Terms & Conditions

1. Interpretation
   • Definitions:

Brimstone RESTA Approved Individual: all individuals acting as either a RESTA Certified Individual or RESTA Informed Individual.

Brimstone’s Supply Terms: Brimstone’s standard supply terms and conditions as published by it from time to time.

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.

Conditions: these terms and conditions from clause 1 to clause 16 (inclusive).

Confidential Information: any information which is disclosed by one party to the other pursuant to, or in connection with, this agreement (whether orally or in writing and whether or not such information is expressly stated to be confidential), or which otherwise comes into the hands of the Client or one of its Brimstone RESTA Approved Individuals in relation to, the System, the Services or the Products, other than information which is already in the public domain (otherwise than as a result of a breach of any obligation of confidentiality). The Confidential Information of Brimstone includes the Manual and any other details of the System supplied by Brimstone to the Client and its Brimstone RESTA Approved Individual.

Contract Year: any 12-month period starting on the Commencement Date.

Data Protection Laws:  all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder); and the Privacy and Electronic Communications Regulations 2003 (SI 2003 No. 2426) as amended; and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the Information Commissioner or other relevant data protection or supervisory authority and applicable to a party.

Intellectual Property: copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in software, database rights, rights in confidential information (including know-how), patents, rights to inventions, and all other intellectual property and similar rights which subsist or will subsist now or in the future in any part of the world relating to the Services or the System owned by Brimstone or acquired by Brimstone from time to time.

Licence Materials: all letterheads, invoices, order forms, digital templates, website formats and other documents and materials in the form set out in the Manual or otherwise approved in advance of use by Brimstone in writing to be used by the Client and/or its Brimstone RESTA Approved Individuals for the purpose of managing its Brimstone RESTA  Approved Individuals or acting as a Brimstone RESTA Approved Individual.

Manual: the confidential manual provided by Brimstone setting out the operations, procedures and requirements persons to identify as a Brimstone RESTA Approved Individual and related terms and conditions forming part of this agreement, as updated from time to time by Brimstone.

RESTA Certified Individual: an individual resilience support teaching assistant who has been certified by Brimstone as meeting Brimstone’s requirements under this agreement.

RESTA Informed Individual: an individual who has been approved by Brimstone as meeting Brimstone’s requirements under this agreement to be able to represent themselves as RESTA informed.

Services: the specialised RESTA training and supervision services developed by Brimstone to be supplied to  the Brimstone RESTA Approved Individuals as further described in the Manual.

Start-up Package: the items listed in the Manual supplied to a Brimstone RESTA Approved Individual  under clause 5.2 including but not limited to the PDF documents, RESTA lanyard and a handbook.

System: the distinctive business format and methods developed and implemented by Brimstone in connection with its RESTA brand and system and the Services using the Intellectual Property, Confidential Information, operational procedures, specifications, and management, marketing and advertising techniques, as set out or referred to in the Manual and as the same may be amended by Brimstone from time to time.

Term: the Initial Term of this agreement and any Renewed Term under clause 3.

Trade Marks: the RESTA brand mark and such other or replacement trade marks and service marks listed in the Manual and any other trade marks registered by Brimstone in relation to the Branded Business from time to time.

Trade Name: the name RESTA, under which Brimstone RESTA Approved Individuals may represent themselves.

VAT: value added tax or any equivalent tax chargeable in the UK.

week: any period of seven consecutive days.

• Interpretation
  • A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted. A reference to a statute or statutory provision shall include any subordinate legislation made under that statute or statutory provision.
  • A reference to legislation or a legislative provision:
    • is a reference to it as amended, extended or re-enacted from time to time;
    • shall include all subordinate legislation made from time to time under that legislation or legislative provision.
  • Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
  • A reference to writing or written includes faxes and email.

