Software as a Service Agreement

Definitions.

1. Services.

Subject to the terms and conditions of the Agreement, including without limitation Customer's continuing timely payment of all Fees owed to HammerTech, HammerTech hereby grants to Customer, for the duration of the Term specified in the Order Form, a non-exclusive, non-assignable, non-transferable limited license to use the Cloud Service and if applicable, the Pre-Configuration Service and/or Consulting Services ordered by Customer as set forth in Customer's applicable Order Form, in the form provided by HammerTech, solely for the internal business operations of Customer within the Approved Territory, and subject to any additional limitations specified in the applicable Order Form, these SaaS Terms, Consulting Services Schedule and/or Pre-Configuration Service Schedule. This license includes the right for Customer to allow its Users to use the Services solely for the internal business operations of the Customer within the scope of the foregoing license granted to Customer, and otherwise subject to the Agreement. Customer must procure that its Users comply with the terms of the Agreement and Customer is liable for any breach of the Agreement by its Users.

2. Order Form.

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

3. Restrictions.

3.1 General Restrictions.

3.1.1 Customer must not, and must not cause or permit others (including Users) to:

1. use the Cloud Service to:
   1. harass any person;
   2. cause damage or injury to any person or property;
   3. publish any material that is false, defamatory, harassing or obscene;
   4. violate privacy rights;
   5. promote bigotry, racism, hatred or harm;
   6. send unsolicited bulk e-mail or junk mail;
   7. infringe Intellectual Property rights;
   8. violate applicable laws or regulations;
2. 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;
3. perform or disclose any benchmarking, availability or performance testing of the Cloud Service;
4. perform or disclose any performance or vulnerability testing of the Cloud Service without HammerTech's prior written approval; or
5. perform or disclose network discovery, port and service identification, vulnerability scanning, password cracking, remote access or penetration testing of the Cloud Service (collectively, the "Acceptable Use Policy").

In addition to other rights that HammerTech has in the Agreement, HammerTech has the right to take remedial action if Customer or Users violate or breach the Acceptable Use Policy, and such remedial action may include, but is not limited to, removing or disabling access to Material that violates the Acceptable Use Policy.

3.1.2 Customer must not, directly or indirectly, and must not cause or permit others (including Users) to:

1. modify, make derivative works of, disassemble, decompile, reverse engineer, reproduce, frame, mirror, republish, download, transmit, copy any part of, or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Services (including HammerTech's proprietary code or Intellectual Property);
2. access or use the Services, including HammerTech's proprietary code or Intellectual Property, to build or support, directly or indirectly, products or services competitive to HammerTech;
3. rent, lease, license, sell, transfer, assign, distribute, outsource, permit timesharing or service bureau use of, commercially exploit, or make available any of the Services, including HammerTech's proprietary code or Intellectual Property, to any third party except as permitted by the Agreement;
4. use the Cloud Service to store or transmit Malicious Code;
5. interfere with or disrupt the integrity or performance of the Cloud Service or any data contained therein;
6. access or use the Cloud Service to commit a fraudulent act; or
7. attempt to gain unauthorized access to the Cloud Service or its related systems or networks.

3.1.3 Except as expressly granted in these SaaS Terms, there are no other licenses granted to Customer, express or implied or by way of estoppel. All rights not granted in these SaaS Terms are reserved by HammerTech.

4. Term, Fee, Payment & Taxes.

4.1 Term.

The term of the 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, the 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 the Agreement. Unless otherwise stated in the Order Form, Customer is responsible for all taxes on the Services contemplated by the 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, Pre-Configuration Services or Consulting Services such that additional amounts may be payable.

4.3 Sales Tax.

Unless otherwise stated in the Order Form, all Fees are exclusive of sales tax, including, but not limited to, GST, HST, PST, VAT, and Sales and Use Tax. Customer must pay any applicable sales tax that is payable on the Services.

