Last Updated: April 17, 2020
TERMS AND CONDITIONS
In the event of any conflict between these Terms and the terms of any Schedule, the terms of the Schedule shall apply. Each capitalized term not otherwise defined herein shall have the meaning given in the applicable Schedule.
Hammer Technologies and Customer are sometimes individually referred to as “Party” and collectively as the “Parties ”.
1.1 Hammer Technologies shall use commercially reasonable efforts to provide Customer with the right to access and use the cloud-based online software system called HammerTech (as modified from time to time, the “Software”), which is accessible at www.hammertechonline.com (as modified from time to time, the “Website”), subject to, and governed by, the terms of the Agreement.
1.2 The Agreement sets out the terms and conditions upon which Hammer Technologies has agreed to grant Customer a right to access and use the Software. These Terms apply to Customer and each of Customer’s users, employees, agents, consultants and contractors (collectively, the “ Users”) from the time that Hammer Technologies provides Customer with an account to access and use the Software (the “ Account”) and are binding on Customer and any other User of the Software.
1.3 By using our Software and subscribing on our Website or otherwise, 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 yourself and any entity for whom you use the Software.
1.4 Hammer Technologies reserves the right to make changes to these Terms at any time, effective upon Hammer Technologies’ posting the modified Terms on the Website. If Hammer Technologies updates these Terms, it will update the “Last Updated” date at the top of these Terms. If Hammer Technologies makes material change to these Terms, Hammer Technologies will use commercially reasonable efforts to communicate these changes to Customer by email. It is Customer’s obligation to ensure that Customer has read and understood the most recent Terms available on our Website. By continuing to access and use the Website and the Software, Customer acknowledges that it has agreed to the most recent Terms available on our Website. IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF THE SOFTWARE AND THE WEBSITE.
2. SOFTWARE AND SERVICES
2.1 The Software is a SaaS-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 Customer’s existing safety processes. The Software is principally a data capture tool that helps Customer simplify the existing safety processes of Customer. The Software has a public component, which provides a portal to specific Customer projects, as well as a secure component that contains the main content and features for each Customer 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 customizable 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) the ability to generate reports based on data inputted to the Software by Customer or any of its Users;
(i) the use of SMS credits, as explained in Section 5 (the “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 Customer via the Website.
2.4 Customer and its Users will only be able access the Software if an Account has been set up for Customer either by Hammer Technologies or by Customer completing an online subscription on the Website.
2.5 Hammer Technologies may, upon request by Customer and in our sole discretion, customize, modify or enhance the Software to meet the particular needs of Customer, or to develop programs, software or materials related to such Software. If we agree to any such requests, 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 modifications and enhancements or new programs, software and software available to any of our other customers.
2.6 The services provided by Hammer Technologies under the Agreement include any services relating to the access and use of the Software by Customer (collectively, the “Services”).
3. ONLINE SUBSCRIPTION AND ACCOUNT
3.1 The Software under the Agreement is currently intended only for use in the U.S. and Canada and any use outside of the U.S. or Canada is strictly prohibited.
3.3 Information that is created when you or a User use the Software, such as log in details and passwords (the “Customer Data”), is stored on Servers in North America. We will take reasonable measures to ensure that Customer Data is kept secure and confidential, including by storing the information in secure datacenters with restricted access and physical security and by implementing data and network security measures such as firewalls, encryption, backups and data mirroring. However, despite our efforts, no security measures are 100% effective and Hammer Technologies cannot ensure or warrant the security of your Customer Data. Any transmission of Customer Data is at your own risk.
3.4 You will be required to pay a fee for your subscription to access and use our Software (the “Subscription Fees”) as set out on the applicable Schedule or as otherwise agreed by the Parties. You will not be given an Account to access and use the Software until payment is made.
3.5 After subscribing and paying all applicable Fees, Customer will obtain a valid Account to access and use the Software, and Hammer Technologies agrees to grant to Customer a limited right to access and use the Software during the term of the Agreement. The right to access and use the Software cannot be sub-licensed to third parties except as specifically provided in the Agreement.
