Terms and Conditions

UPDATED 28 MARCH 2023

Definitions

“Client” means you, or the entity identified in the Agreement.

“Hamma” means Hammond & Moran Pty Ltd ACN 619 720 080 as Trustee for the HammaJack Trust trading as Hamma.digital

“Agreement” means these terms and conditions together with the terms of any Statement of Work between Hamma and the Client, from time to time.

“Client Assets” means the assets and/or property of the Client, whether the subject of the Services or otherwise.

“Client Information” means means documents, information and material in the possession and/or knowledge of the Client from time to time, including but not limited to customer lists.

“Intellectual Property” means broadly the rights to use, apply and exploit:

(a) the results of, in relation to, arising out of or in connection with the creative and intellectual efforts of Hamma or at Hamma’s direction; and/or

(b) any proprietary and/or industrial knowledge of Hamma,

at any time, including but not limited to, as reflected or embodied in or in relation to any inventions,

know-how, trade secrets, logos, drawings, documentation, products, software, brands (including brand names), patents, designs, trademarks, copyright and all other similar rights, whether existing and/or pending, registered in Australia or some other place or not registered.

“Out of Pocket Expenses” means all expenses and disbursements incurred by HammaJack in connection with providing the Services, at cost, including all travel expenses, digital platform subscription costs, advertising costs and website/server/domain hosting costs.

“Services” means the services identified as ‘Services’ in the Statement of Work.

“Service Fee” means the amount identified as ‘Service Fee’ in the Statement of Work.

“Statement of Work” means each Statement of Work in substantially the same form as the Annexure to this Agreement, agreed by the parties from time to time to be incorporated into and form part of this Agreement.

Terms and Conditions

1. Hamma agrees to provide the Services to the Client.

2. Hamma will issue invoices to the Client for the Service Fee and/or any Out of Pocket Expenses (or part of each of those), from time to time.

3. Invoices issued by Hamma are payable by the Client within 14 days of issue (or as agreed). Interest will accrue on any amount unpaid after the due date from the date of issue of the respective invoice at the rate of 10%.

4. Subject to any agreement in writing between the parties, the Client will be responsible for the ongoing management, operation and maintenance of the Client Assets.

5. In order for Hamma to provide the Services, it may be necessary for Hamma to engage third party sub-contractors to assist in the delivery of the Services to the Client.

6. The Client may provide Client Information to Hamma. Hamma will keep any confidential Client Information provided by the Client to Hamma confidential and will not disclose any Client Information which is confidential, save that Hamma is permitted to disclose any and all Client Information:

a. to a third party engaged by Hamma in the course of providing the Services if:

i. the disclosure of the Client Information by Hamma is reasonably necessary in order to provide the Services; and

ii. the third party has undertaken to keep the Client Information confidential,

b. as is reasonably necessary for Hamma to comply with any of its obligations, including any obligations related to privacy and whether imposed by contract, law, equity or any other thing

7. Hamma is not liable for any claim, cost, loss, liability or damage whatsoever in relation to, arising out of or in connection with the disclosure of any Client Information other than disclosure:

a. in breach of clause 6 above; or

b. arising from the gross negligence of Hamma.

8. All Intellectual Property shall accrue to and vest in Hamma. Hamma hereby grants a non-exclusive licence to the Client to utilise and exploit the Intellectual Property in connection with the provision of the Services during the term of this Agreement.

9. The Client warrants and represents, and continues to warrant and represent during the duration of this Agreement, to Hamma that:

a. any information, including any Client Information, provided by the Client to Hamma is true and accurate and the Client has made all enquiries necessary to determine the veracity of the Client Information;

b. the provision by the Client of any information to Hamma, including any Client Information, is not in breach of any obligation of the Client whatsoever;

c. the Client is not in breach of any of its obligations whatsoever, including any obligations related to privacy (including in relation to the Australian Privacy Principles, or their equivalent) and whether imposed by contract, law, equity or any other thing;

d. if the Client discloses any personal information (as contemplated by the Australian Privacy Principles, or their equivalent) to Hamma, the Client has done and continues to do all things necessary to notify any person from which personal information is, has been or will be collected by the Client that that information may be disclosed to Hamma; and

e. the Client has done and continues to do all things necessary to determine and maintain the accuracy of the above warranties and representations from time to time, including the development and maintenance of any and all systems and practices necessary to ensure that the Client complies with any and all of its obligations whatsoever, including any obligations related to privacy (including in relation to the Australian Privacy Principles, or their equivalent) and whether imposed by contract, law, equity or any other thing.

10. The Client will do all acts and things, including without limitation the timely provision of any information, which Hamma considers is necessary in order for Hamma to comply with its obligations in relation to privacy (including in relation to the Australian Privacy Principles, or their equivalent).

11. On and from the date of this Agreement, the Client indemnifies Hamma against any claim, loss, liability, damage, cost, debt or expense whatsoever (including legal fees on a solicitor/client basis) which is incurred or accrues at any time, whether directly or indirectly in relation to, arising out of or in connection with any breach or alleged breach by the Client of this Agreement, including but not limited to the warranties and representations made by the Client in clause 9 . This indemnity is an irrevocable, unlimited and continuing indemnity which is a principal obligation not contingent on any other matter or thing and which survives and shall not be (whether in whole or in part) prejudiced, affected, reduced or discharged by any matter or thing (including the termination of or complete or substantial performance of all other obligations under this Agreement), other than in writing addressed to the Client and signed by Hamma.