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 under the terms of this Agreement. Customer grants HammerTech the right to host, use, process, display and transmit Customer Data to provide the Services pursuant to and in accordance with the 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 created as part of the Services, 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 the Agreement (including without limitation Deliverables, Training Deliverables and Tools as such terms are defined in the Consulting Services Schedule, and Pre-Configuration Know-How as such terms are defined in the Pre-Configuration Service Schedule but excluding Inputs into, and Outputs from, HammerTech Intelligence which are subject to the terms in section 6.12) are owned exclusively by and shall remain vested in HammerTech or its licensors. Except as provided in the Agreement, the licenses 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. To the extent that Customer, any of its Users or any person acting on Customers or Users behalf acquires any Intellectual Property rights in the Services, the Deliverables, Training Deliverables, Tools, Pre-Configuration Know-How or any other part of the Services (but excluding Inputs into, and Outputs from, HammerTech Intelligence which are subject to the terms in section 6.12), Customer hereby assigns, and shall procure the assignment of by its Users or any person acting on behalf of Customer or its Users, such Intellectual Property rights with full title guarantee (including by way of present assignment of future Intellectual Property rights) to HammerTech or such third party as HammerTech elects. Customer grants to HammerTech a royalty free, worldwide, perpetual, irrevocable, transferable, sublicensable (through multiple tiers of sublicensees) the right to use, modify, distribute and incorporate into the Services (without compensation or attribution of any kind) any suggestions, enhancement requests, recommendations, proposals, corrections or other feedback or information provided by Customer or any Users related to the operation or functionality of the Services. To the extent Customer or Users provide feedback to HammerTech, HammerTech retains the rights to utilize (or refrain from utilizing) such feedback for its benefit and the right to share such feedback with third parties. 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 that may own the Mark. The trademarks, logos and service marks of Customer are the property of Customer ("Customer Marks"). HammerTech is granted a non-exclusive, royalty free licence to use the Customer Marks for the purposes of performing its obligations under the Agreement, including the provision of the Services. Subject to the foregoing, HammerTech is not permitted to use the Customer Marks without Customer's express prior written permission. Customer shall execute all such documents and do such things as HammerTech may consider necessary to give effect to this section.

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 the 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 legal@HammerTech.com Attention: Chief Executive Officer. Any notices required to be sent by HammerTech to Customer shall be provided to the place set out in the Notice section of the Order Form.

6.3 Users: Credentials, Access and Notification.

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

6.4 Transmission of Data.

Customer understands that the technical processing and transmission of Customer's Electronic Communications is fundamentally necessary to use of the Cloud Service. Customer is responsible for securing DSL, cable or another high speed internet connection, mobile telecommunications coverage and up-to-date "browser" software in order to utilize the Cloud Service. Customer expressly consents to HammerTech's use 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, not owned and/or operated by HammerTech.

6.5 Third-Party Applications.

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

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

6.5.3 Customer acknowledges that: (a) the nature, type, quality and availability of Third Party Applications may change at any time during the Term of the 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 the 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, 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 the Agreement does not affect Customer obligations under the 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 the Order Form, Customer may use the SMS Feature conditional upon its payment of Fees in accordance with the Agreement. The SMS Feature may be subject to a monthly SMS credit limit specified in the Order Form. If Customer exceeds 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 (Transmission of Data).

6.7 Service Level.

During the Term of the Agreement, the Cloud Service will meet the service level specified in the "Service Level Agreement" ("SLA") listed on HammerTech's website located here, 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 thirty (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 (Suspension and Termination).

6.8 Updates.

During the Term of the Agreement, HammerTech may, at its discretion, 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 (each, "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 the Agreement. The terms of the 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 regularly 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 may access and use Customer Data residing in the Cloud Service for such purposes. Information accessed by HammerTech (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 the Agreement, Customer hereby grants HammerTech a royalty free, worldwide, perpetual, irrevocable, transferable, sublicensable (through multiple tiers of sublicensees) right to use, modify, create derivative works, distribute and incorporate into the Cloud Service (without attribution of any kind) any aggregated and deidentified 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 deidentified 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 owns and retains all Intellectual Property rights in and to 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. Customer acknowledges and agrees each Project may include a Public Project Page. Customer is responsible for Public Project Information and 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.

