Last Updated: October 20, 2023

Software as a Service Agreement

 

This Software as a Service Agreement (“SaaS Terms”) is between Hammer Technologies Pty Ltd ABN 82 165 567 822 (“Hammertech”, “our” or “us”) and the individual or entity that has executed an Order Form (“Customer”, “you” or “your”) that incorporates this SaaS Terms by reference. Capitalized terms not defined elsewhere in this SaaS Terms shall have the meaning given to them in the Definitions section below. Hammertech and Customer hereby agree as follows: 

 

Definitions.

 

“Agreement” means, collectively, the Order Form and SaaS Terms (including Consulting Services Schedule and Pre-Configuration Service Schedule, if applicable).

 

“Australian Consumer Law” means the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth).

 

“Cloud Service” means, collectively, the Hammertech online construction health, safety, environment and quality software application suite (and any optional modules) further described at www.hammertech.com including the Project feature and associated offline or mobile components (including ‘Hammertech Inspect’), but excluding Third Party Applications and Consulting Services. 

 

“Commencement Date” means the date specified as the commencement date in the Order Form. 

 

“Consulting Services” means the general consulting, implementation and/or training services described in the Order Form to be provided to Customer pursuant to the terms of this SaaS Terms and the additional terms of the Consulting Service Schedule. 

 

“Consulting Services Schedule” means the document with this title attached as a schedule to this SaaS Terms. 

 

“Customer” has the same meaning given to it by section 3 of the Australian Consumer Law.

 

“Contract” means this Agreement. 

 

“Customer Data” means all data (including Personal Information), text, images, audio, video, photographs, software, and other content and material, in any format, provided by Customer or Users that is stored in, or run through, the Cloud Service. Services under this Agreement and Hammertech’s Intellectual Property, and all derivative works thereof, do not fall within the meaning of the term “Customer Data”.  

 

“Electronic Communications” means any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically and received and/or transmitted through the Cloud Service.

 

“Fees” means the fees payable by Customer to Hammertech for the Services ordered as specified in the Order Form. 

 

“Initial Term” has the meaning given in section 4.1. 

 

“Intellectual Property” shall mean all present and future intellectual property rights or proprietary rights, including copyrights, patent rights (including, without limitation, patent applications and disclosures), inventions, know-how, trade mark rights (including, without limitation, service marks, registered designs, applications for any of those rights, trade and business names), circuit layouts, computer programs and trade secrets.

 

“Material” means any information, design, specification, instruction, software, service, data, hardware, or material.

“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

 

“Order Form” means a Hammertech order form that is executed by Customer and Hammertech which specifies the Cloud Service and any Pre-Configuration or Consulting Services to be provided by Hammertech subject to the terms of this Agreement.  

 

“Personal Information” has the same meaning as under the Privacy Act.

 

“Pre-Configuration Service” means configuration of the Cloud Service to Hammertech’s standard set of safety processes but excluding any Customer specific configuration or customization.

 

“Pre-Configuration Service Schedule” means the document with this title attached as a schedule to these SaaS Terms.

 

“Privacy Act” means Privacy Act 1988 (Cth).

 

“Project” means the collaborative workspace environment that can be created and configured within Cloud Service by Customer for the purpose of Customer managing a project. 

 

“Public Project Information” has the meaning given in section 6.13. 

 

“Related Bodies Corporate” has the same meaning as under the Corporations Act 2001 (Cth).

 

“Renewal Term” has the meaning given in section 4.1. 

 

“Services” or “services” means Cloud Service, Pre-Configuration Service and Consulting Services (if any) ordered pursuant to an Order Form. 

 

“SMS Feature” means the feature of the Cloud Service that allows Customer to send SMS text messages for the purpose of: (a) Customer distributing notifications and bulletins; (b) Customer sending hyperlinks to Hammertech web pages; and (c) to assist with personnel identification verification.

 

“Term” means the Initial Term and subsequent Renewal Term(s) (if any).

 

“Third Party Applications” means applications, software, integrations or services provided by a party other than Hammertech that interoperate with the Cloud Service or may be accessed through, within, or in conjunction with Customer’s use of the Cloud Service. An example of a Third Party Application includes, but is not limited to, Microsoft Power BI. 

 

“Users” means individuals or entities who are authorised by Customer to use the Cloud Service pursuant to this Agreement. Users may include, but are not limited to, the employees, consultants, contractors, subcontactors, agents and clients of Customer. 

 

1. Services.  Subject to the terms and conditions of this Agreement, Customer shall have for the duration of the Term the non-exclusive, non assignable, limited right to use within the borders of Australia the Cloud Service and if applicable, the Pre-Configuration Service or Consulting Services ordered by Customer as set forth in Customer’s applicable Order Form solely for the internal business operations of Customer.  Customer may also allow its Users to use the Services solely for the internal business operations of the Customer. Customer must procure that its Users comply with the terms of this Agreement and Customer is liable for any breach of this Agreement by its Users.   

