Last Updated: April 17, 2020
TERMS AND CONDITIONS
1.1 These Terms and Conditions (Terms) form the agreement (Agreement) between Hammer Technologies Pty Ltd ABN 82 165 567 822 (referred to as “Hammer Technologies”, “we” or “us”) and the user (referred to as “User” or “you”), collectively referred to as the Parties and each a Party.
1.2 Hammer Technologies owns the cloud-based online software system called HammerTech (Software), which is accessible at www.hammertechonline.com (Site).
1.3 The User wishes to use the Software.
1.4 This Agreement sets out the Terms upon which Hammer Technologies has agreed to grant the User a right to use the Software. These Terms are binding on any user of the Software and apply to the User from the time that Hammer Technologies provides the User with an account to access and use the Software (Account).
1.5 By using our Software and subscribing on our Site, you acknowledge that: (a) you have read, understood and accepted these Terms; (b) you have the authority to act on behalf of any person or entity for whom you are using the Software; and (c) you are deemed to have agreed to these Terms on behalf of any entity for whom you use the Software.
1.6 Hammer Technologies reserves the right to make changes to these Terms at any time, effective upon Hammer Technologies posting the modified Terms on the Site. Hammer Technologies will make every effort to communicate these changes to the User by email. It is the User’s obligation to ensure that the User has read and understood the most recent Terms available on our Site. By continuing to use the Software, the User acknowledges the matters in clause 1.5 with respect to the most recent Terms available on our Site.
- SOFTWARE AND SERVICES
2.1 The Software is a web-based, online tool that enables users to upload and store data and documents to assist with safety management. The Software is not a complete safety system and is not intended to replace necessary safety processes, or the User’s existing safety processes. The Software is principally a data capture tool that helps the User to simplify the existing safety processes of the User. The Software has a public component, which provides a portal to specific User projects, as well as secure component that contains the main content and features for each User project.
2.2 Key features of the Software include: (a) facilitating personnel inductions by recording personnel information; (b) managing Safe Work Method Statements by recording changes and providing notifications to personnel; (c) a customisable system to assist with managing Permits to Work; (d) injury and incident management, including reporting and notification; (e) a safety issue identification and rectification system that assists with managing the workflow from when a safety issue is identified to when the issue is resolved by authorised personnel. (f) plant and equipment management; (g) a site diary that generates automated data and recorded site activities and observations; (h) generating reports based on data inputted to the Software by the User; (i) the use of SMS credits, as explained in clause 4 (SMS Credits); and (j) the ability to allow users to inspect and manage plant and equipment on site.
2.3 The Software is provided to the User via the Site.
2.4 The User will only be able access the Software if an Account has been set up for the User either by Hammer Technologies or by the User completing an online subscription on the Site.
2.5 Hammer Technologies may, upon request by the User and in our sole discretion, customise the Software to meet the particular needs of the User. If we agree to customise the Software for you, a separate written agreement will be entered into between Hammer Technologies and you, outlining the terms and conditions for doing so. We may, in our sole discretion, make these changes available to other users of the Software.
2.6 The services provided by Hammer Technologies include any services relating to the use of the Software and the Site by the User (Services).
- ONLINE SUBSCRIPTION AND ACCOUNT
3.1 The Software is currently intended only for use in Australia.
3.3 Information that is created when you subscribe, such as log in details and passwords (User Information) is stored on servers in Australia. We will take steps to ensure that User Information is kept secure and confidential, including by storing the information in secure datacentres with restricted access and physical security and by implementing data and network security measures such as firewalls, encryption, backups and data mirroring.
3.4 You will be required to pay a fee for your subscription to our Software (Subscription Fee) as set out on our Site or as agreed by the Parties. You will not be given an Account to access and use the Software until payment is made.
3.5 Upon subscription, the User obtains a valid Account to use the Software, and Hammer Technologies agrees to grant to the User a royalty-free, worldwide, revocable, non-exclusive, non-transferable right in the form of a licence to use the Software (Licence) which cannot be sub-licensed to third parties.
