The following General Terms & Conditions (Terms and Conditions) and End User Agreement (EUA) are incorporated into every contract for the supply of Callisto (as defined below) or any of its components by Constellation Technologies Australia Pty Ltd (ACN 164 731 275) (CTA) to the customer (Customer):
- CTA provides a critical cold chain monitoring solution through the use of the Hardware, the Software and the Services (collectively, Callisto).
- The Customer wishes to use Callisto to monitor critical cold chain points.
- To assist the Customer with its monitoring requirements, CTA agrees to provide Callisto to the Customer in accordance with these Terms and Conditions, and the Customer agrees to be bound by these Terms and Conditions.
- These Terms and Conditions shall cover the provision of Callisto by CTA to the Customer or any component thereof.
Agreement is as defined in clause 3.23.2.
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.
Callisto is as defined in clause 1. If the context requires, Callisto refers to the components of Callisto individually and collectively.
Configuration Requirements is as defined in clause 12.1.
CTA Solution IP is defined in clause 11.1.
Customer means the person or entity identified as the customer in the Order form.
Customer Components is as defined in clause 9.2.
Enterprise Customer means a Customer who places an Order for Hardware which satisfies CTA’s internal volume requirements so as to constitute an ‘Enterprise Customer’ and who is notified in writing by CTA that they qualify and are classified as such.
Event of Default is defined in clause 13.1.
Fees means each of the Hardware Fees, the SaaS Fees and any other fees payable by the Customer under clause 4.3.
Force Majeure Event means an 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 which is designed to monitor critical control points and is supplied by CTA to the Customer.
Hardware Fees means all fees payable by the Customer to CTA as set out in an Order for the sale of Hardware.
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 or committing an act of bankruptcy.
Intellectual Property Rights means:
- 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;
- any application or right to apply for registration of any of those rights; and
- all renewals and extensions of those
Licence is as defined in clause 8.1.
Month means a calendar month.
Notifications is defined in clause 12.1.
Order means an order form submitted by the Customer via CTA’s e-commerce portal at www.constellationtechnologies.com.au or by other means nominated by CTA (including telephone, fax, email and/or hard copy) for the provision of Callisto or any component of Callisto.
Replacement Request is as defined in clause 6.4.
SaaS means the provision of the Software and the Services to the Customer on a monthly basis for the Term.
SaaS Fees means all fees payable by the Customer to CTA as set out in an Order for the provision of SaaS.
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 these Terms and Conditions.
Software means the online platform (remotely accessible by the Customer via web or mobile application) used to report data captured by the Hardware, which may include the provision of the following functions:
- Hardware management and configuration;
- notifications and alerts;
- data charges in providing a Standard Service (subject to the Hardware devices forming part of the solution);
- reports and graphs; and
- third-party integration via a published Application Programming Interface (API).
Standard Service means sampling of data every 15 minutes and transmission of sample data to the Software every 1 hour.
Term means a period of 36 months commencing from the date an Order is duly completed by the Customer and accepted by CTA, unless stipulated otherwise in writing by CTA.
Warranty Period is as defined in clause 10.1(a).
- CTA accepts Orders strictly on these Terms and Conditions.
- No Order will be binding on CTA unless or until the Customer is notified of such acceptance by CTA. Upon such acceptance, the Order together with these Terms and Conditions will constitute a binding agreement between CTA and the Customer (Agreement).
- When making a purchase from CTA, the Customer must provide all information as may be reasonably required by CTA in the Order (including credit card or other payment method details, as applicable). If CTA discovers that any information provided by the Customer is untrue, inaccurate, not current or incomplete or CTA has grounds to suspect any of the foregoing, CTA may suspend or terminate the Customer’s account and suspend and/or terminate all current or future access to Callisto or any of its components.
- The Order will stipulate the manner by which CTA will provide Callisto or any of its components to the Customer.
- CTA will determine and notify a Customer once an Order is placed if the Customer qualifies as an Enterprise Customer.
4 PRICE AND PAYMENT
- The Customer must during the Term pay all Fees and other amounts owing to CTA in cleared funds in accordance with clauses 2 and 4.3.
- All Fees shall be paid in the manner and on the credit terms stipulated and agreed between the parties in the Order, which may include but is not limited to payment by way of credit card or PayPal, in which case, the Customer authorises CTA to charge the Customer’s credit card or PayPal account (as the case may be) for such Fees.
- During the Term, CTA will also invoice the Customer for, and the Customer must pay to CTA:
- all out-of-pocket and one-off charges and costs incurred by CTA or as otherwise agreed between the parties; and
- any additional Hardware Fees, on account of further Hardware purchased by the Customer pursuant to another Order during the Term,
and such payments are to be made, in the case of:
- clause 3(a), in the manner and on the credit terms notified in writing by CTA to the Customer from time to time; and
- clause 3(b), in the manner and on the credit terms stipulated and agreed between the parties in any subsequent Order.
