BREAKAWAY EFFECTS LIMITED – TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS TO BUSINESS CUSTOMERS
BREAKAWAY EFFECTS LIMITED (company no: 3324555) (“We” or “Us”)
The Customer’s attention is particularly drawn to the provisions of clauses 4 and 12.
Both Breakaway Effects Limited and the Customer are each a “party” and together the “parties”.
1. Definitions
In these Conditions, the following definitions apply:
“Business Day” means a day (other than a Saturday, Sunday or a public holiday) when banks in London are open for business;
“Conditions” means these terms and conditions as amended from time to time;
“Contract” means the contract between Us and the Customer for the supply of Goods as governed by the Conditions, and the Quotation accepted by the Customer;
“Coronavirus Pandemic” means the Coronavirus (Covid-19) virus, being the subject matter of the worldwide pandemic officially declared by the World Health Organisation in the year 2020, (and any linked or otherwise related or similar communicable disease having official WHO pandemic status);
“Customer” means the company or any sole trader who purchases the Goods from Us;
“Customer IPR” means all intellectual property rights subsisting in the Customer’s works which includes any rights of every kind in every media (whether now known or hereafter devised) in and to all photography and sound recordings made by the Customer in which the Goods are used or depicted, in each case in whole or in part;
“Delivery Location” shall have the meaning given to it in clause 4.2;
“Form of Acceptance” means the form of acceptance endorsed on the Quotation;
“Goods” means the products (or any part of them) supplied to the Customer as detailed in the Quotation;
“Intellectual Property Rights (“IPR”)” means patents, rights to inventions, copyright and related rights, trade marks and service marks, trade names, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, rights in designs, rights in Confidential Information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
“Order” means the Customer’s order for the Goods following the Customer’s written acceptance of the Quotation;
“Permitted Purpose” means use by the Customer for the purpose of the production for which the Good/s were made, which includes the use of the Goods for the purposes of any photography, recordings, marketing and advertising or other visual depictions as may be required (in addition to the production itself,) which incorporate the Goods;
“Purchase Price” means the purchase price for the Goods as set out in the Quotation;
“Purpose” shall have the meaning given to it in clause 11.3.4; and
“Quotation” means the quotation to which these Conditions apply.
2. Basis of Contract
2.1. The Customer’s return of a signed Form of Acceptance and receipt by Us in cleared funds of the Purchase Price constitutes an offer from the Customer to Us to buy the Goods subject to these Conditions but does not create a legally binding contract between Us.
2.2. All Orders are subject to acceptance by Us, and We may confirm such acceptance, with details of when the Goods are likely to be ready and, if appropriate, when they will be dispatched (the “Order Confirmation”). The Contract will only be formed when We send you the Order Confirmation. The Contract will relate only to those Goods which We have confirmed in the Order Confirmation.
2.3. The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by Us or on our behalf which is not set out in the Contract.
2.4. Any samples, drawings, descriptive matter or advertising issued by Us and any descriptions or illustrations or descriptions of the Goods contained on our website or in our catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.5. These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3. Goods
The quantity and description of the Goods are as set out in the Quotation. We reserve the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
4. Delivery of Goods – THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
4.1. Given that the Goods are designed to break easily, We strongly encourage the Customer to arrange collection of the Goods via dedicated vehicles from our place of business during normal business hours. In the event that the Customer requests for Us to arrange delivery of the Goods, the Customer acknowledges that any such delivery (whether by road or air) will be solely at the Customer’s risk and We exclude all liability to the extent permitted by law in respect of the quality or fitness for purpose of the Goods upon delivery to the Delivery Location.
4.2. We can make the Goods available for collection by the Customer at, or deliver the Goods to, the location set out in the Quotation or such other location as the parties may agree in writing (the “Delivery Location”). Delivery of the Goods shall be completed on collection or arrival at the Delivery Location.
4.3. Any dates specified for delivery are intended to be an estimate only, and the time of delivery is not of the essence. We will ensure that each delivery of the Goods is accompanied by a delivery note and any specific instructions which the Customer is obliged to follow.
4.4. If We fail to deliver the Goods, our liability shall be limited to the Purchase Price and the Customer shall have the option to cancel all or any part of its Order, however the Customer must pay for any production costs incurred in respect of the Goods up to and including the date of cancellation.
4.5. We shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide Us with adequate delivery or other instructions for or relevant to the Goods.