6.11 Data Protection.

6.11.1 The Customer warrants that: (a) it will inform individuals whose Personal Information is collected in connection with the provision of the Services under the Agreement of any matters of which a person is required or entitled to be notified of under Applicable Data Protection Laws at the time their Personal Information is collected; (b) it will obtain any consents required under Applicable Data Protection Laws in respect of Customer's use of the Services, including those related to the collection, use, processing, transfer and disclosure of Personal Information; and (c) HammerTech is authorised, either by consent of the individual or by law, to use, hold and otherwise process Personal Information for the purposes outlined in the Agreement.

6.11.2 The Customer and HammerTech have determined that, to the extent applicable for the purposes of Applicable Data Protection Laws, 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. Should such determination change, then the parties shall work together in good faith to make any changes which are necessary to this section 6.11.

6.11.3 Without prejudice to the generality of section 6.11.2, where a party (in this section, the "receiving party") is the processor of Personal Information under Applicable Data Protection Laws or otherwise holds Personal Information on behalf of the other party (in this section, the "other party"), it will, in respect of such Personal Information: (a) process Personal Information on the reasonable instructions of the other party, unless the receiving party is required to process otherwise in accordance with applicable laws; (b) where processing is required by applicable laws, promptly notify the other party of this before performing the required process, unless such applicable laws prohibit the receiving party from notifying the other party; (c) implement appropriate technical and organisational measures to protect against unauthorised or unlawful processing of such Personal Information and against its accidental loss, damage or destruction; (d) promptly (and no later than within 72 hours) notify the other party if it receives any request, complaint, notice or communication (whether from any data subject, supervisory authority or other third party) which relates to processing of Personal Information and assist the other party in responding to any such request, complaint, notice or communication; (e) use reasonable endeavours to assist the other party in ensuring compliance with that party's obligations under Applicable Data Protection Laws with respect to security, impact assessments, audits and consultations with the relevant supervisory authorities or other regulators; (f) notify the other party without undue delay (and no later than 24 hours) after becoming aware of any actual unauthorised or accidental access to, or unauthorised disclosure alteration, loss (including loss of access to), or destruction of, such Personal Information, promptly investigate and remediate the incident, and, unless agreed otherwise between the parties, the receiving party will not notify any individual or give public notice of such incident; (g) maintain adequate records, and, on the other party's request, make available such information as the other party may reasonably request, and allow for and submit its operations to audits, including inspections, by the other party or the other party's designated auditor, to demonstrate its compliance with Applicable Data Protection Laws; and (h) ensure that all of its agents, consultants, employees and other personnel who have access to any Personal Information are aware of their obligations under the Applicable Data Protection Laws, and keep all Personal Information confidential.

6.11.4 Prior to termination or expiry of the Agreement, the Customer may use the functionality of the Cloud Service to delete and/or obtain a copy of the Customer Data at any time and clause 7.5 will apply upon termination or expiry of the Agreement.

6.11.5 The Customer hereby provides its prior, general authorisation for HammerTech to transfer Customer Data outside of the Approved Territory 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 contractual clauses adopted by any supervisory authority from time to time.

6.11.6 The Customer hereby provides its prior general authorisation for HammerTech to engage the list of approved sub-processors set out here. From time to time, HammerTech may appoint a new sub-processor to process Personal Information. HammerTech will provide written notice to the Customer of its intention to appoint a new sub-processor in advance of such appointment becoming effective and Customer shall have the right to object to such an appointment within 30 days of receiving such notice. If the Customer reasonably objects to the appointment of a sub-processor, HammerTech shall, as its sole discretion: (a) provide a replacement sub-processor; or (b) continue to provide the Cloud Service without appointing the sub-processor; or (c) otherwise work to address the objection at the Customer's cost. If neither (a), (b), or (c) can be feasibly achieved, as determined by HammerTech in its sole discretion, each party shall have the right to terminate the Agreement. HammerTech shall remain responsible for the acts and omissions of each sub-processor and impose similar terms on each sub-processor as are set out in this section 6.

