Terms & Conditions - United Kingdom
Last Updated: December 21, 2022
Software as a Service Agreement
This Software as a Service Agreement (“SaaS Terms”) is between HammerTech Software UK Ltd (“HammerTech”, “our” or “us”) and the individual or entity that has executed an Order Form (“Customer”, “you” or “your”) that incorporates this SaaS Terms by reference. Capitalized terms not defined elsewhere in this SaaS Terms shall have the meaning given to them in the Definitions section below. HammerTech and Customer hereby agree as follows:
“Agreement” means, collectively, the Order Form and SaaS Terms (including Consulting Services Schedule, if applicable).
"Applicable Data Protection Laws” means (a) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of Personal Information, (b) to the extent the General Data Protection Regulation ((EU) 2016/679) (“EU GDPR”) applies, the law of the European Union or any member state of the European Union to which the Supplier is subject, which relates to the protection of Personal Information, and (c) The Privacy and Electronic Communications (EC Directive) Regulations 2003 (“PECR”).
“Cloud Service” means, collectively, the HammerTech online construction health, safety, environment and quality software application suite (and any optional modules) further described at https://HammerTech.com including the Project feature and associated offline or mobile components (including ‘HammerTech Inspect’), but excluding Third Party Applications and Consulting Services.
“Commencement Date” means the date specified as the commencement date in the Order Form.
“Consulting Services” means the general consulting, implementation and/or training services described in the Order Form to be provided to Customer pursuant to the terms of this SaaS Terms and the additional terms of the Consulting Service Schedule.
“Consulting Services Schedule” means the document attached as a schedule to this SaaS Terms.
“Consumer” means a customer of HammerTech.
“Contract” means this Agreement.
“Customer Data” means all data (including Personal Information), text, images, audio, video, photographs, software, and other content and material, in any format, provided by Customer or Users that is stored in, or run through, the Cloud Service. Services under this Agreement and HammerTech’s Intellectual Property, and all derivative works thereof, do not fall within the meaning of the term “Customer Data”.
“Electronic Communications” means any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically and received and/or transmitted through the Cloud Service.
“Fees” means the fees payable by Customer to HammerTech for the Services ordered as specified in the Order Form.
“Initial Term” has the meaning given in section 4.1.
“Intellectual Property” shall mean all present and future intellectual property rights or proprietary rights, including copyrights, patent rights (including, without limitation, patent applications and disclosures), inventions, know-how, trade mark rights (including, without limitation, service marks, registered designs, applications for any of those rights, trade and business names), circuit layouts, computer programs, database rights and trade secrets.
“Material” means any information, design, specification, instruction, software, service, data, hardware, or material.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Order Form” means a HammerTech order form that is executed by Customer and HammerTech which specifies the Cloud Service and/or any Consulting Services to be provided by HammerTech subject to the terms of this Agreement.
“Personal Information” means personally identifiable information.
“Project” means the collaborative workspace environment that can be created and configured within Cloud Service by Customer for the purpose of Customer managing a project.
“Renewal Term” has the meaning given in section 4.1.
“Services” or “services” means Cloud Service and Consulting Services (if any) ordered pursuant to an Order Form.
“SMS Feature” means the feature of the Cloud Service that allows Customer to send SMS text messages for the purpose of: (a) Customer distributing notifications and bulletins; (b) Customer sending hyperlinks to HammerTech web pages; and (c) to assist with personnel identification verification.
“Term” means the Initial Term and subsequent Renewal Term(s) (if any).
“Third Party Applications” means applications, software, integrations or services provided by a party other than HammerTech that interoperate with the Cloud Service or may be accessed through, within, or in conjunction with Customer’s use of the Cloud Service. An example of a Third Party Application includes, but is not limited to, Microsoft Power BI.
“UK GDPR” means (a) the Data Protection Act 2018, and (b) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018.
“Users” means individuals or entities who are authorised by Customer to use the Cloud Service pursuant to this Agreement. Users may include, but are not limited to, the employees, consultants, contractors, subcontactors, agents and clients of Customer.