2. Appointment
   • Licence to identify as a Brimstone RESTA Approved Individual. In consideration of the payments agreed to be made by the Client in clause 4, Brimstone grants the Client’s Brimstone RESTA Approved Individuals a licence to (subject to passing the initial training):
     • to represent themselves as being a Brimstone RESTA Approved Individual;
     • use the Intellectual Property in respect of the above; and
     • have the benefit of Brimstone’s training and support knowledge and experience, to the extent set out in this agreement.

Each Brimstone RESTA Approved Individual shall carry out the activities listed in this clause 2.1 only in accordance with the System, within the Territory, during the Term and in accordance with the provisions of this agreement and the Manual.

• No Brimstone RESTA Approved Individual may represent themselves as being a Brimstone RESTA Approved Individual until they have completed the initial training under clause 3 to Brimstone’s reasonable satisfaction.
• Non-exclusive appointment.

Brimstone shall be free to appoint any other person as its licensee, distributor, or reseller in the Territory.

• Risk acknowledgement. The Client acknowledges that:
  • Brimstone does not guarantee the financial or operational benefits from its or its individuals being Brimstone RESTA Approved Individuals;
  • Brimstone has made no representations about the financial or operational benefits of operating the RESTA brand and system other than those set out in the written materials describing them made available to the Client before the signature of this agreement.

3. Commencement Date and Term
   • Initial Term. The licence under this agreement shall be for the Initial Term and shall automatically renew from year to year thereafter, subject to earlier termination in accordance with clause 11.
   • Renewal of this Agreement. Any renewal of this agreement under clause 1 shall be subject to Brimstone’s then current RESTA terms and conditions and then current fees, which the Client will be deemed to have accepted if they have not given Brimstone [1] month’s prior notice that the Client does not wish to renew this agreement.  A copy of the then current Brimstone RESTA terms and conditions will be available on request to Brimstone. On any such renewal:
     • the Client will not be liable to pay the Initial Training Fee (or the equivalent of it under the new agreement) in respect of any of its existing Brimstone RESTA Approved Individuals; and
     • Brimstone will not be under any obligation to perform the obligations under clause 5 or any equivalent obligations under the new agreement in respect of any of the Client’s existing Brimstone RESTA Approved Individuals.
   • No waiver. Unless the parties agree otherwise in writing, any renewal of this agreement under shall be without prejudice to the rights of Brimstone outstanding at the end of the Initial Term or then current renewed term.
   • Renewal of approvals. The Client may, by notice in writing to Brimstone, given not less than [six] months before [and not more than [eight] months before] the end of any of its Brimstone RESTA Approved Individual’s certification or approval period, apply to have the approval period renewed for a further period of one (1) year subject to:

the Client paying the applicable fees; and

that Brimstone RESTA Approved Individual meeting Brimstone’s then current criteria for renewal.

• Brimstone shall, by notice in writing to the Client, given not less than [four] months before the end of the approval period, review the Client’s request for a renewal of the Brimstone RESTA Approved Individual’s approval.
• Subject to approval in principle by Brimstone of a renewal, the Client will be liable to pay (in accordance with clause 2) further membership and supervision fees for each Brimstone RESTA Approved Individual whose approval is being renewed.
• Brimstone will not unreasonably refuse agreement to renewal an approval, but may for example refuse agreement where the Client or the Brimstone RESTA Approved Individual has not at all times performed their obligations under this agreement to the reasonable satisfaction of Brimstone or do not meet Brimstone’s requirements as set out in Brimstone’s then current form of RESTA terms and conditions or the Manual.
• Termination on approvals on termination or expiration of this agreement. Unless terminated earlier under the provisions of this agreement, each of the Client’s approvals to represent themselves as Brimstone RESTA Approved Individuals shall automatically cease upon the termination of this agreement however caused.