6.12 Compliance Requirements, including AI.

The Cloud Service is a web based, online tool that enables Customer and Users to upload and store data and documents to assist with data management. The Cloud Service is not intended to replace Customer's or Users' health and safety processes or practices. Customer is solely responsible (on an ongoing basis) for its technical, business, occupational, health, safety, legal and regulatory requirements. Further, the Cloud Service may incorporate or include HammerTech Intelligence and results produced by the Cloud Service may be generated by artificial intelligence. Customer acknowledges and agrees that the information, responses and recommendations generated for Customer and Users through HammerTech Intelligence (collectively, the "Output") may not be accurate or complete and may be misleading or contain errors and omissions, or HammerTech Intelligence may misunderstand the content that Customer inputs to HammerTech Intelligence (the "Input"). Customer shall not rely on the Outputs or information generated by HammerTech Intelligence without reviewing, verifying, and testing the Output to ensure that it is accurate, error-free, appropriate, and suitable for the intended purpose. The Outputs provided by HammerTech Intelligence are intended for general information purposes only. Customer should not use any Output provided by HammerTech Intelligence as the basis for making any legal, occupational, safety, health or regulatory decision. Customer remains solely responsible for its occupational, health, safety, legal and regulatory decisions and compliance, including in connection with its use of HammerTech Intelligence and any Outputs thereof. To the extent applicable laws require certain disclaimers or disclosures, Customer agrees to comply with any such requirements in accordance with Customer's use of HammerTech Intelligence. Due to the nature of machine learning and generative artificial intelligence, the Output from HammerTech Intelligence may not be unique, and other users may receive similar content from HammerTech Intelligence. Responses that are requested by and generated for other users are not considered Customer's Output. Customer is responsible for all Input and represents and warrants that it has all rights, licenses, and permissions required to provide Input to HammerTech Intelligence. Additionally, Customer understands and agrees that Input and Output may be used to further enhance and improve HammerTech Intelligence, the underlying model and for Service Developments. Customer retains all rights, title and interest in and to Inputs and Outputs. HammerTech hereby assigns to Customer all HammerTech's right, title, and interest, if any, in and to the Output. Customer grants HammerTech a worldwide and royalty-free licence to use Outputs to the extent necessary for, and solely for the purpose of, HammerTech performing its obligations under the SaaS Terms during the Term, including the creation of AI Service Analyses and Service Developments. Customer understands and agrees that HammerTech may use Outputs to compile statistical and other information related to the performance, operation and use of HammerTech Intelligence, and use Outputs in aggregated and deidentified form to create statistical analyses and for research and development purposes (collectively referred to as "AI Service Analyses"). HammerTech owns and retains all Intellectual Property rights in and to AI Service Analyses. For clarity, Customer understands and agrees that Input to HammerTech Intelligence may be processed and temporarily stored out of the Approved Territory in accordance with section 6.11.

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 immediately if Customer becomes insolvent, makes an assignment for the benefit of creditors, or becomes the subject of any bankruptcy, dissolution, liquidation, or similar proceeding, or 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 any 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 (d) Customer or Users are in breach of section 3.1.2. When reasonably practical and lawfully permitted, HammerTech will provide Customer with advance notice of any such suspension. HammerTech will use reasonable efforts to re-establish Customer's and/or User's access to, and/or use of, the Cloud Service promptly after HammerTech determines that the issue causing the suspension has been resolved. Except for suspension under this section 7.2 (a), any suspension under this section 7 shall not excuse Customer from Customer's obligation to make payments under the Agreement.

