Terms & Conditions

TERMS & CONDITIONS

IMPORTANT PLEASE READ CAREFULLY

This Terms and Conditions along with all materials referenced herein (“Agreement”) is a legal agreement between an entity ("User") and Hammerhead CMS PTE. LTD. (HCMS) permitting User to access and use, subject to the terms of this Agreement, (i) HCMS's software identified on the agreement page, https://www.hammerheadtechnologies.com/legal/TC.aspx and accompanying documentation provided electronically ("Software") and (ii) services relating to User's access and use of the Software, including the provision of a web site, content therein and hardware and software relating thereto ("Services").

A PDF copy of the HCMS Terms and Conditions can be downloaded by clicking here - HCMS Terms And Conditions

Use of the Software and Services provided by HCMS is subject to an Acceptable Use Policy.  HCMS's Acceptable Use Policy can be found here - https://www.hammerheadtechnologies.com/legal/AcceptableUsePolicy.aspx.

Use of the Software and Services provided by HCMS is subject to a Privacy Policy.  HCMS's Privacy Policy can be found here - https://www.hammerheadtechnologies.com/legal/PrivacyPolicy.aspx.

HCMS reserves the right to change this agreement and any agreement at any time.  Please check for agreement updates using the details mentioned above.  You will be e-mailed to accept changes to this agreement or be asked to accept a new version of this agreement prior to logging into the Hammerhead CMS Control Panel when any changes are made.

USER MUST READ THIS AGREEMENT CAREFULLY BEFORE INDICATING ACCEPTANCE BY SELECTING THE TERMS & CONDITIONS ‘I ACCEPT’ CHECKBOX ON THE HAMMERHEAD CMS POLICY ACCEPTANCE PAGE.  IF USER DOES NOT AGREE TO ANY OF THE TERMS OF THIS AGREEMENT, DO NOT SELECT THE TERMS & CONDITIONS ‘I ACCEPT’ CHECKBOX ON THE HAMMERHEAD CMS POLICY ACCEPTANCE PAGE AND USER WILL NOT BE PERMITTED TO ACCESS AND USE THE SOFTWARE AND SERVICES.

1. LICENSE GRANT

Subject to the terms of this Agreement, HCMS grants User a non-exclusive, non-transferable license to access and use the Software and Services for internal business purposes only, without the right to sublicense such rights, provided User unconditionally agrees to access and use the Software and Services in accordance with this License ("License").  Under the License, User may print out, or otherwise make, printed copies ("Copies") of the reports, numeric results, and other information or materials generated from User's access and use of the Software and Services for internal business purposes only.  Any updates, modifications, enhancements or new versions of the Software and Services provided or made available to User by HCMS, in accordance with Section 14 of this Agreement, shall be considered Software and Services subject to this Agreement.  HCMS may at any time and for any reason elect to modify, discontinue, delete or restrict any aspect or feature of the Software and Services without notice to User or any liability to HCMS or any HCMS Party as defined in Section 2; however, HCMS agrees to make commercially reasonable efforts to provide User with prior notice of any such changes.  HCMS are the owner and/or authorized user of all trademarks, service marks, design marks, patents, copyrights, database rights and all other intellectual property appearing on or contained within the Software and Services, unless otherwise indicated.  Except as provided in this License use of the Software and Services does not grant you any right, title, interest or license to any such intellectual property you may access on the Software and Services.  Except as provided in this License, any use or reproduction of the intellectual property is prohibited.

2. DISCLAIMERS

Except as otherwise expressly provided in this agreement, (a) the software and services are provided "as-is" and, to the maximum extent permitted by applicable law, HCMS and its directors, officers, licensors, subcontractors and agents (‘HCMS parties’) disclaim all warranties of any kind, express or implied, regarding the software and services or otherwise relating to this agreement, including warranties of fitness for a particular purpose, merchantability, non-infringement and accuracy; (b) neither HCMS nor any HCMS party warrants that the software and services are or will be accurate, complete, uninterrupted, without error, or free of viruses, worms, other harmful components, or other program limitations; (c) User assumes the entire cost of all necessary servicing, repair, or correction of problems caused by viruses or other harmful components, unless such errors or viruses are the direct result of HCMS’s gross negligence or wilful misconduct; (d) each of HCMS and the HCMS parties disclaim and make no warranties or representations as to the accuracy, quality, reliability, suitability, completeness, truthfulness, usefulness, or effectiveness of the reports, data, scores, results or other information obtained, generated or otherwise received by User from accessing and/or using the software and/or services or otherwise resulting from this agreement, and (e) use of the software, services and reports is entirely at User's own risk and HCMS and each of HCMS parties shall have no liability or responsibility therefor.

