TERMS AND CONDITIONS
These terms and conditions together with the Commercial Terms and any other documents referred to or incorporated into these terms and conditions or the Commercial Terms (collectively referred to as the Agreement) set out the entire terms and conditions upon which Mallcomm has agreed to provide the Services to the Customer.
The Customer’s attention is drawn in particular to Clause 14 of these terms and conditions which set out how Mallcomm limits and excludes its liability to the Customer.
IT IS AGREED THAT:
1 DEFINITIONS AND INTERPRETATION
1.1 In this Agreement the following words have the following meanings:
(a) Charges means the charges as detailed in the Commercial Terms.
(b) Claim means a third party claim against the Customer concerning its use of the Services as is described in Clause 9.2.
(c) Commencement Date means the date on which the Commercial Terms is executed by the last party to sign.
(d) Commercial Terms means the completed commercial terms sheet which refers to and incorporates these terms and conditions and which has been signed on the behalf of both Mallcomm and the Customer.
(e) Customer means the Customer to whom Mallcomm has agreed to provide the Services in accordance with this Agreement as detailed in the Commercial Terms.
(f) Customer Data means any data provided by the Customer which is uploaded to or processed via the Services or which is otherwise collected or generated by the Customer as a result of its use of the Services.
(g) Data Protection Laws means all applicable laws which govern the use of data relating to identified or identifiable individuals, including the Data Protection Act 2018, the Privacy and Electronic Communications Regulations 2003 and the GDPR, as amended or replaced from time to time, and to the extent applicable to a party.
(h) Force Majeure means in relation to either party, any circumstance beyond the reasonable control of that party including any act of God, pandemic, epidemic, disease, war, riot, explosion, abnormal, unusual or extreme weather conditions, loss of utilities, fire, flood, failure or breakdown of telecommunications systems or network infrastructure, malicious network attacks, strike, lock out or industrial dispute, fuel shortages and/or governmental or regulatory authority action.
(i) GDPR means (i) the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (the “EU GDPR”) and (ii) the UK GDPR as defined in sections 3(10) and 205(4) of the Data Protection Act 2018 (“UK GDPR”), in each case as applicable.
(j) Intellectual Property Rights patents, trade marks, service marks, trade names, registered and unregistered designs, trade or business names, copyright (including rights in software), database rights, design rights, rights in confidential information and any other intellectual property rights whatsoever irrespective of whether such intellectual property rights have been registered or not which may subsist in any part of the world.
(k) Mallcomm means Mallcomm Limited (Company Number 04061813) whose registered office is at 4, Beacon House, Kempson Way, Bury St. Edmunds, England, IP32 7AR.
(l) Personal Data means any personal data (as defined in the Data Protection Laws) which is processed from time to time by Mallcomm in connection with the provision of the Services. This shall include (i) the names and contact details of the Customer’s employees, tenants and service providers who use the Software and/or Services or otherwise interact with Mallcomm in connection with this Agreement and (ii) any other personal data that the Customer or users authorised by the Customer upload to the Software.
(m) Professional Services means the services to be provided by Mallcomm to the Customer as described in the Commercial Terms including, without limitation, training and support services.
(n) Properties means the properties described in the Commercial Terms and any additional properties added to this Agreement pursuant to Clause 7.
(o) Services means the Software and the Professional Services (if any).
(p) Software means the software products to be provided by Mallcomm to the Customer as described in the Commercial Terms.
(q) Specification means the specification for the Services as set out or referred to on the Commercial Terms.
(r) Working Hours means between the hours of 09:00 to 17:00 during any day which is not a Saturday, Sunday or bank or other public holiday in England and Wales.
(s) Year means the period of twelve months beginning on the Commencement Date and each subsequent period of twelve months thereafter beginning on each anniversary of the Commencement Date.
(t) The terms controller, processor, data subject, personal data, supervisory authority, personal data breach and processing (and related expressions) shall have the meanings given to them in the Data Protection Laws.