7.3 Termination for Cause.

If either Customer or HammerTech breaches a material term of the Agreement and fails to correct the breach within thirty (30) days of written specification of the breach, then the non-breaching party may immediately terminate the Agreement. If HammerTech terminates the 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 thirty (30) days all Fees that have accrued prior to such termination, as well as all Fees for the period following the termination date covering the remainder of the Term. If Customer terminates the Agreement in accordance with this section 7.3, then HammerTech will refund to Customer within thirty (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 thirty (30) day period for so long as the breaching party continues reasonable efforts to cure the breach.

7.4 Effect of Termination.

Upon expiration or termination of the Agreement for any reason, (i) all rights granted to Customer shall cease and Customer shall (and shall procure that each User shall) stop using the Cloud Service; (ii) HammerTech will discontinue the provision of any Consulting Services and/or Pre-Configuration Services; and (iii) Customer shall, at the request of HammerTech, return or destroy all copies of HammerTech Confidential Information in its possession or control (or in the possession or control of any person acting on behalf of any of them) and shall certify to HammerTech in writing that this has been done. Termination or expiration of the Agreement shall not affect any accrued rights and liabilities of either party at any time up to the date of termination or expiration.

7.5 Deletion and Retrieval of Customer Data.

For a period of thirty (30) days after expiration or termination of the Agreement and, conditioned upon Customer having paid all Fees due and payable to HammerTech in accordance with the 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 fourteen (14) days from the date of request by Customer and such Customer Data will remain available for retrieval for a period of thirty (30) days. At the end of such retrieval period, and unless HammerTech is required to continue to process Customer Data to comply with applicable laws or to establish, exercise or defend legal rights, HammerTech will 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. Confidentiality.

8.1 By virtue of the 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 include: the terms and pricing under the 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, or that the other person exercising reasonable business judgement would consider, or ought to consider, to be confidential information of the other party.

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

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

9.2 EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 9, HAMMERTECH, TO THE MAXIMUM EXTENT PERMITTED BY LAW: (A) DOES NOT MAKE, AND HEREBY SPECIFICALLY DISCLAIMS, ANY AND ALL OTHER EXPRESS, STATUTORY AND IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, RELIABILITY, TITLE AND NON-INFRINGEMENT, SYSTEM INTEGRATION, ACCURACY (OF DATA OR ANY OTHER INFORMATION, RESULTS, OUTPUT OR CONTENT), ABSENCE OF DEFECTS, WHETHER LATENT OR PATENT, AND ANY OTHER WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE; AND (B) PROVIDES THE SERVICES, FUNCTIONALITY OR FEATURES, INCLUDING ALL INFORMATION, RESULTS AND OUTPUTS, ON AN "AS IS" AND "AS AVAILABLE" BASIS AND DOES NOT WARRANT THAT THE SERVICES OR THE FUNCTIONALITY OR FEATURES THEREOF WILL PERFORM OR BE PERFORMED ERROR-FREE OR UNINTERRUPTED, THAT IT WILL CORRECT ALL SERVICES ERRORS, OR THAT THE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS OR EXPECTATIONS.

9.3 HammerTech warrants and represents that the Services shall perform substantially in accordance with the user and technical documentation for the Services made available by HammerTech to Customer, as updated from time to time, and that HammerTech will perform the Services as set forth in the Agreement. The foregoing warranty shall not apply to the extent: (a) the Services are not used in accordance with the Agreement; and/or (b) the non-conformity is caused by a Third Party Provider.

9.4 If a supply under the Agreement is a supply within the meaning of the Competition and Consumer Act 2010 (Cth) (the "Australian Consumer Law"), nothing in this Agreement is intended to exclude, restrict or modify the application of any provision, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law. If a guarantee, condition, warranty or term is implied or imposed in relation to the Agreement (being a "non-excludable provision") and HammerTech is able to limit Customer's remedy for breach of such non-excludable provision, then HammerTech's liability for a breach is limited to the following: (a) in the case of goods, the replacement of the goods or the supply of equivalent goods, or the payment of the cost of replacing the goods or acquiring the equivalent goods, or the cost of having those goods repaired; and (b) in the case of services, supplying the Services again, or payment to Customer of the cost of having the Services supplied again.