3. LIMITATIONS ON LIABILITY

The total liability of HCMS and the HCMS parties in the aggregate to User or any third party arising out of or in connection with this agreement, the software and services will be limited to the payments and fees received from User under this agreement.  HCMS and the HCMS parties shall not be liable for direct, indirect, special, incidental, consequential or punitive damages of any type arising out of or in connection with this agreement, the software and/or services, whether or not HCMS and its licensors have been advised of the possibility of such damages and whether based upon breach of contract or tort (including negligence).  HCMS and the HCMS parties shall have no liability for any damages resulting from alteration, destruction or loss of any data or information input, generated or obtained from access and/or use of the software and services, including any reports or numeric results, whether or not HCMS and the HCMS parties have been advised of the possibility of such damages.  The limitations of damages and liabilities set forth in this agreement are fundamental elements of the basis of the bargain between HCMS and User, and the pricing for the license reflects such limitations.  If User is not satisfied with the software and services, the entire liability of HCMS and the HCMS parties, and User's exclusive remedy, shall be to immediately stop accessing and using the software and services and contacting HCMS within 60 days of agreeing to this agreement.  Because some states or jurisdictions do not allow the exclusion or limitation of liability for damages (such as consequential or incidental damages), or the exclusion of implied warranties and limitations on how long an implied warranty may last, the above limitations may not apply to User.  Notwithstanding the foregoing, HCMS will indemnify User and hold it harmless from and against any liability, judgments, claims, losses and expenses (including attorneys’ fees) resulting from or related to a claim by any party claiming damages for infringement of copyright, trademark or other intellectual property based on material supplied by HCMS to User under this agreement.

1. Liability of Impact on Business

Notwithstanding any other term of this Agreement, HCMS and the HCMS parties accept no liability for any damages resulting from any loss of business as a result of the provision of the Software and Services defined in this agreement to User by HCMS and any HCMS parties.  Additionally HCMS accept no liability for any external parties’ malicious activities in terms of criminal hacking and the introduction of viruses to the system.  HCMS accepts no liability should any malicious activities cause interruption of the provision of services by HCMS to User.  HCMS accepts neither responsibility nor liability whatsoever for any degradation or failure of the provision of services to User.  HCMS have used best of breed hosting service; Microsoft Windows Azure from the Microsoft Corporation.  The provision and support of the underlying infrastructure to support HCMS’s Software and Services is the responsibility of the Microsoft Corporation alone.  Further details of Microsoft liability in this area can be found on the Microsoft Windows Azure website -http://www.microsoft.com/windowsazure/.  The Microsoft Windows Azure security overview and security policy can be found here - http://www.microsoft.com/windowsazure/Whitepapers/securityoverview/default.aspx.

4. REGISTERED AND ASSOCIATED USERS

In order for User to access and use the Software and Services, User shall register with HCMS, provide HCMS with contact details, an email address, and obtain a unique password for accessing the Software and Services ("Password").  On provision of Password to access the Software and Services, the user commences payment of the monthly fee (“Monthly Fee”) after one calendar month.  The Monthly Fee shall be determined at the time of registration, and is non-refundable upon use of the Password.  User may request additional unique passwords for its employees and agents (“Associated Users“) as described in subsection (a) of Section 7.B of this Agreement.  HCMS and User acknowledge and agree that HCMS may obtain email addresses from users and using the Software and Services.  User is responsible and wholly liable for all acts or omissions committed under User's Password and any and all passwords issued by User to its Associated Users.  Any and all personal information obtained from User or a its employees and agents by HCMS relating to this Agreement and the Software and Services is subject to HCMS’s privacy policy, located at https://www.hammerheadtechnologies.com/legal/privacypolicy.aspx, and User agrees to the terms and conditions of such privacy policy by selecting the Privacy Policy "I ACCEPT" checkbox on the Hammerhead CMS Policy Acceptance Page.  If User does not agree to any of the terms of this agreement, do not select the Privacy Policy ‘I ACCEPT’ checkbox on the Hammerhead CMS Policy Acceptance Page and user will not be permitted to access and use the software and services.

