RESTLESS GENERAL TERMS AND CONDITIONS
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 Statement of Work;
1.2 “Brief” means the Client’s description of the goods and/or services required for any particular project;
1.3 "Client" means the organisation or person who purchases goods and/or services from Restless;
1.4 “Deliverables” means the work product as set out in the Statement of Work.
1.5 "Intellectual Property Rights" means all patents, registered and unregistered designs, the right to sue for passing off, rights in designs, copyright, trade marks, know-how and all other intellectual property rights wherever in the world enforceable;
1.6 "Restless" means Restless Productions Limited registered in England and Wales with company number 08864512.
1.7 "Statement of Work" means a statement of work, quotation or other similar document responding to the Brief and describing the Services to be provided by Restless for any particular project and the price;
1.8 “Services” means the services, including Deliverables, supplied by Restless to the Client as set out in the Statement of Work.
2. Application of these Terms and Conditions
2.1 These Terms and Conditions shall apply to all contracts for the supply of Services by Restless to the Client, to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3. Statement of Work
3.1 If Restless wish to respond to a Brief, Restless shall submit to the Client a Statement of Work.
3.2 All Statements of Work shall be subject to these Terms and Conditions.
3.3 Restless shall supply the Services to the Client in accordance with the Statement of Work in all material respects.
3.4 Except as expressly stated in this Agreement, all other conditions and warranties whether express or implied, by operation of law or otherwise, are hereby excluded in relation to the Services to be provided by Restless.
3.5 Restless shall use all reasonable endeavours to supply the Services within any time frames identified, but any such time frames shall be estimates only and time shall not be of the essence for supply of Services. Restless shall not be liable for any loss, costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Services.
4. Client's obligations
4.1 To enable Restless to perform its obligations under this Agreement the Client shall:
(a) ensure that the terms of the Brief are complete and accurate;
(b) co-operate with Restless;
(c) provide Restless with such information, assets and materials as Restless may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
(d) obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the supply of Services are to start; and
(e) comply with such other requirements as may be set out in the Statement of Work or otherwise agreed between the parties.
4.2 The Client shall be liable to compensate Restless for any expenses incurred by Restless as a result of the Client's failure to comply with Clause 4.1.
4.3 If Restless’ performance of any of its obligations under the Agreement is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (“Client Default”):
(a) Restless shall, without limiting its other rights or remedies, have the right to suspend performance of the Services and/or withhold Deliverables until the Client remedies the Client Default, and/or to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays Restless’ performance of any of its obligations;
(b) Restless shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from Restless’ failure or delay to perform any of its obligations as set out in this clause 4.3; and
(c) the Client shall reimburse Restless on written demand for any costs or losses sustained or incurred by Restless arising directly or indirectly from the Client Default.
4.4 The Client shall indemnify Restless against all claims, costs and expenses which Restless may incur and which arise, directly or indirectly, from the Client's breach of any of its obligations under this Agreement, including any claims brought against Restless alleging that any Services provided by Restless in accordance with the Statement of Work infringes a patent, copyright or trade secret or other similar right of a third party.
5.1 The Client shall pay Restless the price for the supply of Services as set out in the Statement of Work, together with any Departure Fees and/or Expenses applicable in accordance with Clauses 5.2 and 5.3 below (the “Price”).
5.2 In the event of Restless having to undertake work that represents a departure from the Statement of Work, Restless shall be entitled to charge the Client for the additional services provided or time incurred (“Departure Fees”). The Departure Fees shall be charged at Restless’ standard studio rates, unless otherwise agreed.
5.3 Restless shall be entitled to charge the Client for any expenses reasonably incurred by Restless in connection with the provision of the Services including, but not limited to, travel expenses, subsistence and any associated expenses, the cost of services provided by sub-contractors and/or third parties and required by Restless for the performance of the Services, and for the cost of any materials (“Expenses”).
5.4 When applicable, Value Added Tax (VAT) and equivalent taxes will be added to the Price at the appropriate rate.
6.1 Restless shall invoice the Client at appropriate intervals. In certain cases, Restless may require payment in advance and, if so, will issue an invoice accordingly.
6.2 In the event that the Client's procedures require that an invoice be submitted against a purchase order, the Client shall be responsible for issuing such purchase order before the Services are supplied.
6.3 The Client shall pay each invoice submitted by Restless:
(a) within the payment period identified on the relevant invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by Restless, and
time for payment shall be of the essence of the Agreement.
6.4 If the Client fails to make any payment due to Restless under the Agreement by the due date for payment, then the Client shall pay interest on the overdue amount at the rate of 10% per cent per annum above HSBC bank's base rate from time to time.
6.5 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 Client shall pay the interest together with the overdue amount.
6.6 The Client shall pay all amounts due under the Agreement in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).
6.7 Restless may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by Restless to the Client.
7. Risk and Title
7.1 All risk in the Deliverables shall pass to the Client upon delivery.
7.2 Title to the Deliverables shall not pass to the Client until Restless has been paid in full.
7.3 Restless may actively promote or publicise the Deliverables in Restless’ portfolios, websites or other media for the purposes of marketing or sales activities and reserves the right to be credited with the authorship of the Deliverables in connection with such uses.