1.2 In this Agreement: headings are inserted for convenience only and shall not affect the construction or interpretation; references to Clauses and Schedules are to the Clauses and Schedules of these terms and conditions; words denoting the singular shall include the plural and vice versa; words denoting any gender shall include all genders; any reference to any law, statute, statutory provision, statutory instrument, directive, subordinate legislation, code of practice or guideline shall be construed as a reference to the same as may be amended, consolidated, modified, extended, re-enacted or replaced from time to time; and use of words such as “include”, “including” and “in particular” shall not limit the generality of any preceding or following words which are not intended to be exhaustive.
2.1 This Agreement shall come into force on the Commencement Date.
2.2 Unless otherwise agreed in the Commercial Terms, this Agreement shall remain in force for a period of one Year and, thereafter, shall automatically renew for further periods of one Year each unless and until terminated by either party serving at least 60 days’ written notice of termination on the other, such notice to expire on the final date of the then current Year.
3 LICENCE TO USE THE SOFTWARE
3.1 In consideration for payment of the Charges by the Customer in accordance with this Agreement, Mallcomm hereby grants to the Customer a non-exclusive and non-transferable licence to access and use the Software in accordance with the terms and conditions of this Agreement for the term of this Agreement for the purpose of assisting with the management of the Properties.
3.2 For the avoidance of doubt, other than the limited licence to use the Software which is granted to the Customer under this Agreement the Customer shall not acquire any right or title in or to any Intellectual Property Rights in or capable of subsisting in the Software.
3.3 The Customer shall maintain in strict confidence at all times any user names, access codes or other authorisations which may be provided or allocated to it by Mallcomm and/or via the Software from time to time together with any associated passwords (and, where the Customer is responsible for setting its own password shall ensure that those are sufficiently robust in accordance with generally accepted password security recommendations in the IT industry from time to time) and shall not disclose the same to any other person.
3.4 The Customer shall immediately inform Mallcomm of any actual or suspected loss, theft, publication or disclosure of any of its user names, access codes, other authorisations or passwords for the Software and/or of any actual or suspected unauthorised access to or use of the Software using the same of which the Customer becomes aware.
3.5 The Customer shall not:
(a) use or attempt to use the Software for any illegal or unlawful purpose and/or for the purposes of publishing or otherwise distributing materials which are offensive, defamatory or in breach any Intellectual Property Rights belonging to any third party;
(b) use or attempt to use the Software in any way which disrupts, restricts or interferes with the provision of the Software by Mallcomm and/or its availability to and use by other users authorised by Mallcomm;
(c) access or attempt to access any part of the Software which the Customer is not authorised to access and/or to access any data which is held on or accessible via the Software other than the Customer Data and any data which is made publicly available by Mallcomm to all users on or via the Software; and/or
(d) reverse engineer, decompile, copy, distribute, disseminate, sub-licence, modify, translate, scan and/or adapt any software or other code or script which forms part of or is accessible via the Software.
3.6 If the Customer becomes aware of any defect in the Software, the Customer shall notify Mallcomm as soon as reasonably possible.
3.7 The licence granted to the Customer in Clause 3.1 is personal and other than those individual employees of the Customer who the Customer authorises from time to time to access and use the Software on its behalf (and for whose acts and omissions the Customer shall be vicariously liable to Mallcomm for under this Agreement as if those were the acts or omissions of the Customer itself) the Customer shall not permit any other person to access and use the Software, whether or not in return for payment.
4 PROFESSIONAL SERVICES
4.1 Mallcomm shall perform the Professional Services using reasonable skill, care and diligence.
4.2 The Customer shall provide such support, information, co-operation and assistance as Mallcomm may reasonably request from time to time to assist Mallcomm with the performance of the Professional Services.