4. PERSONAL INFORMATION
4.1 If Customer elects to collect or use any personal information, personal health information (as defined or used under the Health Insurance Portability and Insurance Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“ HITECH”)) and/or other sensitive data (e.g., racial or ethnic origin, political opinions, religious or philosophical beliefs, etc.) from its employees, contractors, agents or other representatives (collectively, the “Personal Information”), Customer shall:
(a) not collect any Personal Information in violation of any applicable laws;
(b) get all consents necessary prior to the collection and use of any Personal Information in accordance with all applicable laws;
(c) refrain from transmitting such Personal Information further and make sure that all Personal Information is encrypted in storage or in transit;
(d) only use such Personal Information directly in connection with its business and strictly in accordance with all applicable laws, including all Federal and state privacy laws and regulations;
(e) keep such Personal Information confidential and limit access only to employees and representatives who have a need to know and who are subject to requirements at least as restrictive as set forth in this Section 4;
(f) not use such Personal Information to discriminate against any person;
(g) if Customer accesses or uses any Personal Information outside of the Software (e.g., a tablet or other mobile device, etc.) implement and use appropriate administrative, physical and technical safeguards with respect to electronic protected health information and other Personal Information in compliance with all applicable laws, to reasonably and appropriately protect the confidentiality, integrity, and availability of any such Personal Information and prevent the use or disclosure of Personal Information other than as set forth in this Agreement or as permitted or required by law; and
(h) if Customer transfers any Personal Information of any person in the European Union, Switzerland or the United Kingdom, comply with all applicable provisions of the GDPR.
5. SMS CREDITS
5.1 As part of the Software, Customer may use SMS Credits. The principal functions of the SMS Credits are:
(a) to allow Customer 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.
5.2 The use of SMS Credits by Customer (and its Users) is subject to a monthly limit, which will be determined by us. Customer acknowledges and agrees that:
(a) Customer will be required to pay an additional fee for any use of SMS Credits beyond the monthly limit; and
(b) monthly SMS Credits expire at the end of each month. Any unused monthly SMS Credits will not be rolled over to the next month.
5.2 Hammer Technologies may in its discretion:
(a) vary the monthly limit for SMS Credits; and/or
(b) offer to provide Customer with more SMS Credits than the monthly limit for an additional fee.
5.3 Individual SMS providers may impose additional costs and Hammer Technologies is not responsible for these costs.
6.1 You agree to pay the Subscription Fee set forth in the applicable Schedule executed by Hammer Technologies and you.
6.2 Payment of the Subscription Fee and any other fees shall be in accordance with the applicable Schedule and these Terms.
6.3 You acknowledge and agree that:
(a) to maintain your subscription, you authorize us to automatically charge the debit or credit card that you have provided to us on each monthly payment date;
(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) on any amounts that remain unpaid 7 days after the due date, we may charge interest at the lesser of 1% per month or the maximum interest rate permitted by law, until the date paid; and
(e) if payment is not made within thirty (30) days of the due 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.
6.4 We may, in our sole discretion, provide you with a discount on your Subscription Fee. You acknowledge and agree that if you breach any of the terms of the Agreement, your discount may be cancelled in our sole discretion and you will be charged the standard Subscription Fee for the remainder of the term of the Agreement.
6.5 You acknowledge and agree that additional fees will be charged by us as set out on our Website (the “Additional Fees”) if you do any of the following:
(a) exceed the monthly limit for SMS Credits;
(b) purchase hardware from us; or
(c) require us to provide professional services or consulting.
6.6 Additional Fees will be charged in arrears on the monthly payment date for the immediately preceding calendar month.
6.7 We may modify 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 of our customers.
6.8 We may, in our sole discretion, offer Customer discounts with respect to our fees.
7. TERM AND TERMINATION
7.1 The Agreement shall become effective on the Schedule Effective Date and shall, unless terminated earlier pursuant to any of its express provisions, continue in accordance with the applicable Schedule (together with any renewal, the “Term”).
7.2 A Party may terminate the Agreement if the other Party (the “ Breaching Party”) is in breach of, or threatens to breach, any representation, warranty or obligation of the Breaching Party under these Terms and/or a Schedule and either the breach cannot be cured or, if the breach can be cured, it is not cured by the Breaching Party within thirty (30) days following receipt of written notice of such breach from the non-breaching Party.