4.6. If the Customer fails to accept or take delivery of the Goods within 5 Business Days of Us notifying the Customer that the Goods are ready for delivery, or We are unable to deliver the Goods on time because the Customer has not provided appropriate instructions, then except where such failure or delay is caused by a Force Majeure Event or by our failure to comply with our obligations under the Contract in respect of the Goods:
4.6.1. risk in the Goods shall pass to the Customer;
4.6.2. the Goods shall be deemed to be delivered;
4.6.3. We shall store the Goods until actual delivery takes place, and charge the Customer for all related costs and expenses (including storage and insurance); and
4.6.4. We may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
4.7. The Customer shall not be entitled to reject the Goods if We deliver up to and including 5% more or less than the quantity of Goods ordered. We may deliver the Goods by instalments and each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
Air Freight
4.8. In the event that the Delivery Location is outside of England, Wales or Scotland, We may arrange delivery via air freight. In such circumstances, it shall be the Customer’s responsibility to arrange suitable collection from the airport (to include, as appropriate, obtainment of any advance clearances or production of necessary documents) and We shall bear no liability whatsoever to the Customer in the event that the Customer is unable to collect the Goods from the Delivery Location.
5. Quality of Goods
5.1. We warrant that the Goods purchased are of satisfactory quality, have been properly maintained, are in good working order, and are free of defects or encumbrances but, given the infinite variables with any given potential effect, We do not warrant that the Goods will be fit for your intended use and you should speak with Us prior to placing an Order to discuss exactly what effect you want to achieve.
5.2. Subject to clause 5.5, We shall not be liable for the breach of the warranties in clause 5.1 if the defect is as a result of damage in transit to the Delivery Location (except to the extent that such damage is the result of our negligence or wilful misconduct), and unless:
5.2.1. the Customer gives notice in writing within 5 days of delivery to the Delivery Location;
5.2.2. We are given a reasonable opportunity after receiving such notice to examine the Goods; and
5.2.3. the Customer (if asked to do so by Us) returns such Goods to our place of business in the same condition as they were received (at our cost).
5.3. If We are liable for a breach of the warranties under clause 5.1, We shall, at our option, repair or replace the defective Goods or workmanship, or refund the price of the defective Goods in full.
5.4. We shall not be liable for the Goods’ failure to comply with the warranties in clause 5.1 if:
5.4.1. the Goods are damaged in transit to the Delivery Location;
5.4.2. the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.2;
5.4.3. the defect arises because the Customer failed to follow our instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
5.4.4. the defect arises as a result of Us following any drawing, design or Goods specification supplied by the Customer;
5.4.5. the Customer alters or repairs such Goods without our written consent; or
5.4.6. the defect arises as a result of fair wear and tear, wilful damage, Customer’s negligence, natural causes, or abnormal working conditions (which includes but is not limited to Force Majeure Events (as defined in clause 13.1 below)).
5.5. Except as provided in this clause 5, We shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranties set out in clause 5.1.
5.6. The terms of these Conditions shall apply to any repaired or replacement Goods supplied to the Customer by Us under clause 5.3.
5.7 Subject always to clause 12.2.2, We indemnify the Customer against all liabilities, costs, expenses, damages and losses (excluding any indirect or consequential losses), penalties and all other reasonable professional costs and expenses suffered or incurred by the Customer arising out of or in connection with any breach of this Contract by Us.
5.8 Nothing in clause 5.7 shall restrict or limit the Customer’s general obligation under law to mitigate any loss it may suffer or incur as a result of an event that may give rise to a claim under this indemnity.
6. Title and risk
6.1. The risk in the Goods shall pass to the Customer on completion of delivery at the agreed Delivery Location or on collection.
6.2. Title to the Goods shall not pass to the Customer until We have received payment in full (in cash or cleared funds) for:
6.2.1. the Goods; and
6.2.2. any other goods that We have supplied to the Customer in respect of which payment has become due.
7. Customer’s obligations
7.1. The Customer shall:
7.1.1. ensure that the terms of the Quotation are complete and accurate;
7.1.2. co-operate with Us in all matters relating to the provision of the Goods; and
7.1.3. obtain and maintain all necessary licences, permissions and consents which may be required for the Goods before the date the Goods are delivered.
7.2. If, before or during delivery of the Goods, it transpires that the Customer has breached any of its obligations set out in clause 7.1, We reserve the right to either (a) charge, at our standard rates, for any additional work that may be necessary to deal with the unforeseen circumstance or (b) terminate the Contract.
7.3. Excluding any act, omission or violation of law by Us, if our performance of any of our obligations in respect of the supply of Goods is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation, (“Customer Default”):
7.3.1. We shall without limiting our other rights or remedies have the right to suspend delivery of the Goods until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of our obligations to the extent the Customer Default prevents or delays our performance of any of our obligations;
7.3.2. We shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from our failure or delay to perform any of our obligations as set out in this clause 7.3; and
7.3.3. the Customer shall reimburse Us on written demand for any costs or losses sustained or incurred by Us arising directly or indirectly from the Customer Default.
8. Prices and payment
8.1. The price for Goods shall be the price set out in the Quotation. All prices are exclusive of VAT and delivery costs, which will be added to the total amount due.