4.3 Time shall not be of the essence with respect to the performance of the Professional Services.
5 SERVICE STANDARDS
5.1 Mallcomm warrants that the Software will conform in all material respects to the Specification but does not warrant that the Customer’s access to and use of the Software will be uninterrupted or error free. If the Customer notifies Mallcomm in writing of any defect or fault in the Software in consequence of which it fails to conform in all material respects to the Specification and such defect or fault does not result from any failure or delay by the Customer to comply with any of its obligations under this Agreement then Mallcomm shall (at its option) do one of the following as the Customer’s sole and exclusive remedy with respect to the failure of the Software to comply with this warranty:
(a) modify or amend the Software as soon as reasonably practicable so that it does conform in all material respects to the Specification; or
(b) terminate this Agreement immediately by notice in writing to the Customer and refund any Charges paid by the Customer in advance with respect to the unexpired term of this Agreement.
PROVIDED THAT in either case the Customer provides all information that may be necessary to assist Mallcomm in resolving the defect or fault, including a documented example of any defect or fault, or sufficient information to enable Mallcomm to re-create the defect or fault in question.
5.2 Mallcomm shall use reasonable endeavours to ensure that the Software is continually available for access by the Customer both during and outside of Working Hours.
5.3 Notwithstanding Clause 5.2 Mallcomm shall be entitled to temporarily suspend access to the Software as may be reasonably necessary from time to time in order to carry out maintenance and upgrade work; in the event of any actual or suspected security breach; and/or in the event of any other emergency. Mallcomm shall use reasonable endeavours to provide the Customer with as much notice of any suspension of the Software as is possible in the circumstances and to undertake any planned maintenance or upgrade work outside of Working Hours.
5.4 The Customer accepts responsibility for the selection of the Services to achieve its intended results and acknowledges that the Services have not been developed to meet the individual requirements of the Customer.
5.5 The Services do not include the provision of any back-up, disaster recovery or business continuity services and to the extent that any Customer Data is stored or hosted by Mallcomm in connection with the Services then the Customer shall back-up such Customer Data itself at frequencies which are appropriate to enable it to recover such Customer Data with minimal impact on its business.
5.6 This Agreement sets out the full extent of Mallcomm’s obligations and liabilities in respect of the design, development, testing, delivery and provision of the Services. All conditions, warranties or other terms concerning the same which might otherwise be implied into this Agreement or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.
6 CHANGES TO THE SERVICE
6.1 Mallcomm shall be entitled from time to time without the consent of the Customer to introduce new functionality to the Software and/or to make changes to the Software.
7 ADDING AND REMOVING PROPERTIES
7.1 The Customer may submit a written request to Mallcomm to add a property (or properties) to this Agreement and/or remove a property (or properties) from this Agreement in accordance with this Clause 4, but the addition or removal of a property (or properties) shall not come into effect until a Change Control Note has been signed by the authorised representatives of both parties.
7.2 If the Customer requests to add or remove a property (or properties):
(a) the Customer will submit a written request to Mallcomm containing as much information as is necessary to enable Mallcomm to prepare a Change Control Note; and
(b) if Mallcomm agrees with the request, Mallcomm will send to the Customer a Change Control Note in the form set out in Schedule 1 to this Agreement.
7.3 Following the Customer’s receipt of a Change Control Note pursuant to Clause 7.2, if the Customer agrees with the terms of the Change Control Note, each party shall sign it and that Change Control Note will amend this Agreement.
7.4 Unless otherwise agreed by the parties in writing, the removal of a property (or properties) from this Agreement in accordance with this Clause 7 shall not take effect until the end of the current Year.
8.1 In consideration for Mallcomm making the Services available to the Customer in accordance with this Agreement, the Customer shall pay to Mallcomm the Charges.
8.2 Unless otherwise agreed in the Commercial Terms, the Charges shall be payable annually in advance and in pound sterling.
8.3 Invoices shall be paid by the Customer within 30 days of the date of the invoice by bank transfer into a single bank account as nominated in writing from time to time by Mallcomm.