1. Services. Subject to the terms and conditions of this Agreement including without limitation continuing timely payment of all fees owed to HammerTech, Customer shall have for the duration of the Term the non-exclusive, non-assignable, non-transferable limited right to use the Cloud Service and Consulting Services (if applicable) ordered by Customer as set forth in Customer’s applicable Order Form solely for the internal business operations of Customer within the United Kingdom. Customer may also allow its Users to use the Services solely for the internal business operations of the Customer. Customer must procure that its Users comply with the terms of this Agreement and Customer is liable for any breach of this Agreement by its Users.
2. Order Form. The Services shall be ordered by Customer pursuant to the Order Form. The Order Form shall include at a minimum a listing of the Cloud Service and any Consulting Services ordered together with the associated Fees. Once placed, the Order Form is non-cancellable.
3.1. General Restrictions.
3.1.1. Customer must not, and must not cause or permit others (including Users) to: (a) use the Cloud Service to; (i) harass any person; (ii) cause damage or injury to any person or property; (iii) publish any material that is false, defamatory, harassing or obscene; (iv) violate privacy rights; (v) promote bigotry, racism, hatred or harm; (vi) send unsolicited bulk e-mail or junk mail; (vii) infringe Intellectual Property rights; (viii) violate applicable laws or regulations; (b) impersonate any person or entity, including, but not limited to, an employee of HammerTech, or any other user, or falsely state or otherwise misrepresent Customer’s affiliation with a person, organization or entity; (c) perform or disclose any benchmarking, availability or performance testing of the Cloud Service; or (d) perform or disclose any performance or vulnerability testing of the Cloud Service without HammerTech’s prior written approval, perform or disclose network discovery, port and service identification, vulnerability scanning, password cracking, remote access or penetration testing of the Cloud Service (the “Acceptable Use Policy”). In addition to other rights that HammerTech has in this Agreement, HammerTech has the right to take remedial action if the Acceptable Use Policy is violated, and such remedial action may include removing or disabling access to material that violates the policy.
3.1.2 Customer must not, and must not cause or permit others (including Users) to: (a) modify, make derivative works of, disassemble, decompile, reverse engineer, reproduce, frame, mirror, republish, download, transmit, or copy any part of the Services (including data structures or similar materials produced by programs); (b) access or use the Services to build or support, directly or indirectly, products or services competitive to HammerTech; (c) license, sell, transfer, assign, distribute, outsource, permit timesharing or service bureau use of, commercially exploit, or make available the Services to any third party except as permitted by this Agreement; (d) use the Cloud Service to store or transmit Malicious Code; (e) interfere with or disrupt the integrity or performance of the Cloud Service or third-party data contained therein; (f) access or use the Cloud Service to commit a fraudulent act; or (g) attempt to gain unauthorized access to any Cloud Service or its related systems or networks.
4. Term, Fee, Payment & Taxes.
4.1. Term. The term of this Agreement shall commence on the Commencement Date and shall continue for the length of time specified in the Order Form as the initial term (the “Initial Term”). Except as otherwise specified in the Order Form, this Agreement shall be automatically renewed for consecutive additional terms of one (1) year (each, a “Renewal Term”) unless either party provides written notice of non-renewal to the other at least forty-five (45) days before expiration of the Initial Term or then-current Renewal Term (as applicable).
4.2. Fees and Payment; Taxes. All Fees payable by Customer in the Order Form are due in accordance with the payment frequency and within the payment period specified in the Order Form, in the event that no payment period is specified in the Order Form, all invoices shall be paid within 30 days of the date of each and any invoice. All Fees are non-refundable, except as otherwise explicitly stated in this Agreement. Unless otherwise stated in the Order Form, Customer is responsible for all taxes on the services contemplated by this Agreement. The Customer acknowledges that HammerTech may invoice for the Cloud Services each time the Customer (a) purchases additional services, or (b) alters its use of the Cloud Services or Consulting Services such that additional amounts may be payable.5.
5. Proprietary Rights.
5.1. Ownership of Customer Data. As between HammerTech and Customer, all right, title and interest, including without limitation any Intellectual Property rights, in and to Customer Data is owned exclusively by Customer. Customer acknowledges and agrees that in connection with the provision of the Services, HammerTech may store and maintain Customer Data for a period of time consistent with HammerTech’s standard business processes for the Services, and in accordance with any applicable laws and regulations. Customer grants HammerTech the right to host, use, process, display and transmit Customer Data to provide the Services pursuant to and in accordance with this Agreement. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Data, and for obtaining all rights related to Customer Data required by HammerTech to perform the Services.