- SMS CREDITS
4.1 As part of the Software, the User may use SMS Credits. The principal functions of the SMS Credits are:
(a) to allow the User to distribute notifications and bulletins in connection with the features of the Software;
(b) to assist with verification of personnel as part of the induction process.
4.2 The use of SMS Credits by the User is subject to a monthly limit, which will be determined by us. The User acknowledges and agrees that:
4.2.1 the User will be required to pay an additional fee for any use of SMS Credits beyond the monthly limit; and
4.2.2 monthly SMS Credits expire at the end of each month. Any unused monthly SMS Credits will not be rolled over to the next month.
4.3 Hammer Technologies may in its discretion:
(a) vary the monthly limit for SMS Credits; and/or
(b) offer to provide the User with more SMS Credits than the monthly limit for an additional fee.
5.1 You agree to pay the Subscription Fee required to enable you to access and use the Software.
5.2 You will be required to make payment by way of debit or credit card and you must provide your debit or credit card details when completing your online subscription. You may also prepay your Subscription Fee for periods of more than 1 month by way of a direct bank transfer.
5.3 You acknowledge and agree that:
(a) to maintain your subscription, you will make payment to us automatically on a monthly payment date, from the debit or credit card that you have provided to us;
(b) unless otherwise agreed, the monthly payment date will be the first business day of each calendar month and payment will be made upfront and in advance on that day for that calendar month;
(c) if we are unable to take payment from your credit card, we will attempt to contact you via email as soon as we become aware of the payment failure; and
(d) if payment is not made within 30 days of the monthly payment date, we may lock your Account without notice to you, in which case you will not be able to access or use the Software and any of the data on your Account may be deleted and not recoverable by you.
5.4 We may, in our sole discretion, provide you with a discount on your Subscription Fee. You acknowledge and agree that if you breach of any of the Terms of this Agreement, your discount will be cancelled and you will be charged the standard Subscription Fee for the remainder of the term of this Agreement. 5.5 You acknowledge and agree that additional fees will be charged by us as set out on our Site (Additional Fees) if you do any of the following:
(a) exceed the monthly limit for SMS Credits;
(b) purchase hardware; or
(c) require professional services and/or consulting. 5.6 Additional Fees will be charged in arrears on the monthly payment date for the immediately preceding calendar month. 5.7 We may vary the Subscription Fees or Additional Fees, in which case we will notify you of the changes by email and the new fees will take effect for the following calendar month. Unless you are specifically notified by us, changes to our fees will apply universally to all Users. 5.8 We may, in our discretion, offer Users discounts in relation to our fees.
6.1 You or Hammer Technologies may terminate this Agreement at any time and for any reason by giving written notice to the other Party. Your notice should be on the company letterhead, signed by an authorised person and be delivered to our nominated contact address or email.
6.2 We reserve the right not to terminate the Agreement following written notice of a request to terminate from the User for a period of five business days to enable us to verify the authenticity of the request.
6.3 If written notice of an authentic request to terminate is received by us from you on or before the 21st day of a calendar month, your Account will be terminated at the end of the billing cycle and automatic payments will cease at the end of that month. If notice is received after the 21st day of a calendar month, your Account will be terminated at the end of the billing cycle for the immediately following calendar month and automatic payments will cease at the end of that month.
6.4 Without limiting clause 6.1, we may terminate the Terms immediately, without notice and in our sole discretion, if:
(a) you breach any of these Terms, and do not remedy the breach within a reasonable period after receiving notice of the breach if the breach is capable of being remedied;
(b) we reasonably suspect that you are attempting to reverse engineer the Software or attempting to bypass technical restrictions in the Software;
(c) we consider that your use of the Software is inappropriate, improper or unlawful;
(d) your use of the Software significantly exceeds the median resource utilisation of other Users. We have absolute discretion to determine excessive usage for these purposes. For guidance only, resource utilisation that exceeds median usage by a ratio of greater than 10:1 would constitute excessive usage;
(e) you use the Software to store data and files unrelated to the features of the Software, or for distributing documents, files, videos or audio to third parties for purposes unrelated to the features of the Software;
(f) you fail to provide us with clear or timely instructions to enable us to provide you with the Software;
(g) we consider that our working relationship has broken down, including through a loss of confidence and trust;
(h) where the User is an individual, an order is made for the appointment of a trustee in bankruptcy or an analogous step is taken or where the User is a company, the company is unable to pay its debts under any applicable legislation, enters into administration or is insolvent or an application or order is made for the winding up or dissolution of a corporate Party; or
(i) for any other reason outside our control which has the effect of compromising our ability to provide you with the required Software within a required timeframe.