 

2. Order Form.  The Services shall be ordered by Customer pursuant to the Order Form. The Order Form shall include at a minimum a listing of the Cloud Service and whether any Consulting Services or the Pre-Configuration Service are ordered together with the associated Fees. Once placed, the Order Form is non-cancellable.

 

3. Restrictions.  

 

3.1. General Restrictions.  

 

3.1.1. Customer must not, and must not cause or permit others (including Users) to: (a) use the Cloud Service to; (i) harass any person; (ii) cause damage or injury to any person or property; (iii) publish any material that is false, defamatory, harassing or obscene; (iv) violate privacy rights; (v) promote bigotry, racism, hatred or harm; (vi) send unsolicited bulk e-mail or junk mail; (vii) infringe Intellectual Property rights; (viii) violate applicable laws or regulations; (b) impersonate any person or entity, including, but not limited to, an employee of Hammertech, or any other user, or falsely state or otherwise misrepresent Customer’s affiliation with a person, organisation or entity; (c) perform or disclose any benchmarking, availability or performance testing of the Cloud Service; or (d) perform or disclose any performance or vulnerability testing of the Cloud Service without Hammertech’s prior written approval, perform or disclose network discovery, port and service identification, vulnerability scanning, password cracking, remote access or penetration testing of the Cloud Service (the “Acceptable Use Policy”).  In addition to other rights that Hammertech has in this Agreement, Hammertech has the right to take remedial action if the Acceptable Use Policy is violated, and such remedial action may include removing or disabling access to material that violates the policy.

 

3.1.2. Customer must not, and must not cause or permit others (including Users) to:  (a) modify, make derivative works of, disassemble, decompile, reverse engineer, reproduce, republish, download, or copy any part of the Services (including data structures or similar materials produced by programs); (b) access or use the Services to build or support, directly or indirectly, products or services competitive to Hammertech; (c) license, sell, transfer, assign, distribute, outsource, permit timesharing or service bureau use of, commercially exploit, or make available the Services to any third party except as permitted by this Agreement; (d) use the Cloud Service to store or transmit Malicious Code; (e) interfere with or disrupt the integrity or performance of the Cloud Service or third-party data contained therein; (f) access or use the Cloud Service to commit a fraudulent act; or (g) attempt to gain unauthorized access to any Cloud Service or its related systems or networks.

 

4. Term, Fee, Payment & Taxes.

 

4.1. Term.  The term of this Agreement shall commence on the Commencement Date and shall continue for the length of time specified in the Order Form as the initial term (the “Initial Term”). Except as otherwise specified in the Order Form, this Agreement shall be automatically renewed for consecutive additional terms of one (1) year (each, a “Renewal Term”) unless either party provides written notice of non-renewal to the other at least forty-five (45) days before expiration of the Initial Term or then-current Renewal Term (as applicable). 

4.2. Fees and Payment.  All Fees payable by Customer in the Order Form are due in accordance with the payment frequency and within the payment period specified in the Order Form. All Fees are non-refundable, except as otherwise explicitly stated in this Agreement.  

4.3. GST.  Unless otherwise stated in the Order Form, all Fees are exclusive of GST. A party must pay GST on a Taxable Supply made to it under this Agreement, in addition to any consideration (excluding GST) that is payable for that Taxable Supply.  It must do so at the same time and in the same way as it is required to pay the consideration for the Taxable Supply. A party making a Taxable Supply to another party under this Agreement must issue a Tax Invoice to the other party, setting out the amount of the GST payable by that other party. For the purposes of this Agreement, “GST”, “Taxable Supply” and “Tax Invoice” shall have the meaning attributed to those terms in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

5. Proprietary Rights.

 

5.1. Ownership of Customer Data.  As between Hammertech and Customer, all title and Intellectual Property rights in and to Customer Data is owned exclusively by Customer.  Customer acknowledges and agrees that in connection with the provision of the Services, Hammertech may store and maintain Customer Data for a period of time consistent with Hammertech’s standard business processes for the Services.  Customer grants Hammertech the right to host, use, process, display and transmit Customer Data to provide the Services pursuant to and in accordance with this Agreement. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Data, and for obtaining all rights related to Customer Data required by Hammertech to perform the Services.