5.2. HammerTech Intellectual Property Rights. All rights, title and interest in and to the Services (including without limitation all Intellectual Property rights therein and all modifications, extensions, customizations, scripts or other derivative works of the Services provided or developed by HammerTech) and anything developed or delivered by or on behalf of HammerTech under this Agreement (including without limitation Deliverables and Tools as such terms are defined in the Consulting Services Schedule) are owned exclusively by HammerTech or its licensors. Except as provided in this Agreement, the rights granted to Customer do not convey, transfer or assign any rights in the Services, express or implied, or ownership in the Services or any Intellectual Property rights thereto. Customer grants HammerTech a royalty free, worldwide, perpetual, irrevocable, transferable right to use, modify, distribute and incorporate into the Services (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by Customer or any Users related to the operation or functionality of the Services. Any rights in the Services or HammerTech’s Intellectual Property not expressly granted herein by HammerTech are reserved by HammerTech. HammerTech service marks, logos and product and service names are marks of HammerTech (the "HammerTech Marks"). Customer will not display or use the HammerTech Marks in any manner without HammerTech’s express prior written permission. The trademarks, logos and service marks of Third Party Application providers ("Marks") are the property of such third parties. Customer is not permitted to use these Marks without the prior written consent of such third party which may own the Mark.
6. Terms of Service.
6.1. Accuracy of Customer’s Contact Information. Customer shall provide accurate, current and complete information regarding Customer’s legal business name, address, email address and phone number. Customer must maintain and promptly update this information if it should change.
6.2. Notice. Any notice required under this Agreement shall be provided to the other party in writing, which shall, for the avoidance of doubt, include email. If Customer has a legal dispute with HammerTech or if Customer wishes to provide a notice under section 11 (Indemnification), or if Customer becomes subject to insolvency or other similar legal proceedings, Customer will promptly send written notice to: firstname.lastname@example.org Attention: Chief Executive Officer.
6.3. Users: Credentials, Access and Notification. Customer shall authorize or grant Users access to Cloud Service. Users will, where required by the Cloud Service, create their own unique credentials and user names within the Cloud Service. Customer will be responsible for the confidentiality and use of each User’s credentials and user names. Customer will also be responsible for all Electronic Communications, including those containing business information, account registration, account holder information, financial information, Customer Data, and all other data of any kind contained within emails or otherwise entered electronically through the Cloud Service or under Customer’s and Users’ account/s. HammerTech will act as though any Electronic Communications it receives under Customer’s and Users’ credentials, user name/s, and/or account number/s are sent by Customer. Customer shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Cloud Customer shall promptly notify HammerTech of: (a) any unauthorized access to, or use of, the Cloud Service; and (b) any loss, theft or unauthorized use of any User’s credentials, user name or Cloud Service account.
6.4. Transmission of Data. Customer understands that the technical processing and transmission of Customer’s Electronic Communications is fundamentally necessary to use of the Cloud Customer is responsible for securing DSL, cable or another high speed internet connection, mobile telecommunications coverage and up-to-date “browser” software in order to utilize the Cloud Service. Customer expressly consents to HammerTech’s interception and storage of Electronic Communications and/or Customer Data as needed to provide the Cloud Service, and Customer acknowledges and understands that Customer’s Electronic Communications will involve transmission over the internet, and over various networks (including telecommunications networks for the SMS Feature), only part of which may be owned and/or operated by HammerTech. Customer further acknowledges and understands that Electronic Communications may be accessed by unauthorized parties when communicated across the internet, network communications facilities, telephone, telecommunication networks or other electronic means. Without limiting HammerTech’s applicable obligations under sections 6.10 (Security), 6.11 (Data Protection), or 8 (Confidentiality), HammerTech is not responsible for (i) any Electronic Communications and/or Customer Data which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned and/or operated by HammerTech, including, but not limited to, the internet, telecommunications networks and Customer’s local network, or (ii) any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet.
6.5. Third-Party Applications.
6.5.1. The Cloud Service may enable Customer to link to, transfer Customer Data to, or otherwise access, Third Party Applications.