6.5 It is the User’s responsibility to retrieve all necessary data from their Account prior to termination. We may, in our discretion, provide you with a copy of all Data (as defined in clause 7.3) on your Account in combined PDF format and/or CSV format.
6.6 On termination or completion of the Services, we may retain your documents (including copies) as required by law or regularity requirements. Your express or implied agreement to the Terms constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on termination of these Terms.
6.7 In the event that this Agreement is terminated prior to the completion of any fixed term of service which you subscribed for, you will be refunded the unused portion of any Subscription Fee which you have pre-paid to us (if any), less the amount of any term discount you received (if any) for the period of service which you have already received.
- USER OBLIGATONS
7.1 The User warrants that all information provided to Hammer Technologies is true, accurate and complete.
7.2 The User must provide to Hammer Technologies an email address, name and mobile number for the single administrator for the Account. The User must also provide valid billing details, including company name, ABN or ACN, head office address, mailing address and billing contact name and email address. The User acknowledges that Hammer Technologies will use these contact details to send important information to the User from time to time and it is the User’s responsibility to ensure that this information is correct and up to date.
7.3 You acknowledge and agree that:
(a) you are authorised to use the Software and to access any information or data that you input (Data) into the Software, including any Data which has been inputted into the Software by any person you have authorised to do so;
(b) the Software must only be used for your own lawful internal business purposes, in accordance with these Terms;
(c) all usernames and passwords required to access the Software are kept secure and confidential;
(d) if you become aware of any unauthorised use of your passwords or any other breach of security, you will immediately notify Hammer Technologies;
(e) the Software operates within the User’s computing or smart device system (End User System);
(f) the reliability of the Software is dependent upon the User’s configuration and implementation of the Software; and
(g) it is the responsibility of the User to determine that the Software meets the needs of the User and their business, and is suitable for the purposes for which the Software is used.
7.4 You may use the Software on behalf of others or in order to provide services to others, but if you do so you must ensure that you are authorised to do so and that all persons for whom or to whom services are provided comply with and accept all terms of this Agreement that apply to you.
7.5 You may authorise a limited number of subcontractor entities (Subcontractors) to use the Software. Subcontractors must be associated with the User’s Account and will have limited access to use the Software. We may determine and vary the number of Subcontractors that may be associated with your Account from time to time and in our absolute discretion.
7.6 Hammer Technologies has no responsibility to any person or entity other than you and nothing in this Agreement confers, or purports to confer, a benefit on any person or entity other than you. If you use the Software on behalf of or for the benefit of anyone other than yourself, you agree that:
(a) you are responsible for ensuring that you have the right to do so;
(b) Hammer Technologies does not warrant the fitness for purpose or suitability of the Software for such third party’s purposes and third parties may not rely on Hammer Technologies for any purpose;
(c) you are responsible for authorising any person who is given access to your Data, and you agree that Hammer Technologies has no obligation to provide any person or entity with access to such Data without authorisation from you and we may refer any requests for access to the Data to you; and
(d) you will indemnify Hammer Technologies, on first demand, against any and all claims, expenses, liabilities or losses arising out of or in connection with:
i. Hammer Technologies’ refusal to provide any persons with access to your Data in accordance with these Terms; and
ii. Hammer Technologies making Data available to any person with authorisation from you.
7.7 The use of the Software is at the User’s own risk.
7.8 You remain solely responsible for complying with all applicable laws. It is your responsibility to ensure that the storage of and access to your Data via the Software and the Site comply with laws which are applicable to you, including any laws requiring you to retain records of your Data.
