Terms and Conditions of Business

Read our standard terms of business, which apply across all clients and projects that we work with. For further details, get in touch with our team today.

Interpretation

The following definitions and rules of interpretation apply in these Conditions.

Definitions:

“Acceptance”	the acceptance or deemed acceptance of the Site(s) by the Client pursuant to clause 4.
“Acceptance Tests”	the tests to be carried out on the Site(s) as set out in clause 4 and as may be described in the Proposal.
“Applicable Data Protection Laws”	(a) To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.(b) To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which Simul Digital is subject, which relates to the protection of personal data.
“Applicable Laws”	(a) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom.(b) to the extent EU GDPR applies, the law of the European Union or any member state of the European Union to which Simul Digital is subject.
“Business Day”	a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
“Charges”	the charges payable by the Client for the supply of the Services in accordance with clause 7.
“Client Default”	has the meaning set out in clause 6.2.
“Client Materials”	all documents, information, items and materials in any form, whether owned by the Client or a third party, which are provided by the Client to Simul Digital in connection with the Services, including the items provided pursuant to clause 6.1.5.
“Client Personal Data”	any personal data which Simul Digital processes in connection with the Contract, in the capacity of a processor on behalf of the Client.
“Client”	the person or firm who purchases Services from Simul Digital.
“Commencement Date”	has the meaning given in clause 2.2.
“Conditions”	these terms and conditions as amended from time to time in accordance with clause 13.5.
“Contract”	the contract between Simul Digital and the Client for the supply of Services in accordance with these Conditions.
“Control”	has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
“Deliverables”	the deliverables set out in the Proposal produced by Simul Digital for the Client.
“EU GDPR”	the General Data Protection Regulation ((EU) 2016/679).
“Intellectual Property Rights”	patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, 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.
“Simul Digital Materials”	has the meaning set out in clause 6.1.8.
“Simul Digital”	Simul Digital Ltd registered in England and Wales with company number 13641389.
“Order”	the Client’s written acceptance of a Proposal.
“Project”	where the Services are to be provided on a one-off basis.
“Proposal”	the description or specification of the Services provided in writing by Simul Digital to the Client.
“Purpose”	the purposes for which the Client Personal Data is processed, as set out in 9.5.
“Retainer”	where the Services are to be provided on an ongoing basis.
“Server”	a computer server administered by Simul Digital as more particularly defined in the Proposal.
“Services”	the services, including the Deliverables, supplied by Simul Digital to the Client as set out in the Proposal.
“Site(s)”	the website(s) as set out in the Proposal, which may be developed and / or hosted by Simul Digital.
“Site Specification”	the specification for the Site(s) set out in the Proposal.
“Third Party Products”	those third-party software products set out in the Proposal.
“UK GDPR”	has the meaning given to it in the Data Protection Act 2018.
“Visitor”	a visitor to the Site.
“Vulnerability”	a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be interpreted accordingly.

Interpretation:
1. A reference to legislation or a legislative provision:
  1. is a reference to it as amended, extended or re-enacted from time to time; and
  2. shall include all subordinate legislation made from time to time under that legislation or legislative provision.
2. 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.
3. A reference to writing or written includes email.

Basis of contract
1. The Order constitutes an offer by the Client to purchase Services in accordance with these Conditions.
2. The Order shall only be deemed to be accepted when Simul Digital issues written acceptance of the Order at which point and on which date the Contract shall come into existence (“Commencement Date“).
3. Any samples, drawings, descriptive matter or advertising issued by Simul Digital outside of a Proposal, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
4. These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
5. Any quotation given by Simul Digital in a Proposal shall not constitute an offer, and is only valid for a period of 30 Business Days from its date of issue.
Supply of Services
1. The Services to be provided by Simul Digital shall be set out in the Proposal (as varied from time to time in accordance with these Conditions) and may include the design, development and delivery of the Site(s) and the hosting of the Site(s) from the Server. The Proposal shall state whether the Services are to be provided on a Project basis (ie. a one-off piece of work or task) or on a Retainer basis (ie. on an on-going basis).
2. Simul Digital shall supply the Services to the Client in accordance with the Proposal in all material respects, and the Proposal shall state whether the Services are to be provided on a Project basis (ie. a one-off piece of work or task) or on a Retainer basis (ie. on an on-going basis).
3. Simul Digital shall use all reasonable endeavours to meet any performance dates specified in the Proposal, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
4. Simul Digital reserves the right to amend the Proposal if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and Simul Digital shall notify the Client in any such event.