5. USER REPRESENTATIONS AND WARRANTIES

User represents and warrants to HCMS that this Agreement shall be binding on User, and, unless User is an individual, User represents and warrants that this Agreement was executed by an authorized signatory of User with the authority to enter into binding agreements on behalf of User.

6. PROPRIETARY RIGHTS

The Software and Services are protected by applicable United States laws, local laws, foreign laws and treaties, including copyright laws and treaty provisions.  HCMS or its licensors own all rights, title and interests in the Software and Services, including trade secrets, patents, copyrights and database rights, and the Software and Services shall remain the sole and exclusive property of HCMS or its licensors.  Except as provided in Section 1 of this Agreement, User has no, and is not granted, any right, title, interest or license in the Software or Services.  HCMS also retains all ownership to any code developed on behalf of a customer to extend the functionality of the Software and Services.

7. RESTRICTIONS ON USE

   1. Software and Services

Except as otherwise expressly provided in this Agreement, User agrees to;

1. only use the Software and Services in the manner, and for the purposes, expressly specified in this Agreement;
2. not decompile, disassemble, analyze or otherwise examine the Software and Services for the purpose of reverse engineering (except to the extent this restriction is expressly prohibited by applicable law);
3. not delete or in any manner alter any notices, disclaimers or other legends contained in the Software and Services or appearing on any screens, documents, reports, numeric results or other materials obtained by User through use of the Software and Services ("Notices");
4. reproduce and display all Notices on Copies User makes, in accordance with this Agreement;
5. not provide service bureau facilities or commercial time-sharing services to any third party or supporting operations for any third party through the access and/or use of the Software and/or Services;
6. not attempt to access any systems, programs or data of HCMS or any HCMS Party that are not licensed under this Agreement, or otherwise made available by HCMS or a HCMS Party for public use;
7. not copy, reproduce, republish, upload, post, transmit, or distribute the Software or Services, or any portion thereof, or facilitate or permit a third party to do so;
8. not use any device or software to interfere or attempt to interfere with the proper operation of the Software and Services;
9. not ship, transmit, transfer, or export the Software and Services into any country or use the Software and Services in any manner prohibited by United States export laws, restrictions or regulations; and
10. abide by all applicable local, state, national and international laws and regulations, including The Health Insurance Portability and Accountability Act of 1996 and all laws, rules and regulations relating thereto.

2. Reports and Numeric Results

User agrees and understands that any reports and numeric results generated or otherwise received from the access and use of the Software and Services are preliminary and do not constitute a final score, accreditation, certification or recognition, as applicable, from HCMS or any HCMS Party.  HCMS’s Decision Maker (as identified in the applicable Policies and Procedures) makes the final decision on accreditation, certification or recognition status, as applicable.  HCMS incorporates the decision, as well as any changes recommended by the Decision Maker, to generate a final report with numeric results for the organization.  HCMS reports and numeric results are not final until HCMS’s Decision Maker or other appropriate body as identified in the applicable Policies and Procedures evaluates them.  The reports and numeric results may only be used by User for its internal business purposes to examine, review and otherwise analyze its business operations, and may not be used by, disclosed to, represented to, or otherwise communicated to any third party for any other purpose; provided, however, such reports and numeric results may be submitted to and used by HCMS and/or one or more HCMS Parties in accordance with the terms and conditions of a separate agreement between User and HCMS.  User may not represent itself as accredited, certified or recognized, as applicable by HCMS or any HCMS Party, based on reports or numeric results without a final HCMS decision, as described in this Section B.  The following activities are expressly prohibited in connection with the Software and Services:

1. no individual or entity may purchase from HCMS, or use the Software and Services, regardless of their source, to evaluate another organization against HCMS standards, provided, however, that the prohibition in this subsection (a) does not apply to individuals or entities that are assisting the organization with its readiness evaluation and preparation for an HCMS Survey;
2. User may not use the Software and Services to evaluate another organization against HCMS standards except as part of User’s internal preparation for an HCMS Survey, including specifically the evaluation of a delegate’s performance in order to conduct oversight as required by HCMS Standards;
3. User may not allow a third party to use the Software and Services User has purchased to evaluate another organization against HCMS Standards.  Notwithstanding any other term of this Agreement, any breach of User’s obligations in this Section B shall result in the automatic termination of this Agreement, without any further action on the part of User or HCMS.  HCMS reserves the right to prohibit User from participating in any accreditation, certification or recognition process or program offered by or on behalf of HCMS or any HCMS Party for a period to be determined by HCMS or the applicable HCMS Party.