7.9 Each User must have their own safeguards and suitable processes in place to recover from any failures or loss of Data which might occur while using the Software and to protect the confidentiality of your Data.
- PROHIBITED USE
8.1 You acknowledge and agree that you will not:
(a) attempt to circumvent or disable the Software or any technology features or measures in the Software by any means or in any manner;
(b) attempt to modify, copy, adapt or reproduce the Software, except as may be necessary for normal use of the Software;
(c) attempt to decompile, disassemble, reverse engineer or otherwise derive the source code for the Software;
(d) distribute, encumber, sell, rent, lease, sub-license or otherwise transfer, publish or disclose the Software to any third party (except as permitted under this Agreement);
(e) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in or on the Software or used in connection with the Software;
(f) use the Software in any manner to aid in the violation or infringement of any third-party Intellectual Property, including but not limited to copyrights, trade secrets, and patents;
(g) take any action that interferes in any manner with Hammer Technologies’ rights with respect to the Software;
(h) attempt to undermine the security or integrity of Hammer Technologies’ computing systems or any location at which the Software is hosted by a third party or that third party’s computing systems and networks;
(i) use, or misuse, the Software in any way which may impair the functionality of the Software, the Site or other systems used to deliver the Software or impair the ability of any other user to use the Software or the Site;
(j) use the Software to store data and files unrelated to the features of the Software, or to distribute documents, files, videos or audio to third parties for purposes unrelated to the features of the Software;
(k) attempt to gain unauthorised access to the computer system on which the Software is stored, operated and maintained;
(l) transmit or input into the Software or the Site any files that may damage any other person's computing devices or software, content that may be offensive, or material or Data in violation of any law (including any content protected by copyright or trade secrets which you do not have the right to use).
8.2 In addition, title, ownership rights and Intellectual Property rights in and to any content displayed on the Site or in the Software, or accessed through the Site or the Software, are the property of the applicable content owner and may be protected by applicable copyright or other law. This Agreement gives you no rights to such content.
8.3 You acknowledge that any breaches of this clause may lead to termination of this Agreement.
- CONFIDENTIAL INFORMATION
9.1 Subject to clause 9.2, the User agrees:
(a) not to disclose the Confidential Information to any third party at any time;
(b) to use its best endeavours to protect the Confidential Information from any unauthorised disclosure;
(c) only to use the Confidential Information for the purpose for which it was disclosed by Hammer Technologies and not for any other purpose; and
(d) to be responsible for and assume liability in relation to each of its employees, agents, consultants and contractors to whom Confidential Information is disclosed and ensure that they maintain the confidentiality of the Confidential Information and otherwise comply with the obligations set out in this Agreement.
9.2 The User’s obligations set out in clause 9.1 do not apply to Confidential Information:
(a) that is already in the public domain, except as a result of the actions of the User in breach of any of the Terms of this Agreement;
(b) received from a third party, except where there has been a breach of confidence leading to its disclosure;
(c) that must be disclosed by law, provided that the Users reveals only so much of the Confidential Information as the User is required by law to disclose and gives sufficient notice to Hammer Technologies in order to allow Hammer Technologies to object to, or otherwise prevent, the Confidential Information being disclosed.
9.3 This clause will survive termination of this Agreement.
11. INTELLECTUAL PROPERTY
11.1 Title to and all Intellectual Property rights in the Software, the Site and any documentation relating to the Software remain the property of Hammer Technologies and its successors and permitted assigns. Your right to use such Intellectual Property is subject to the terms of this Agreement.
11.2 Any requests by the User for Hammer Technologies to customise, modify or enhance any Software for the User, or to develop programs, software or materials related to such Software, must be documented in a written agreement and signed by the Parties. No variation to the terms of this Agreement will come into effect until it is documented in writing and signed by the Parties.
11.3 You grant Hammer Technologies a non-exclusive, worldwide licence to use any Intellectual Property which subsists in the Data you input into the Software or provide in connection with the use of your Account and the provision of the Services, including copyright in any third-party logos or other materials (User Data).