6.5.3. Customer acknowledges that: (a) the nature, type, quality and availability of Third Party Applications may change at any time during the Term of this Agreement; and (b) features of the Cloud Service that interoperate with Third Party Applications depend on the continuing availability of such Third Party Provider’s respective application programming interfaces (“APIs”). HammerTech may need to update, change or modify the Cloud Service under this Agreement as a result of a change in, or unavailability of, such Third Party Applications or APIs. If any Third Party Provider ceases to make its Third Party Application or APIs available on reasonable terms for the Cloud Service, as determined by HammerTech in its sole discretion, HammerTech may cease providing access to the affected Third Party Applications without any liability to Customer. Any changes to Third Party Applications or APIs, including their unavailability, during the Term of this Agreement does not affect Customer obligations under this Agreement, and Customer will not be entitled to any refund, credit or other compensation due to any such changes.
6.6. SMS Feature. If ordered by Customer pursuant to Order Form, Customer may use the SMS Feature conditional upon its payment of Fees in accordance with this Agreement. The SMS Feature is subject to the monthly SMS credit limit specified in the Order Form. If Customer uses in excess of the SMS credit limit, Customer must pay for additional SMS usage at the rate specified in the Order Form. Any unused SMS credits may not be rolled over into any subsequent months. Customer acknowledges that: (a) the transmission of SMS text messages in connection with the SMS Feature is not provided by HammerTech, but instead, by a third-party telecommunications provider; and (b) SMS text messages are Electronic Communications and are subject to section 6.4.
6.7. Service Level. During the Term of this Agreement, the Cloud Service will meet the service level specified in the “Service Level Agreement” (“SLA”) listed on HammerTech’s website located at [insert URL to SLA document], or such other URL as specified by HammerTech, which is hereby incorporated by reference. If the Cloud Service fails to achieve the service level specified in the SLA and Customer notifies HammerTech within 30 days of the end of the month in which the service level was not achieved, then Customer will be entitled as its sole and exclusive remedy, to a fee rebate for the Cloud Service in accordance with the terms and conditions set forth in the SLA. The Cloud Service’s system logs and other records shall be used for calculating any service level events and measurements. The SLA will not apply (and no fee rebate will be applicable) to any period in which Customer’s (and/or User’s) access to, and/or use of, the Cloud Service is suspended in accordance with section 7.
6.8. Updates. During the Term of this Agreement, HammerTech may at its discretion improve, update, upgrade or change the Cloud Service including (but not limited to) to (i) enable the introduction of new functionalities, or services, (ii) reflect changes to technology or market practice, or (iii) ensure that the Cloud Services remain compliant with all applicable laws, legal obligations, or regulations (“Update(s)”) and/or the availability of Third Party Applications. Update(s) to the Cloud Service will not materially reduce the level of performance, security or availability of the Cloud Service during the Term of this Agreement. The terms of this Agreement shall also apply to Update(s) subsequently provided by HammerTech to Customer for the Cloud Service.
6.9. Service Monitoring and Analyses.
6.9.1. HammerTech continuously monitors the Cloud Service to: (a) facilitate HammerTech’s operation of the Cloud Service; (b) help resolve Customer service requests; (c) detect and address threats to the functionality, security, integrity, and availability of the Cloud Service as well as any content, data, or applications in the Cloud Service; and (d) detect and address illegal acts or violations of the Acceptable Use Policy or breach of section 3.1.2. HammerTech monitoring tools may collect and store Customer Data residing in the Cloud Service for such purposes. Information collected by HammerTech monitoring tools (including Customer Data) may also be used to assist in managing HammerTech’s product and service portfolio, to help HammerTech address deficiencies in its product and service offerings, and for license management purposes.
6.9.2. HammerTech may access and use Customer Data for the purpose of improving and/or developing the Cloud Service (“Service Developments”). Notwithstanding any other provision of this Agreement, Customer grants HammerTech a royalty free, worldwide, perpetual, irrevocable, transferable right to use, modify, create derivative works, distribute and incorporate into the Cloud Service (without attribution of any kind) any Customer Data for the purpose of Service Developments. Service Developments may be used for the benefit of HammerTech’s other customers and users.
6.9.3. HammerTech may: (a) compile statistical and other information related to the performance, operation and use of the Cloud Service; and (b) use data from the Cloud Service in aggregated and anonymized form for security and operations management, to create statistical analyses, and for research and development purposes (subsections (a) and (b) are collectively referred to as “Service Analyses”). HammerTech retains all Intellectual Property rights in Service Analyses.