 

5.2. Hammertech Intellectual Property Rights.  All rights, title and interest in and to the Services (including without limitation all Intellectual Property rights therein and all modifications, extensions, customizations, scripts or other derivative works of the Services provided or developed by Hammertech) and anything developed or delivered by or on behalf of Hammertech under this Agreement (including without limitation Deliverables and Tools as such terms are defined in the Consulting Services Schedule) are owned exclusively by Hammertech or its licensors.  Except as provided in this Agreement, the rights granted to Customer do not convey any rights in the Services, express or implied, or ownership in the Services or any Intellectual Property rights thereto.  Customer grants Hammertech a royalty free, worldwide, perpetual, irrevocable, transferable right to use, modify, distribute and incorporate into the Services (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by Customer or any Users related to the operation or functionality of the Services.  Any rights in the Services or Hammertech’s Intellectual Property not expressly granted herein by Hammertech are reserved by Hammertech. Hammertech service marks, logos and product and service names are marks of Hammertech (the "Hammertech Marks"). Customer will not to display or use the Hammertech Marks in any manner without Hammertech’s express prior written permission. The trademarks, logos and service marks of Third Party Application providers ("Marks") are the property of such third parties. Customer is not permitted to use these Marks without the prior written consent of such third party which may own the Mark.

 

6. Terms of Service.  

 

6.1. Accuracy of Customer’s Contact Information.  Customer shall provide accurate, current and complete information regarding Customer’s legal business name, address, email address and phone number. Customer must maintain and promptly update this information if it should change. 

 

6.2. Notice.  Any notice required under this Agreement shall be provided to the other party in writing.  If Customer has a legal dispute with Hammertech or if Customer wishes to provide a notice under section 11 (Indemnification), or if Customer becomes subject to insolvency or other similar legal proceedings, Customer will promptly send written notice to: Hammer Technologies Pty Ltd, 233 Punt Road, Richmond VIC 3121 Attention: Chief Executive Officer.  

 

6.3. Users:  Credentials, Access and Notification.  Customer shall authorize or grant Users access to Cloud Service. Users will, where required by the Cloud Service, create their own unique credentials and user names within the Cloud Service.  Customer will be responsible for the confidentiality and use of each User’s credentials and user names.  Customer will also be responsible for all Electronic Communications, including those containing business information, account registration, account holder information, financial information, Customer Data, and all other data of any kind contained within emails or otherwise entered electronically through the Cloud Service or under Customer’s and Users’ account/s. Hammertech will act as though any Electronic Communications it receives under Customer’s and Users’ credentials, user name/s, and/or account number/s are sent by Customer.  Customer shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Cloud Service. Customer shall promptly notify Hammertech of: (a) any unauthorized access to, or use of, the Cloud Service; and (b) any loss, theft or unauthorized use of any User’s credentials, user name or Cloud Service account.  

 

6.4. Transmission of Data.  Customer understands that the technical processing and transmission of Customer’s Electronic Communications is fundamentally necessary to use of the Cloud Service.  Customer is responsible for securing DSL, cable or another high speed internet connection, mobile telecommunications coverage and up-to-date “browser” software in order to utilize the Cloud Service.  Customer expressly consents to Hammertech’s interception and storage of Electronic Communications and/or Customer Data as needed to provide the Cloud Service, and Customer acknowledges and understands that Customer’s Electronic Communications will involve transmission over the internet, and over various networks (including telecommunications networks for the SMS Feature), only part of which may be owned and/or operated by Hammertech. Customer further acknowledges and understands that Electronic Communications may be accessed by unauthorized parties when communicated across the internet, network communications facilities, telephone, telecommunication networks or other electronic means.  Without limiting Hammertech’s applicable obligations under sections 6.10 (Security) or 8 (Confidentiality), Hammertech is not responsible for any Electronic Communications and/or Customer Data which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned and/or operated by Hammertech, including, but not limited to, the internet, telecommunications networks and Customer’s local network.  

 

6.5. Third-Party Applications.  

 

6.5.1 The Cloud Service may enable Customer to link to, transfer Customer Data to, or otherwise access, Third Party Applications.  

 

6.5.2 Hammertech does not provide nor control Third Party Applications and is not responsible for any aspect of Third Party Applications that Customer may procure, access or connect to through the Cloud Service, or any interoperation, descriptions, promises, or other information related to the foregoing.  If Customer installs or enables Third Party Applications for use with the Cloud Service, Customer agrees that Hammertech may enable the third party providers (“Third Party Provider”) of such Third Party Applications to access Customer Data for the interoperation of such Third Party Applications with the Cloud Service, and any exchange of data or other interaction between Customer and a Third Party Provider is solely between Customer and such Third Party Provider pursuant to a separate privacy policy and/or other terms governing Customer’s access to, or use of, the Third Party Applications.  Hammertech shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by Third Party Applications or Third Party Providers.  No procurement of such Third Party Applications is required to use the Cloud Service. If Customer transfers or cause the transfer of Customer Data from the Cloud Service to a Third Party Application or other location, that transfer constitutes a transfer by Customer and not by Hammertech. 