8.4 Mallcomm may increase the Charges on an annual basis during the term of this Agreement, to take effect on each anniversary of the Commencement Date, by giving the Customer at least 90 days’ prior written notice.
8.5 Without prejudice to any other rights or remedies available to it, Mallcomm shall be entitled to suspend without liability the Customer’s right of access to the Software and/or performance of any Professional Services without notice if payment of any Charges is overdue.
8.6 The Charges and any other amounts which may become payable from time to time by one party to the other under this Agreement are stated exclusive of VAT which if applicable, shall be payable in addition by the party making payment at the applicable rate in force from time to time (subject to the provision of a valid VAT invoice by the party receiving the payment in question).
8.7 The Charges and any other amounts which may become payable from time to time by one party to the other under this Agreement shall be paid by the applicable party in full in accordance with the terms of this Agreement without set off, deduction or withholding on any account.
9 INTELLECTUAL PROPERTY RIGHTS
9.1 Mallcomm confirms that it is the owner of all Intellectual Property Rights in or capable of subsisting in the Software and/or that it holds the necessary authority from any applicable third party owner of any such Intellectual Property Rights to grant the limited licence to use the Software to the Customer under this Agreement.
9.2 Mallcomm undertakes at its own expense to defend the Customer or, at its option, settle any claim or action brought against the Customer alleging that its use of the Software in accordance with the terms of this Agreement infringes the UK Intellectual Property Rights of a third party (a “Claim”) and Mallcomm shall be responsible for any reasonable and fully mitigated direct losses and expenses incurred by or awarded against the Customer as a direct result of or in connection with any such valid Claim which is made (subject to Clause 14). This Clause 9.2 shall not though apply where the Claim in question is attributable to any development of, modification to or maintenance of the Software by or on the behalf of the Customer without the prior written consent of Mallcomm and/or any breach by the Customer of any of its obligations under this Agreement.
9.3 If any third party makes a Claim, or notifies an intention to make a Claim against the Customer, Mallcomm’s obligations under Clause 9.2 are conditional upon the Customer:
(a) as soon as reasonably possible giving written notice of the Claim to Mallcomm specifying the nature of the Claim in reasonable detail;
(b) not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of Mallcomm;
(c) giving Mallcomm and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Customer, so as to enable Mallcomm and its professional advisers to examine them and to take copies (at Mallcomm’s expense) for the purpose of assessing the Claim; and
(d) subject to Mallcomm providing reasonable security against any claim, liability, costs, expenses, damages or losses which may be incurred, taking such action as Mallcomm may reasonably request to avoid, dispute, compromise or defend the Claim.
9.4 If any Claim is made, or in Mallcomm’s reasonable opinion is likely to be made, against the Customer, Mallcomm may at its sole option and expense:
(a) procure for the Customer the right to continue using the Software in accordance with the terms of this Agreement;
(b) modify the Software in accordance with Clause 6 so that it ceases to be infringing; or
(c) terminate this Agreement immediately by notice in writing to the Customer and refund any Charges paid by the Customer in advance with respect to the unexpired term of this Agreement.
9.5 This Clause 9 constitutes the Customer’s exclusive remedy and Mallcomm’s only liability in respect of any claim or allegation that the Software infringes the Intellectual Property Rights of any third party and for the avoidance of doubt, Mallcomm’s liability under this Clause 9 is subject to Clause 14.
10 CUSTOMER’S OBLIGATIONS
10.1 The Customer shall:
(a) provide Mallcomm with all co-operation and information reasonably required to enable Mallcomm to provide the Services including, but not limited to, Customer Data, content, security access information and configuration services;
(b) without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement;
(c) carry out all of its responsibilities set out in this Agreement in a timely and efficient manner;
(d) obtain and shall maintain all necessary licences, consents, and permissions necessary for Mallcomm, its contractors and agents to perform their obligations under this Agreement, including without limitation to provide the Services;
(e) ensure that its network and systems comply with the relevant specifications provided by Mallcomm from time to time; and
(f) be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Mallcomm’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
11 CUSTOMER DATA
11.1 Ownership of all Customer Data including any Intellectual Property Rights in any Customer Data shall at all times remain vested in the Customer notwithstanding the uploading, collection or use of any such Customer Data onto or via the Services.
