The following General Terms and Conditions (Terms and Conditions) are incorporated into every contract for the supply of the CT Solution or any of its components by Constellation Technologies Australia Pty Ltd (ACN 164 731 275) (CTA) to the customer (Customer):

1 Introduction

1.1. CTA provides a critical control point monitoring solution through the use of the Hardware, the Software and the Services (collectively, the CT Solution).

1.2. The Customer wishes to use the CT Solution to monitor critical control points.

1.3. To assist the Customer with its monitoring requirements, CTA agrees to provide the CT Solution to the Customer in accordance with these Terms and Conditions, and the Customer agrees to be bound by these Terms and Conditions.

2 Orders

2.1. CTA accepts Orders strictly on these Terms and Conditions.

2.2. No Order will be binding on CTA unless or until the Customer is notified of such acceptance. Upon such acceptance, the Order together with these Terms and Conditions will constitute a binding agreement between CTA and the Customer (Agreement).

2.3. When making a purchase from CTA, the Customer must provide all information as may be reasonably required by CTA in the Order. If CTA discovers that any information provided by the Customer is untrue, inaccurate, not current or incomplete or CTA has grounds to suspect and of the foregoing, CTA may suspend or terminate the Customer’s account and suspend and/or terminate all current or future access to the CT Solution or any of its components.

3 Price and Payment

3.1. The Customer must during the Term pay the Solution Fees to CTA in cleared funds at intervals set-out in the Order.

3.2. Unless CTA states otherwise, CTA will invoice Solution Fees monthly in advance and one-off charges (if any) upon commencement of this Agreement. The Customer must pay the fees, and any other amount due under this Agreement, without set-off or deduction.

3.3. All invoices submitted by CTA shall be paid within thirty (30) days of the date of invoice.

3.4. All sums payable under this Agreement are expressed exclusive of GST and the Customer must pay GST in addition in accordance with clause 14.9.

3.5. Without prejudice to any other right or remedy of CTA, if the Customer fails to make payment under this Agreement then following prior written notice CTA may charge the Customer, and the Customer shall pay CTA on demand, default interest on the unpaid amount (accruing daily from the date of the actual payment) at the compounding rate of three percent (3%) per month; and

3.6. CTA may set off any amount that the Customer owes or may owe to CTA against any amount that CTA owes or may owe to the Customer.

4 Delivery

4.1. CTA will deliver the Hardware to the location agreed with the Customer, together with instructions on how to install and access the Software and the Services.

4.2. Delivery dates and times quoted by CTA are estimates only.

4.3. Despite any other provision of this Agreement, CTA has discretion to refuse to deliver or supply any further component of the CT Solution to the Customer (without liability to the Customer) where:

(a) the Customer is in breach of any provision of this Agreement; or

(b) any item of the CT Solution is unavailable.

5 Software Licence and Hardware

5.1. In consideration of the Customer paying all amounts due under this Agreement:

(a) CTA will grant to the Customer a revocable, non-transferable and non-exclusive licence to access the Software in order to monitor critical control points during the Term (Licence);

(b) CTA will provide the Services to the Customer; and

5.2. The Licence and provision of the Services and the Hardware are further conditional on the Customer:

(a) using the CT Solution lawfully and strictly in accordance with this Agreement;

(b) using the CT Solution in accordance with all manuals and other documentation provided by CTA;

(d) not opening or disassembling the Hardware or the Software.

6 Use of CT Solution

6.1. The Customer acknowledges and agrees that:

(a) CTA does not guarantee that the CT Solution will be free of bugs or interruption;

(b) Components of the CT Solution may be unavailable from time to time for maintenance and/or updates; and

(c) CTA may change, update or otherwise amend components of the CT Solution at CTA’s absolute discretion and without notice to the Customer.

6.2. The Customer is responsible for obtaining, maintaining and operating all information technology and telecommunications equipment used to access and operate the CT Solution (Customer Components). The Customer will ensure that all Customer Components comply with the technical specifications provided by CTA. CTA will not be liable in relation to any loss or damage suffered in relation to the interaction between the CT Solution and the Customer Components.

6.3. The Customer must:

(a) comply with all reasonable directions regarding access to, and use of, the CT Solution provided to the Customer from time to time by CTA including any procedures imposed by CTA to prevent unauthorised access to the CT Solution; and

(b) permit CTA, or its agents or officers to access the Customer’s use of the CT Solution to verify that the Customer’s use is within the terms of this Agreement.

7 Hardware Damage and Defects

7.1. The Customer must check the Hardware immediately after delivery and must notify CTA in writing of any short supply, damage or defect within 5 Business Days of delivery.