 

6.5.3 Customer acknowledges that: (a) the nature, type, quality and availability of Third Party Applications may change at any time during the Term of this Agreement; and (b) features of the Cloud Service that interoperate with Third Party Applications depend on the continuing availability of such Third Party Provider’s respective application programming interfaces (“APIs”). Hammertech may need to update, change or modify the Cloud Service under this Agreement as a result of a change in, or unavailability of, such Third Party Applications or APIs. If any Third Party Provider ceases to make its Third Party Application or APIs available on reasonable terms for the Cloud Service, as determined by Hammertech in its sole discretion, Hammertech may cease providing access to the affected Third Party Applications without any liability to Customer. Any changes to Third Party Applications or APIs, including their unavailability, during the Term of this Agreement does not affect Customer obligations under this Agreement, and Customer will not be entitled to any refund, credit or other compensation due to any such changes.

 

6.6. SMS Feature.  If ordered by Customer pursuant to Order Form, Customer may use the SMS Feature conditional upon its payment of Fees in accordance with this Agreement. The SMS Feature is subject to the monthly SMS credit limit specified in the Order Form. If Customer uses in excess of the SMS credit limit, Customer must pay for additional SMS usage at the rate specified in the Order Form. Any unused SMS credits may not be rolled over into any subsequent months. Customer acknowledges that: (a) the transmission of SMS text messages in connection with the SMS Feature is not provided by Hammertech, but instead, by a third-party telecommunications provider; and (b) SMS text messages are Electronic Communications and are subject to section 6.4.  

 

6.7. Service Level.  During the Term of this Agreement, the Cloud Service will meet the service level specified in the “Service Level Agreement” (“SLA”) listed on Hammertech’s website located here: Service Level Agreement, or such other URL as specified by Hammertech, which is hereby incorporated by reference.  If the Cloud Service fails to achieve the service level specified in the SLA and Customer notifies Hammertech within 30 days of the end of the month in which the service level was not achieved, then Customer will be entitled as its sole and exclusive remedy, to a fee credit for the Cloud Service in accordance with the terms and conditions set forth in the SLA.  The Cloud Service’s system logs and other records shall be used for calculating any service level events and measurements. The SLA will not apply (and no fee credit will be applicable) to any period in which Customer’s (and/or User’s) access to, and/or use of, the Cloud Service is suspended in accordance with section 7. 

 

6.8. Updates.  During the Term of this Agreement, Hammertech may at its discretion update, upgrade or change (“Update(s)”) the Cloud Service and/or the availability of Third Party Applications.  Update(s) to the Cloud Service will not materially reduce the level of performance, security or availability of the Cloud Service during the Term of this Agreement.  The terms of this Agreement shall also apply to Update(s) subsequently provided by Hammertech to Customer for the Cloud Service.

 

6.9. Service Monitoring and Analyses.

 

6.9.1 Hammertech continuously monitors the Cloud Service to: (a) facilitate Hammertech’s operation of the Cloud Service; (b) help resolve Customer service requests; (c) detect and address threats to the functionality, security, integrity, and availability of the Cloud Service as well as any content, data, or applications in the Cloud Service; and (d) detect and address illegal acts or violations of the Acceptable Use Policy or breach of section 3.1.2. Hammertech monitoring tools may collect and store Customer Data residing in the Cloud Service for such purposes.  Information collected by Hammertech monitoring tools (including Customer Data) may also be used to assist in managing Hammertech’s product and service portfolio, to help Hammertech address deficiencies in its product and service offerings, and for license management purposes.  

 

6.9.2 Hammertech may access and use Customer Data for the purpose of improving and/or developing the Cloud Service (“Service Developments”). Notwithstanding any other provision of this Agreement, Customer grants Hammertech a royalty free, worldwide, perpetual, irrevocable, transferable right to use, modify, create derivative works, distribute and incorporate into the Cloud Service (without attribution of any kind) any Customer Data for the purpose of Service Developments. Service Developments may be used for the benefit of Hammertech’s other customers and users. 

 

6.9.3 Hammertech may: (a) compile statistical and other information related to the performance, operation and use of the Cloud Service; and (b) use data from the Cloud Service in aggregated and anonymised form for security and operations management, to create statistical analyses, and for research and development purposes (subsections (a) and (b) are collectively referred to as “Service Analyses”). Hammertech retains all Intellectual Property rights in Service Analyses.

 

6.10. Security.  Hammertech shall maintain commercially reasonable administrative, physical and technical safeguards designed for the protection, confidentiality and integrity of Customer Data. This section 6.10 does not apply to Public Project Information. 

