Terms & conditions

Breakfast Town – brand strategy and communications consultancy: business terms and conditions

1.    DEFINITIONS
In this document the following words shall have the following meanings:

1.1.  “Agreement” means these Terms and Conditions together with the terms of any applicable proposal/estimate;

1.2.  “Customer” means the organisation or person who purchases services from Breakfast Town;

1.3.  “Intellectual Property Rights” means all patents, registered and unregistered designs, copyright, trade marks, know-how and all other forms of intellectual property wherever in the world enforceable;

1.4.  “Proposal” means a statement of work, quotation or other similar document describing the services to be provided by Breakfast Town;

1.5.  “Supplier” means branding consultancy Breakfast Town, The Caboose, 18 Maze Road, Kew, Surrey TW9 3DE

2.    GENERAL

2.1.  These Terms and Conditions shall apply to all contracts for the supply of branding, creative and communications consultancy services by Breakfast Town to you.

2.2.  Before starting brand consultancy services, Breakfast Town shall submit to you a proposal/estimate which shall specify the services to be performed and the fees payable. You shall notify us immediately if you do not agree with the contents of the proposal/estimate. The proposal/estimate shall be subject to these full Terms and Conditions on the website.  Services shall commence once we receive email confirmation and/or signed acceptance of our terms that the proposal/estimate is accepted and agreed.

2.3.  Breakfast Town shall use all reasonable endeavours to complete the services within time frames estimated but time shall not be of the essence in the performance of any consultancy services.

3.    FEES AND PAYMENT

3.1.  Fees for the performance of the services and payment schedule are as set out in the proposal/estimate.

3.2.  In the event that your procedures require that an invoice be submitted against a Purchase Order for payment, you shall be responsible for issuing such Purchase Order before the commencement of the services. You agree that this clause shall still apply in the event of any failure to obtain a purchase order and any late payment shall incur interest and charges as set out in clause 3.3 below.

3.3.  Debt recovery costs and interest are chargeable in accordance with The Late Payment of Commercial Debts (Interest) Act 1998 as amended and supplemented by Late Payment of Commercial Debts Regulations 2002. Breakfast Town shall be entitled to charge interest on overdue invoices from the date when payment becomes due from day to day until the date of payment at the current rate of interest per annum above the current base rate of the Bank of England.

3.4.  On occasion we may ask you to pay a percentage of the project fee in advance of commencement of the work, with a further percentage at one or more mutually agreed stages of the project. This is especially important where a third party partner requires upfront payment to secure a project, such as talent or location costs.

3.5.  Once a project is started, the fee agreed between us for the full project is deemed to be incurred, unless we have agreed payment milestones in the service specification. You have no right to withhold or reduce payment based on your critical response to, or appraisal of, the consultancy provided. You are paying for Breakfast Town’s time, quantum meruit.

3.6.  In the event of cancellation or unlawful termination of this agreement, by you for any reason, other than a failure to agree on alterations to the proposal/estimate covered in section 6 below, the provisions of section 10.2 will apply and we shall submit final invoice for immediate payment, hereby cancelling the provision for payment within 30 days.

3.7.  If you make use of any output of a branding consultancy project before we have invoiced for the final stage, we reserve the right to invoice you in full for the agreed amount outstanding – even if you require revisions (as agreed within the proposal and signed terms) to be made.

4          CUSTOMER’S OBLIGATIONS 

4.    To enable Breakfast Town to perform our obligations under this Agreement you shall:

4.1.1.     co-operate with us;

4.1.2.     provide any information reasonably required by us;

4.1.3.     obtain all necessary permissions and consents which may be required    before the commencement of the services; and

4.1.4.     comply with such other requirements as may be set out in the proposal/estimate

4.1.5.     provide your registered company address if a registered company, or a residential address (as per current electoral roll) if a sole trader.

4.2.  You shall be liable to compensate Breakfast Town for any reasonable expenses incurred as a result of your failure to comply with Clause 4.1.

4.3.  In the event that you do not make use of any work that we produce for you in accordance with the proposal/estimate, you agree to absolve Breakfast Town of all responsibility for any loss of income or for any costs or damages suffered by you or by any third party as a result of any delay which has been caused to your business or to the business of any third party.