7.3 A Party may immediately terminate the Agreement if the other Party (a) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due, (b) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency, (c) makes or seeks to make a general assignment for the benefit of its creditors, or (d) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
7.4 Without limiting our rights in this Section 7 , we may terminate the Agreement and your right to access and use the Software immediately, in our sole discretion, upon prior written notice, if:
(a) we reasonably suspect that you are attempting to reverse engineer the Software or attempting to bypass technical restrictions in the Software;
(b) we consider that your use of the Software is inappropriate, improper or unlawful;
(c) your use of the Software significantly exceeds the median resource utilization of other customers and you have failed to take reasonable steps to prevent this from happening again within five (5) days of receiving notice from us. We have absolute discretion to determine excessive usage for these purposes. For guidance only, resource utilization that exceeds median usage by a ratio of greater than 10:1 would constitute excessive usage;
(d) 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;
(e) you fail to provide us with clear or timely instructions to enable us to provide you with the Software;
(f) you are using Personal Information in violation of this Agreement or any applicable laws:
(g) we consider that our working relationship has broken down, including through a loss of confidence and trust; or
(h) for any other reason outside our control which has the effect of materially compromising our ability to provide you with the required Software within a required timeframe.
7.5 It is Customer’s responsibility to retrieve all necessary data from its Account prior to termination. We may, in our discretion, provide you with a copy of all Customer Data (as defined in Section 3 ) on your Account in combined PDF format and/or CSV format.
7.6 On termination or completion of the Services, we may retain copies of your documents as required by law or regularity requirements. Your express or implied agreement to the Terms constitutes your approval for us to retain or destroy documents in accordance with the statutory periods, or on termination of the Agreement.
7.7 In the event that the Agreement is terminated for any reason other than your breach prior to the end of the applicable Term, 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.
7.8 Sections 4, 7.6, 7.7 , 10, 11, 12.1 -12.6, 16 – 20,25, 29, 31 - 35 and this Section 7.8 shall survive the expiration or termination of the Agreement for any reason.
8. CUSTOMER OBLIGATONS
8.1 Customer warrants that all information provided to Hammer Technologies is and shall be true, accurate and complete at all times.
8.2 Customer must provide to Hammer Technologies an email address, name and mobile number for the single administrator for the Account. Customer must also provide valid billing details, including company name, head office address, mailing address and billing contact name and email address. Customer acknowledges that Hammer Technologies will use these contact details to send information to Customer from time to time and it is Customer’s responsibility to ensure that these contact details are correct and up to date at all times.
8.3 You acknowledge and agree that:
(a) you are authorised to use the Software and to access any Customer Data that you input into the Software or provide in connection with the use of your Account and the provision of the Services, including any Customer Data that has been inputted into the Software by any User 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) you agree that you are responsible for the use of the Software by any user that you authorize to use the Software and any breach of these Terms by such a user;
(e) if you become aware of any unauthorised use of your passwords or any other breach of security, you will immediately notify Hammer Technologies and take all necessary actions to address such breach;
(f) the Software operates within your computing or smart device system (the “Customer System”);
(g) the reliability of the Software is dependent upon your configuration and implementation of the Software; and
(h) it is solely your responsibility to determine that the Software meets the needs of and your business and is suitable for the purposes for which the Software is used.
8.4 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 of these Terms in writing.
8.5 You may authorize a limited number of subcontractors (the “ Subcontractors”) to use the Software. Subcontractors must be associated with your Account and will have limited access to use the Software. You are solely responsible for any breach of these Terms by your Subcontractors. 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.
8.6 Hammer Technologies has no responsibility to any person or entity other than Customer and nothing in these Terms 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; and
(b) you are responsible for authorizing any User who is given access to your Customer Data, and you agree that Hammer Technologies has no obligation to provide any person or entity with access to such Customer Data without authorization from you and we may refer any requests for access to the Customer Data to you; and
8.7 The use of the Software is at Customer’s and any of its User’s own risk.
8.8 You remain solely responsible for complying with all applicable laws. It is your responsibility to ensure that the storage of and access to your Customer Data and Personal Information via the Software and the Website comply with laws which are applicable to you, including any laws requiring you to retain records of your Customer Data.