7.2. If the Customer does not notify CTA in writing within 5 Business Days, the Customer irrevocably releases CTA from all loss or damage in relation to any short supply, initial damage or initial defects in the Hardware, except if the loss or damage is caused by negligence or wilful misconduct of CTA.

7.3. If the Customer does notify CTA in writing within 5 Business Days of delivery, and if in CTA’s opinion the Customer’s notification is valid, CTA will in its discretion repair or replace the Hardware, in which case CTA will not have any further liability to the Customer.

7.4. If during the Term the Customer believes that the Hardware has become defective and the Customer wishes to obtain replacement Hardware, the Customer must submit a request to CTA using the contact information published at www.constellationtechnologies.com (Replacement Request).

7.5. After the Customer submits a Replacement Request:

(a) the Customer must within 14 days, at its expense, return to CTA all items of Hardware referred to in the Replacement Request; and

(b) CTA will send replacement items of Hardware to the Customer, subject to clause 7.6.

7.6. If CTA determines that:
(a) The Hardware items subject to the Replacement Request are defective under the terms of a warranty claim during the Warranty Period, there will be no charge to the Customer for the replacement of the Hardware item(s).
(b) The Hardware items subject to a Replacement Request occurred outside of the Warranty Period, the Customer will be required to pay for the replacement of the Hardware item(s) and all associated postage and processing costs.
(c) The Hardware items subject to a Replacement Request were damaged due to the actions or negligence of the Customer, lost, stolen or an item of Hardware subject to a Replacement Request is not returned to CTA within 14 days, the Customer must pay for the replacement item(s) of Hardware and all associated postage and processing costs, no matter whether the event occurred inside or outside of the Warranty Period.

8 Warranties and Exclusions

8.1. CTA warrants and represents (to the Customer only) that:

(a) The Hardware will not be defective in respect of materials and workmanship for the period of 1 year from the date of the Customer’s purchase (Warranty Period). Proof of original purchase must be produced when claiming on this warranty; and

(b) That it will perform all Services under this Agreement with reasonable care and skill.

8.2. CTA does not warrant against delays or errors in data transmission between the Customer (including the Customer Components) and the CT Solution. The Customer agrees that to the extent permitted by law, CTA shall not be liable for any losses suffered by the Customer arising (directly or indirectly) from the CT Solution (or any part thereof) not being made available in consequence of delays or errors in data transmission.

8.3. The Customer must maintain the integrity of individual log-in security (in respect of the Software) and CTA will not be liable in relation to any consequences of a security breach resulting from any failure by the Customer to secure its log-in information.

8.4. Any warranties specified in this clause 8 apply only in relation to components of the CT Solution that are manufactured by CTA. All other items of hardware supplied by CTA together with the CT Solution are subject to the warranties granted by the manufacturers of those goods.

8.5. The warranties specified in this clause 8 will not apply to defects arising (directly or indirectly) from:

(a) The operation or storage of any item comprising of the CT Solution outside CTA’s operating specifications;

(b) Misuse, misapplication, improper handling and maintenance of and accident and damage to any item comprising of the CT Solution; and

8.6. Notwithstanding any other provision of this Agreement, all warranties implied by law are excluded to the maximum extent permitted by law (except for those conditions or warranties which cannot be excluded by law), and where such implied warranties cannot be excluded then to the extent that CTA may limit its liability from such implied warranties, CTA’s total liability for a breach of an implied warranty will be limited at CTA’s discretion to:

(a) Replacing items or services within the CT Solution or supplying the same or equivalent items;

(b) Repairing items within the CT Solution;

(d) Paying the cost of repairing or replacing any items or services within the CT Solution.

8.7. If, due to a Force Majeure event, CTA is prevented, either directly or indirectly, from performing its obligations under this Agreement, CTA may:

(a) Extend the time for delivery of any item or service comprising the CT Solution; and

(b) Refund any amount paid by the Customer for any item or service comprising the CT Solution not yet delivered (thereby releasing it from this Agreement).

8.8. The Customer acknowledges that the Software must only be used in conjunction with the Hardware and CTA will not be liable (directly or indirectly) for any loss or damage suffered by the Customer in relation to the Software and/or the Hardware being used in conjunction with any product or service supplied by a third party.

8.9. Except in the case of death or personal injury resulting from its negligence, the aggregate liability of CTA under or in relation to this Agreement (however arising) will not exceed the total Solution Fees paid by the Customer for the month where liability arises.

8.10. In no event shall CTA be liable under this Agreement in respect of incidental, special, indirect or any similar consequential loss or damage (however arising).