8. DATA

User agrees that HCMS and the HCMS Parties are permitted to access any information or data User inputs or provides while accessing or using the Software and Services ("Data") and any reports or numeric results, and prior to User’s submission of Data, reports and numeric results, for the sole purpose of ensuring proper access and use of the Software and Services by User in accordance with this Agreement and to maintain and troubleshoot Software and Services.  Following User’s submission of Data, reports and numeric results to HCMS, HCMS has access to such Data, reports and numeric results in accordance with the applicable Agreement for HCMS Survey.  Subject to the terms and conditions of this Agreement, HCMS shall store and otherwise maintain Data, reports and numeric results, and HCMS shall follow the same archival procedures for User's Data, reports and numeric results as HCMS employs for its own data, as modified from time to time in HCMS 's discretion.  In the event of any loss or damage to User's Data, reports or numeric results, User's sole and exclusive remedy shall be for HCMS to use commercially reasonable efforts to replace or restore the lost or damaged data from the latest backup of such Data, reports or numeric results which HCMS has maintained in accordance with its standard archival procedures.

9. CONFIDENTIALITY

User acknowledges that the Software and Services constitute and contain confidential, proprietary and copyrighted information and subject matter of HCMS and HCMS Parties ("Confidential Information").  User agrees to not, directly or indirectly, without HCMS 's prior written consent, use the Confidential Information for any purpose other than as expressly permitted under this Agreement; divulge, discuss, provide, transmit, copy, make available or otherwise communicate the Confidential Information to a third party; or permit any third party to use such Confidential Information.  "Confidential Information" shall not include information that is shown by competent evidence:

1. is in or enters the public domain without breach of this Agreement;
2. was possessed by User prior to first receiving it from HCMS or an HCMS Party;
3. was developed by User independently and without use of or reference to the Confidential Information; or
4. was received by User from a third party without restriction on disclosure and without breach of a nondisclosure obligation.  Notwithstanding the foregoing,
   1. each party shall be permitted to disclose Confidential Information of the other party if such disclosure is required by law, provided that the party required to disclose Confidential Information of the other party shall firstly give prompt notice of such requirement to the other Party so it will have the opportunity to seek a protective order or other appropriate remedy; and secondly cooperate in the other party’s attempts to obtain confidential treatment of such Confidential Information; and
   2. each party (and each employee, representative, or other agent of such party) shall be permitted to disclose to any and all persons, of any kind, the tax treatment and tax structure of the transaction and all materials of any kind (including opinions and other tax analyses) that are provided to the party relating to such tax treatment and tax structure.

10. TRADENAMES AND TRADEMARKS

This Agreement does not grant to any party a license to use any trademark, trade name, or logo of the other party and each party recognizes that the trademarks, trade names, and logos of the other party represent valuable assets of that party and that substantial recognition and goodwill are associated with such trademarks, trade names, and logos.  Each party hereby agrees that it shall not use or permit any third party to use, at any time, the other party’s trademarks, trade names, or logos.

11. INJUNCTIVE RELIEF

Each party acknowledges that a violation of Sections 7, 9 or 10 of this Agreement would cause irreparable harm to the other party for which no adequate remedy at law exists and each party therefore agrees that, in addition to any other remedies available, the aggrieved party shall be entitled to seek injunctive relief to enforce the terms of Sections 7, 9 or 10.  The prevailing party shall be entitled to recover all costs and expenses, including reasonable attorney’s fees incurred because of any such legal action.

12. HARDWARE AND SERVICE REQUIREMENTS

User is solely responsible for acquiring, servicing, maintaining, and updating all equipment, computers, software and communications services (such as long distance phone charges) not owned or operated by or on behalf of HCMS, that allow User to access and use the Software and Services, and for all expenses relating thereto (plus any applicable taxes).  User agrees to access and use the Software and Services in accordance with any and all operating instructions or procedures that may be issued by HCMS, and amended by HCMS from time to time.  HCMS and the HCMS Parties do not make any commitments with respect to use or performance of the Software and Services with browsers other than Microsoft Internet Explorer 7.0 or higher, Mozilla Firefox 3.0 or higher and Apple Safari 4.0 or higher.

13. PERFORMANCE

User understands and agrees that the operation and availability of the systems used for accessing and interacting with the Software and Services, including, the public telephone, computer networks and the Internet or to transmit information, whether or not supplied by User or HCMS, can be unpredictable and may, from time to time, interfere with or prevent the access to and/or the use or operation of the Software and Services.  HCMS and the HCMS Parties are not in any way responsible for any such interference with or prevention of User's access and/or use of the Software and Services.