10. Limitations of Liability.

10.1 IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES OR LICENSORS BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR ANY LOSS OF REVENUE, PROFITS (EXCLUDING FEES UNDER THE AGREEMENT), SALES, DATA, DATA USE, GOODWILL OR REPUTATION ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY OR ITS AFFILIATES OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE SERVICES OR THE RESULTS THEREOF.

10.2 EXCEPT FOR LIABILITY ARISING FROM AND TO THE EXTENT CAUSED BY (A) FRAUD, GROSS NEGLIGENCE, OR WILFUL MISCONDUCT, OR (B) SECTION 11 (INTELLECTUAL PROPERTY INDEMNIFICATION), IN NO EVENT SHALL THE AGGREGATE LIABILITY OF HAMMERTECH AND ITS AFFILIATES OR LICENSORS ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS ACTUALLY PAID BY CUSTOMER UNDER THE AGREEMENT FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.

10.3 EXCEPT FOR LIABILITY ARISING FROM AND TO THE EXTENT CAUSED BY (A) FRAUD, GROSS NEGLIGENCE, OR WILFUL MISCONDUCT OR (B) BREACHES OF SECTION 3 (RESTRICTIONS) OR SECTION 5.2 (HAMMERTECH INTELLECTUAL PROPERTY RIGHTS) OR SECTION 6.3 (USERS) OR SECTION 8 (CONFIDENTIALITY) OR SECTION 12 (INDEMNIFICATION BY CUSTOMER), THE AGGREGATE LIABILITY OF THE CUSTOMER AND ITS RELATED BODIES CORPORATE UNDER OR IN CONNECTION WITH THIS AGREEMENT – WHETHER IN CONTRACT, TORT, OR OTHERWISE – SHALL NOT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY THE CUSTOMER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN 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:

1. 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);
2. gives HammerTech sole control of the defense and any settlement negotiations; and
3. gives HammerTech the information, authority and reasonable 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 thirty (30) days prior notice, terminate the 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 the Agreement or HammerTech's user or software documentation; (b) the Infringement Claim arises from Customer's or a User's breach of the Agreement; or (c) the Infringement Claim arises from the use of the Cloud Service in combination with any data, software, hardware, equipment, network, system or technology not provided by HammerTech or authorised by HammerTech in writing. Additionally, 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.) or arises from Customer Data.

11.4 This section 11 provides the Customer's sole and 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) to the extent arising out of or resulting from: (a) Customer's misuse of the Cloud Service in violation of this Agreement or applicable law; (b) any User's misuse of the Cloud Service in breach of the terms of the Agreement or applicable law; or (c) any negligence or willful misconduct of a User in connection with the Agreement or its subject matters; provided that this indemnity shall not apply to the extent such claims result from HammerTech's breach of this Agreement, negligence, or willful misconduct. Customer may not settle any claim against HammerTech unless HammerTech consents to such settlement, and further provided that HammerTech will have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice.

13. General Terms.

13.1 Governing Law and Arbitration.

(a) Where the Customer's registered place of business as stated on the executed Order Form is within Europe this paragraph (a) applies. The Agreement is governed by and construed in accordance with the law of England and Wales and any dispute arising out of the Agreement will be referred to and resolved by arbitration conducted on a confidential basis under the UNCITRAL Arbitration Rules, which rules are deemed to be incorporated by reference into this section. 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. Any decision or award as a result of any such arbitration proceeding shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys' record fees. Any such arbitration shall be conducted by an arbitrator experienced in cloud-based services.

(b) Where the Customer's registered place of business as stated on the executed Order Form is within the United States this paragraph (b) applies. The Agreement is governed by the substantive and procedural laws of the State of Delaware without giving effect to its conflict of laws principles. Any dispute arising out of the Agreement will be settled exclusively through binding arbitration administered by the American Arbitration Association in Chicago, Illinois conducted on a confidential basis in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction. The arbitrator shall not have any authority to award non-compensatory, punitive or exemplary damages. Any decision or award as a result of any such arbitration proceeding shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys' record fees. Any such arbitration shall be conducted by an arbitrator experienced in cloud-based services.