 

6.11. Data Protection. In performing the Services, Hammertech will comply with: (a) its obligations under the Privacy Act; and (b) its privacy policy (“Privacy Policy”), which is available at https://hammertechglobal.com/en-au/privacy-policy/anz and is incorporated herein by reference.  The Privacy Policy is subject to change at Hammertech’s discretion and any such change will become effective on the date it is posted at the URL in the preceding sentence. Customer will provide any notices and obtain any consents related to Customer’s use of the Services and Hammertech’s provision of the Services, including those related to the collection, use, processing, transfer and disclosure of Personal Information.  

 

6.12. Compliance Requirements.  The Cloud Service is a web based, online tool that enables Customer and Users to upload and store data and documents to assist with data management. The Cloud Service is not intended to replace Customer’s or Users’ health and safety processes or practices. Customer is solely responsible (on an ongoing basis) for its technical, business, health, safety, legal and regulatory requirements.

 

6.13. Public Project Pages.  Each Project includes a publicly accessible webpage on which Customer and Users can upload and publish certain Customer Data (“Public Project Information”). Customer: (a) is responsible for Public Project Information; and (b) acknowledges that Public Project Information will be publicly accessible and available for download on the internet and will not be kept confidential or secure by Hammertech.  

 

7 Suspension and Termination.  

 

7.1. Suspension for Delinquent Account.  Hammertech reserves the right to suspend Customer’s and/or User’s access to, and/or use of, the Services if any payment of Fees is due but unpaid but only after Hammertech has provided Customer two (2) delinquency notices, and at least thirty (30) days have passed since the transmission of the first notice.  Customer agrees that Hammertech shall not be liable to Customer or other third party for any suspension pursuant to this section 7.1.

 

7.2. Suspension for Ongoing Harm.  Hammertech may suspend Customer’s and/or Users’ access to, and/or use of, the Cloud Service if Hammertech believes that: (a) there is a significant threat to the functionality, security, integrity, or availability of the Cloud Service or any content, data, or applications in the Cloud Service; (b) Customer or Users are accessing or using the Cloud Service to commit an illegal act; (c) there is a violation of the Acceptable Use Policy; or (c) Customer or Users are in breach of section 3.1.2.  When reasonably practicable and lawfully permitted, Hammertech will provide Customer with advance notice of any such suspension. Hammertech will use reasonable efforts to re-establish the Cloud Service promptly after Hammertech determines that the issue causing the suspension has been resolved.  Any suspension under this section 7 shall not excuse Customer from Customer’s obligation to make payments under this Agreement.   

 

7.3. Termination for Cause.  If either Customer or Hammertech breaches a material term of this Agreement and fails to correct the breach within 30 days of written specification of the breach, then the non-breaching party may immediately terminate the Agreement. If Hammertech terminates this Agreement as specified in the preceding sentence, Customer will forfeit any Fees prepaid for the period following the termination date (if applicable) and must pay within 30 days all Fees that have accrued prior to such termination date, as well as all Fees for the period following the termination date covering the remainder of the Term. If Customer terminates this Agreement in accordance with this section 7.3, then Hammertech will refund to Customer within 30 days any prepaid Fees applicable to the remainder of the Term following the termination date. Except for nonpayment of Fees, the nonbreaching party may agree in its sole discretion to extend the 30 day period for so long as the breaching party continues reasonable efforts to cure the breach. 

 

7.4. Deletion and retrieval of Customer Data.  For a period of 30 days after expiration or termination of this Agreement and conditional upon Customer having paid all Fees due and payable to Hammertech in accordance with this Agreement, Customer may request a copy of Customer Data (as it existed at the expiration or termination date) from Hammertech. Hammertech will make such Customer Data available for retrieval by Customer in a machine readable format within 14 days from the date of request by Customer and such Customer Data will remain available for retrieval for a period of 30 days. At the end of such retrieval period, and except as may be required by law, Hammertech may delete or otherwise render unrecoverable any Customer Data that remains in the Cloud Service.  

 

8 Confidentiality.  

 

8.1. By virtue of this Agreement, the parties may disclose to each other information that is confidential (“Confidential Information”). Subject to section 8.2, Confidential Information shall be limited to: the terms and pricing under this Agreement, Customer Data residing in the Cloud Service, business and marketing plans, technology and technical information, product plans and designs, business processes and all information clearly identified as confidential by a party at the time of disclosure.

 

8.2. A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; (d) is independently developed by the other party without breaching any of the obligations set out in this Agreement; or (e) is Public Project Information.