4.4.  Should you for any reason fail to maintain communication with Breakfast Town with regard to a project which you have contracted, we will issue an invoice for payment as per our agreed and signed terms. We will consider failure to maintain communication as a period of 21 days in which we do not hear from you, despite sending you at least one email to an address via which we have previously communicated successfully and from which the email does not bounce. 3 days will be allowed for the last email to be responded to. It is your obligation to ensure you maintain communication through the project duration.

4.5.  Should any project remain unfinished after 60 days, we reserve the right to invoice for all work to date at that point – even if the project then continues after that time and to its agreed scope as per the proposal.

5.    SUPPLIER’S OBLIGATIONS

5.1.  Breakfast Town shall provide the services in accordance with the provisions of the proposal/estimate.  If, when you see a draft, you are dissatisfied with any work we have produced for you, we will do our best to resolve your concerns.  You agree to discuss it with us at your earliest opportunity and confirm the reasons for your dissatisfaction in writing within 14 days of receipt of the draft or before a material deadline if earlier.

5.2.  In the event that you or any third party, not being a sub-contractor of Breakfast Town, shall omit or commit anything which prevents or delays us from undertaking or complying with any of its obligations under this Agreement, then we shall notify you as soon as possible and:

5.2.1.                We shall have no liability in respect of any delay to the completion of any project;

5.2.2.                if applicable, the timetable for the project will be modified accordingly;

5.2.3.                We shall notify you at the same time if we intend to make any claim for additional costs.

6.    ALTERATIONS TO THE ESTIMATE

6.1.  The parties may at any time mutually agree upon and execute a new proposal. Any alterations in the scope of services to be provided under this Agreement shall be set out which shall reflect the changed services and fees and any other terms agreed between the parties.

6.2.  You may at any time request alterations to the proposal by notice in writing. On receipt of the request for alterations, Breakfast Town shall, within five working days or such other period as may be agreed between the parties, advise you by notice in writing of the effect of such alterations, if any, on the fees and any other terms already agreed between the parties.

6.3.  Where we give written notice to you agreeing to perform any alterations on terms different to those already agreed between the parties, you shall, within five working days of receipt of such notice or such other period as may be agreed between the parties, advise me by notice in writing whether or not you wish the alterations to proceed.

6.4.  If the alterations are agreed, the copywriting estimate will be amended accordingly. If you do not wish to proceed, this agreement will then terminate and we will submit a final invoice for all work carried out by us to that point, payable in accordance with section 3.2 above.

7.    WARRANTY

7.1.  I warrant that the consultancy services performed under this Agreement shall be performed using reasonable skill and care, and of a quality conforming to generally accepted industry standards and practices.

7.2.  Without prejudice to Clause 6.1, and except as expressly stated in this Agreement, all warranties whether express or implied, by operation of law or otherwise, are hereby excluded in relation to the services to be provided by Breakfast Town.

8.    INDEMNIFICATION
You shall indemnify me against all claims, costs and expenses which we may incur and which arise, directly or indirectly, from your breach of any of your obligations under this Agreement, including any claims brought against Breakfast Town or individuals working on its behalf alleging that any services provided by Breakfast Town in accordance with the proposal infringes a patent, copyright or trade secret or other similar right of a third party.

9.    LIMITATION OF LIABILITY

9.1.  Except in respect of death or personal injury due to negligence for which no limit applies, Breakfast Town’s entire liability to you in respect of any claim whatsoever or breach of this Agreement, whether or not arising out of negligence, shall be limited to the fees paid by you to which the claim relates.

9.2.  In no event shall Breakfast Town be liable to you for any loss of business, loss of opportunity or loss of profits or for any other indirect or consequential loss or damage whatsoever. This shall apply even where such a loss was reasonably foreseeable or we had been made aware of the possibility of you incurring such a loss.

9.3.  Nothing in these Terms and Conditions shall exclude or limit my liability for death or personal injury resulting from my negligence or that of its employees, agents or sub-contractors.