9 Intellectual Property

9.1. CTA owns all Intellectual Property Rights in the CT Solution (and each of its components) including, without limitation, any modifications or improvements to, or customisation of, the CT Solution carried out by CTA, the Customer or any third party (CTA Solution IP). Nothing in this Agreement transfers to the Customer any right in or in relation to the CTA Solution IP.

9.2. The Customer must not reverse compile, disassemble, remove, release, disclose, reveal, copy, extract, modify or otherwise reverse engineer all or any part of the CT Solution in any way for itself or for others or permit any such act to be done.

9.3. The Customer warrants that it will:

(a) Follow all reasonable instructions given by CTA from time to time regarding CTA’s Intellectual Property Rights; and

(b) Not do anything to diminish the value of, contest in any way, CTA’s Intellectual Property Rights.

9.4. The Customer agrees that it will inform CTA immediately if the Customer becomes aware that any Intellectual Property Rights of CTA are being infringed, or may be infringed, by any third party.

9.5. CTA need not initiate action against any party that infringes CTA’s Intellectual Property Rights and may settle any dispute by means it determines to be effective and in the best interests of CTA. Where CTA, in its sole discretion, determines to initiate action against an infringer, the Customer will cooperate with CTA to the greatest extent possible at CTA’s expense.

10 Fair Use

10.1. The CT Solution includes provision of pre-programmed notifications and alerts from CTA to the Customer in response to measurements recorded by the Hardware (Notifications).

10.2. The Customer acknowledges that provision of the Notifications is subject to the Customer complying with CTA’s configuration requirements for the Hardware (as published at www.constellationtechnologies.com.au from time to time) (Configuration Requirements).

10.3. If the Customer fails to comply with any of the Configuration Requirements, CTA may at its discretion (and without notice to the Customer):

(a) cease providing Notifications to the Customer;

(b) change the format by which it provides Notifications to the Customer; or

(c) invoice additional Notification fees to the Customer (in which case the Customer agrees to pay such fees on the payment terms contained in these Terms and Conditions).

10.4. Failure to comply with the Configuration Requirements includes, but is not limited to:

(a) operating equipment being monitored by the Hardware outside commonly accepted operating conditions for such equipment;

(b) failing to respond to any incident detected by the Hardware; or

11 Termination and Suspension

11.1. CTA will have the right to immediately terminate this Agreement if:

(a) the Customer is more than 7 days in default of any payment when due under this Agreement;

(b) the Customer experiences an Insolvency Event; or

(c) the Customer breaches any other term of this Agreement and does not remedy that breach within 7 days of notice from CTA. (each, an Event of Default).

11.2. If CTA terminates this Agreement:

(a) the Licence will immediately terminate;

(b) CTA will have the right to immediately terminate the Customer’s access to the CT Solution, and to cease providing the Services;

(c) the Customer must, if requested by CTA, immediately return all items of Hardware to CTA (at the customer’s cost) OR request and make payment on a Hardware payout cost to CTA to keep the Hardware; and

(d) the Customer must for the remainder of the Term continue making any payments to CTA that would otherwise have been payable under this Agreement OR request and make payment for the balance of the Customers contractual liability under this Agreement in a single payment as advised by CTA.

CTA reserves the right to suspend the Customer’s access to the CT Solution during any period in which the Customer is in breach of this

11.3. Agreement. If CTA suspends access, CTA will not be liable for any loss or damage suffered by the Customer, and the Customer promises that it will not seek to recover any such loss or damage.

11.4. If the Customer breaches of any provision of this Agreement, CTA may, in addition to any other rights under this Agreement or at law, refuse any future supply or delivery of any item comprising the CT Solution until the Customer remedies every breach.

12 Electronic Transactions

12.1. Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with the Electronic Transactions (Victoria) Act 2000 or any other equivalent state or Commonwealth legislation.

12.2. The parties agree that any online order placed by the Customer will be accepted electronically and the agreement formed shall be deemed to be valid and entered into in accordance with the Electronic Transactions (Victoria) Act 2000 or any equivalent state or Commonwealth of Australia legislation.

12.3. Payment of Solution Fees via CTA’s online payment gateway will be made under the terms and conditions of CTA’s payment gateway provider. Full terms and conditions can be found at: https://stripe.com/en-au/ssa#section_a.

13 Customer Information

13.1. The Customer agrees to be bound by the CTA Privacy Policy available at www.constellationtechnologies.com.au.

13.2. CTA may, at its sole discretion, obtain from a credit reporting body a credit report containing credit information about the Customer in relation to credit provided by CTA.