4. Fees
   • Initial Training Fee. On the date of this agreement, the Client shall pay the Initial Training Fee for each of its initial proposed Brimstone RESTA Approved Individuals. Further Training fees at the then current Brimstone rate will be payable by the Client in advance in respect of any additional persons whom it wants to be trained to be Brimstone RESTA Approved Individuals. The Initial Training Fee and any additional training fees under this clause shall cover all Brimstone’s obligations under clause 5.
   • Membership Fee. The Client shall pay the Membership Fee and the Supervision and Support Fee in respect of each of its individuals undertaking training to be a Brimstone RESTA Approved Individual and on renewal of each such persons approval at the then current rates. Such fees are payable yearly in advance, with effect from the Commencement Date and each approval renewal. If required by Brimstone, the Client shall provide both theirs and their Brimstone RESTA Approved Individual’s full details and unique identification reference so that Brimstone can monitor changes, deal with any fees enquiries, keep a record of their RESTA certification or approval status, and review any renewal application requests.
   • Other fees. Any goods and materials that the Client wishes to purchase, are payable upon Brimstone’s acceptance of their order and prior to delivery taking place. All other fees for additional services are payable within 30 days of receipt by the Client of Brimstone’s invoice for such payment.
   • Payment method. Unless Brimstone otherwise notifies the Client in writing, the Client shall make all payments electronically to the following bank account:

Bank:

Address:

Account name:

Sort code:

Account number:

[IBAN No:]

• All fees due under this agreement are exclusive of VAT, which shall, where applicable, be paid by the Client at the prevailing rate on the due date for payment or receipt of the relevant invoice from Brimstone (as may be).
• Third party suppliers. The Client shall be responsible for the payment of all invoices due to third party suppliers.
• No set-off or counterclaim. All amounts due under this agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

Each party shall pay interest on any sum due under this agreement, calculated as follows:

• 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
• From when the overdue sum became due, until it is paid.

5. Brimstone’s initial obligations
   • Brimstone shall provide, upon acceptance of the Client’s order and receipt of payment of the Membership Fee, Initial Training Fee and Supervision and Support Fee:
     • access to the manual upon the order being placed by the Client; and
     • date(s) of availability for all necessary Initial Training under clause 3 in respect of the Client’s initial proposed Brimstone RESTA Approved Individuals;
   • Brimstone will supply to the Client for each Brimstone RESTA Approved Individual the Start-up Package upon successful completion by each such individual’s Initial Training, and all other equipment, Products, Licence Materials, fixtures and fittings as are listed in the Manual, at the times specified in the Manual and in Brimstone’s Supply Terms.
   • Initial Training. Each of the Client’s proposed Brimstone RESTA Approved Individuals must successfully complete Brimstone’s initial training programme before representing themselves and acting as a Brimstone RESTA Approved Individual. The following shall apply in respect of the initial training:
     • the Initial Training Fee payable by the Client covers an initial training programme for one person;
     • the initial training will be for a maximum of 6 Business Days in aggregate and it is compulsory for the same individual to attend all six training days; and
     • if Brimstone determines that a proposed Brimstone RESTA Approved Individual attending the initial training has not successfully completed (or are not making satisfactory progress in) the initial training, Brimstone can require them (at the Client’s own expense) to undertake further training. Failure to undertake such further training or failure to achieve Brimstone’s required standards during such further training, Brimstone can terminate all training in respect of that individual. No refund of the Initial Training Fee will be payable to the Client upon such termination but the Client will be entitled to a refund of the Membership Fee and the Supervision and Support Fee paid in respect of that individual PROVIDED THAT no supervision of that individual has taken place. No other refunds will apply.
   • Training (general terms).
     • Brimstone will in all cases require all individuals attending the initial training and any subsequent training to have entered into a confidentiality agreement in terms acceptable to Brimstone reflecting their obligations of confidence referred to in clause 2.
     • Brimstone can amend or shorten training for persons previously trained or with appropriate experience. The initial training programme will be conducted at Brimstone’s office and/or such other location as it may designate, and at a time, and for such period, as agreed with the Client.
     • The Client and their proposed or approved Brimstone RESTA Approved Individuals may be offered attendance at additional and/or refresher training programmes required by Brimstone to correct or improve its or their compliance with the Manual or when representing themselves as Brimstone RESTA Approved Individuals in accordance with best practice. Brimstone may, at its election, provide such training either by way of a remote format or at the Client’s premises. Any other way or format for delivering any additional and/or refresher training programmes shall be subject to additional charges and applicable VAT.
     • The Client will be responsible for all of their and their proposed or approved Brimstone RESTA Approved Individuals’ travel, living, incidental and other expenses when attending the initial training programme and any other programmes, seminars or meetings, unless otherwise agreed to by Brimstone in writing. Initial training and general updates training provided by Brimstone of its own volition is included in the Initial training Fee but the Client will be responsible for the costs of any training requested by it (including any additional/refresher it may require or request) or reasonably required by Brimstone to improve any underperforming individual’s compliance with the RESTA Manual and how they conduct themselves as a Brimstone RESTA Approved Individual.