 

8.3. Each party will not to disclose the other party’s Confidential Information to any third party other than as set forth in the following sentence for a period of one year from the date this Agreement expires or is terminated, however, Hammertech will protect the confidentiality of Customer Data (except for Public Project Information) residing in the Cloud Service for as long as such information resides in the Cloud Service.  Each party may disclose Confidential Information only to those employees, advisers, agents or contractors who: (a) require the information for the purposes of the receiving party performing its obligations under this Agreement; and (b) are contractually required to protect it against unauthorized disclosure in a manner no less protective than required under this Agreement. Each party may disclose the other party’s Confidential Information in any legal proceeding or to a governmental entity as required by law.  

 

9 Warranties, Disclaimers and Exclusive Remedies.

 

9.1. Each party represents that it has validly entered into this Agreement and that it has the power and authority to do so.

 

9.2. Sections 9.4 and 9.5 only apply if Customer is a Consumer and the Australian Consumer Law applies to this Agreement.   

 

9.3. Except as provided under section 9.4 in the case that Customer is a Consumer and the Australian Consumer Law applies to this this Agreement, Hammertech, to the maximum extent permitted by law: (a) specifically disclaims all implied warranties, including any implied warranty of merchantability, satisfactory quality or fitness for a particular purpose; and (b) provides the Services on an "as is" and "as available" basis and does not warrant that the Services will be performed error-free or uninterrupted, that it will correct all services errors, or that the Services will meet Customer’s requirements or expectations.

 

9.4. Our services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:

 

• to cancel your service contract with us; and

• to a refund for the unused portion, or to compensation for its reduced value.

 

You are also entitled to be compensated for any other reasonably foreseeable loss or damage. If the failure does not amount to a major failure you are entitled to have problems with the service rectified in a reasonable time and, if this is not done, to cancel your contract and obtain a refund for the unused portion of the contract.

 

9.5. Only if Customer is a Consumer and the Australian Consumer Law applies to this Agreement, Hammertech’s liability for failure to comply with a consumer guarantee under the Australian Consumer Law is limited (at Hammertech’s option) to: (a) supplying the Services again; or (b) paying for the cost of having the Services supplied again.

 

10   Limitations of Liability.  

 

10.1. IN NO EVENT WILL EITHER PARTY OR ITS RELATED BODIES CORPORATE BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR ANY LOSS OF REVENUE, PROFITS (EXCLUDING FEES UNDER THIS AGREEMENT), SALES, DATA, DATA USE, GOODWILL OR REPUTATION. 

 

10.2. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF HAMMERTECH AND ITS RELATED BODIES CORPORATE ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS ACTUALLY PAID BY CUSTOMER UNDER THIS AGREEMENT FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.

 

11   Intellectual Property Indemnification.  

 

11.1. If a third party makes a claim against Customer that its use of Cloud Service infringes the third party’s Intellectual Property rights (“Infringement Claim”), then Hammertech, at Hammertech’s sole cost and expense, will defend the Customer against the Infringement Claim and indemnify the Customer from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by Hammertech, if the Customer does the following:  

 

a. notifies Hammertech promptly in writing, not later than 30 days after the Customer receives notice of the Infringement Claim (or sooner if required by applicable law);

b. gives Hammertech sole control of the defence and any settlement negotiations; and 

c. gives Hammertech the information, authority and assistance Hammertech requires to defend against or settle the Infringement Claim.  

 

11.2. If Hammertech believes or it is determined that any of the Cloud Service may have violated a third party’s Intellectual Property rights, Hammertech may choose to either modify the Cloud Service to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, Hammertech may, upon 30 days prior notice, terminate this Agreement and refund any unused, prepaid Fees the Customer may have paid to Hammertech applicable to the remainder of the Term following the termination date.

11.3. Hammertech will not indemnify the Customer if: (a) the Customer alters the Cloud Service or uses it outside the scope of use identified in this Agreement or Hammertech’s user or software documentation; or (b) the Infringement Claim arises from Customer’s or User’s breach of this Agreement.  Hammertech will not indemnify Customer to the extent that an Infringement Claim is based on a Third Party Application or any Material from a third party portal or other external source that is accessible or made available to Customer within, or by, the Cloud Service (e.g., a third party Web page accessed via a hyperlink, etc.).  

11.4. This Section 11 provides the Customer’s exclusive remedy for any Infringement Claims. 

12 Indemnification by Customer. Customer will indemnify Hammertech, its Related Bodies Corporate, officers, agents and employees for any claims, demands, liabilities, losses, damages, costs and expenses (including, without limitation, legal fees) arising from, or in connection with: (a) any User’s access to, or use of, Cloud Service; and/or (b) any User’s breach of the terms of this Agreement. 

 

13 General Terms.

 

13.1. Governing Law and Jurisdiction.  This Agreement is governed by the substantive and procedural laws of the State of Victoria, Australia and the parties agree to submit to the exclusive jurisdiction of, and venue in, the courts in Victoria, Australia in any dispute relating to this Agreement.