11.4 Title to and all Intellectual Property rights in any User Data remain your property. However, your access to the User Data and continued use of the Software is subject to the Terms of this Agreement.
11.5 You grant Hammer Technologies a licence to use, copy, transmit, store, and back-up your information and User Data for the purposes of enabling you to access and use the Software and for any other purpose related to provision of the Services to you and the performance of our obligations under this Agreement.
11.6 The User acknowledges and agrees that:
(a) Hammer Technologies may use the User Data for the purpose of improving the use of the Software by other Users; and
(b) Hammer Technologies may use the User’s branding, logo, trade mark and other Intellectual Property on any website operated by Hammer Technologies for the purposes of helping the User to navigate to the profile portal for the User’s company on our Site or for the purposes of for promoting your use of our Service.
11.7 It is the responsibility of the User to maintain copies of all data which the User inputs into the Software. Hammer Technologies will endeavour to prevent data loss, including through the measures described in clause 3.3. However, Hammer Technologies does not make any guarantees that there will be no loss of data and does not represent or warrant that access to the Software, the Data or an Account will be available without interruption.
11.8 Hammer Technologies may, in its absolute discretion, enable the User to use third-party applications in conjunction with the Software. The User acknowledges and agrees that:
(a) such third-party applications may only be used through the application programming interface (API) for the Software;
(b) Hammer Technologies reserves the right to introduce resource restrictions for utilising the API without prior notice;
(c) Hammer Technologies reserves the right to modify, enhance or disable the API;
(d) Hammer Technologies may allow the providers of those third-party applications to access any inputted data as required for the inter-operation of such third-party applications with the Software; and
(e) Hammer Technologies is not responsible for any disclosure, modification or deletion of data resulting from any access to such data by third-party application providers.
- UPDATES AND SUPPORT
12.1 Hammer Technologies will provide you with updates to the Software (Updates) for the duration of this Agreement. You acknowledge that Hammer Technologies has no obligation to provide you with any support for Updates to the Software, as agreed in this Agreement. By using the Software you agree to automatically request and receive Updates from Hammer Technologies or third-party servers. You consent to such automatic upgrading and agree that the Terms of this Agreement will apply to all such Updates.
12.2 We will aim to implement Updates on business days between 9pm and 6am (time in Victoria, Australia), between 6pm Friday and 3am Monday, and after 5pm on days that are not business days. We may, in our absolute discretion, implement an Update at other times (including within business hours) and without prior notice to you, including where the Update is required to address an issue that:
(a) affects the use of the Software by a significant number of Users;
(b) has a significant impact on the use of the Software by one or more Users; or
(c) affects the security of the Software, the Site or any data in connection with the Software or the Site.
12.3 The Software may contain automatic communications features which relay certain non-personally identifiable information to Hammer Technologies in connection with the operation of the Software. This information may include your Software settings and what version of the Software you are using. Hammer Technologies may use this information for research purposes, including statistical analysis of aggregate customer behaviour.
12.4 Hammer Technologies provides support to the User through an online knowledge base and an online helpdesk. Hammer Technologies may also, in its absolute discretion, provide telephone support to Users for an additional fee. If you require support, please visit support.hammertech.com.au or contact the helpdesk at email@example.com.
- AVAILABILITY OF SITE AND SOFTWARE
13.1 Hammer Technologies intends that access to the Software via the Site should be available between 6 am and 7 pm (time in Victoria, Australia). Outside of these hours, it is possible that the Site or Software will be unavailable due to maintenance or other development activity.
13.2 The targeted availability of the Software is 99.9% during each calendar month, outside of times for scheduled maintenance. The availability of the Software is subject to the Service Level Agreement, which is available on our Site. The User acknowledges and agrees that the rebates specified in the Service Level Agreement provide adequate compensation in relation to the unavailability of the Software.
13.3 Where possible, Hammer Technologies will provide notice to its Users of any maintenance or development activity in advance by email.