14. TRAINING AND SUPPORT

Unless User and HCMS enter into a separate agreement, HCMS will not provide any training or on-site support to User relating to the Software and Services.  HCMS will provide User with (i) commercially reasonable telephone and email support for the Software and Services during normal business hours; and (ii) updates and enhancements for the Software and Services, to the extent that HCMS generally makes such updates and enhancements available to Users without a separate charge.

15. INDEMNITY

User agrees to defend, indemnify and hold HCMS and each HCMS Party, as well as the directors, officers, agents, and employees of HCMS and each HCMS Party, harmless from any losses, liabilities, damages, actions, claims or expenses (including reasonably attorneys' fees and court costs) arising or resulting from User's breach of any term of this Agreement or caused by acts or omissions performed by User or under User's Password or any password issued by User to Licensed Users.

16. U.S. GOVERNMENT USERS

If User uses the Software and Services on behalf of a U.S. Government agency, this Agreement constitutes the entire agreement between the Government agency and HCMS and is binding on government users in accordance with the policy stated at Federal Acquisition Regulation (FAR) [48 CFR] §§ 12.211 and 12.212 (for non-defense agencies) or Defense FAR Supplement (DFARS) [48 CFR] §§ 227.7201 and 227.7202 (for defense agencies).  The Software and Services are commercial items which have been developed at private expense and not under a Government contract.  Pursuant to Federal Acquisition Regulation (FAR) [48 C.F.R.] 12.212 (for non-defense agencies) and Defense FAR Supplement (DFARS) [48 C.F.R.] 227.7202-1 for defense agencies, the Government’s rights in the Software and Services are limited to those rights granted in this Agreement.

17. DISCONNECTION/RECONNECTION OF SOFTWARE AND SERVICES

User's right to use the Software and Services shall be dependent on payment of the Monthly Fee as determined at the time of registration with HCMS.  Monthly Fee defined in the payment schedule (“Payment Schedule”) is due as per the Payment Schedule agreed at the time of registration with HCMS and entitle User to access Software and Services for one calendar month and User’s website to be made available to external users over the Internet.  Failure to pay Monthly Fee as per the Payment Schedule as agreed in the terms determined at the time of registration will lead to disconnection of Software and Services after 28 days of non-payment.  Monthly Fee is non-refundable.  Disconnection is defined as termination of any and all services provided to User, which includes, but is not limited to, access to the Software and Services and termination of the provision of any hosting services.  At their discretion, HCMS reserve the right to terminate any and all Software and Services provided to User at any time for any reason.

Reconnection of access to Software and Services and resumption of provision of services is subject to a reconnection fee (“Reconnection Fee”) as defined at the time of registration.  Reconnection Fee is non-refundable and is due to HCMS for the reconnection of access Software and Services and resumption of provision hosting services.  Reconnection Fee is due for reconnection of each separate and defined service provided to User by HCMS at the discretion of HCMS.  Reconnection of Software and Services by HCMS is not subject to any defined schedule unless determined at the time of registration with HCMS, additionally HCMS does not accept any liability for any delay in reconnection of any services to User.

18. TERMINATION

User's right to use the Software and Services shall be effective from the date User accepts this Agreement by selecting the Terms and Conditions "I ACCEPT" checkbox on the Hammerhead CMS Policy Acceptance Page and payment of the fees determined at the time of registration with HCMS, and shall terminate when User ceases all access and use of the Software and Services and provides HCMS with notice of such termination or as otherwise provided in this Agreement.  Any request for termination of the agreement should be submitted to HCMS either in writing to: Hammerhead CMS PTE. LTD., 16 Raffles Quay, #33-03 Hong Leong Building, Singapore 048581 or by e-mail to support@hammerheadtechnologies.com.  On receipt of a termination request to HCMS the termination will be effective 28 days from the receipt of the termination request or the following calendar month defined at the discretion of HCMS.  HCMS may terminate this Agreement immediately if User breaches a material term of this Agreement and fails to remedy that breach within five (5) business days after notice from HCMS.  HCMS will also terminate this Agreement should User fail to pay any fees due for a total of 90 days at which point all user data held by HCMS will be removed from the Software and Services.  HCMS reserves the right to terminate this Agreement at any time.  Upon termination of this Agreement, all rights, including the License granted to User, under this Agreement will cease and User's access to the Software and Services may be disabled.  Upon termination of this Agreement, Sections 2, 3, 5, 6, 7.B, 9, 11, 15, 17, 20.A, 20.C and 20.D of the Agreement, along with all payment obligations under this Agreement, shall survive such termination.

