholding or deduction of, or in respect of, any tax, levy, impost, duty, charge or fee unless required by law. If any such withholding or deduction is required, the Buyer shall pay to Breakfast Enterprises such additional amount as will ensure that Breakfast Enterprises receives the same total amount that it would have received if no such withholding or deduction had been required.
10.6 Without prejudice to any other right or remedy that it may have, if the Buyer fails to pay any sum to Breakfast Enterprises on the due date:
10.6.1 the Buyer shall pay interest on the overdue amount at the rate of 2.5% per month. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Buyer shall pay the interest together with the overdue amount;
10.6.2 Breakfast Enterprises may not supply any Deliverable Material; and
10.6.3 Breakfast Enterprises may suspend all Services until payment has been made in full.
- Force Majeure
11.1 Neither party shall be liable for any delay in performing any of its obligations hereunder if such delay is caused by circumstances beyond the reasonable control of the party so delaying and such party shall be entitled to a reasonable extension of time for the performance of such obligations. If the affected party has been prevented from performing its obligations under an Agreement for a period of 60 days (or such other period agreed between the parties in writing), then either party may terminate an Agreement immediately by providing notice to the other party.
12.1 Any variation or amendment of these Terms and Conditions must be in writing, referenced to the Terms and Conditions, and signed by an authorised representative of both parties.
12.2 The Buyer may not assign, transfer, charge or deal in any other manner with an Agreement, without the prior written consent of Breakfast Enterprises.
12.3 If any party fails to rely on its rights under an Agreement or otherwise, that shall not prevent it from relying on those (or similar) rights in the future.
12.4 The provisions of an Agreement, and the rights and remedies of the parties under it are cumulative and are without prejudice and in addition to any rights or remedies a party may have at law or in equity. No exercise by a party of any one right or remedy under an Agreement, or at law or in equity, shall (save to the extent, if any, provided expressly in an Agreement, or at law or in equity) operate so as to hinder or prevent the exercise by it of any other such right or remedy.
12.5 Nothing in an Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of otherwise to bind the other in any way (including but not limited to the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
12.6 If any provision of an Agreement is found by a court or other competent authority to be void or unenforceable that provision shall be deemed to be deleted from an Agreement and the remaining provisions of an Agreement shall continue in full force and effect.
12.7 Each Agreement (including the documents and instruments referred to in it) supersedes all prior representations, arrangements, understandings and agreements between the parties relating to its subject matter. Each party acknowledges that it has not relied on any representation, arrangement, understanding or agreement (whether written or oral) not expressly set out or referred to in an Agreement.
12.8 Any notice given under an Agreement shall be in writing and shall be delivered by email to the email address advised by each party to the other from time to time for this purpose, or sent by pre-paid registered post or airmail by a recognised mail carrier (return receipt requested) or in person to the registered address of the relevant party. In the case of email, the notice shall be deemed to have been delivered on acknowledgement by the recipient. In the case of post, the notice shall be deemed to effective one business day after the date on proof of delivery.
12.9 An Agreement is not intended to convey a benefit on any person not a party to it and accordingly the provisions of the Contracts (Rights of Third Parties) Act 1999 are excluded.
12.10 An Agreement shall be governed by the laws of England and Wales and the parties agree to submit to the exclusive jurisdiction of the English Courts.