14.1 Hammer Technologies has implemented and will maintain security systems for the transmission of customer information consisting of encryption and firewall technologies that are understood in the industry to provide adequate security for the transmission of such information over the Internet. Hammer Technologies does not guarantee the security of the these services and Hammer Technologies will not be responsible in the event of any infiltration of its security systems, provided that Hammer Technologies has used commercially reasonable efforts to prevent any such infiltration.
14.2 You acknowledge and agree that Hammer Technologies does not provide you with a service which allows for the storage of information on your servers, and that Hammer Technologies is not responsible for any other party's servers.
- FEEDBACK AND DISPUTE RESOLUTION
15.1 Your feedback is important to us. We seek to resolve your concerns quickly and effectively. If you have any feedback or questions about the Software or our Services, please contact any member of our staff.
15.2 If there is a dispute between the Parties in relation to these Terms, the Parties agree to the following dispute resolution procedure:
(a) the Party (Complainant) who has a dispute with the other Party (Respondent) must notify the Respondent in writing of the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will resolve the dispute;
(b) the Parties agree to meet in good faith to seek to resolve the dispute by agreement (Initial Meeting); and
(c) if the Parties cannot agree how to resolve the dispute at the Initial Meeting, either Party may refer the dispute to a mediator for mediation. If the parties cannot agree on who the mediator should be, the complainant will ask the Law Institute of Victoria to appoint a mediator. The mediator will decide the time and place for mediation. The Parties must attend the mediation in good faith and attempt to resolve the dispute.
15.3 Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under these Terms, by law or in equity.
- LIMITATION OF LIABILITY AND DISCLAIMERS
16.1 The User acknowledges and agrees that:
(a) the Software is not a complete safety system and is not intended to replace any of the User’s existing processes relating to safety;
(b) Hammer Technologies is not providing any advice to the User, through the Software or otherwise. In particular, Hammer Technologies is not providing the User with any advice about managing safety or related issues, including OH&S advice, medical advice or physiotherapy advice; and
(c) the use of the Software by the User, and the provision of the Services to the User, will be in addition to the User implementing and complying with adequate safety processes and the User will not rely on any feature of the Software or the Services, including SMS notifications, instead of those processes.
16.2 Hammer Technologies and the User agree that Hammer Technologies’ Liability for the Services provided via the Site is governed solely by the Australian Consumer Law to the extent applicable, and this Agreement.
16.3 Hammer Technologies has no Liability for use of the Software in countries other than Australia.
16.4 You acknowledge that, while Hammer Technologies will take reasonable steps to ensure that the Software will be fit for the purposes advertised, Hammer Technologies gives no guarantees that:
(a) the Software will meet your requirements, as the functionality of the Software is dependent upon configuration with the End User System and other components;
(b) the Software will work in each of your desired use case scenarios; or
(c) the Software can be used on every operating system and device, as it is impossible to test each variant.
16.5 Hammer Technologies is not responsible for any loss or damage suffered by the User as a result of:
(a) any failure to receive SMS notifications;
(b) any error in SMS notifications caused by User Data that is inaccurate or not up to date; or
(c) the User relying on an SMS/Email notification instead of its own adequate safety management processes that it has put in place separate to its use of the Software.
16.6 The Software may use third-party hosting services which are provided without any sort of warranties, and Hammer Technologies cannot ensure that these third-party hosting services are provided free of defect or without interruption.
16.7 Hammer Technologies does not warrant that use of the Software will be uninterrupted or error free. The operation of the Software is dependent on public telephone services, computer networks and the Internet, which can be unpredictable and may from time to time interfere with the use of the Software. Hammer Technologies accepts no responsibility for any such interference or prevention of your use of the Software, or for any issues caused by Internet connectivity, including the corruption of files in transmission.
16.8 You acknowledge that Hammer Technologies may add to, remove or modify the features and functionality of the Software and/or the Site without notice.
16.9 All risk arising out of the use or performance of the Software remains with you. You understand and agree that the use of the Software, material or data downloaded or otherwise obtained through the use of the Software is at your own discretion and risk and that you will be solely responsible for any infections, contaminations or damage to your computer, system or network. Hammer Technologies is not responsible or liable for delays, inaccuracies, errors or omissions arising out of your use of the Software, any third-party software or operating system.