6. Brimstone’s continuing obligations
   • Know-how and Manual. Brimstone shall at all times during the Term:
     • provide Brimstone RESTA Approved Individuals with know-how, advice and guidance how to be a successful Brimstone RESTA Approved Individual; and
     • update the Manual and System from time to time and promptly inform the Client of all such updates.
   • Guidance and Assistance. Brimstone will provide guidance which shall include email support. Further guidance can be provided in whatever manner Brimstone considers appropriate and at their sole discretion, including electronically and dial in one to one coaching through Brimstone’s intranet system. Brimstone may (but is not required to) provide other on-site advice at the Client’s offices; Brimstone can elect to charge a reasonable fee for any such on-site advice which the Client requests. .
7. Brimstone RESTA Approved Individual obligations
   • The Client shall ensure that each of its Brimstone RESTA Approved Individuals shall:

act strictly in accordance with the Manual and generally to the highest standards when representing themselves as a Brimstone RESTA Approved Individual .

• Brand promotion and protection. The Client shall ensure that each of its Brimstone RESTA Approved Individuals shall:
  • use its best endeavours to protect and promote Brimstone’s goodwill within the RESTA brand and the System whilst representing themselves as a Brimstone RESTA Approved Individual;
  • only use only its own normal business branding and such RESTA insignia, symbols, brand names, trade names or trade marks that are specified in the Manual or approved in advance of use in writing by Brimstone during the time that it represents itself as a Brimstone RESTA Approved Individual;
  • not do anything that could or might in the sole opinion of Brimstone, bring Brimstone into disrepute or damage its reputation.
• Disclosure of information. The Client shall, and shall procure that each of its Brimstone RESTA Approved Individuals shall:
  • promptly give Brimstone any information that they may obtain in relation to any potential matter that could affect the branding and reputation of Brimstone favourably or unfavourably inside or outside the Territory;
  • supply Brimstone with such information relating to their compliance with the Manual in such form and at such times as Brimstone may from time to time reasonably require or that is specified in the Manual;
• The Client shall keep a register of all of all of its Brimstone RESTA Approved Individuals and (subject to each party complying with their obligations under Data Protection Laws) notify Brimstone promptly if any of them cease to be employed or engaged by the Client and supply a copy of the register to Brimstone, at Brimstone’s option, electronically or in hard copy format or allow Brimstone to access a copy of the same electronically immediately on request.
• The Client shall:
  • obtain, maintain and comply with all necessary licences and consents and comply with all relevant legislation in relation to its business; and
  • not license any other person to act or represent themselves as being a Brimstone RESTA Approved Individual who have not been approved by Brimstone under this agreement.