6.10. Security. HammerTech shall maintain commercially reasonable administrative, physical and technical safeguards designed for the protection, confidentiality and integrity of Customer Data. This section 6.10 does not apply to Public Project Information.
6.11.3. The Customer and HammerTech have determined that, for the purposes of Applicable Data Protection Laws (a) the Customer is the controller in respect of the Personal Information contained within the Customer Data, and HammerTech will be the processor of such Personal Information, (b) HammerTech will be the controller, and the Customer will be the processor, of all other Personal Information processed in the provision of the Services. Should such determination change, then the parties shall work together in good faith to make any changes which are necessary to this clause 6.11.
6.11.4. Without prejudice to the generality of clause 6.11.3, where a party is the processor of Personal Information they shall, in respect of such Personal Information: (a) process Personal Information on the reasonable instructions of the controller, unless they are required to process otherwise in accordance with applicable laws; (b) where processing is required by applicable laws, promptly notify the controller of this before performing the required process, unless such applicable laws prohibit the processor from notifying the controller; (c) implement appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Customer Personal Data and against its accidental loss, damage or destruction; (d) promptly assist the controller in responding to any request from a data subject and in ensuring compliance with the controller’s obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with the relevant data protection authority, supervisory authorities or other regulators and, in particular, the processor shall promptly (and no later than within 24 hours) notify the controller if it receives any complaint, notice or communication (whether from any data subject, supervisory authority or other third party) which relates to processing of Personal Information; (e) notify the controller without undue delay (and no later than 24 hours) after becoming aware of a personal data breach; (f) maintain adequate records, and, on the controller’s request, make available such information as the controller may reasonably request, and allow for and submit its premises and operations to audits, including inspections, by the controller or the controller’s designated auditor, to demonstrate its compliance with Applicable Data Protection Laws; and (g) ensure that all of their agents, consultants, employees and other personnel who have access to any Personal Information are aware of their, the processors, and the controllers obligations under the Applicable Data Protection Laws, and keep all Personal Information confidential.
6.11.5. The Customer hereby provides its prior, general authorisation for HammerTech to transfer Customer Data outside of the UK (or as appropriate the EU) as required for the provision of the Services, provided that HammerTech shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Customer shall promptly comply with any reasonable request of HammerTech, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the UK Information Commissioner from time to time (where the UK GDPR applies to the transfer).
6.11.6. Either party may, at any time on not less than 30 days' notice, revise this clause 6.11 by replacing it (in whole or part) with any applicable standard clauses approved by the European Commission or the UK Information Commissioner's Office or forming part of an applicable certification scheme or code of conduct (“Amended Terms”). Such Amended Terms shall apply when replaced by attachment to this agreement, but only in respect of such matters which are within the scope of the Amended Terms.
6.12. Compliance Requirements. The Cloud Service is a web based, online tool that enables Customer and Users to upload and store data and documents to assist with data management. The cloud Service is not intended to replace Customer's or User's health and safety processes or practices. Customer is solely responsible (on an ongoing basis) for its technical, business, health, safety legal and regulatory requirements.
7. Suspension and Termination.
7.1. Suspension for Delinquent Account. HammerTech reserves the right to suspend Customer’s and/or User’s access to, and/or use of, the Services if any payment of Fees is due but unpaid but only after HammerTech has provided Customer two (2) delinquency notices, and at least thirty (30) days have passed since the transmission of the first notice. Customer agrees that HammerTech shall not be liable to Customer or other third party for any suspension pursuant to this section 7.1.
7.2. Suspension for Ongoing Harm. HammerTech may suspend Customer’s and/or Users’ access to, and/or use of, the Cloud Service if HammerTech believes that: (a) there is a significant threat to the functionality, security, integrity, or availability of the Cloud Service or any content, data, or applications in the Cloud Service; (b) Customer or Users are accessing or using the Cloud Service to commit an illegal act; (c) there is a violation of the Acceptable Use Policy; or (c) Customer or Users are in breach of section 3.1.2. When reasonably practicable and lawfully permitted, HammerTech will provide Customer with advance notice of any such suspension. HammerTech will use reasonable efforts to re-establish the Cloud Service promptly after HammerTech determines that the issue causing the suspension has been resolved. Any suspension under this section 7 shall not excuse Customer from Customer’s obligation to make payments under this Agreement.