13.3. The Customer agrees that CTA may disclose information derived from any credit report in its possession to any other credit provider for the purpose of providing a reference or references to that other credit provider of the conduct of the Customer’s accounts.

14 General

14.1. This Agreement contains the entire agreement between the parties.

14.2. This Agreement is governed by the law of Victoria, Australia and the parties submit to the non-exclusive jurisdiction of the Victorian courts.

14.3. A right under this Agreement may only be waived in writing. Failure to, delay in or partial exercise of a right does not constitute a waiver.

14.4. A waiver of a breach of a provision of this Agreement is not a waiver of any other breach of that provision, or a waiver of any breach of another provision.

14.5. A provision of this Agreement that is wholly or partly invalid or unenforceable will be treated as removed from this Agreement. Any removal of a provision will not affect the validity or enforceability of the remaining provisions.

14.6. CTA may assign any contract made under this Agreement without the Customer’s consent.

14.7. The Customer shall not assign any contract made under this Agreement without the prior written consent of CTA.

14.8. Any prices, fees and other charges under this Agreement are exclusive of any and all taxes and duties excluding GST.

14.9. The parties acknowledge that some supplies made under or in connection with this Agreement may be Taxable Supplies (as defined under the A New Tax System (Goods and Services Tax) Act 1999) and others may not. To the extent that any supply made under or in connection with this Agreement is a Taxable Supply, then the consideration for that supply is increased by an amount equal to the amount of that consideration multiplied by the rate at which GST is imposed in respect of that supply (except to the extent that the consideration is expressed to be inclusive of GST). The additional consideration is payable at the same time and in the same manner as the consideration to which it relates.

15 Interpretation

15.1. Unless otherwise indicated by context:

(a) words importing the singular include the plural and vice versa;

(b) headings are for convenience only and do not affect the interpretation of this Agreement;

(c) where any word or phrase is given a definite meaning in this Agreement, any part or speech or other grammatical form of that word or phrase has a corresponding meaning;
(d) an expression importing a natural person includes a body corporate, partnership, joint venture, association or other legal entity;

(e) a reference to a statute, statutory provision or regulation includes all amendments, consolidations or replacements thereof;

(f) a reference to a party to a document includes that party’s successors and permitted assigns; and

(g) a covenant or agreement on the part of two or more persons binds them severally.

16 Definitions

Agreement is defined in clause 2.2.

Business means the business owned or operated by CTA.

Business Day means every day that is not a Saturday, Sunday or public holiday in Melbourne, Australia.

Business Hours means between 8:00am and 6:00pm Monday to Friday in Melbourne, Australia, excluding public holidays.

CT Solution is defined in clause 1. If the context requires, CT Solution refers to the components of the CT Solution individually and collectively.

CTA Solution IP is defined in clause 9.1.

Customer means the person or entity identified as the customer in the Order Form.

Customer Components is defined in clause 6.2.

Event of Default is defined in clause 11.1. Force Majeure means act of God, storm, flood, fire, lightning, earthquake, explosion, industrial dispute, war, embargo, transport delays, shortage of supplies, failure of electricity or telephone services, or any other event beyond the control of CTA.

Hardware means the sensor or reader (or hub) device supplied by CTA designed to monitor critical control points.

Insolvency Event means the following or any event analogous to the following: commencing to be wound up, being placed under official management or into liquidation, having a receiver, manager or other external controller appointed in respect of any assets, becoming insolvent, committing an act of bankruptcy.

Intellectual Property Rights means:
(a) patents, designs, copyright, rights in circuit layouts, business names, trademarks, know-how, brand names, domain names, inventions, manufacturing techniques, tooling, moral rights, product names, trade secrets, the right to have confidential information kept confidential and other results of intellectual effort in the scientific, technological, industrial and commercial fields whether or not registered or capable of registration

(b) any application or right to apply for registration of any of those rights; and

Licence is defined in clause 5.1. Month means a calendar month.

Order means an order form submitted by the Customer via CTA’s e-commerce portal at www.consellationtechnologies.com.au or other means nominated by CTA (including telephone, fax, email and hard copy).

Solution Fees means the total amount payable set out in the Order.

Services means remote assistance (including online support and documentation) offered by CTA to the Customer (at CTA’s discretion) to facilitate the continued operation and function of the Hardware and the Software subject to this Agreement.

Software means the online platform (remotely accessible by the Customer) used to report data captured by the Hardware, which may include the provision of the following functions:

(a) Hardware management and configuration;

(b) notifications and alerts;

(d) third-party integration via a published Application Programming Interface (API).

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