8. Compliance
   • Compliance generally. Each party shall at its own expense comply with all laws and regulations relating to its activities under this agreement, as they may change from time to time, and with any conditions binding on it in any applicable licences, registrations, permits and approvals.
   • Changes in applicable laws and regulations. The Client shall give Brimstone as much advance notice as possible of any prospective or actual changes in laws and regulations applicable to the Brimstone RESTA System.
9. Insurance
   • Compulsory insurance cover. The Client shall take out and maintain such business all risk insurance policies with reputable insurance companies and with levels of cover as Brimstone may, in its absolute discretion, specify in the Manual.
   • Compliance with insurance policies. The Client shall not breach, or allow any breach of, such insurance policies.
   • Copies of insurance policies. The Client shall, promptly on request, provide Brimstone with copies of all such policies and renewals.
   • The Client shall promptly pay all premiums for such policies.
10. Intellectual property
    • Brimstone’s warranty. Brimstone warrants that it is not aware of any reason why:
      • it might not be entitled to license the Client and each Brimstone RESTA Approved Individual to use the Intellectual Property; or
      • the use of the Intellectual Property by the Client and each Brimstone RESTA Approved Individual in accordance with the terms of this agreement might constitute an infringement of any third party’s intellectual property.
    • Limited rights granted. The Client agrees (and shall procure that each of its Brimstone RESTA Approved Individuals recognises) that any goodwill (and any other rights) in the Trade Marks which result from its or their use of the Trade Marks shall automatically vest in Brimstone.
    • Client’s obligation to report. If the Client learns of any threatened or actual infringement of any of the Intellectual Property, or of any circumstance which suggests that the use of any of the Intellectual Property may infringe the intellectual property of a third party, it shall immediately inform Brimstone, giving all such details as Brimstone requests.
    • Conduct of IP proceedings. Brimstone shall have conduct of any proceedings by third parties against the Client or any of its Brimstone RESTA Approved Individual’s relating to the Intellectual Property and may take whatever action it, in its sole discretion, decides in respect of any infringement or alleged infringement of it, or arising from its use. The Client shall co-operate with Brimstone in taking such action and Brimstone shall meet any reasonable expenses of the Client in doing so.
    • Intellectual property obligations of the Client and its Brimstone RESTA Approved Individuals. The Client shall, and shall procure that each of its Brimstone RESTA Approved Individuals shall:
      • not apply for registration of any of the Intellectual Property (or any intellectual property that is confusingly similar to the Intellectual Property) in its own name, in any part of the world, and shall at Brimstone’s request assign to it all intellectual property rights subsisting in all know-how and materials created by the Client or any of its Brimstone RESTA Approved Individuals to the extent relating to or for use with the System;
      • comply with the Manual and all requests by Brimstone as to the use of the Intellectual Property and the ™, © and ® symbols in relation to the Intellectual Property;
      • give assistance to enable Brimstone to register its Trade Marks, at Brimstone’s request;
      • not license (or purport to license) any other person to use any of the Intellectual Property;
      • not do anything that may adversely affect the Intellectual Property or Brimstone’s right or title to it; and
      • immediately stop using specific advertising or promotional material or packaging on receipt of a request by Brimstone to do so.