8.9 Customer must have its own safeguards and suitable processes in place to recover from any failures or loss of Customer Data or Personal Information which might occur while using the Software
8.10 Customer agrees that it shall not access or use the Software or any of Hammer Technologies’ other services or materials for purposes of (a) doing a competitive analysis of the Software and the other services and materials, (b) the development, provision or use of a competing software service or product or (c) any other purpose that is to Hammer Technologies’ detriment or commercial disadvantage. Customer agrees that during the term of the Agreement and for twenty-four (24) months thereafter, it will not engage, directly or indirectly, in any business or activity that directly or indirectly competes with any current or planned business or activity of Hammer Technologies.
9. PROHIBITED USE
9.1 You acknowledge and agree that you will not, and you will ensure that each of your Users 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) use the Software, directly or indirectly, for any purpose except as originally intended by Hammer Technologies;
(c) attempt to modify, copy, adapt or reproduce the Software, except as may be necessary for normal use of the Software;
(d) attempt to decompile, disassemble, reverse engineer or otherwise derive the source code for the Software;
(e) distribute, encumber, sell, rent, lease, sub-license or otherwise transfer, publish or disclose the Software to any third party (except as permitted under these Terms);
(f) 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;
(g) 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;
(h) take any action that interferes in any manner with Hammer Technologies’ rights with respect to the Software;
(i) 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;
(j) use, or misuse, the Software in any way which may impair the functionality of the Software, the Website or other systems used to deliver the Software or impair the ability of any other customer or user to use the Software or the Website;
(k) 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;
(l) comply with all applicable Federal and state privacy laws;
(m) attempt to gain unauthorised access to the computer system on which the Software is stored, operated and maintained;
(n) transmit or input into the Software or the Website any files that may damage any other person’s computing devices or software, content that may be offensive, or material or Customer Data in violation of any law (including any content protected by copyright or trade secrets which you do not have the right to use).
9.2 In addition, title, ownership rights and Intellectual Property rights in and to any content displayed on the Website or in the Software, or accessed through the Website or the Software, are the property of the applicable content owner and may be protected by applicable copyright or other law. These Terms give Customer no rights to such content.
9.3 You acknowledge that any breaches of this Section 9 may lead to termination of the Agreement.
10. CONFIDENTIAL INFORMATION
10.1 Subject to Section 10.2 , Customer (including each of its Users) agrees:
(a) not to disclose the Confidential Information to any third party at any time except to the Users that have a need to know and who are subject to terms and conditions no less restrictive than set forth in these Terms;
(b) to take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, Customer shall take at least those measures that Customer takes to protect its own most highly confidential information, but in no event shall such measures be less than a reasonable standard of care, and shall have its employees and representatives who have access to the Confidential Information sign a non-use and non-disclosure agreement with terms no less restrictive than the provisions hereof, prior to any disclosure of the Confidential Information to such employees and/or representatives;
(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, representatives and Users 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 these Terms.
10.2 Customer’s obligations set out in Section 10.1 do not apply to Confidential Information:
(a) that is already in the public domain, except as a result of the actions of Customer or any of its Users in breach of any of these Terms; or
(b) received from a third party, except where there has been a breach of confidence leading to its disclosure;
10.3 Customer may disclose Confidential Information to the extent required by a valid order issued by a court or government agency or as otherwise required by law; provided that (i) Customer provides Hammer Technologies with prior written notice of such obligation and the opportunity to oppose such disclosure or obtain a protective order; (ii) Customer only discloses such Confidential Information as is required to comply with such order or law and (iii) no such disclosure shall otherwise exempt such Confidential Information from being treated as confidential under this Section 10.
12. INTELLECTUAL PROPERTY
12.1 As between Hammer Technologies and Customer or any of its Users, title to and all Intellectual Property rights in the Software, the Website 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 these Terms.
12.2 You grant Hammer Technologies a non-exclusive, worldwide license to use the Customer Data for the purpose of providing the Services and as otherwise explicitly provided in these Terms. Hammer Tech shall not disclose Customer’s Intellectual Property to any third party except as required by law or court order.
12.3 Title to and all Intellectual Property rights in any Customer Data and in any Intellectual Property that Customer owns shall remain the property of Customer.
12.4 You grant Hammer Technologies a license to use, copy, transmit, store, and back-up your information and Customer 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 these Terms.