 

13.2. Entire Agreement.  This Agreement constitutes the entire understanding between Customer and Hammertech and is intended to be the final and entire expression of their agreement.  The parties expressly disclaim any reliance on any and all prior discussions, emails, and/or agreements between the parties. There are no other verbal agreements, representations, warranties, undertakings or other agreements between the parties.  

 

13.3. Order of Precedence.  In the event of any inconsistencies between the terms of the Order Form and the SaaS Terms, the SaaS Terms shall take precedence to the extent of the inconsistency. 

 

13.4. Amendment.  Except as expressly set forth in this Agreement, this Agreement shall not be varied or amended unless such variation or amendment is agreed in writing and signed by the parties.

 

13.5. Novation.  The Agreement shall inure to benefit and bind the parties hereto, their successors and assigns, but neither party may novate or assign this Agreement without the written consent of the other, except that Hammertech may assign or novate this Agreement without the Customer’s consent to: (a) a Related Body Corporate; (b) an entity that acquires all or substantially all of Hammertech’s business or assets; or (c) an entity that acquires 50% or more of Hammertech’s voting share capital. Customer will execute and deliver any further documents and do all acts and things as may be required by Hammertech to give effect to an assignment or novation pursuant to this section 13.5.

 

13.6. Relationship. The relationship between the parties under this Agreement is that of independent contractors. This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties. 

 

13.7. Severability. If any provision is held by a court of competent jurisdiction to be contrary to law, such provision shall be eliminated or limited to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.  

 

13.7. No waiver. The fact that a party fails to do, or delays in doing, something the party is entitled to do under this Agreement, does not amount to a waiver of any obligation of, or breach of obligation by, another party. 

 

13.8. Force Majeure.  Neither party shall be responsible for failure or delay of performance of its obligations under this Agreement (including failure to meet the service level commitment in the SLA) if caused by: an act of war, hostility, or sabotage; act of God; pandemic; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancelation of any export, import or other license); or other event outside the reasonable control of the obligated party (“Force Majeure Event”). The parties will use reasonable efforts to mitigate the effect of a Force Majeure event. If such Force Majeure Event continues for more than 30 days, either party may terminate this Agreement. This section does not excuse Customer’s obligation to pay Fees. 

 

13.8. Non-Impediment.  Nothing in this Agreement shall be construed as precluding or limiting in any way the right of Hammertech to provide consulting, development, or other services of any kind to any individual or entity (including, without limitation, performing services or developing materials which are similar to any Consulting Service and/or deliverables hereunder).

 

13.9. Survival.  Provisions of this SaaS Terms that survive termination or expiration of the Agreement include sections 4.2 (Fees), 4.3 (GST), 5 (Proprietary Rights), 6.9.2 (Service Developments), 7.3 (Termination for Cause), 7.4 (Deletion and Retrieval of Customer Data), 8 (Confidentiality), 10 (Limitations of Liability), 11 (Intellectual Property Indemnification), 12 (Indemnification by Customer), 13 (General Terms) and other provisions which by their nature are intended to survive. 

 

13.10. Counterparts.  This Agreement may be executed in counterparts and/or electronic signature and if so executed shall be equally binding as an original copy of this Agreement executed in ink by both parties.

 

 

Consulting Services Schedule

 

This Consulting Services Schedule (“Consulting Services Schedule”) is a schedule to the SaaS Terms between Hammertech and Customer and applies if Customer has ordered Consulting Services under the Order Form. Capitalised terms used in this Schedule shall have the meaning defined under the SaaS Terms and Order Form.

 

1. Term. This Schedule shall be effective as of the Commencement Date and shall continue in effect during the Term. 

 

2. Scope of Services. 

 

2.1. Subject to the terms of this Agreement, Hammertech will provide Customer with Consulting Services as set forth in the Order Form. The Fees, duration and description of the Consulting Services to be performed by Hammertech are set out in the Order Form.

2.2. Subject to the terms of this Agreement, and only for the duration of the Term, Customer shall have the non-exclusive, non-assignable, limited right to access and use within the borders of Australia the services, deliverables and/or training materials delivered by Hammertech to Customer as part of the Consulting Services (“Deliverables”) solely for Customer’s internal business operations in connection with its authorised use of the Cloud Service. 

 

3. Terms and Conditions for Training. 

 

3.1. Training Deliverables. Customer is solely responsible for any printing, shipping and copying charges for any Deliverables in connection with the provision of training by Hammertech (“Training Deliverables”). All electronic and hard copy versions of the Training Deliverables are provided for Customer’s internal training purposes only. Customer is prohibited from: (a) modifying the Training Deliverables, unless otherwise authorized in writing by Hammertech; (b) reselling or sublicensing any Training Deliverables; (c) utilizing the Training Deliverables to replicate or attempt to perform the training, unless otherwise authorized in writing by Hammertech; and (d) developing or attempting to develop any of the products described in such Training Deliverables. Training Deliverables are not subject to any maintenance, support or updates. 