11. Termination
    • Termination by either party. Without limiting its other rights or remedies, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
      • the other party commits a material breach of any term of this agreement and (if such a breach is remediable) fails to remedy that breach within 5 Business Days of that party being notified in writing to do so;
      • the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986, or takes any other step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
      • the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
      • the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the agreement has been placed in jeopardy.
    • Termination by Brimstone. Without limiting its other rights or remedies, Brimstone may terminate this agreement with immediate effect (or following such notice period as it sees fit) by giving written notice to the Client if:
      • the Client fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 10 Business Days after being notified in writing to make such payment;
      • none of the Client’s proposed Brimstone RESTA Approved Individuals successfully complete any of the initial training requirements set out in this agreement including the Manual;
      • the Client and/or any of its Brimstone RESTA Approved Individuals repeatedly breaches any of the terms of this agreement or the Manual in such a manner as to reasonably justify the opinion that its conduct is inconsistent with having the intention or ability to give effect to the terms of this agreement;
      • persistent, valid complaints continue to be made to Brimstone about the quality of the service provided by the Client or any of its Brimstone RESTA Approved Individuals, and the Client, having received notice of such complaints, fails to improve such service to the reasonable satisfaction of Brimstone;
      • the Client or any of its Brimstone RESTA Approved Individuals in the reasonable opinion of Brimstone, does, or permits to be done, any act which might jeopardise or invalidate the registration of the Trade Marks or does any act which might assist, or give rise to, an application to remove the Trade Marks, or which might prejudice the right or title of Brimstone to the Trade Marks;
      • the Client purports to assign any of the rights or licences granted under this agreement other than in accordance with the terms of this agreement;
      • the Client fails to obtain any written approval or consent of Brimstone as expressly required by this agreement;
      • the Client (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing their own affairs or becomes a patient under any mental health legislation;
      • the Client (being a corporation or public body) is dissolved or otherwise ceases to exist and this agreement is not first (with the agreement of Brimstone) assigned to a successor body; or
      • any of the Client’s Brimstone RESTA Approved Individuals is convicted of a serious criminal offence.
    • If the agreement is terminated by Brimstone under clause 11.1 or 11.2, there shall be no refund of fees made to the Client except where termination has taken effect under clause 11.2(b) before Brimstone has provided any supervision, in which case the Supervision and Support Fees and the Membership Fees shall be refunded in full.
    • Accrued rights. Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, 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.
    • Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.
12. Consequences of termination
    • Cessation of business. On termination or expiry of this agreement for any reason:
      • the Client immediately pay Brimstone the full amount of all sums due from the Client to Brimstone together with any interest payable in accordance with clause 8;
      • each of the Client’s Brimstone RESTA Approved Individual shall immediately cease to identify and act as a Brimstone RESTA Approved Individual and cease to use any of the Intellectual Property or the Trade Marks, and not hold itself out as an active Brimstone RESTA Approved Individual or do anything that may indicate any relationship between them and Brimstone;
      • each of the Client’s Brimstone RESTA Approved Individuals shall return or at the option of Brimstone, destroy, all copies of the Manual, Licence Materials, and other Products or materials bearing any of the Trade Marks; and
      • the Client and its Brimstone RESTA Approved Individuals take all other steps and in particular execute and deliver to Brimstone all documents necessary to comply with its obligations under this clause 12.

