Last Updated: March, 2022
“Acceptable Use Policy” has the meaning given in section 5.
“Australian Consumer Law” means the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
“Cloud Service” means, collectively, the Hammertech online construction health, safety, environment and quality software application suite (and any optional modules) further described at https://hammertechglobal.com/en-au/ including the Project(s) feature and associated offline or mobile components (including ‘Hammertech Inspect’), but excluding Third Party Applications.
“Consumer” has the same meaning given to it by section 3 of the Australian Consumer Law.
“Customer Environment(s)” means a Paying Customer’s service environment within the Cloud Service which includes, among other things, Project(s).
“Electronic Communications” means any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically and received and/or transmitted through the Cloud Service.
“Intellectual Property” shall mean all present and future intellectual property rights or proprietary rights, including copyrights, patent rights (including, without limitation, patent applications and disclosures), inventions, know-how, trade mark rights (including, without limitation, service marks, registered designs, applications for any of those rights, trade and business names), circuit layouts, computer programs and trade secrets.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Paying Contract” has the meaning given in section 1.
“Paying Customer(s)” means a current paying customer of Hammertech that has entered into a Paying Contract governing its use of Cloud Service.
“Personal Information” has the same meaning as under the Privacy Act.
“Privacy Act” means the Privacy Act 1988 (Cth).
“Project(s)” means the collaborative workspace feature of the Cloud Service that enables Paying Customer to manage its projects.
“Related Bodies Corporate” has the same meaning as under the Corporations Act 2001 (Cth).
“Term” has the meaning given at section 3.
“Third Party Applications” means applications, software, integrations or services provided by a party other than Hammertech that interoperate with the Cloud Service or may be accessed through, within, or in conjunction with Invited User’s use of Customer Environment(s). An examples of a Third Party Application includes, but is not limited to, Microsoft Power BI.
“User Data” means all data (including Personal Information), text, images, audio, video, photographs, software, and other content and material, in any format, provided by Invited User that is stored in, or run through, the Cloud Service (including Customer Environment(s)). Cloud Service under this ToU and Hammertech’s Intellectual Property, and all derivative works thereof, do not fall within the meaning of the term “User Data”.
Paying Customer Arrangement. Each Paying Customer and Hammertech have separately entered into an agreement (“Paying Contract”) that contains Hammertech’s commitment to deliver the Cloud Service to each Paying Customer and permits a Paying Customer to (among other things), at its discretion: (a) create and configure its Customer Environment; and (b) grant access to, and permit use of, its Customer Environment(s) by Invited User and other individuals and entities. Subject to the terms and conditions of this ToU, Invited User may be invited into, or granted access to, Customer Environment(s) relating to different Paying Customers.
ToU Applicability. This ToU does not apply to, nor bind, employees of a Paying Customer. Use of the Cloud Service by employees of a Paying Customer is the responsibility of Paying Customer and is instead governed by Paying Contract.
Term. This ToU commences on the Effective Date and shall remain in effect for so long as Invited User has access to at least one Customer Environment (“Term”).
Customer Environment Usage Right. Subject to the terms and conditions of this ToU, Invited User shall have the non-exclusive, non assignable, limited right to use within the borders of Australia the Customer Environment(s) to which it has been invited into, or granted access to, solely for the internal business operations of the Paying Customer to which the Customer Environment relates.