7.3. Termination for Cause. If either Customer or HammerTech breaches a material term of this Agreement and fails to correct the breach within 30 days of written specification of the breach, then the non-breaching party may immediately terminate the Agreement. If HammerTech terminates this Agreement as specified in the preceding sentence, Customer will forfeit any Fees prepaid for the period following the termination date (if applicable) and must pay within 30 days all amounts that have accrued prior to such termination, as well as all sums remaining unpaid for the Services under this Agreement. If Customer terminates this Agreement in accordance with this section 7.3, then HammerTech will refund to Customer within 30 days any prepaid Fees applicable to the remainder of the Term following the termination date. Except for nonpayment of Fees, the nonbreaching party may agree in its sole discretion to extend the 30 day period for so long as the breaching party continues reasonable efforts to cure the breach.
7.4. Deletion and retrieval of Customer Data. For a period of 30 days after expiration or termination of this Agreement and conditional upon Customer having paid all Fees due and payable to HammerTech in accordance with this Agreement, Customer may request a copy of Customer Data (as it existed at the expiration or termination date) from HammerTech. HammerTech will make such Customer Data available for retrieval by Customer in a machine readable format within 14 days from the date of request by Customer and such Customer Data will remain available for retrieval for a period of 30 days. At the end of such retrieval period, and except as may be required by law, HammerTech may delete or otherwise render unrecoverable any Customer Data that remains in the Cloud Service in accordance with its internal policies, and the Applicable Data Protection Laws.
8.1. By virtue of this Agreement, each party may disclose to each other data, materials and information of the other party that is non-public, confidential or proprietary, regardless of medium (“Confidential Information”). Subject to section 8.2, Confidential Information shall be limited to: the terms and pricing under this Agreement, Customer Data residing in the Cloud Service, business and marketing plans, technology and technical information, performance tests. product plans and designs, business processes and all information clearly identified as confidential by a party at the time of disclosure.
8.2. A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party without breaching any of the obligations set out in this Agreement.
8.3. Each party will not to disclose the other party’s Confidential Information to any third party other than as set forth in the following sentence for a period of one year from the date this Agreement expires or is terminated, however, HammerTech will protect the confidentiality of Customer Data residing in the Cloud Service for as long as such information resides in the Cloud Service. Each party may disclose Confidential Information only to those employees, advisers, agents or contractors who: (a) require the information for the purposes of the receiving party performing its obligations under this Agreement; and (b) are contractually required to protect it against unauthorized disclosure in a manner no less protective than required under this Agreement. Each party may disclose the other party’s Confidential Information in any legal proceeding or to a governmental entity as required by law, or pursuant to applicable law.
9. Warranties, Disclaimers and Exclusive Remedies.
9.1. Each party represents that it has validly entered into this Agreement and that it has the power and authority to do so.
9.2. HammerTech, to the maximum extent permitted by law: (a) specifically disclaims all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose, reliability or non-infringement; and (b) provides the Services on an "as is" and "as available" basis and does not warrant that the Services will be performed error-free or uninterrupted, that it will correct all services errors, or that the Services will meet Customer’s requirements or expectations.
10. Limitations of Liability.
10.1. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR ANY LOSS OF REVENUE, PROFITS (EXCLUDING FEES UNDER THIS AGREEMENT), SALES, DATA, DATA USE, GOODWILL OR REPUTATION.
10.2. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF HAMMERTECH AND ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS ACTUALLY PAID BY CUSTOMER UNDER THIS AGREEMENT FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
11. Intellectual Property Indemnification.
11.1. If a third party makes a claim against Customer that its use of Cloud Service infringes the third party’s Intellectual Property rights (“Infringement Claim”), then HammerTech, at HammerTech’s sole cost and expense, will defend the Customer against the Infringement Claim and indemnify the Customer from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by HammerTech, if the Customer does the following:
notifies HammerTech promptly in writing, not later than 30 days after the Customer receives notice of the Infringement Claim (or sooner if required by applicable law);
gives HammerTech sole control of the defense and any settlement negotiations; and
gives HammerTech the information, authority and assistance HammerTech requires to defend against or settle the Infringement Claim.