5. Simul Digital warrants to the Client that the Services will be provided using reasonable care and skill.
Website Development and Acceptance
1. Where the Services include the development and / or hosting of a website or websites, the provisions of this clause 4 shall apply.
2. Once Simul Digital has completed the design and development of the Site in accordance with the Proposal, Simul Digital shall run the Acceptance Tests. The procedure set out in this clause 4 shall be repeated in respect of each phase of development of the Site(s) and any further development works agreed by the parties from time to time.
3. The Acceptance Tests shall test compliance of the Site with the Site Specification. The form and detail of such tests shall be set out in the Proposal.
4. Acceptance of the Site shall occur when the Site has passed the Acceptance Tests. Simul Digital shall notify the Client when the tests have been passed and provide the results of the Acceptance Tests to the Client in writing.
5. If any failure to pass the Acceptance Tests results from a defect which is caused by an act or omission of the Client, or by one of the Client’s sub-contractors or agents for whom Simul Digital has no responsibility (“Non-Supplier Defect”), the Site shall be deemed to have passed the Acceptance Tests notwithstanding such Non-Supplier Defect. Simul Digital shall provide assistance reasonably requested by the Client in remedying any Non-Supplier Defect by supplying additional services or products. The Client shall pay Simul Digital in full for all such additional services and products at Simul Digital’s then current fees and prices.
6. Acceptance of the Site shall be deemed to have taken place upon the occurrence of any of the following events:
  1. the Client uses any part of the Site for any revenue-earning purposes or to provide any services to third parties other than for test purposes; or
  2. the Client unreasonably delays the start of the relevant Acceptance Tests or any retests for a period of seven working days from the date on which Simul Digital is ready to commence running such Acceptance Tests or retests.
7. The Third-Party Products shall be supplied in accordance with the relevant licensor’s standard terms. The one-off licence fee for such Third-Party Products is included in the Charges payable under clause 7.1.
8. Simul Digital warrants that the Site(s) will perform substantially in accordance with the Site Specification for a period of three months from Acceptance. If the Site(s) does not so perform, Simul Digital shall, for no additional charge, carry out any work necessary in order to ensure that the Site(s) substantially complies with the Site Specification.
9. The warranty set out in clause 4.8 shall not apply to the extent that any failure of the Site(s) to perform substantially in accordance with the Site Specification is caused by any Materials.
10. This Conditions sets out the full extent of Simul Digital’s obligations and liabilities in respect of the supply of the Services. All conditions, warranties or other terms concerning the Services which might otherwise be implied into this agreement or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.
11. Simul Digital:
  1. does not warrant that:
    1. the Client’s use of the Services or the Site(s) will be uninterrupted or error-free; or
    2. the Services or the Site(s) will be free from Vulnerabilities.
12. Simul Digital shall update the Site(s) with Client Materials provided from time to time by the Client. The Client shall ensure that the Client Materials do not infringe any applicable laws, regulations or third-party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third party Intellectual Property Rights) (“Inappropriate Content“).
13. Simul Digital shall include only Client Materials on the Site(s). The Client acknowledges that Simul Digital has no control over any content placed on the Site(s) by Visitors and does not purport to monitor the content of the Site(s). Simul Digital reserves the right to remove content from the Site(s) where it reasonably suspects such content is Inappropriate Content. Simul Digital shall notify the Client promptly if it becomes aware of any allegation that any content on the Site may be Inappropriate Content.
14. The Client shall indemnify Simul Digital against all damages, losses and expenses arising as a result of any action or claim that the Client Materials constitute Inappropriate Content.
15. Simul Digital may include the statement “Designed by Simul Digital” on the home page of the Site in a form to be agreed.
Changes and Amendments to Proposals
1. The Client may request, and Simul Digital may recommend:
  1. a change to a Proposal at any time before completion of the relevant Project, or:
  2. a change to the way a Service is provided or a change to the output of a Service at any point during a Retainer,(a “Change“)
2. Any Change will be agreed in writing between the parties, including any impact on the Charges. A Change being agreed, including but not limited to additional Services being provided or changes to the output of our Services, shall not prevent us submitting an invoice for our Services that would have been submitted had a Change not been agreed.
3. Where the Client has requested a Change, Simul Digital may make a reasonable charge for its time so spent considering the proposed Change, calculated by reference to the Charges.
4. Any Change agreed between the parties shall constitute to an amendment to the Contract.
Client’s obligations
1. The Client acknowledges that Simul Digital’s ability to provide the Services is dependent upon the full and timely co-operation of the Client (which the Client agrees to provide), as well as the accuracy and completeness of the Proposal, any information and data the Client provides to Simul Digital. Accordingly, the Client shall:
  1. ensure that the information provided to Simul Digital in order to produce the Proposal and the terms of the Order (including information contained in the Proposal) are complete and accurate.