16.10 Hammer Technologies does not guarantee the accuracy of any induction or online personnel verification provided via the Site. Hammer Technologies recommends that the User performs its own adequate identification checks for all personnel.
16.11 You acknowledge that Hammer Technologies is not responsible for any loss of data caused by your use of the Software or the Site, or by a third party, or any loss of data that occurs outside the scope of backup processes, including data lost between backup intervals.
16.12 To the maximum extent permitted by law, Hammer Technologies and its licensors disclaim all warranties, express or implied, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose and non-infringement of third-party intellectual property rights or lack of viruses, for the Software. In no event will Hammer Technologies or its licensors be liable for any consequential, incidental, indirect, special, punitive or other damages whatsoever (including any real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings and /or loss of reputation) arising out of or in connection with this Agreement or the use of, or inability to use, the Software, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise and even if Hammer Technologies has been advised of the possibility of such damages.
16.13 The Software is not intended for use in the operation of medical instruments, water craft, military installations, warfare equipment, industrial control systems and/or SCADA systems and/or robotic systems, surgical/medical application or equipment, artificial intelligence application or system, gambling/wagering system, and prototype, experimental or single product items, nuclear facilities, aircraft navigation or communications systems or air traffic control machines or any other machines in which case the failure of the Software could lead to death, personal injury or severe physical or environmental damage.
16.14 The User acknowledges that Hammer Technologies may pursue any available equitable or other remedy against you as a result of a breach by the User of any Term of this Agreement.
16.15 Hammer Technologies’ and its licensors’ aggregate liability to you for all Liability arising from or in connection with this Agreement (including the Software) will not exceed the Subscription Fees paid by you under this Agreement for the Software. The foregoing limitations, exclusions and disclaimers will apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
16.16 The User acknowledges and agrees that Hammer Technologies will not be liable for any non-compensatory damages, including punitive, aggravated, multiple, exemplary, liquated or any other non-compensatory damages or the consequences of non-payment.
16.17 This clause 16 will survive termination of this Agreement.
- AUSTRALIAN CONSUMER LAW
17.1 Legislation, including the Australian Consumer Law (ACL) contained in Schedule 2 of the Consumer and Competition Act 2010 (Cth) and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the provision of Services by us to you which cannot be excluded, restricted or modified (Statutory Rights).
17.2 Nothing in these Terms removes your Statutory Rights. You agree that our Liability for Services provided to consumers is governed solely by the ACL and these Terms. We exclude all conditions and warranties implied by custom, law or statute except for your Statutory Rights.
17.3 Except for your Statutory Rights, all material and work is provided to you without warranties of any kind, either express or implied, and we expressly disclaim all warranties of any kind, including but not limited to implied warranties of merchantability and fitness for a particular purpose.
17.4 If you are a consumer as defined in the ACL, the following applies to you: We guarantee that the Services we supply to you are rendered with due care and skill; fit for the purpose that we advertise, or that you have told us you are acquiring the Services for or for a result which you have told us you wish the Services achieve, unless we consider and disclose that this purpose is not achievable; and will be supplied within a reasonable time. To the extent we are unable to exclude liability, our total Liability for loss or damage caused by us that you suffer or incur from our Services is limited to us re-supplying the Services to you, or, at our option, us refunding to you the amount you have paid us for the Services to which your claim relates.
18.1 You will be liable for and agree to indemnify, defend and hold us harmless against any and all claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from: (a) any information provided by you or your employees, contractors or agents that is not accurate, up to date or complete or is misleading or a misrepresentation;
(b) any breach of these Terms by you or your employees, contractors or agents; and (c) any misuse of the Software and/or Licence by you or your employees, contractors or agents.
18.2 You agree to co-operate with us (at your own expense) in the handling of disputes, complaints, investigations or litigation that arise as a result of your use of the Software, including but not limited to disputes, complaints, investigations or litigation that arise out of or relate to incorrect information you have given us.