Acceptable Use Policy. Invited User must not, and must not cause or permit others (including its employees and contractors) to: (a) use the Cloud Service to; (i) harass any person; (ii) cause damage or injury to any person or property; (iii) publish any material that is false, defamatory, harassing or obscene; (iv) violate privacy rights; (v) promote bigotry, racism, hatred or harm; (vi) send unsolicited bulk e-mail or junk mail; (vii) infringe Intellectual Property rights of Paying Customer or any third party; (b) impersonate any person or entity, including, but not limited to, an employee of Hammertech, Paying Customer or any other user, or falsely state or otherwise misrepresent Invited User’s affiliation with a person, organisation or entity; (c) perform or disclose any benchmarking, availability or performance testing of the Cloud Service; (d) perform or disclose any performance or vulnerability testing of the Cloud Service; (e) perform or disclose network discovery, port and service identification, vulnerability scanning, password cracking, remote access or penetration testing of the Cloud Service; (f) modify, make derivative works of, disassemble, decompile, reverse engineer, reproduce, republish, download, or copy any part of the Cloud Service (including data structures or similar materials produced by software); (g) access or use the Cloud Service to build or support, directly or indirectly, products or services competitive to Hammertech; (h) license, sell, transfer, assign, distribute, outsource, permit timesharing or service bureau use of, commercially exploit, or make available the Cloud Service to any third party; (i) use the Cloud Service to store or transmit Malicious Code; (j) interfere with or disrupt the integrity or performance of the Cloud Service or third-party data contained therein; (k) attempt to gain unauthorized access to any Cloud Service or its related systems or networks; (l) access or use any Customer Environment(s) unless Invited User has been authorised or invited to do so by the relevant Paying Customer; or (m) access or use the Cloud Service to commit an illegal or fraudulent act (the “Acceptable Use Policy”). In addition to other rights that Hammertech has in this ToU, Hammertech has the right to take remedial action if the Acceptable Use Policy is violated, and such remedial action may include removing or disabling access to material that violates the Acceptable Use Policy
6. Proprietary Rights.
6.1 User Data. Invited User has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of User Data, and for obtaining all rights related to User Data required by Hammertech to provide the Cloud Service to Paying Customer.
6.2 Hammertech Intellectual Property Rights. All rights, title and interest in and to the Cloud Service (including without limitation all Intellectual Property rights therein and all modifications, extensions, customizations, scripts or other derivative works of the Cloud Service provided or developed by Hammertech) and anything developed or delivered by or on behalf of Hammertech under this ToU are owned exclusively by Hammertech or its licensors. Except as provided in this ToU, the rights granted to Invited User do not convey any rights in the Cloud Service, express or implied, or ownership in the Cloud Service or any Intellectual Property rights thereto. Invited User grants Hammertech a royalty free, worldwide, perpetual, irrevocable, transferable right to use, modify, distribute and incorporate into the Cloud Service (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by Invited User related to the operation or functionality of the Cloud Service. Any rights in the Cloud Service or Hammertech’s Intellectual Property not expressly granted herein by Hammertech are reserved by Hammertech. Hammertech trademarks, logos and product and service names are marks of Hammertech (the "Hammertech Marks"). Invited User will not display or use the Hammertech Marks in any manner without Hammertech’s express prior written permission. The trademarks, logos and service marks of Third Party Application providers ("Marks") are the property of such third parties. Invited User is not permitted to use Marks without the prior written consent of such third party which may own the Mark.
Terms of Access and Use.
7.1 Paying Customer Discretion. Invited User acknowledges that: (a) each Paying Customer controls Invited User access rights to the Customer Environment(s) of that Paying Customer; and (b) each Paying Customer may, at its absolute discretion, modify, suspend or revoke Invited User’s access to the Customer Environment(s) of that Paying Customer.
7.2 Accuracy of Contact Information. Invited User shall, if required by the Cloud Service, provide accurate, current and complete information regarding Invited User’s legal business name, address, email address and phone number. Invited User must maintain and promptly update this information if it should change.
7.3 Notice. If Invited User has a legal dispute with Hammertech, Invited User will promptly send written notice to: Hammer Technologies Pty Ltd, 233 Punt Road, Richmond VIC 3121 Attention: Chief Executive Officer.