  2. co-operate with Simul Digital in all matters relating to the Services;
  3. appoint a project manager who shall:
    1. provide professional and prompt liaison with Simul Digital; and
    2. have the necessary expertise and authority to commit the Client;
  4. where relevant, provide Simul Digital, its employees, agents, consultants and subcontractors, with access to the Client’s premises, office accommodation and other facilities as reasonably required by Simul Digital;
  5. provide to Simul Digital in a timely manner all documents, information, items and materials in any form (whether owned by the Client or third party) required under the Proposal or otherwise reasonably required by Simul Digital in connection with the Services and ensure that they are accurate and complete;
  6. where relevant, prepare the Client’s premises for the supply of the Services;
  7. obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
  8. keep all materials, equipment, documents and other property of Simul Digital (“Simul Digital Materials“) at the Client’s premises in safe custody at its own risk, maintain the Simul Digital Materials in good condition until returned to Simul Digital, and not dispose of or use the Simul Digital Materials other than in accordance with Simul Digital’s written instructions or authorisation;
  9. comply with any additional obligations as set out in the Proposal; and
  10. provide Simul Digital with access to ad accounts, analytics accounts and marketing performance data.
2. Once a Proposal has been agreed by the parties, Simul Digital shall submit to the Client, materials including copy, layouts, artwork, storyboards (including concept artwork) and scripts, for written approval. The Client may request Simul Digital to submit to the Client several alternative ideas which will then be reviewed by the Client or may at the Client’s request be taken to target consumers by Simul Digital for input and feedback.
3. The Client will provide written approval or an update to Simul Digital within seven Business Days of receipt of individual Deliverables produced by or on behalf of Simul Digital.
4. During the Term, Simul Digital shall immediately advise the Client of any material changes in plans, schedules or work-in-progress previously approved by the Client in accordance with the Contract.
5. If Simul Digital’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (“Client Default“):
  1. without limiting or affecting any other right or remedy available to it, Simul Digital shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays Simul Digital’s performance of any of its obligations;
  2. Simul Digital shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from Simul Digital’s failure or delay to perform any of its obligations as set out in this clause 6.2; and
  3. the Client shall reimburse Simul Digital on written demand for any costs or losses sustained or incurred by Simul Digital arising directly or indirectly from the Client Default.
6. In order to protect the legitimate business interests of Simul Digital, the Client covenants with Simul Digital that it shall not (except with the prior written consent of Simul Digital):
  1. attempt to solicit or entice away; or
  2. solicit or entice away,from the employment or service of Simul Digital the services of any Restricted Person other than by means of a national advertising campaign open to all-comers and not specifically targeted at such staff of Simul Digital.
7. The Client shall be bound by the covenant set out in clause 6.6 during the term of the Contract, and for a period of 12 months after termination or expiry of the Contract.
8. For the purposes of clause 6.6, a “Restricted Person” shall mean any firm, company or person employed or engaged by Simul Digital during the term of the Contract, who has been engaged in the provision of the Services or the management of the Contract either as principal, agent, employee, independent contractor or in any other form of employment or engagement.
Charges and payment
1. The Charges for the Services shall be set out in the Proposal and shall be:
  1. a fixed fee;
  2. a retainer arrangement; or
  3. calculated on a time and materials basis.
2. Where the Charges are calculated on a time and materials basis:
  1. the Charges shall be calculated in accordance with Simul Digital’s daily fee rates, as set out in the Proposal;
  2. Simul Digital’s daily fee rates for each individual are calculated on the basis of a seven hour day from 9.00 am to 5.00 pm worked on Business Days;
  3. unless agreed otherwise in the Proposal, Simul Digital shall be entitled to charge £85 per hour for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 7.2.2; and
  4. Simul Digital shall be entitled to charge the Client for any expenses reasonably incurred by the individuals whom Simul Digital engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Simul Digital for the performance of the Services, and for the cost of any materials.
3. Where the Services are provided on a Retainer basis, Simul Digital reserves the right to increase the Charges on an annual basis with effect from each anniversary of the Commencement Date and the first such increase shall take effect on the first anniversary of the Commencement Date.
4. Simul Digital shall invoice the Client:
  1. as set out in the Proposal; or
  2. where no detail of invoicing is set out in the Proposal:
    1. where the Services are provided on a Project basis, 50% before the start of the supply of the Services, 25% at the time of approval by the Client of designs provided by Simul Digital and 25% on the completion of the Services (whether Client wishes to go live at this point or not); or
    2. where the Services are provided on a Retainer basis, monthly in advance.