11.2 The Customer hereby grants to Mallcomm a non-exclusive, non-transferable, royalty free licence to use and process the Customer Data for the term of this Agreement for the purposes of providing the Services and otherwise as may be reasonably necessary to enable the Customer to discharge its obligations and exercise the rights granted to it under this Agreement.
11.3 The Customer shall ensure that any Customer Data which it uploads, collects or uses onto or via the Services is complete, accurate, and up-to date and does not contain any virus, worm, Trojan horse or other components which may be harmful to or disrupt the Services.
11.4 Without prejudice to any of the other rights and remedies of Mallcomm, the Customer acknowledges that Mallcomm shall not be liable for any failure or delay in complying with any of its obligations under this Agreement nor for any error or omission in the provision of the Services to the extent that any such failure, delay, error or omission is caused as a result of any failure by the Customer to comply with its obligations under Clause 11.3.
12 DATA PROTECTION
12.1 The parties acknowledge that during the performance of its obligations under this Agreement, Mallcomm may be required to process Personal Data on behalf of the Customer in the capacity of a processor.
12.2 The Customer shall ensure that the Personal Data has been collected and will be provided to Mallcomm in accordance with Data Protection Laws and that Mallcomm’s use of the Personal Data in accordance with this Agreement shall not breach the Data Protection Laws.
12.3 Mallcomm shall:
(a) only process the Personal Data in accordance with the Customer’s written instructions, unless otherwise required by law, in which case, Mallcomm shall (to the extent permitted by law) inform the Licensee of that legal requirement before carrying out the processing. The Customer hereby instructs Mallcomm to process the Personal Data to the extent necessary to provide the Services;
(b) take appropriate technical and organisational measures to ensure a level of security for the Personal Data which is appropriate to the risks to individuals that may result from the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the Personal Data;
(c) not engage sub-processors to process the Personal Data unless:
(i) it has obtained prior written consent from the Customer. The Customer hereby consents to the appointment of Hubspot, Hotjar and ANS (formerly UKFast) as sub-processors by Mallcomm; and
(ii) the proposed sub-processors have entered into a contract with Mallcomm which imposes obligations on the sub-processors which are reasonably equivalent to those imposed on Mallcomm in this Clause 12.3;
(iii) For the avoidance of doubt, Mallcomm shall remain liable for the acts and omissions of its sub-processors as if they were Mallcomm’s own.
(d) provide reasonable assistance to the Customer to enable the Customer to:
(i) respond to any requests from data subjects in accordance with Data Protection Laws; and
(ii) comply with its obligations under Articles 32 – 36 (Security, Breach Notifications, Data Protection Impact Assessments, Prior Consultation) of the GDPR or any other equivalent obligations under other Data Protection Laws;
(e) upon expiration or termination of this Agreement, at the Customer’s choice, return and/or erase all Personal Data in its possession or control unless Mallcomm is required to retain any Personal Data to comply with applicable laws or deal with legal claims;
(f) ensure that its employees who are granted access to the Personal Data are bound by confidentiality obligations;
(g) on request, make available to the Customer all information, documentation and assistance reasonably required to enable the Customer to verify that Mallcomm is in compliance with this Clause 12.3; and
(h) permit the Customer to audit Mallcomm’s compliance with this Clause 12.3, subject to:
(i) the Customer providing reasonable prior notice;
(ii) the time, date and scope of the audit being agreed in advance by the parties;
(iii) a maximum of one audit per year being carried out by the Customer in accordance with this Clause 12.3(h); and
(iv) the Customer using all reasonable endeavours to minimise the impact and disruption of the audit on and to Mallcomm.