7.4 Credentials, Access and Notification. Invited User will be responsible for the confidentiality and use of its credentials and user names (to the extent these are required to access Customer Environment(s)). Invited User will also be responsible for all its Electronic Communications, including those containing business information, account registration, account holder information, financial information, User Data, and all other data of any kind contained within emails or otherwise entered electronically through the Cloud Service or under Invited User’s account. Hammertech will act as though any Electronic Communications it receives under Invited User’s credentials, user name, and/or account number are sent by Invited User. Invited User shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Customer Environment(s) and Cloud Service. Invited User shall promptly notify Hammertech of: (a) any unauthorized access to, or use of, Customer Environment(s) and/or Cloud Service; and (b) any loss, theft or unauthorized use of any Invited User’s credentials, user name or Cloud Service account.
7.5 Transmission of Data. Invited User understands that the technical processing and transmission of Invited User’s Electronic Communications is fundamentally necessary to use of Customer Environment(s). Invited User is responsible for securing DSL, cable or another high speed internet connection, mobile telecommunications coverage and up-to-date “browser” software in order to access and use Customer Environment(s). Invited User expressly consents to Hammertech’s interception and storage of Electronic Communications and/or User Data as needed to provide the Cloud Service to Paying Customer and facilitate Invited User’s use of Customer Environment(s), and Invited User acknowledges and understands that Invited User’s Electronic Communications will involve transmission over the internet, and over various networks, only part of which may be owned and/or operated by Hammertech. Invited User further acknowledges and understands that Electronic Communications may be accessed by unauthorized parties when communicated across the internet, network communications facilities, telephone, telecommunication networks or other electronic means. Hammertech is not responsible for any Electronic Communications and/or User Data which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned and/or operated by Hammertech, including, but not limited to, the internet, telecommunications networks and Invited User’s local network.
7.6 User Data and Other Users. Invited User acknowledges that Customer Environment(s) is a collaborative tool and that User Data may be accessed by other users (including, but no limited to, Paying Customer and other invited users) of the Cloud Service, both within and outside of Customer Environment(s).
7.7 Third-Party Applications.
7.7.1 Customer Environment(s) may enable Invited User to link to, transfer User Data to, or otherwise access, Third Party Applications.
7.7.3 Invited User acknowledges that: (a) the nature, type, quality and availability of Third Party Applications may change at any time during the Term of this ToU; and (b) features of the Cloud Service that interoperate with Third Party Applications depend on the continuing availability of such Third Party Provider’s respective application programming interfaces (“APIs”). Hammertech may need to update, change or modify the Cloud Service a result of a change in, or unavailability of, such Third Party Applications or APIs. If any Third Party Provider ceases to make its Third Party Application or APIs available on reasonable terms for the Cloud Service, as determined by Hammertech in its sole discretion, Hammertech may cease providing access to the affected Third Party Applications without any liability to Invited User. Any changes to Third Party Applications or APIs, including their unavailability, during the Term of this ToU does not affect Invited User obligations under this ToU, and Invited User will not be entitled to any compensation due to any such changes.
7.8 Updates. During the Term of this ToU, Hammertech may at its discretion: (a) update, upgrade or change the Cloud Service (including any Customer Environment(s)); and/or (b) change the availability of Third Party Applications. The terms of this ToU shall also apply to updates, upgrades and changes subsequently made by Hammertech to Customer Environment(s).
7.9 Service Monitoring and Analyses.
7.9.1 Hammertech continuously monitors the Cloud Service to: (a) facilitate Hammertech’s operation of the Cloud Service; (b) help resolve Paying Customer service requests; (c) detect and address threats to the functionality, security, integrity, and availability of the Cloud Service as well as any content, data, or applications in the Cloud Service; and (d) detect and address illegal acts or violations of the Acceptable Use Policy. Hammertech monitoring may collect and store User Data residing in the Cloud Service for such purposes. Information collected by Hammertech monitoring tools (including User Data) may also be used to assist in managing Hammertech’s product and service portfolio, to help Hammertech address deficiencies in its product and service offerings, and for license management purposes.