12.5 Customer acknowledges and agrees that:
(b) Hammer Technologies may use Customer’s branding, logo, trademark and other Intellectual Property on any website operated by Hammer Technologies for the purposes of helping Customer to navigate to the profile portal for Customer on our Website or for the purposes of promoting your use of our Service.
12.6 It is the responsibility of Customer to maintain copies of all Customer Data and any other data that Customer or any of its Users input into the Software. Hammer Technologies will endeavor to prevent loss of the Customer Data, including through the measures described in Section 3.3 . However, despite our efforts, no security measures are 100% effective and Hammer Technologies cannot (a) ensure or warrant the security of your Customer Data or (b) guarantee that (i) there will be no loss of data or (ii) access to the Software, the Customer Data or an Account will be available without interruption.
12.7 Hammer Technologies may, in its sole discretion, enable Customer to use third-party applications in conjunction with the Software. Customer acknowledges and agrees that:
(a) such third-party applications may only be used through Hammer Technologies’ application programming interface (the “API ”) for the Software;
(b) Hammer Technologies reserves the right to introduce resource restrictions for utilizing the API upon prior written notice to Customer;
(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 Customer 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 any Customer Data resulting from any access to such Customer Data by third-party application providers; and
(f) Customer shall be responsible for any damage to the Software or violation of our Intellectual Property caused by any third-party application that Customer provides.
13. UPDATES AND SUPPORT
13.1 Hammer Technologies will provide you with updates to the Software (the “Updates”) that it generally makes available to other customers and users for the term of the Agreement. You acknowledge that Hammer Technologies has no obligation to provide you with any support for Updates to the Software, as agreed in these Terms. 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 these Terms will apply to all such Updates.
13.2 We will aim to implement Updates on business days between 10pm and 6am (Pacific Time), between 10pm 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 customers and users;
(b) has a significant impact on the use of the Software by one or more customers or users; or
(c) affects the security of the Software, the Website or any data in connection with the Software or the Website.
13.3 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 behavior.
13.4 Hammer Technologies provides support to Customer through an online knowledge base and an online helpdesk. Hammer Technologies may also, in its absolute discretion, provide telephone support to Customer for an additional fee. If you require support, please visitsupport.hammertech.com.au or contact the helpdesk at email@example.com. Support is provided Monday to Friday, 8am to 5pm (Pacific Time).
14. AVAILABILITY OF WEBSITE AND SOFTWARE
14.1 Hammer Technologies shall use commercially reasonable efforts to ensure that access to the Software via the Website shall be available between 6 am and 7 pm (Pacific Time). Outside of these hours, it is possible that the Website or Software will be unavailable due to maintenance or other development activity.
14.2 The targeted availability of the Software is 99.9% during each calendar month, outside of times for scheduled maintenance and other causes beyond our reasonable control. The availability of the Software is subject to the Service Level Agreement, which is available on our Website. Customer acknowledges and agrees that the rebates specified in the Service Level Agreement are its sole and exclusive remedy and provide adequate compensation in relation to the unavailability of the Software.
14.3 Where commercially possible, Hammer Technologies will provide advance notice to its Customer of any maintenance or development activity in advance by email.
15.1 Hammer Technologies understands that the security of your Customer Data and Personal Information is important to you. Hammer Technologies has implemented and will maintain security systems for the transmission of Customer Data and Personal 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. However, despite our efforts, no security systems are 100% effective and Hammer Technologies will not be responsible or liable in the event of any infiltration of its security systems to the extent that is has used commercially reasonable efforts to prevent any such infiltration.
15.2 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.
16.1 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. You hereby grant Hammer Technologies a worldwide, perpetual, irrevocable, fully paid-up, royalty-free license to use and incorporate into the Software and the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by you relating to the Software or the Services without restriction or payment of any kind.
17. LIMITATION OF LIABILITY AND DISCLAIMERS
17.1 Customer acknowledges and agrees that:
(a) the Software is not a complete safety system and is not intended to replace any of Customer’s existing processes relating to safety;
(b) Hammer Technologies is not providing any advice to Customer, through the Software, the Services or otherwise. In particular, Hammer Technologies is not providing Customer with any advice about managing safety or related issues, including OH&S advice, medical advice or physiotherapy advice;
(c) the Software is not intended to be used for end-users in healthcare or designed for use with “Covered Entities” under the rules outlined in HIPAA or HITECH; and
(d) the use of the Software by Customer, and the provision of the Services to Customer, will be in addition to Customer’s implementing and complying with adequate safety processes and Customer will not rely on any feature of the Software or the Services, including SMS notifications, instead of those processes.