13. Restrictions
    • Restrictions on the Client . In order to protect the Confidential Information, trade secrets and business connections of Brimstone, the Client covenants with Brimstone as follows:
      • No soliciting of Restricted Persons. The Client shall not (and shall use its best endeavours to procure that none of its Brimstone RESTA Approved Individuals shall) during the Term or for 24 months after termination or expiry of this agreement, solicit or endeavour to entice away from Brimstone any other Brimstone clients or Brimstone RESTA Approved Individuals with a view to providing any services competitive with the Services (including but not limited to any other educational resilience training, supervision or certification or approvals).
      • No soliciting of certain employees. The Client shall not during the Term or for 24 months after termination or expiry of this agreement, in the course of any business concern which is in competition with or similar to any business of Brimstone, offer to employ or engage, or otherwise endeavour to entice away any employee of Brimstone who is at the level of a trainer or supervisor or senior manager or above or who could materially damage the interests of Brimstone , and with whom the Client dealt in the 12 months before termination of this agreement.
      • No involvement with competitive businesses. The Client shall not during the Term, or for 24 months after termination or expiry of this agreement, be involved as agent, consultant, director, employee, owner, partner or shareholder with any business concern which is (or intends to be) in competition with the System.
      • No representations about connections with Brimstone after termination. The Client shall not at any time after termination or expiry of this agreement, represent themselves as connected, in any way, with Brimstone.
    • Exclusion from restrictions. None of the restrictions in this clause 13 shall prevent the Client or any Brimstone RESTA Approved Individual from holding an investment by way of shares or other securities of not more than 4% of the total issued share capital of any company, whether or not it is listed or dealt in on a recognised stock exchange;
    • Restrictions apply to indirect as well as direct activities. The restrictions imposed on the Client by this clause 13 apply to the Client and so far as applicable its Brimstone RESTA Approved Individuals when acting:
      • directly or indirectly; and
      • on its own behalf or on behalf of, or in conjunction with, any firm, company or person.
    • Restrictions are severable. Each of the restrictions in this clause 13 is intended to be separate and severable. If any of the restrictions are held to be void but would be valid if part of their wording were deleted, such restriction shall apply with such deletion as may be necessary to make it valid or effective.
14. Assignment and other dealings
    • Freedom of Brimstone to assign. Brimstone may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this agreement.
    • No assignment by the Client. The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.
15. Limitation of liability
    • Unlimited liability. Nothing in this agreement shall limit or exclude the liability of either party for:
      • death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
      • fraud or fraudulent misrepresentation; or
      • any matter in respect of which it would be unlawful to exclude or restrict liability.
    • Limitations of liability. Subject to clause 1 above:
      • Brimstone shall under no circumstances whatever be liable to the Client or any of its Brimstone RESTA Approved Individuals, whether in contract, tort (including negligence), misrepresentation, restitution or otherwise, for:
        • loss of profits;
        • loss of sales or business;
        • loss of agreements or contracts;
        • loss of anticipated savings;
        • loss of use or corruption of software, data or information;
        • loss of or damage to goodwill; or
        • indirect or consequential loss.
      • Cap on liability for other loss and damage. Subject to clause 1 above, the total liability of either party to the other in respect of all breaches of duty occurring within any Contract Year shall not exceed the Cap. In this clause:
        • The Cap is one hundred per cent (100%) of the Total Amounts payable by the Client to Brimstone in the Contract Year in which the breaches occurred;
        • Total Amounts. The Total Amounts means all sums paid and payable by the Client to Brimstone whether or not invoiced to the Licensee; and
        • Total liability. Total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the agreement.
      • Supply of goods. The liability of Brimstone arising in connection with the supply of any goods in connection with this agreement shall be as set out in Brimstone’s standard supply terms and conditions.
      • No limitations in respect of deliberate default. Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.

16. General
    • Force majeure. Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for [8] weeks, the party not affected may terminate this agreement by giving 5 Business Days’ written notice to the affected party.
    • Confidentiality
      • Each party undertakes that it shall not at any time during this agreement, and for a period of five years after termination or expiry of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 2(b).
      • Each party may disclose the other party’s Confidential Information:
        • to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of exercising the party’s right’s or carrying out its obligations under this agreement. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s Confidential Information comply with this; and
        • as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
      • No party shall use any other party’s Confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
      • If Brimstone is contemplating an assignment pursuant to clause 2:
        • notwithstanding its obligations of confidentiality set out in clause 2, Brimstone may disclose to a proposed assignee any information in its possession that relates to this agreement or its subject matter and the Client which is reasonably necessary to disclose for the purposes of the proposed assignment; and
        • any disclosure pursuant to clause 2(d)(i) shall only be made after notice of the identity of the proposed assignee has been given to the Client.
      • Entire agreement.
        • This agreement, the Manual, and any documents referred to in it constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
        • Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
      • No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
      • No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the 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.
      • Severance
        • If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
        • If any provision or part-provision of this agreement is deemed deleted under clause 6(a), the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
      • • Any notice or other communication given to a party under or in connection with this agreement shall be in writing and shall be:
          • delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
          • sent by email to the address specified from time to time by the addressee for the purposes of receiving communications under or in connection with this agreement.
        • Any notice or communication shall be deemed to have been received:
          • if delivered by hand, at the time the notice is left at the proper address;
          • if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
          • if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 7, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
        • This clause shall not apply to the service of any proceedings or other documents in any legal action, arbitration or other method of dispute resolution.
      • No partnership, joint venture or agency
        • Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
        • Each party confirms it is acting on its own behalf and not for the benefit of any other person.
      • Governing law. This agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England.
      • Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.