13.1 Without prejudice to any other rights or remedies available to it, either party may terminate this Agreement at any-time by giving written notice to the other if any of the following events occur:
(a) the other party commits any material breach of this Agreement and either:
(i) that breach is not capable of remedy; or
(ii) that breach is capable of remedy, but the defaulting party fails to remedy it within 30 days of receiving a written notice from the first party containing full particulars of the material breach and requiring it to be remedied;
(b) the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
(c) the other party becomes bankrupt or goes into liquidation (whether voluntary or compulsory), becomes insolvent, is dissolved, compounds with its creditors or has a receiver, administrative receiver or administrator appointed over the whole or any part of its assets or a petition is presented, or a meeting is convened for the purpose of considering a resolution, for the making of an administrative order, the winding-up, bankruptcy or dissolution of that party or the other party suffers any similar process in any jurisdiction outside of England and Wales; and/or
(d) the other party ceases or threatens to cease carrying on its business, operations or activities.
13.2 Upon termination or expiry of this Agreement for any reason all rights and licences granted to the Customer under this Agreement shall cease and the Customer shall:
(a) cease all use of and access to the Services and all other activities authorised under this Agreement and if requested to do so by Mallcomm certify to Mallcomm in writing via a senior officer of the Customer that it has done so; and
(b) immediately pay to Mallcomm without need for demand any sums due or accrued to Mallcomm from the Customer under this Agreement (including any Charges) which are unpaid.
13.3 Termination or expiry of this Agreement on whatever basis shall be without prejudice to any rights or obligations of either party which have accrued prior to the date of termination and shall not affect the continuing in or coming into force of any provision of this Agreement which, whether expressly or by implication, is to continue in or come into force following expiry or termination.
14 LIMITATION OF LIABILITY
14.1 Neither party seeks to limit or exclude in any way its liability for death or personal injury caused by negligence; for fraud or fraudulent misrepresentation; for any breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; and/or for any other matter or liability which cannot be lawfully limited or excluded. Each provision of this Agreement shall be read as subject to this Clause 14.1 and no provision of this Agreement is intended to nor shall be interpreted as seeking to limit or exclude any of the foregoing types of liability.
14.2 Subject at all times to Clauses 14.1, 14.3 and 14.4, the maximum liability of Mallcomm to the Customer for all claims under or in connection with this Agreement howsoever arising shall be limited in aggregate to 2x the value of the Charges actually paid by the Customer to Mallcomm under this Agreement.
14.3 Mallcomm’s total aggregate liability to the Customer for all claims under or in connection with Clause 12 shall not exceed £5,000,000.
14.4 Mallcomm shall not be liable for: loss of business; loss of use; loss of profit; loss of anticipated profit; loss of contracts; loss of revenues; loss or damage to goodwill or brand; loss of anticipated savings; loss of data or use of data; product recall costs; damage to reputation; and/or consequential, special or indirect loss or damage in any case, regardless of whether or not Mallcomm was aware (or ought reasonably to have been aware) of the risk that such loss or damage might occur.
14.5 For the avoidance of doubt, Clause 14.3 shall not act so as to limit or exclude the right of Mallcomm to recover any overdue or unpaid Charges or other amounts owing from the Customer to Mallcomm under this Agreement from time to time.
14.6 Neither party shall be liable to the other for any failure or delay in complying with its obligations under this Agreement where such delay or failure is reasonably attributable to an event of Force Majeure provided that the obligation of the Customer to pay the Charges in accordance with Clause 8 shall not be affected by the occurrence of any event of Force Majeure. The time for performance of such obligations shall be extended accordingly.