5. The Client shall pay each invoice submitted by Simul Digital:
  1. within 14 days of the date of the invoice; and
  2. in full and in cleared funds to a bank account nominated in writing by Simul Digital, and time for payment shall be of the essence of the Contract.
Intellectual property rights
1. All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any Client Materials) shall be owned by Simul Digital.
2. Simul Digital grants to the Client, or shall procure the direct grant to the Client of, a fully paid-up, worldwide, non-exclusive, royalty-free, perpetual and irrevocable licence to copy and modify the Deliverables (excluding the Client Materials) for the purpose of receiving and using the Services and the Deliverables in its business.
3. The Client shall not sub-license, assign or otherwise transfer the rights granted in clause 8.2.
4. In relation to the Client Materials, the Client:
  1. and its licensors shall retain ownership of all Intellectual Property Rights in the Client Materials; and
  2. grants Simul Digital a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Client Materials for the term of this agreement for the purpose of providing the Services to the Client.
5. The Client:
  1. warrants that the receipt and use of the Client Materials in the performance of the Contract by Simul Digital, its agents, subcontractors or consultants shall not infringe the rights, including any Intellectual Property Rights, of any third party; and
  2. shall indemnify Simul Digital in full against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Simul Digital arising out of or in connection with any claim brought against Simul Digital, its agents, subcontractors or consultants for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the receipt or use in the performance of this agreement of the Client Materials.
Data protection
1. For the purposes of this clause 8.4, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK GDPR.
2. Both parties will comply with all applicable requirements of Applicable Data Protection Laws. This clause 9 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under Applicable Data Protection Laws.
3. The parties have determined that, for the purposes of Applicable Data Protection Laws Simul Digital shall process personal data as a processor on behalf of the Client under the Contract.
4. Without prejudice to the generality of clause 9.2, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Client Personal Data to Simul Digital or lawful collection of the same by Simul Digital for the duration and purposes of the Contract.
5. In relation to the Client Personal Data, the Proposal shall set out the particulars of processing, purpose of processing, duration of the processing, types of Personal Data and categories of Data Subject:
6. Without prejudice to the generality of clause 9.2 Simul Digital shall, in relation to Client Personal Data:
  1. process that Client Personal Data only on the documented instructions of the Client, which shall be to process the Client Personal Data for the purposes set out in the Proposal, unless Simul Digital is required by Applicable Laws to otherwise process that Client Personal Data. Where Simul Digital is relying on Applicable Laws as the basis for processing Client Processor Data, Simul Digital shall notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Provider from so notifying the Client on important grounds of public interest. Simul Digital shall inform the Client if, in the opinion of Simul Digital, the instructions of the Client infringe Applicable Data Protection Laws;
  2. implement technical and organisational measures to protect against unauthorised or unlawful processing of Client Personal Data and against accidental loss or destruction of, or damage to, Client Personal Data, which are appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
  3. ensure that any personnel engaged and authorised by Simul Digital to process Client Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
  4. assist the Client insofar as this is possible (taking into account the nature of the processing and the information available to Simul Digital), and at the Client’s cost and written request, in responding to any request from a data subject and in ensuring the Client’s compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
  5. notify the Client without undue delay on becoming aware of a personal data breach involving the Client Personal Data;
  6. at the written direction of the Client, delete or return Client Personal Data and copies thereof to the Client on termination of the agreement unless Simul Digital is required by Applicable Law to continue to process that Client Personal Data. For the purposes of this clause 9.6.6 Client Personal Data shall be considered deleted where it is put beyond further use by Simul Digital; and
  7. maintain records to demonstrate its compliance with this clause 9.
7. The Client hereby provides its prior, general authorisation for Simul Digital to:
  1. appoint processors to process the Client Personal Data, provided that Simul Digital:
    1. shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on Simul Digital in this clause 9;
    2. shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of Simul Digital; and
    3. shall inform the Client of any intended changes concerning the addition or replacement of the processors, thereby giving the Client the opportunity to object to such changes provided that if the Client objects to the changes and cannot demonstrate, to Simul Digital’s reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Client shall indemnify Simul Digital for any losses, damages, costs (including legal fees) and expenses suffered by Simul Digital in accommodating the objection,
  2. transfer Client Personal Data outside of the UK as required for the Purpose, provided that Simul Digital shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Client shall promptly comply with any reasonable request of Simul Digital, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the UK Information Commissioner from time to time (where the UK GDPR applies to the transfer).