8.2. Our website and catalogues contain a large number of Goods and it is always possible that, despite our reasonable efforts, some of the Goods listed may be incorrectly priced. If a correct price is higher than the price stated on our website or in our catalogue, We will normally, at our discretion, either contact the Customer for instructions before dispatching the Goods, or reject the Order and notify the Customer of such rejection.
8.3. We are under no obligation to provide the Goods to the Customer at the incorrect (lower) price, even after We have sent the Customer an Order Confirmation, if the pricing error is obvious and unmistakeable and could have reasonably been recognised by the Customer as a mis-pricing.
8.4. We must receive full payment for the Goods at the time of placing the Order.
8.5. We reserve the right to increase the price of the Goods, by giving the Customer written notice at any time before delivery, to reflect any increase in the cost of the Goods to Us that is due to:
8.5.1. any factor beyond our reasonable control;
8.5.2. any request by the Customer to change the delivery date(s), quantities or types of Goods ordered; or
8.5.3. any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give Us adequate or accurate information or instructions in respect of the Goods or comply with its obligations in clause 7.
8.6. Subject to clause 5.3, the Purchase Price shall only be refundable if the Customer cancels the Contract before our commencement of manufacturing of the Goods. Any refunds payable shall be paid to the Customer using the same payment method used by the Customer to make payment for the Goods, unless the parties expressly agree otherwise.
Import Duty
8.7. If the Goods are to be delivered outside of the United Kingdom, they may be subject to import duties and taxes which are levied when the delivery reaches the specified destination. The Customer will be responsible for payment of any such import duties and taxes. Please note that We have no control over these charges and cannot predict their amount. Please contact your local customs office for further information before placing your Order.
9. Intellectual property rights
9.1. Nothing in this Contract shall affect the ownership of any IPR owned by either party and subsisting prior to the Contract.
9.2. The Customer acknowledges and agrees that all Intellectual Property Rights in the underlying manufacturing process of the Goods are and shall remain the property of Breakaway Effects Limited. The Customer shall not reverse engineer the Goods or attempt to replicate or copy the manufacturing process relating to the Goods in any way.
9.3 Nothing in this Contract shall affect the ownership of the Customer IPR. We acknowledge and agree that all Customer IPR shall be and remain exclusively owned and vested in the Customer and/or licensors, its successors, and assignees for the full period of copyright (including all extensions, revivals and renewals of such rights), or, as the case may be, in perpetuity. We will have no ownership of or rights in any of the Customer IPR.
9.4 Neither the Customer nor its successors, assignees or customers shall be obligated to make any actual use of any photography, recordings, depictions or other results or proceeds from use of the Goods in any motion picture, television series or otherwise.
9.5 We waive any right to any form of screen credit and acknowledge and We agree that We shall not be entitled to any form of screen credit.
9.6. The Customer indemnifies Us against all liabilities, costs, expenses, damages and losses suffered by Us arising out of (i) any breach of clause 9.2 and (ii) in connection with any claim made against Us for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with any Order placed by the Customer as a result of Us copying at Customer’s request, the design, shape or any other feature or characteristic of any third party product.
9.7. This clause 9 shall survive termination of the Contract.
10. Insurances
10.1. We have in place and shall maintain the following levels of insurance up to the values set out in this clause 10:
10.1.1. Product liability insurance: £5,000,000;
10.1.2. Public liability insurance: £5,000,000; and
10.1.3. Employers liability insurance: £5,000,000.
11. Confidentiality
11.1. In these Conditions, Confidential Information means all information of a confidential nature (in whatever form) which relates to the Purpose and is disclosed by either party (“Discloser”) (or their officers, directors, members partners, employees, consultants, agents or professional advisers (“Authorised Persons”)) to the other party (whether directly or indirectly) (“Recipient”) or to the Recipient’s Authorised Persons and includes:
11.1.1. any know-how trade secrets, financial, commercial, technical, tactical or strategic information of any kind;
11.1.2. all information produced, developed or shared in the performance of the Contract;
11.1.3. all information agreed to be, or marked as confidential;
11.1.4 all matters relating to any television production, television show or series, film, media production or broadcast produced by the Customer where the Goods are used (including, without limitation, the script, the plot, or any elements thereof, any set design, props or effects, or activities of the cast and crew);
11.1.5. any information the Recipient or its Authorised Persons knows, or could reasonably be expected to know, is confidential; and
11.1.6. the terms and existence of any Contract.
11.2. Confidential Information shall not include any information that:
11.2.1. is, or was already known or available to the Recipient, otherwise than pursuant to or through breach of any confidentiality obligation owed to the Discloser;
11.2.2. is, or becomes, in the public domain other than through any breach of this Agreement (save that any publicly available information shall be classified as Confidential Information where it is compiled in a form that is not in the public domain);
11.2.3. is disclosed to the Recipient without any obligation of confidence to the Discloser by a third party that is not itself under or in breach of any obligation of confidentiality;
11.2.4. is developed by or on behalf of the Recipient in circumstances where the developing party has not had direct or indirect access to the information disclosed, provided that the Recipient provides satisfactory evidence of the same to the Discloser; and
11.2.5. the Discloser agrees in writing does not constitute Confidential Information.