15.1 Each party shall, during the term of this Agreement and thereafter, keep confidential all, and shall not use for its own purposes (other than implementation of this Agreement) nor without the prior written consent of the other disclose to any third party (except to its professional advisors, or to potential purchasers, investors or funders or as may be required by any law or any legal or regulatory authority) any information of a confidential nature (including, without limitation, trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party or any of its affiliates or group companies, unless that information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this Agreement, or subsequently comes lawfully into the possession of such party from a third party (“Confidential Information”). Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such Confidential Information. The parties acknowledge and agree that a party’s potential purchasers, investors or funders may use Confidential Information for the purposes of carrying out due diligence on the business of that party.
15.2 The terms of this Agreement are confidential and may not be disclosed by the Customer without the prior written consent of Mallcomm.
15.3 Subject to Clause 15.1, Mallcomm may communicate, publicise and share the existence of this Agreement and that the Customer is a customer of Mallcomm without the Customer’s consent. This shall include, without limitation, in case studies and on Mallcomm’s website and social media.
16.1 Any notice given to a party under or in connection with this Agreement shall be in writing and shall be:
(a) delivered by pre-paid registered post to the address of the other party as set out in Clause 1.1(k) (in the case of Mallcomm) or in the Commercial Terms (in the case of the Customer) or such other address as is notified in writing by that party from time to time; or
(b) sent by email to email@example.com (in the case of Mallcomm) or to the email address set out in the Commercial Terms (in the case of the Customer) or such other email address as is notified in writing by that party from time to time.
16.2 Any notice shall be deemed to have been received:
(a) if sent by pre-registered post, 72 hours after posting provided applicable evidence of posting is retained and produced on request; or
(b) if sent by email, at the time of transmission, or, if this time falls outside Working Hours in the place of receipt, when Working Hours resume.
16.3 Subject to Clause 6, no variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
16.4 The parties are with respect to each other independent contractors and nothing in this Agreement and no actions taken by the parties under it shall be deemed to constitute any agency, partnership, association, joint venture or other co-operative enterprise between the parties.
16.5 This Agreement together with any documents referred to or incorporated into it in accordance with its terms represents the entire agreement between the parties relating to its subject matter and supersedes all previous presentations made and/or agreements, negotiations and discussions between the parties relating to the same. Each party acknowledges that in entering into this Agreement it does not rely on 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 based on any statement in this Agreement.
16.6 The Customer may not sub-licence, assign, transfer, novate, charge or sub-contract the performance of any of its rights and/or obligations under this Agreement without the prior written consent of Mallcomm. The Customer acknowledges and agrees that any breach by it of the restrictions imposed on it under this Clause 16.6 shall constitute a material breach of this Agreement which is not capable of remedy.
16.7 Subject to Clause 12.3(c), Mallcomm may at any-time by written notice to the Customer sub-licence, assign, transfer, novate, charge or sub-contract the performance of any of its rights and/or obligations under this Agreement but in the case of any sub-contracting shall remain primarily liable to Mallcomm for the acts or omissions of any of its sub-contractors as if those were the acts or omissions of Mallcomm itself under this Agreement.
16.8 If any provision of this Agreement is declared by any judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable, the remaining provisions shall remain in full force and effect.
16.9 The failure to exercise or delay in exercising any right or remedy under this Agreement shall not be regarded as a waiver of such right or remedy, or a waiver of other rights or remedies. No single or partial exercise of any right or remedy under this Agreement shall prevent any further exercise of the right or remedy or any other right or remedy.
16.10 A person who is not a party to this Agreement shall have not right to enforce any term of this Agreement pursuant to the Contracts (Rights of Third Parties) Act 1999.
16.11 Each party agrees that this Agreement and Change Control Notes entered into under this Agreement may be signed by electronic signature (whatever form the electronic signature takes) and that this method of signature is as conclusive of a party’s intention to be bound by this Agreement and any Change Control Notes as if signed by each party’s manuscript signature.
16.12 This Agreement shall be governed by English law and, save in respect of the enforcement of any judgment, the parties agree to submit to the exclusive jurisdiction of the English courts.