3.2. Recording: Customer may not record, stream or otherwise capture any performance or aspect of the Consulting Services including, but not limited to, training.

3.3. For Onsite Delivery. Customer is responsible for providing appropriate training facilities for the training delivery.

 

4. Customer Obligations: 

 

4.1. Customer will provide Hammertech with timely assistance, cooperation, complete and accurate information so that it can perform of the Consulting Services (“Cooperation”). Hammertech will not be responsible for any delay or deficiency in performing the Consulting Services if such deficiency or delay results from Customer’s failure to provide Cooperation. 

4.2. If Hammertech’s employees, consultants, contractors or agents are providing any of the Consulting Services at Customer’s premises, Customer must provide a safe and healthy work environment in accordance with applicable health and safety laws in the state or territory in which the Consulting Services are being performed. 

 

5. Change Management Process. If Customer requests a change in any of the scope or requirements of the Consulting Services described in the Order Form, Customer shall propose the applicable changes by written notice. Within a reasonable time of receipt of the written notice, each party’s project leads shall meet, either in person or via telephone/online conference, to discuss the proposed changes. Only if acceptable to Hammertech, Hammertech will prepare a change order describing the proposed changes to the Consulting Services and the applicable change in fees and expenses, if any (a “Change Order”). Change Orders are not binding unless and until they are executed by both parties. Executed Change Orders shall be deemed part of, and subject to, this Agreement. 

 

6. Tools. Notwithstanding any other provision of this Schedule nothing herein shall be construed to assign or transfer any Intellectual Property rights in the proprietary tools, libraries, know-how, techniques and expertise (“Tools”) used by Hammertech to develop the Deliverables, and to the extent such Tools are delivered with or as part of the Deliverables, they are made available on the same terms as the Deliverables. Tools are Hammertech’s Confidential Information. 

 

Pre-Configuration Service Schedule

 

This Pre-Configuration Service Schedule (“Pre-Configuration Service Schedule”) is a schedule to the SaaS Terms between Hammertech and Customer and applies if Customer has ordered the Pre-Configuration Service on an Order Form. Capitalised terms used in this Schedule shall have the meaning defined under the SaaS Terms and Order Form.

 

1. Term. This Schedule shall be effective as of the Commencement Date and shall continue in effect during the Term. 

 

2. Scope of Services. 

 

2.1. Subject to the terms of this Agreement, Hammertech will provide Customer with the Pre-Configuration Service.

2.2. The Fees for delivery of the Pre-Configuration Service by Hammertech are set out in the Order Form.

2.3. The Pre-Configuration Service consists of Hammertech pre-configuring the Cloud Service to Hammertech’s standard set of safety processes as at the date the Order Form is executed but excludes any Customer specific configuration or customization.

 

3. Updates

3.1. From time-to-time, Hammertech may update, upgrade or change the content of the Pre-Configuration Service, including the specific configurations and health and safety processes included in the Service.  

3.2. Hammertech is under no obligation to apply any updates, upgrades or changes to the Customer’s instance of the Cloud Service after the Pre-Configuration Services have been delivered on the Commencement Date. If Customer requires that these updates are made to the Customer’s instance of the Cloud Service, any such update services must be ordered separately as a Consulting Service. 

 

4. Disclaimer

4.1. The Pre-Configuration Service is modelled after the ISO 45001 standard for management systems of occupational health and safety. However, Hammertech provides the Pre-Configuration Service as-is and makes no warranty or guarantee that the configuration:

4.1.1. will meet the current ISO 45001 standard or any future revisions or updates of the standard; or

4.1.2. is appropriate or effective to meet Customer’s own business needs and standards or its regulatory and legal requirements.

4.2. The Pre-Configuration Service is not intended to replace Customer’s or Users’ health and safety processes or practices. Customer is solely responsible (on an ongoing basis) for its technical, business, health, safety, legal and regulatory requirements.

4.3. The Pre-Configuration Service does not include any Customer specific configuration or input. Any such configuration or customization services must be ordered separately as a Consulting Service. 

 

5. Intellectual Property. 

 

Nothing in this Agreement or Schedule shall be construed to assign or transfer any Intellectual Property rights in the pre-configuration including any proprietary tools, libraries, know-how, techniques and expertise (“Pre-Configuration Know-How”) used by Hammertech to develop or deploy the Pre-Configuration Service. The Pre-Configuration Know-how is the Confidential Information of Hammertech. 

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