17.2 The Software may only be used in the United States and Canada and Hammer Technologies shall have no liability for use of the Software in countries other than the United States of America and Canada.
17.3 We carry the following insurance policies:
(a) Cyber Liability and Privacy Protection Insurance, which provides a limit of liability of up to $1,000,000; and
(b) Information Technology Insurance, which provides coverage of:
i. up to $1,000,000 for Professional Indemnity; and
ii. up to $10,000,000 for Public and Products Liability.
Hammer Technologies reserves the right to change the coverage and the amounts of insurance in its sole discretion without notification.
17.4 We will use commercially reasonable efforts to maintain our insurance policy after the completion of the use of the Software and the Services and termination of the Agreement for as long as we are required to do so by law.
17.5 Hammer Technologies will use commercially reasonable efforts to ensure that the Software operates in accordance with the published specifications and documentation.
17.6 Hammer Technologies is not responsible for any loss or damage suffered by Customer or any of its Users or other third party as a result of:
(a) any failure to receive SMS notifications;
(b) any error in SMS notifications caused by Customer Data that is inaccurate or not up to date; or
(c) Customer 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.
17.7 The Software may use third-party hosting services which are provided without warranties of any kind, and Hammer Technologies cannot ensure that these third-party hosting services are provided free of defect or without interruption.
17.8 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 Customer’s use of the Software, or for any issues caused by Internet connectivity, including the corruption of files in transmission.
17.9 You acknowledge and agree that Hammer Technologies may add to, remove or modify the features and functionality of the Software and/or the Website without notice.
17.10 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.
17.11 Hammer Technologies does not guarantee the accuracy of any induction or online personnel verification provided via the Website. Hammer Technologies recommends that Customer performs its own adequate identification checks for all personnel.
17.12 You acknowledge that Hammer Technologies is not responsible for any loss of Customer Data or other data caused by your use of the Software or the Website, or by a third party, or any loss of data that occurs outside the scope of backup processes, including data lost between backup intervals.
17.13 EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED PURSUANT TO APPLICABLE LAW, HAMMER TECHNOLOGIES AND ITS AFFILIATES, CONTRACTORS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, THIRD-PARTY PARTNERS, LICENSORS AND SUPPLIERS (COLLECTIVELY, THE “ HAMMER TECH PARTIES”) DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED WITH RESPECT TO THE SOFTWARE, THE SERVICES AND THE WEBSITE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, HAMMER TECH PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, THAT THE SOFTWARE OR THE SERVICEES, WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, WORK IN EACH OF CUSTOMER’S DESIRED USE CASE SCENARIOS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, OPERATINGS SYSTEMS OR DEVICES (EXCEPT AS EXPRESSLY SET FORTH IN THE DOCUMENTATION), OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE HAMMER TECH PARTIES OR THROUGH THE WEBSITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
17.14 The foregoing limitations and disclaimers shall apply even if the above-stated warranty fails of its essential purpose .
17.15 You are strictly prohibited from using the Software in the operation of medical instruments, for end-users in healthcare or “Covered Entities”, 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.
17.16 EXCEPT FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, A BREACH OF SECTION 10, OR A VIOLATION OF A PARTY’S INTELLECTUAL PROPERTY, IN NO EVENT WILL EITHER PARTY OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THE AGREEMENT, THE SOFTWARE OR THE SERVICES UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (A) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT; (B) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SOFTWARE OR THE SERVICES; (C) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (D) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
17.17 IN NO EVENT WILL THE AGGREGATE LIABILITY OF HAMMER TECHNOLOGIES AND ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS UNDER OR IN CONNECTION WITH THE AGREEMENT, THE SOFTWARE OR THE SERVICES, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE SUBSCRIPTION FEES PAID BY CUSTOMER IN THE TWELVE (12) MONTHS PRECEDING THE APPLICABLE CLAIM. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS WILL APPLY TO THE MAXIMUM extent permitted by applicable law, even if any remedy fails its essential purpose.