(c) Where the Customer's registered place of business as stated on the executed Order Form is within Canada this paragraph (c) applies. The Agreement is governed by the laws of Canada without giving effect to its conflict of laws principles. Any dispute arising out of the Agreement will be settled exclusively through binding arbitration administered by the Canadian Arbitration Association conducted on a confidential basis in accordance with its rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction. The arbitrator shall not have any authority to award non-compensatory, punitive or exemplary damages. Any decision or award as a result of any such arbitration proceeding shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys' record fees. Any such arbitration shall be conducted by an arbitrator experienced in cloud-based services.

(d) Where the Customer's registered place of business as stated on the executed Order Form is within Australia or New Zealand this paragraph (d) applies. The Agreement is governed by and construed in accordance with the law of Victoria, Australia. Any dispute arising out of the Agreement will be referred to and resolved by arbitration conducted on a confidential basis under the Australian Centre for International Arbitration Rules (ACICA Rules) and administered by the Australian Centre for International Commercial Arbitration, which ACICA Rules are deemed to be incorporated by reference into this section. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be Victoria, Australia and the language of the arbitral proceedings shall be English. Any decision or award as a result of any such arbitration proceeding shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys' record fees. Any such arbitration shall be conducted by an arbitrator experienced in cloud-based services.

(e) Where the Customer's registered place of business as stated on the executed Order Form is not within the geographic areas in (a), (b), (c), or (d) above, paragraph (b) applies.

(f) 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.

The 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 Order Form shall take precedence to the extent of the inconsistency.

13.4 Amendment.

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

13.5 Novation.

Neither party may novate or assign the Agreement without the written consent of the other, except that HammerTech may assign or novate the 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 the Agreement is that of independent contractors. The 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 the 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 the 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 the 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 (each, a "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 thirty (30) days, either party may terminate the Agreement. This section does not excuse Customer's obligation to pay Fees.

13.8 Non-Impediment.

Nothing in the 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 and Payment; Taxes), 4.3 (Sales Tax), 5 (Proprietary Rights), 6.9.2 (Service Developments), 6.9.3 (Service Analyses), 7.3 (Termination for Cause), 7.4 (Effect of Termination), 7.5 (Deletion and Retrieval of Customer Data), 8 (Confidentiality), 9.2 (Disclaimers), 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 Insurance.

HammerTech shall, at its own expense, maintain throughout the Term of this Agreement and for at least one (1) year thereafter, insurance policies with reputable insurers, providing coverage in types and limits that are commercially reasonable and consistent with industry standards, taking into account the scope and risk of the Services provided under this Agreement.

13.11 Counterparts.

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

13.12 Publicity.

Neither party shall publicly disclose or identify the other party in any advertising, publicity, without prior written approval by the other party.

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Schedule 1: Consulting Services Schedule

This Consulting Services Schedule ("Consulting Services Schedule") is a schedule to the SaaS Terms between HammerTech and Customer and applies if Customer has ordered Consulting Services under the Order Form. 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 the Agreement, HammerTech will provide Customer with Consulting Services as set forth in the Order Form. The Fees, duration and description of the Consulting Services to be performed by HammerTech are set out in the Order Form.

2.2 Subject to the terms of the 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 Approved Territory (or as otherwise outlined in the Customer's applicable Order Form) 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/or (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, and complete and accurate information so that it can perform 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 of the parties' 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, the 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 Training Deliverables. Tools are HammerTech's Confidential Information.

Schedule 2: Pre-Configuration Service Schedule

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

1. Term.

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

2. Scope of Services.

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

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

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

3. Updates.

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

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

4. Disclaimer.

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

1. will meet industry or regulatory standards or any future revisions or updates of the standard; or
2. is appropriate or effective to meet Customer's own business needs and standards or its regulatory and legal requirements.

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

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

5. Intellectual Property.

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