11.2. If HammerTech believes or it is determined that any of the Cloud Service may have violated a third party’s Intellectual Property rights, HammerTech may choose to either modify the Cloud Service to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, HammerTech may, upon 30 days prior notice, terminate this Agreement and refund any unused, prepaid Fees the Customer may have paid to HammerTech applicable to the remainder of the Term following the termination date.
11.3. HammerTech will not indemnify the Customer if: (a) the Customer alters the Cloud Service or uses it outside the scope of use identified in this Agreement or HammerTech’s user or software documentation; or (b) the Infringement Claim arises from Customer’s or User’s breach of this Agreement. HammerTech will not indemnify Customer to the extent that an Infringement Claim is based on a Third Party Application or any Material from a third party portal or other external source that is accessible or made available to Customer within, or by, the Cloud Service (e.g., a third party Web page accessed via a hyperlink, etc.).
11.4. This Section 11 provides the Customer’s exclusive remedy for any Infringement Claims.
12. Indemnification by Customer. Customer will indemnify HammerTech and its affiliates, and their respective stockholders, directors, officers, employees, contractors, advisors, agents and representatives for any claims, actions, proceedings, suits, investigations, obligations, liabilities, demands, fees, penalties, losses, damages, costs and expenses (including, without limitation, attorney fees and court costs) arising from, or in connection with: (a) any User’s access to, or use of, Cloud Service; (b) any User’s breach of the terms of this Agreement; or (c) any negligence or willful misconduct of a User in connection with this Agreement or its subject matters.
13. General Terms.
13.1. Governing Law and Arbitration. This Agreement is governed by and construed in accordance with the law of England and Wales. Any dispute arising out of this Agreement will be referred to and resolved by arbitration under the UNCITRAL Arbitration Rules, which rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be England and the language of the arbitral proceedings shall be English. The governing law of the arbitration agreement shall be the substantive law of England and Wales. Notwithstanding the foregoing, either party may seek injunctive or other equitable relief from any court having jurisdiction for any alleged or threatened misappropriation of intellectual property rights or breach of confidentiality. The prevailing party in any dispute hereunder will be entitled to recover its reasonable attorney’s fees and costs.
13.2. Entire Agreement. This Agreement constitutes the entire understanding between Customer and HammerTech and is intended to be the final and entire expression of their agreement. The parties expressly disclaim any reliance on any and all prior discussions, emails, and/or agreements between the parties. There are no other verbal agreements, representations, warranties, undertakings or other agreements between the parties.
13.3. Order of Precedence. In the event of any inconsistencies between the terms of the Order Form and the SaaS Terms, the SaaS Terms shall take precedence to the extent of the inconsistency.
13.4. Amendment. Except as expressly set forth in this Agreement, this Agreement shall not be varied or amended unless such variation or amendment is agreed in writing and signed by the parties.
13.5. Novation. The Agreement shall inure to benefit and bind the parties hereto, their successors and assigns, but neither party may novate or assign this Agreement without the written consent of the other, except that HammerTech may assign or novate this Agreement without the Customer’s consent to: (a) an affiliate of HammerTech; (b) an entity that acquires all or substantially all of HammerTech’s business or assets; or (c) an entity that acquires 50% or more of HammerTech’s voting share capital. Customer will execute and deliver any further documents and do all acts and things as may be required by HammerTech to give effect to an assignment or novation pursuant to this section 13.5.
13.6. Relationship. The relationship between the parties under this Agreement is that of independent contractors. This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties.
13.7. Severability. If any provision is held by a court of competent jurisdiction to be contrary to law, such provision shall be eliminated or limited to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.
13.7. No waiver. The fact that a party fails to do, or delays in doing, something the party is entitled to do under this Agreement, does not amount to a waiver of any obligation of, or breach of obligation by, another party.
13.8. Force Majeure. Neither party shall be responsible for failure or delay of performance of its obligations under this Agreement (including failure to meet the service level commitment in the SLA) if caused by: an act of war, hostility, or sabotage; act of God; pandemic; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancelation of any export, import or other license); or other event outside the reasonable control of the obligated party (“Force Majeure Event”). The parties will use reasonable efforts to mitigate the effect of a Force Majeure event. If such Force Majeure Event continues for more than 30 days, either party may terminate this Agreement. This section does not excuse Customer’s obligation to pay Fees.