18.3 The obligations under this clause will survive termination of these Terms.
19.1 Any notice required or permitted to be given to the User under these Terms will be addressed to the User at the email address provided by the User when requesting to use the Software or completing an online subscription to use the Software.
- RELATIONSHIP OF PARTIES
20.1 Neither Party is authorised to bind the other Party in any way without the prior written consent of the other Party.
20.2 The Parties acknowledge and agree that they will not seek to bind the other Party other than with the prior written consent of the other Party.
- REFERRAL RELATIONSHIP
21.1 We may (i) provide commissions or benefits for the referral of potential clients to us from referral partners and (ii) receive commissions or benefits for the referral of potential clients from us to referral partners. You may refuse any referral.
21.2 We advise you that we are free of any constraint or influence which might be imposed on us by a referral partner. Our advice is fair and free of any bias caused by our relationship with the referral partner. The nature and value of any commissions or benefit which may be provided by us is fair and reasonable having regard to objective commercial standards.
- RIGHTS OF THIRD PARTIES
22.1 Any person or entity who is not a party to these Terms has no right to benefit under or to enforce any of these Terms.
23.1 This Agreement is personal to the Parties. A Party must not assign or deal with the whole or any part of its rights and/or obligations under this Agreement without the prior written consent of the other Party.
23.2 Any purported dealing in breach of this clause is of no effect.
- WAIVER OR VARIATION OF RIGHTS
24.1 Any failure or delay by a Party in exercising a power or right (either wholly or partially) in relation to this Agreement does not operate as a waiver or prevent that Party from exercising that power or right or any other power or right.
24.2 A Party is not liable to the other Party for any loss, cost or expense that may have been caused or contributed to by the failure to exercise, delay in exercising, waiver or exercise of a power or right.
- POWERS, RIGHTS AND REMEDIES
25.1 Except as expressly stated to the contrary in this Agreement, the powers, rights and/or remedies of a Party under this Agreement are cumulative and are in addition to any other powers, rights and remedies of that Party. Nothing in this Agreement merges, extinguishes, postpones, lessens or otherwise prejudicially affects any power, right or remedy that a Party may
have at any time against the other Party to this Agreement or any other person.
- FORCE MAJEURE
26.1 Neither Party will be liable for any delay in performing any of its obligations under this Agreement if such delay is caused by circumstances beyond the reasonable control of the Party so delaying and such Party will be entitled to a reasonable extension of time for the performance of such obligations.
- CONSENTS AND APPROVALS
27.1 Where this Agreement provides that a Party may conditionally or unconditionally give or withhold any consent or approval in relation to any matter in this Agreement, that Party may, in its absolute discretion and without being obliged to give reasons for doing so, withhold any consent or approval, or give consent or approval conditionally or unconditionally.
- FURTHER ASSURANCE
28.1 Each Party must from time to time and in a timely manner do all things reasonably required of it by the other Party to give effect to this Agreement.
29.1 If any provision of these Terms is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and the remainder of the provision in question will not be affected.
30.1 This Agreement may be executed in any number of counterparts and, if so, the counterparts taken together will constitute one and the same Agreement.
- ENTIRE AGREEMENT AND UNDERSTANDING
31.1 The date of this Agreement is the date that these Terms are accepted by the User.
31.2 In respect of the subject matter of this Agreement:
(a) this Agreement contains the entire understanding between the Parties; and
(b) all previous oral and written communications, representations, warranties or commitments are superseded by this Agreement and do not affect the interpretation or meaning of this Agreement.
- GOVERNING LAW AND JURISDICTION
32.1 This Agreement is governed by the laws of Victoria and the Commonwealth of Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria.
Confidential Information includes confidential information about the business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, know-how, financial, accounting, marketing and technical information, customer and supplier lists (including prospective customer and supplier information), ideas, concepts, Intellectual Property, technology and other information, whether or not such information is reduced to a tangible form and whether or not such information is marked in writing as "confidential".
Intellectual Property includes any and all intellectual and industrial property rights throughout the world.
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.