12. Either Hamma or the Client may, by providing at least 30 days’ written notice to the other, terminate this Agreement, in its discretion. Termination of this Agreement does not affect any rights accrued on and prior to the date of termination.

13. Notwithstanding anything in the Agreement, Hamma may terminate this Agreement immediately by written notice to the Client in the event of:

a. a breach or alleged breach by the Client of this Agreement that is subsisting for 7 days’ after a request by Hamma that the breach or alleged breach be remedied;

b. the Client is, or states that it is, unable to pay its debts as and when they become due and payable or is otherwise presumed to be insolvent under any law;

c. the Client ceases or suspends conducting all or a substantial part of its business (or threatens to); or
except for the purpose of carrying out a solvent restructure on terms agreed to in writing by Hamma:

i. appointment of a receiver, receiver and manager, trustee (including in bankruptcy), administrator, liquidator or similar appointee to the Client or any or all of the Client’s assets, undertaking or property (or any part thereof);

ii. an application is made to a court for an order, an order is made or a resolution passed that the Client be wound up, a liquidator appointed or that the Client be subject to sequestration;

iii. the Client commits an act of bankruptcy as defined in section 40 of the Bankruptcy Act 1966 (Cth);

iv. the entry of any Debt Agreement or Personal Insolvency Agreement in relation to the Client under Parts IX or X of the Bankruptcy Act 1966 (Cth); or

v. anything analogous or having a substantially similar effect to any of the events described above happens in connection with the Client under the law of any jurisdiction.

14. Unless otherwise expressly indicated, dollar amounts in this Agreement are expressed without any applicable GST, which is to be added to those amounts.

15. Nothing in this Agreement creates or is intended to create any relationship between the parties other than independent contractors to each other.

16. This clause applies despite any other clause (or part thereof) of this Agreement and to the extent of any inconsistency between the operation of this clause and any other clause (or part thereof) of this Agreement, the terms of this clause will prevail. The parties agree and acknowledge that:

a. this clause extends to any and all obligations or liability of Hamma in relation to, arising out of or in any way connected with this Agreement,

b. including any matter or thing contemplated by this Agreement (the “Hamma Liability”);
Hamma has entered into this Agreement as Trustee of the HammaJack Trust and in no other capacity;

c. Hamma incurs the HammaJack Liability solely in its capacity as Trustee of the HammaJack Trust;

d. save for and to the extent of any fraud, gross negligence or breach of trust by Hamma:

i. Hamma will not be liable to pay or satisfy any HammaJack Liability except out of the assets of the HammaJack Trust from which Hamma is actually indemnified;

ii. the Client may only enforce its rights against Hamma arising from the Hamma Liability to the extent of Hamma’s right of indemnity out of the assets of the HammaJack Trust;

iii. if the Client does not recover all money owing to it arising from the HammaJack Liability, it may not seek to recover the shortfall by:

1. bringing proceedings against Hamma in a capacity other than as Trustee of the HammaJack Trust; or

2. applying to have Hamma wound up or proving in the winding up of Hamma,

iv. the Client hereby waives its rights and releases Hamma from any personal liability whatsoever, in respect of any claim, cost, loss, liability or damage which it may suffer as a result of any:

1. breach or alleged breach of any of the Hamma Liability; or

2. non-performance of the Hamma Liability,
which cannot be paid or satisfied out of the assets from which Hamma is entitled to be indemnified as Trustee of the HammaJack Trust;

e. Hamma shall in no circumstances be required to satisfy any liability arising under, or for non-performance, breach or alleged breach of the Hamma Liability or under or in respect of any other document to which it is expressed to be a party out of any funds, property or assets other than the assets of the HammaJack Trust under Hamma’s control and in its possession as and when those funds, property or assets are available to HammaJack to be applied in exoneration for any such liability.

17. Subject to clause 20 , this Agreement may only be varied as agreed between the parties in writing.

18. If any clause of this Agreement (or part thereof) is unenforceable, the unenforceable clause (or part thereof) will be read down or severed from this Agreement without affecting the operation of any other clause (or part thereof) of this Agreement, unless the reading down or deletion would substantially alter the intention of the parties expressed or implied.

19. Subject to the terms of this Agreement, each release, obligation, indemnity, warranty and representation in this Agreement which is capable of having future operation, including but not limited to clauses 9, 10 & 16 , survives termination of this Agreement and continues in force although this Agreement may have otherwise been fully performed.

20. This Agreement may be executed by way of counterpart (whether electronic or hardcopy). In addition, the Client will be deemed to have accepted this Agreement (and the Client will be bound by all of the terms of this Agreement), if the Client:

a. fails to raise a written objection to any matter set out in this Agreement within 7 days of its issue; or

b. communicates with Hamma, except for any communication for the sole purpose of objecting to a term of this Agreement.

21. This Agreement is governed by the laws of Victoria and the parties submit to the non-exclusive jurisdiction of courts in that State.