7.9.2 Hammertech may access and use User Data for the purpose of improving and/or developing the Cloud Service (“Service Developments”). Notwithstanding any other provision of this ToU, Invited User grants Hammertech a royalty free, worldwide, perpetual, irrevocable, transferable right to use, modify, create derivative works, distribute and incorporate into the Cloud Service (without attribution of any kind) any User Data for the purpose of Service Developments. Service Developments may be used for the benefit of Hammertech’s other users and customers.
7.9.3 Hammertech may: (a) compile statistical and other information related to the performance, operation and use of the Cloud Service; and (b) use data from the Cloud Service in aggregated and anonymised form for security and operations management, to create statistical analyses, and for research and development purposes (subsections (a) and (b) are collectively referred to as “Service Analyses”). Hammertech retains all Intellectual Property rights in Service Analyses.
7.11 Compliance Requirements: The Cloud Service is a web based, online tool that enables Paying Customer to upload and store data and documents to assist with its data management. The Cloud Service is not intended to replace Paying Customer’s or Invited User's health and safety processes or practices. Invited User is solely responsible (on an ongoing basis) for its technical, business, health, safety, legal and regulatory requirements.
7.12 Public Project Pages: Each Project includes a publicly accessible webpage on which Invited User can upload and publish certain User Data (“Public Project Information”). Invited User: (a) is responsible for Public Project Information; and (b) acknowledges that Public Project Information will be publicly accessible and available for download on the internet and will not be kept confidential or secure by Hammertech.
Suspension and Termination
8.1 Termination. This ToU will immediately terminate if Invited User no longer has access to any Customer Environments.
8.2 Suspension for Harm. Hammertech may suspend Invited User’s access to, and use of, any Customer Environment(s) if: (a) Hammertech believes that there is a significant threat to the functionality, security, integrity, or availability of the Cloud Service or any content, data, or applications in the Cloud Service; or (b) Hammertech believes that there is a breach of the Acceptable Use Policy; or (c) Hammertech has suspended Paying Customer’s access to, or use of, the Cloud Service for any reason thereby rendering Customer Environment(s) relating to that Paying Customer inaccessible to Invited User.
Warranties, Disclaimers and Exclusive Remedies.
9.1 Each party represents that it has validly entered into this ToU and that it has the power and authority to do so.
9.2 To the maximum extent permitted by law Hammertech: (a) specifically disclaims all implied warranties, including any implied warranty of merchantability, satisfactory quality or fitness for a particular purpose; and (b) provides Customer Environment(s) on an "as is" and "as available" basis and does not warrant that Customer Environment(s) will be provided error-free or uninterrupted, that it will correct all services errors, or that Customer Environment(s) will meet Invited User’s requirements or expectations. For the avoidance of doubt, if Invited User is a Consumer and the Australian Consumer Law applies to Invited User’s use of Customer Environment(s), nothing in this section 9.2 will restrict, exclude or modify any statutory warranties, guarantees, rights or remedies that Invited User is entitled to under the Australian Consumer Law.
9.3 Only if Invited User is a Consumer and the Australian Consumer Law applies to Invited User’s use of Customer Environment(s), Hammertech’s liability for failure to comply with a consumer guarantee under the Australian Consumer Law is limited (at Hammertech’s option) to: (a) supplying access to the Customer Environment(s) again; or (b) paying for the cost of having access to the Customer Environment(s) supplied again.
Limitations of Liability.
10.1 IN NO EVENT WILL EITHER PARTY OR ITS RELATED BODIES CORPORATE BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, SALES, DATA, DATA USE, GOODWILL, OR REPUTATION.
10.2 IN NO EVENT SHALL THE AGGREGATE LIABILITY OF HAMMERTECH AND ITS RELATED BODIES CORPORATE ARISING OUT OF OR RELATED TO THIS ToU, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED ONE HUNDRED AUSTRALIAN DOLLARS (AUD $100).