19. ELECTRONIC AGREEMENT/NOTICES

    1. Notices

All questions, comments or notices concerning this Agreement shall be submitted to HCMS by User via email at support@hammerheadtechnologies.com or via mail at: Hammerhead CMS PTE. LTD., 16 Raffles Quay, #33-03 Hong Leong Building, Singapore 048581.  All notices to be given under this Agreement to User shall be submitted by HCMS via e-mail at the account User provided to HCMS pursuant to Section 4 or to User upon accessing the Software and Services.

2. Acceptance

By selecting the Terms & Conditions "I ACCEPT" checkbox on the Hammerhead CMS Policy Acceptance Page and providing HCMS with User's email address under Section 4, User agrees and consents to (i) contract electronically with HCMS for the Software and Services in accordance with this Agreement; (ii) receipt of electronic legal notices regarding this Agreement to the email account User provided under Section 4 or upon accessing the Software and Services; and (iii) that by selecting the Terms and Conditions "I ACCEPT" checkbox on the Hammerhead CMS Policy Acceptance Page, User intends to be bound by this Agreement. 

3. Agreement

In order to access, download, and print this Agreement, User should click on the link for the .PDF file version of this Agreement.  Changes to these hardware and software requirements, if any, will be e-mailed to User.  User may also request to receive a copy of this Agreement by mail free of charge by giving notice to HCMS of such request within 45 days after entering into this Agreement.

4. Changes

If User consented to receive on-going legal notices from HCMS via email User may (i) update its email information by providing notice to HCMS and/or (ii) withdraw such consent by providing notice to HCMS.  Please be aware that if User withdraws its consent, such withdrawal of consent will not be effective until the date of receipt.  The legal effect of this intervening time period is that User is still bound by the terms of this Agreement during such period.  The legal consequence of withdrawing User's consent shall not act to void or invalidate User's actions prior to the effective date that shall remain subject to the terms of this Agreement.  Upon withdrawing User's consent User will be responsible for all incurred fees and charges payable under this Agreement.

20. MISCELLANEOUS

    1. Modifications

This Agreement is the complete and exclusive statement of the agreement between User and HCMS, and supersedes any proposal or prior agreement, oral or written, and any other communications between the parties relating to the subject matter of this Agreement.  This Agreement may not be modified by User except upon mutual agreement by the parties in writing signed by an authorized officer of HCMS.  HCMS reserves the right, at any time, to change the terms of this Agreement, including its privacy policy, by providing User with notice of such changes.  Any use of the Software and Services by User after HCMS 's publication or email of any such changes shall constitute User's acceptance of the Agreement as modified.

2. Force Majeure

HCMS will not be responsible for any failure to perform due to causes beyond its reasonable control, including, acts of nature/Darwin/God, acts of terrorism/religion/sabotage, war, riot, embargoes, acts of civil or military authorities, national disasters, strikes, etc.

3. Governing Law and General Provisions

   1. United States. If you acquired the license for use of the Software and Services in the United States, Washington state law governs the interpretation of this agreement and applies to claims for breach of it, regardless of conflict of laws principles. The laws of the state where you live govern all other claims, including claims under state consumer protection laws, unfair competition laws, and in tort.
   2. Outside the United States. If you acquired the software in any other country, the laws of that country apply.
   3. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.  If any part of this Agreement is found void and unenforceable, it will not affect the validity of the remainder of the Agreement, which shall remain valid and enforceable according to its terms.  The words "and" as well as "or" shall be interchangeable to provide the broadest interpretation, and the word "including" shall mean "including without limitation" and "including but not limited to" to provide the broadest interpretation.  The headings contained in this Agreement are for reference only and shall not affect the meaning or interpretation of this Agreement.  HCMS 's failure to exercise or enforce any right or power under this Agreement shall not constitute a waiver of such right or power.

4. Benefits

Nothing contained in this Agreement is intended to confer upon any person other than the parties hereto and their respective successors and permitted assigns, any benefit, right or remedy under or by reason of this Agreement, except with respect HCMS Parties who shall be deemed third party beneficiaries under this Agreement but solely with respect to those terms that specifically reference an HCMS Party or the HCMS Parties.