13.8. Non-Impediment. Nothing in this Agreement shall be construed as precluding or limiting in any way the right of HammerTech to provide consulting, development, or other services of any kind to any individual or entity (including, without limitation, performing services or developing materials which are similar to any Consulting Service and/or deliverables hereunder).
13.9. Survival. Provisions of this SaaS Terms that survive termination or expiration of the Agreement include sections 4.2 (Fees), 4.3 (GST), 5 (Proprietary Rights), 6.9.2 (Service Developments), 7.3 (Termination for Cause), 7.4 (Deletion and Retrieval of Customer Data), 8 (Confidentiality), 10 (Limitations of Liability), 11 (Intellectual Property Indemnification), 12 (Indemnification by Customer), 13 (General Terms) and other provisions which by their nature are intended to survive.
13.10. Counterparts. This Agreement may be executed in counterparts and/or electronic signature and if so executed shall be equally binding as an original copy of this Agreement executed in ink by both parties.
Consulting Services Schedule
This Consulting Service Schedule (“Schedule”) is a schedule to the SaaS Terms between HammerTech and Customer and applies if Customer has ordered Consulting Services under the Order Form. Capitalized terms used in this Schedule shall have the meaning defined under the SaaS Terms and Order Form.
1. Term This Schedule shall be effective as of the Commencement Date and shall continue in effect during the Term.
2. Scope of Services.
2.1. Subject to the terms of this Agreement, HammerTech will provide Customer with Consulting Services as set forth in the Order Form. The Fees, duration and description of the Consulting Services to be performed by HammerTech are set out in the Order Form.
2.2. Subject to terms of this Agreement, and only for the duration of the Term, Customer shall have the non-exclusive, non-assignable, limited right to access and use the services, deliverables and/or training materials delivered by HammerTech to Customer as part of the Consulting Services (“Deliverables”) solely for Customer’s internal business operations in the United States and Canada in connection with its authorized use of the Cloud Service.
3. Terms and Conditions for Training.
3.1. Training Deliverables. Customer is solely responsible for any printing, shipping and copying charges for any Deliverables in connection with the provision of training by HammerTech (“Training Deliverables”). All electronic and hard copy versions of the Training Deliverables are provided for Customer’s internal training purposes only. Customer is prohibited from: (a) modifying the Training Deliverables, unless otherwise authorized in writing by HammerTech; (b) reselling or sublicensing any Training Deliverables; (c) utilizing the Training Deliverables to replicate or attempt to perform the training, unless otherwise authorized in writing by HammerTech; and (d) developing or attempting to develop any of the products described in such Training Deliverables. Training Deliverables are not subject to any maintenance, support or updates.
3.2. Recording: Customer may not record, stream or otherwise capture any performance or aspect of the Consulting Services including, but not limited to, training
3.3. For Onsite Delivery. Customer is responsible for providing appropriate training facilities for the training delivery.
4. Customer Obligations:
4.1. Customer will provide HammerTech with timely assistance, cooperation, complete and accurate information so that it can perform of the Consulting Services (“Cooperation”). HammerTech will not be responsible for any delay or deficiency in performing the Consulting Services if such deficiency or delay results from Customer’s failure to provide Cooperation.
4.2 If HammerTech’s employees, consultants, contractors or agents are providing any of the Consulting Services at Customer’s premises, Customer must provide a safe and healthy work environment in accordance with applicable health and safety laws in the state or territory in which the Consulting Services are being performed.
5. Change Management Process. If Customer requests a change in any of the scope or requirements of the Consulting Services described in the Order Form, Customer shall propose the applicable changes by written notice. Within a reasonable time of receipt of the written notice, each party’s project leads shall meet, either in person or via telephone/online conference, to discuss the proposed changes. Only if acceptable to HammerTech, HammerTech will prepare a change order describing the proposed changes to the Consulting Services and the applicable change in fees and expenses, if any (a “Change Order”). Change Orders are not binding unless and until they are executed by both parties. Executed Change Orders shall be deemed part of, and subject to, this Agreement.
6. Tools. Notwithstanding any other provision of this Schedule nothing herein shall be construed to assign or transfer any Intellectual Property rights in the proprietary tools, libraries, know-how, techniques and expertise (“Tools”) used by HammerTech to develop the Deliverables, and to the extent such Tools are delivered with or as part of the Deliverables, they are made available on the same terms as the Deliverables. Tools are HammerTech’s Confidential Information.