Indemnification. Invited User will indemnify and hold Hammertech, its Related Bodies Corporate, officers, agents, and employees (“those indemnified”) harmless from any claims, demands, liabilities, losses, damages, costs and expenses (including, without limitation, legal fees) arising from, or in connection with, a third party claim against those indemnified relating to: (a) Invited User’s breach of these ToU; or (ii) User Data.
12.1 Governing Law and Jurisdiction. This ToU is governed by the substantive and procedural laws of the State of Victoria, Australia and the parties agree to submit to the exclusive jurisdiction of, and venue in, the courts in Victoria, Australia in any dispute relating to this ToU.
12.2 Entire Agreement. This ToU constitutes the entire understanding between Invited User and Hammertech and is intended to be the final and entire expression of their agreement. The parties expressly disclaim any reliance on any and all prior discussions, emails, and/or agreements between the parties. There are no other verbal agreements, representations, warranties, undertakings or other agreements between the parties.
12.3 Amendment. Hammertech may at its discretion change or amend this ToU. If Hammertech makes a material change or amendment to this ToU, Hammertech will: (a) if Invited User has registered an account with Hammertech, provide Invited User with reasonable notice prior to the change taking effect either by emailing the email address associated with Invited User’s account or by messaging Invited User through the Cloud Service; or (b) if Invited User does not have a registered account with Hammertech, notify Invited User of the change taking effect by publishing the change or amendment on this webpage. Invited User can review the most current version of the ToU at any time by visiting this webpage. Any change or amendment to this ToU will become effective on the date that Hammertech publish the change or amendment on this webpage. If Invited User uses Customer Environment(s) after the effective date of any changes or amendments to this ToU, that use will constitute Invited User’s acceptance of the changed or amended ToU.
12.4 Novation. This ToU shall inure to benefit and bind the parties hereto, their successors and assigns, but neither party may novate or assign this ToU, except that Hammertech may novate or assign this ToU without Invited User’s consent to: (a) a Related Body Corporate; (b) an entity that acquires all or substantially all of Hammertech’s business or assets; or (c) an entity that acquires 50% or more of Hammertech’s voting share capital. Invited User will execute and deliver any further documents and do all acts and things as may be required by Hammertech to give effect to an assignment or novation pursuant to this section 12.4.
12.5 Relationship. The relationship between the parties under this ToU is that of independent contractors. This ToU does not create any joint venture, partnership, agency, or employment relationship between the parties.
12.6 Severability. If any provision is held by a court of competent jurisdiction to be contrary to law, such provision shall be eliminated or limited to the minimum extent necessary so that this ToU shall otherwise remain in full force and effect.
12.7 No waiver. The fact that a party fails to do, or delays in doing, something the party is entitled to do under this ToU, does not amount to a waiver of any obligation of, or breach of obligation by, another party.
12.8 Force Majeure. Hammertech will not be responsible for failure or delay of performance of its obligations under this ToU if caused by: an act of war, hostility, or sabotage; act of God; pandemic; electrical, internet, or telecommunication outage that is not caused by Hammertech; government restrictions (including the denial or cancelation of any export, import or other license); or other event outside the reasonable control of Hammertech (“Force Majeure Event”). Hammertech will use reasonable efforts to mitigate the effect of a Force Majeure event. If such Force Majeure Event continues for more than 30 days, Hammertech may at its discretion elect to terminate this ToU.
12.9 Non-Impediment. Nothing in this ToU shall be construed as precluding or limiting in any way the right of Hammertech to provide consulting, development, or other services of any kind to any individual or entity.
12.10 Survival. Provisions that survive termination or expiration of this ToU include sections 6 (Proprietary Rights), 7.9.2 (Service Developments), 7.12 (Public Project Pages), 10 (Limitations of Liability), 11 (Indemnification), 12 (General Terms) and other provisions which by their nature are intended to survive.