8. Either party may, at any time on not less than 30 days’ notice, revise clause 9 by replacing it (in whole or part) with any applicable standard clauses approved by the EU Commission or the UK Information Commissioner’s Office or forming part of an applicable certification scheme or code of conduct (“Amended Terms“). Such Amended Terms shall apply when replaced by attachment to the Contract, but only in respect of such matters which are within the scope of the Amended Terms.
Limitation of liability: THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
1. References to liability in this clause 10 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
2. Nothing in this clause 10 shall limit the Client’s payment obligations under the Contract.
3. Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
  1. death or personal injury caused by negligence;
  2. fraud or fraudulent misrepresentation; and
  3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
4. Subject to clause 10.3 (Liabilities which cannot legally be limited):
  1. where the Services are provided on a Project basis, Simul Digital’s total liability to the Client shall not exceed the total amount of the Charges paid under the Contract; and
  2. where the Services are provided on a Retainer basis, Simul Digital’s total liability to the Client shall not exceed the Charges paid by the Client in the twelve months prior to the event or events giving rise to the liability.
5. Subject clause 10.3 (Liabilities which cannot legally be limited), this clause 10.5 sets out the types of loss that are wholly excluded:
  1. loss of profits.
  2. loss of sales or business.
  3. loss of agreements or contracts.
  4. loss of anticipated savings.
  5. loss of use or corruption of software, data or information.
  6. loss of or damage to goodwill; and
  7. indirect or consequential loss.
6. Simul Digital has given commitments as to compliance of the Services with relevant specifications in clause 3. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
7. Unless the Client notifies Simul Digital that it intends to make a claim in respect of an event within the notice period, Simul Digital shall have no liability for that event. The notice period for an event shall start on the day on which the Client became, or ought reasonably to have become, aware of the event having occurred and shall expire 6 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
8. This clause 10 shall survive termination of the Contract.
Termination
1. Without affecting any other right or remedy available to it, where the Services are provided on a Retainer basis, either party may terminate the Contract by giving the other party three months’ written notice.
2. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
  1. the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing to do so;
  2. the other party takes any 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), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, 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;
  3. 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
  4. 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 Contract has been placed in jeopardy.
3. Without affecting any other right or remedy available to it, Simul Digital may terminate the Contract with immediate effect by giving written notice to the Client if:
  1. the Client fails to pay any amount due under the Contract on the due date for payment; or
  2. there is a change of control of the Client.
4. Without affecting any other right or remedy available to it, Simul Digital may suspend the supply of Services under the Contract or any other contract between the Client and Simul Digital if:
  1. the Client fails to pay any amount due under the Contract on the due date for payment;
  2. the Client becomes subject to any of the events listed in clause 11.2.3 or clause 11.2.4, or Simul Digital reasonably believes that the Client is about to become subject to any of them; and
  3. Simul Digital reasonably believes that the Client is about to become subject to any of the events listed in clause 11.2.2.
Consequences of termination
1. On termination or expiry of the Contract:
  1. the Client shall immediately pay to Simul Digital all of Simul Digital’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Simul Digital shall submit an invoice, which shall be payable by the Client immediately on receipt; and
  2. the Client shall return all of the Simul Digital Materials and any Deliverables which have not been fully paid for. If the Client fails to do so, then Simul Digital 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 and will not use them for any purpose not connected with the Contract; and
  3. Simul Digital shall promptly return all Client Materials to the Client and shall provide to the Client an electronic copy of the Site(s) (including all content on the Site).
2. Termination or expiry of the Contract 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 Contract which existed at or before the date of termination or expiry.
3. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
General
1. Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
2. Assignment and other dealings.
  1. Simul Digital 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 the Contract.
  2. 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 the Contract without the prior written consent of Simul Digital.
3. Confidentiality.
  1. Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, affairs, Clients, clients or suppliers of the other party, except as permitted by clause 13.3.2.
  2. Each party may disclose the other party’s confidential information:
    1. to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 13.3; and
    2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
  3. Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
4. Entire agreement.
  1. The Contract 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.
  2. Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
5. Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
6. Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
7. Severance. If any provision or part-provision of the Contract 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 the Contract. If any provision or part-provision of this Contract deleted under this clause 13.7 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.
8. Notices.
  1. Any notice given to a party under or in connection with the Contract 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 in the Proposal.
  2. Any notice shall be deemed to have been received:
    1. if delivered by hand, at the time the notice is left at the proper address;
    2. 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
    3. 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 13.8.2.3, 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.
  3. This clause 13.8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
9. Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
10. Governing law. The Contract, 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 and Wales.
11. Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.