18.1 Customer agrees to indemnify, defend and hold Hammer Technologies and its officers, directors, employees and agents harmless against any and all third-party 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 Users that is not accurate, up to date or complete, or is misleading or a misrepresentation;
(b) any actual or alleged breach of the terms of the Agreement by you or your Users;
(c) any misuse of the Software and/or the right to access and use the Software by you or your Users;
(d) use of the Software by you or your Users outside of the United States or Canada;
(e) any allegation that any of the Customer Data infringes or misappropriates a third party’s intellectual property or other rights;
(f) Hammer Technologies’ use and treatment of Customer Data notwithstanding the fact that it was in accordance with these Terms;
(g) Hammer Technologies’ refusal to provide any persons with access to Customer Data in accordance with these Terms;
(h) Hammer Technologies’ making Customer Data available to any person with authorization from you; and
(i) use of any third-party application that you choose to use.
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 or the Website, including but not limited to disputes, complaints, investigations or litigation that arise out of or relate to incorrect information you have given us.
19.1 Any notice required or permitted to be given under the Agreement shall be made in accordance with the applicable Schedule.
20. RELATIONSHIP OF PARTIES
20.1 Nothing herein shall be construed to create a partnership, joint venture or agency relationship between the parties hereto and each party is acting as an independent contractor and not the employee of the other. 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.
21. 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.
22. RIGHTS OF THIRD PARTIES
22.1 The Agreement is solely for the benefit of the Parties and shall not create any third-party beneficiary rights.
23.1 The Agreement is personal to each Party. Neither Party may assign, in whole or part, the Agreement or any of its rights and/or obligations under the Agreement, without the prior written consent of the other Party, which consent shall not be unreasonably withheld, delayed or conditioned except that a Party may assign this Agreement without consent in connection with a merger, acquisition or sale of all or substantially all of its assets.
23.2 Any assignment in breach of this Section 23 shall be of no force or effect.
24. 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 the 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.
25. POWERS, RIGHTS AND REMEDIES
25.1 Except as expressly stated to the contrary in these Terms, the powers, rights and/or remedies of a Party under the Agreement are cumulative and are in addition to any other powers, rights and remedies of that Party. Nothing in these Terms 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 the Agreement or any other person.
26. FORCE MAJEURE
26.1 Neither Party will be liable for any delay in performing any of its obligations (other than payment) under the Agreement if such delay is caused by circumstances beyond the reasonable control of the Party so delaying and the affected Party will be entitled to a reasonable extension of time for the performance of such obligations. The Party invoking force majeure shall (a) send written notice thereof to the other within a reasonable time after the invoking Party knew or should have known that performance would be delayed or prevented due to the force majeure and (b) take reasonable steps to limit the duration and effect of any such force majeure.
27. CONSENTS AND APPROVALS
27.1 Where these Terms provide that a Party may conditionally or unconditionally give or withhold any consent or approval in relation to any matter in the 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.
28. 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 the Agreement.
29.1 If any provision of these Terms and/or the applicable Schedule 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/or the applicable Schedule and the remainder of the provision in question will not be affected.
30.1 The Agreement may be executed in any number of counterparts and, if so, the counterparts taken together will constitute one and the same Agreement.
31. ENTIRE AGREEMENT AND UNDERSTANDING
31.1 The effective date of the Agreement is the earlier of the date that these Terms are accepted by Customer or the Schedule Effective Date.
31.2 In respect of the subject matter of the Agreement:
(a) these Terms together with the applicable Schedule or purchase order contain the entire understanding between the Parties; and
(b) all previous oral and written communications, representations, warranties or commitments are superseded by the Agreement and do not affect the interpretation or meaning of the Agreement.
32. GOVERNING LAW AND DISPUTE RESOLUTION
32.1 The Agreement is governed by the laws of the State of California, without regard to any conflict of law principles.
32.2 If any controversy, claim or dispute arising out of or relating to this Agreement, including the breach or interpretation of this Agreement, a Schedule, the Software or the Services (collectively, a “ Dispute”) is not resolved within thirty (30) days from the date that either Party provides the other Party with written notice of the existence thereof, then each Party shall designate an executive who is authorized to investigate, negotiate and settle the Dispute. The executives shall exercise good faith efforts to settle the Dispute. If the executives do not resolve the Dispute within thirty (30) days (or an extended period if they so agree), then the Parties shall resolve the Dispute in accordance with this Section 32.3. No court or other action pertaining to a Dispute shall be pursued unless this dispute resolution procedure has been exhausted.