11.3. Subject to clauses 11.5, the Recipient undertakes that it shall, and shall procure that its Authorised Persons shall:
11.3.1. keep the Confidential Information confidential at all times;
11.3.2. not disclose (whether directly or indirectly) the Confidential Information or allow it to be disclosed in whole or in part to any third party (without the Discloser’s written consent);
11.3.3. take and maintain proper and reasonable measures to ensure the confidentiality of the Confidential Information, including any security measures requested in writing from time to time by the Discloser of the Confidential Information;
11.3.4. not use or seek to derive benefit or commercial advantage from the Confidential Information in whole or in part for any purpose other than strictly for the performance of its obligations and exercise of its rights under this Agreement (“Purpose”); and
11.3.5. not copy or reproduce in any form the Confidential Information except to the extent strictly necessary for the Purpose (and the Recipient acknowledges that any such copies or reproductions are the property of the Discloser).
11.4. A party may disclose the other party’s Confidential Information to any of its Authorised Persons who need to know the relevant Confidential Information for the Purpose, provided that such party shall ensure that each of its Authorised Persons to whom Confidential Information is disclosed is aware of its confidential nature and complies with this clause 10 as if it were the Recipient.
11.5. The Recipient may disclose any Confidential Information which it is required to disclose by law, any court, any governmental, regulatory or supervisory authority (including any securities exchange) or any other authority of competent jurisdiction, or which the Discloser expressly agrees in writing may be disclosed (provided that such permission is provided in advance of any disclosure by a Recipient).
11.6. This clause 11 shall survive termination of the Contract.
12. Limitation of liability: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
12.1. Nothing in these Conditions shall limit or exclude our liability for:
12.1.1. death or personal injury caused by our negligence, or the negligence of our employees, agents or subcontractors;
12.1.2. fraud or fraudulent misrepresentation;
12.1.3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or
12.1.4. breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession).
12.2. Subject to clause 12.1 and 11.3:
12.2.1. We shall not be liable to the Customer, in contract, tort (including negligence), breach of statutory duty, misrepresentation, restitution or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract (including any losses that may result from a deliberate breach of the Contract by Us, our employees, agents or subcontractors or as a result of fair wear and tear, wilful damage, Customer’s negligence, natural causes, or abnormal working conditions); and
12.2.2. our total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, including losses caused by a deliberate breach of the Contract by Us, our employees, agents or subcontractors (and including under any indemnity under the Contract) shall not exceed 200% of the price paid by the Customer to Us under the Contract or, notwithstanding the foregoing, if higher, the amount we recover under our insurance in respect of the relevant claim.
12.3. Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
12.4. This clause 12 shall survive termination of the Contract.
12.5. We cannot warrant that the use of the Goods will be completely safe, only that the Goods are safer than using real glass in any given situation. If the Goods are used recklessly without regard for common sense, they can of course cause damage and injury. The Goods are therefore used solely at the Customers risk, and it is up to the Customer to fully assess the safety of any given effect. It is always a good idea to speak to Us either by phone or in person to discuss exactly what effect you want to achieve and the safest way to go about this.
13. Force majeure:
13.1. For the purposes of the Contract, Force Majeure Event means an event beyond our reasonable control, including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the party or any other party), failure of a utility service or transport network, epidemics, pandemics (which includes the Coronavirus Pandemic) an act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
13.2. We shall not be liable to the Customer as a result of any delay or failure to perform our obligations under this Contract as a result of a Force Majeure Event.
13.3. If the Force Majeure Event prevents Us from providing any of the Goods for more than 10 days, We shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
14. Assignment and subcontracting:
14.1. We may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party, provided, however, if We subcontract any or all of our obligations We represent that We shall:
14.1.1. not be relieved of liability hereunder; and
14.1.2. be solely responsible for the direction and coordination of the subcontractor’s work.
14.2. Subject to clause 14.3, the Customer may on written notice to Us at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
14.3 Where the Customer proposes to transfer its payment obligations to a third party, We reserve the right to require payment in full prior to delivery.
15. Notices
15.1. Any notice required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at our registered office or (in any other case) the Customer’s principal place of business.
15.2. Any notice shall be deemed to have been duly received if delivered personally, when left at such addressor, if sent by prepaid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.
15.3. This clause 15 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause only, “writing” shall include e-mails and faxes.
Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
Waiver and cumulative remedies: A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
Severance: If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties.
Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by Us.
Governing law and jurisdiction: The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.