10.  TERMINATION OF SERVICES

10.1.                Either party may terminate this Agreement forthwith by notice in writing to the other if:

10.1.1.             the other party commits a material breach of this Agreement and, in the case of a breach capable of being remedied, fails to remedy it within 14 calendar days of being given written notice from the other party to do so;

10.1.2.             the other party commits a material breach of this Agreement which cannot be remedied under any circumstances;

10.1.3.             the other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect;

10.1.4.             the other party ceases to carry on its business or substantially the whole of its business; or

10.1.5.             the other party is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.

10.2.                Without prejudice to any other rights to which Breakfast Town may be entitled, in the event that you unlawfully terminate or cancel the consultancy services agreed to in the proposal/estimate, you shall be required to pay Breakfast Town as agreed damages and not as a penalty the full amount of any third party costs to which we have committed and, in respect of cancellations on less than five working days’ written notice, the full amount of the fee set out in the proposal/estimate, and you agree this is a genuine pre-estimate of losses in such a case.  For the avoidance of doubt, your failure to comply with any obligations under Clause 4.1 shall be deemed to be a cancellation of the services and subject to the payment of the damages set out in this Clause.

11.  INTELLECTUAL PROPERTY RIGHTS

11.1.                All Intellectual Property Rights produced from or arising as a result of the performance of this Agreement shall, so far as not already vested, become Breakfast Town’s absolute property, and you shall do all that is reasonably necessary to ensure that such rights vest in Breakfast Town by the execution of appropriate instruments or the making of agreements with third parties.

11.2.                When you commission Breakfast Town as a branding consultant, marketing consultant or creative communications consultant, or any form of consultancy services within marketing, branding and advertising, you are purchasing the copyright in the work we prepare for you, and this is assigned to you on receipt by Breakfast Town of full and final payment of all fees due. We retain the copyright until we have received the agreed payment. If we are not paid, we reserve the right to refuse the use of the work we have prepared for any purposes.

11.3.                We reserve the right to use extracts of any work produced for you in the promotion of Breakfast Town.

12.  FORCE MAJEURE
Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, the act or omission of government, highway authorities or any telecommunications carrier, operator or administration or other competent authority, or the delay or failure in manufacture, production, or supply by third parties of equipment or services, and the party shall be entitled to a reasonable extension of its obligations after notifying the other party of the nature and extent of such events.  Any alterations to the proposal/estimate necessitated under this section shall be subject to the provisions of section 6 above.

13.  INDEPENDENT CONTRACTORS
We are contractors independent of each other, and neither has the authority to bind the other to any third party or act in any way as the representative of the other, unless otherwise expressly agreed to in writing by both parties. Breakfast Town may engage sub-contractors to provide all or part of the services being provided to you and such engagement shall not relieve Breakfast Town of its obligations under this Agreement. A contract will exist only between you and Breakfast Town. You agree to indemnify Breakfast Town against any claim by any client of yours for compensation or damages brought about as a direct or indirect consequence of the use, or inability or unwillingness to use, the work we produce.

14.  ASSIGNMENT
You shall not be entitled to assign rights or obligations or delegate duties under this Agreement without Breakfast Town’s prior written consent.

15.  SEVERABILITY
If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction such provision shall be severed and the remainder of the provisions herein shall continue in full force and effect as if this Agreement had been agreed with the invalid illegal or unenforceable provision eliminated.

16.  WAIVER
The failure by either party to enforce at any time or for any period any one or more of these terms and conditions or the proposal/estimate shall not be a waiver of them or of the right at any time subsequently to enforce any provision of this Agreement.

17.  NOTICES
Any notice to be given by either party to the other may be served by email, personal service or by post to the address of the other party given in the proposal/estimate and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent, if given by letter shall be deemed to have been served at the time at which the letter was delivered personally or if sent by post shall be deemed to have been delivered in the ordinary course of post.

18.  ENTIRE AGREEMENT
This Agreement contains the entire agreement between the parties relating to the subject matter and supersedes any previous agreements, arrangements, undertakings or proposals, oral or written. Unless expressly provided elsewhere in this Agreement, this Agreement may be varied only by a document signed by both parties.

19.  NO THIRD PARTIES
Nothing in this Agreement is intended to, nor shall it confer any rights on a third party.

20.  GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the law of England and the parties hereby submit to the exclusive jurisdiction of the English courts.