32.3 Subject to Section 32.5, any Dispute that is not resolved in accordance with Section 32.1(a) shall be settled by binding arbitration in accordance with the Arbitration Rules of the American Arbitration Association (“AAA”), and judgment upon the award rendered by the arbitrator may be entered in any court have jurisdiction thereof. Any such arbitration shall be held in Los Angeles, CA. The Dispute shall be determined by one (1) arbitrator mutually agreed upon by the Parties, or if the Parties cannot so mutually agree, a single arbitrator with significant relevant experience appointed in accordance with the rules of the AAA. The arbitrator shall base the award on the applicable law and judicial precedent which would apply if the Dispute were decided by a United States District Judge, and the arbitrator shall have no authority to render an award which is inconsistent therewith. The award shall be in writing and include the findings of fact and conclusions of law upon which it is based. Unless the Parties agree otherwise, discovery will be limited to an exchange of directly relevant documents. Depositions will not be taken except as needed in lieu of a live appearance or upon mutual agreement of the Parties. The arbitrator shall resolve any discovery disputes. The arbitrator and counsel of record will have the power of subpoena process as provided by law. The Parties knowingly and voluntarily waive their rights to have any Dispute tried and adjudicated by a judge or a jury. The arbitration shall be governed by the substantive laws of the State of California, without regard to conflicts-of-law rules, and by the arbitration law of the Federal Arbitration Act (Title 9, U.S. Code). Judgment upon the award rendered may be entered in any court having jurisdiction. Notwithstanding the foregoing, the Parties may apply to any court of competent jurisdiction for injunctive relief without breach of this arbitration provision. The cost and expenses for the arbitration shall initially be shared equally by the Parties. The Parties agree that, any provision of applicable law notwithstanding, they will not request, and the arbitrator shall have no authority to award punitive, exemplary damages against any Party. The arbitral proceedings and all pleadings and written evidence shall be in the English language. Any written evidence originally in a language other than English shall be submitted in English translation accompanied by the original true or copy thereof. The Party prevailing in any Dispute, including in that arbitration, shall be entitled, in addition to any other relief that may be granted, to be awarded costs, including its reasonable attorneys’ fees and the cost of arbitration. The amount of such costs to be awarded shall be determined by the arbitrator during the arbitration or at post-arbitration proceedings. Except as otherwise required by law, the Parties and the arbitrator agree to keep confidential and not disclose to third parties any information or documents obtained in connection with the arbitration process, including the resolution of the Dispute.
32.4 In the event that either Party institutes any arbitration, legal suit, action or proceeding against the other Party arising out of or relating to any Dispute, the prevailing Party in the suit, action or proceeding shall be entitled to receive in addition to all other damages to which it may be entitled, the costs incurred by such Party in conducting the suit, action or proceeding, including reasonable attorneys’ fees and expenses and court costs.
32.5 Each Party acknowledges that if the other Party were to breach the terms of Sections 4, 9, 10, 12, the harm to such other Party would be irreparable. Accordingly, each Party agrees that in the event of any such breach, such other Party shall be entitled to obtain injunctive relief without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy.
33. Disclosures. If you are a California resident, you may have this same information emailed to you by sending a letter to Hammer Technologies USA LLC, 1046 Princeton Drive, #112, Marina Del Rey, CA 90292 United States of America with your email address and a request for this information.
California users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
34. Contacting Us. If you have any questions or concerns about these Terms, please contact us at firstname.lastname@example.org or at Hammer Technologies USA LLC, 1046 Princeton Drive, #112, Marina Del Rey, CA 90292 United States of America. We will use commercially reasonable efforts to respond to your questions or concerns as promptly as possible after we receive them.
“Confidential Information” means any 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” means any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), registered and unregistered trademarks, designs (whether or not registered or registrable), trade names, trade secrets, business names, company names or internet domain names.
© Hammer Technologies USA LLC 2020