8. Limitation of liability
8.1 Nothing in these Terms and Conditions shall limit or exclude Restless’ liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
8.2 Subject to clause 8.1:
(a) Restless shall under no circumstances whatever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Agreement, even where such a loss was reasonably foreseeable or Restless had been made aware of the possibility of the Client incurring such a loss; and
(b) Restless’ total liability to the Client in respect of all other losses arising under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price for the supply of Services as set out in the Statement of Work.
8.3 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 and sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Agreement.
8.4 This clause 8 shall survive termination of the Agreement.
9.1 Without limiting its other rights or remedies, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:
(a) 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;
(b) 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.
9.2 Without limiting its other rights or remedies, Restless may terminate the Agreement with immediate effect by giving written notice to the Client if:
(a) the Client fails to pay any amount due under this Agreement on the due date for payment and fails to pay all outstanding amounts within 7 days after being notified in writing to do so;
(b) the Client’s financial position deteriorates to such an extent that in Restless’ opinion the Client's capability to adequately fulfil its obligations under the Agreement has been placed in jeopardy; or
(c) the Client suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
9.3 Without limiting its other rights or remedies, Restless may suspend provision of the Services under the Agreement or any other contract between the Client and Restless if the Client becomes subject to any of the events listed in clause 9.1 or 9.2 above, or Restless reasonably believes that the Client is about to become subject to any of them, or if the Client fails to pay any amount due under this Agreement on the due date for payment.
10. Consequences of termination
10.1 On termination of the Agreement for any reason:
(a) the Client shall immediately pay to Restless all of Restless’ outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Restless shall submit an invoice, which shall be payable by the Client immediately on receipt;
(b) the Client shall return all of the Deliverables which have not been fully paid for. If the Client fails to do so, then Restless may enter the Client's premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping;
(c) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
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 the absolute property of Restless, and the Client shall do all that is reasonably necessary to ensure that such rights vest in Restless by the execution of appropriate instruments or the making of agreements with third parties.
12. Force majeure
12.1 For the purposes of this Agreement, Force Majeure Event means an event beyond the reasonable control of Restless including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Restless or any other party), failure of a utility service or transport network, 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.
12.2 Restless shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Agreement as a result of a Force Majeure Event.
12.3 If the Force Majeure Event prevents Restless from providing any of the Services for more than 7 days, Restless shall, without limiting its other rights or remedies, have the right to terminate this Agreement immediately by giving written notice to the Client.
13. Independent contractors
13.1 Restless and the Client 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.
13.2 Restless may, in addition to its own employees, engage sub-contractors to provide all or part of the services being provided to the Client and such engagement shall not relieve Restless of its obligations under these General Terms and Conditions or any applicable Statement of Work.
14.1 Assignment: Restless may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Agreement and may subcontract or delegate in any manner any or all of its obligations under the Agreement to any third party or agent. The Client shall not, without the prior written consent of Restless, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Agreement.
14.2 Notices: Any notice or other communication given to a party under or in connection with the Agreement shall be in writing, addressed to that party at its principal place of business or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier or e-mail.
14.3 Severability: If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Agreement
14.4 Waiver: No failure or delay by a party in exercising any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
14.5 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.
14.6 Third parties: A person who is not a party to the Agreement shall not have any rights to enforce its terms under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
14.7 Governing law: This Agreement, 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 the law of England and Wales.
14.8 Jurisdiction: Each party irrevocably agrees that the High Court in London shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
Processing of Data
Restless does not actively collect personally identifying Data from this website except when specifically and knowingly provided by you. Similarly, we may obtain Data which you knowingly and voluntarily disclose to us offline, notably when you visit our premises or communicate with us via any means, including but not limited to telephone, email and through the use of social networking websites, third party apps or similar technologies. It is in our legitimate business interests to use any information you so provide to provide you with the information you have requested and/or to communicate with you about our services.
While you browse our website, some information may be recorded passively. We may log your internet protocol ("IP") address for purposes of administrating or compiling demographic information and of monitoring usage and performance of this website. We may make use of tracking technology ("Cookies") to gather such data as browser type and operating system, metrics, geographical location and understanding how visitors use this website. The recorded data is used anonymously. We have a legitimate business interest in processing such information it in order to monitor the performance of the website, respond to your queries and improve our services.
In proportion to the sensitivity of the information, we maintain reasonable safeguards and security measures to keep Data secure. However, we cannot guarantee the security of your Data, as no electronic data transmission or storage of information is completely secure. If an incident is reported affecting your information, we will investigate and comply with all required reporting obligations.
Your rights and contact
You have the right to request from Restless access to and rectification or erasure of your Data. You may also at any time withdraw a given consent to the processing of your Data.
This policy was last updated on 25 May 2018.