- The Fees are only subject to an increase during the Term under clauses 4 and 9.5.
- Following the expiry of the Term, CTA may at its discretion and by notice in writing to the Customer, increase the SaaS Fees.
- The Customer must pay all Fees, and any other amounts due under these Terms and Conditions, without set-off or deduction.
- All sums payable under these Terms and Conditions are expressed exclusive of GST and the Customer must pay GST in addition in accordance with clause 9.
- Without prejudice to any other right or remedy of CTA, where the Customer fails to make any payment under these Terms and Conditions when due, CTA may charge the Customer, and the Customer must pay to CTA on demand, default interest on the unpaid amount (accruing daily from the due date until the actual payment) at the compounding rate of three percent (3%) per
- 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.
- Upon expiration of the Term or earlier termination under clause 7, CTA will continue to provide the SaaS to the Customer on an ongoing monthly basis and the Customer must continue to pay the ongoing monthly SaaS Fees until these Terms and Conditions are terminated in accordance with clause 13.
- The Customer’s failure to pay any amount owing to CTA under these Terms and Conditions is deemed to be a breach of these Terms and Conditions (including where CTA is unable to debit valid SaaS Fees to the Customer’s credit card number or PayPal account). In those circumstances, CTA reserves the right to immediately suspend the provision of Callisto (or any component thereof) under these Terms and Conditions, until such time as the amount owing has been repaid in full (including all accrued but unpaid default interest payable by the Customer under clause 7).
5 HARDWARE DELIVERY
- CTA will deliver the Hardware to the Customer as stipulated in the Order to the location agreed with the Customer, together with instructions on how to install the Hardware and access the Software and the Services (where applicable).
- Delivery dates and times quoted by CTA are estimates only and are not binding on CTA. CTA is not liable for any damage or loss incurred as a result of the Hardware being delivered after the quoted delivery date, save where the delay is a direct result of CTA’s gross negligence or wilful misconduct.
- Despite any other provision of these Terms and Conditions to the contrary, CTA has discretion to refuse to deliver or supply any component of Callisto to the Customer (without liability to the Customer) where:
- the Customer is in breach of any provision of these Terms and Conditions; or
- any item of Callisto is unavailable for any reason (including where it is not economically viable for CTA to supply the Hardware pursuant to an Order).
6 HARDWARE DAMAGE AND DEFECTS
- The Customer shall take all reasonable steps to protect the Hardware from misuse, damage or destruction.
- 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.
- 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 a direct result of CTA’s gross negligence or wilful misconduct.
- 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 and reasoned, CTA will at its discretion either repair or replace the Hardware, at which time CTA will not have any further liability to the Customer.
- Subject to clause 16, if during the Term, the Customer believes (acting reasonably) 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 Error! Hyperlink reference not valid.(Replacement Request).
- After the Customer submits a Replacement Request:
- the Customer must within 14 days, at its expense, return to CTA all items of Hardware referred to in the Replacement Request; and
- CTA will send replacement items of Hardware to the Customer, subject to clause 7.
- If CTA determines (acting reasonably) that:
- the Hardware subject to the Replacement Request is defective but covered under the terms of a warranty claim during the Warranty Period, there will be no charge to the Customer for the replacement of that Hardware;
- the Hardware subject to the Replacement Request is defective but is not covered under the terms of a warranty claim during the Warranty Period, the Customer will be required to pay for the replacement of that Hardware and all associated postage and processing costs; or
the Hardware subject to the Replacement Request was: (1) damaged due to any act or omission of the Customer, lost, stolen or otherwise not returned to CTA within 14 days, the Customer will be required to pay for the replacement of that Hardware and all associated postage and processing costs, no matter whether or not the event was covered by the terms of a warranty claim during the Warranty Period.
7 SAAS SERVICE
In consideration for the Customer electing to receive the SaaS under an Order and continuing to make payment of the SaaS Fees when due, CTA will grant a Licence to the Customer for the use of the Software and will provide the Services to the Customer, in each case, pursuant to these Terms and Conditions.
- In consideration for payment by the Customer of the SaaS Fees, CTA grants 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).
- The grant of the Licence and the provision of the Services are further conditional on the Customer:
- using Callisto lawfully and strictly in accordance with these Terms and Conditions;
- using Callisto in accordance with all manuals and other operating documentation provided by CTA from time to time;
- not interfering or attempting to interfere with the intended functioning of Callisto
- not threatening, instituting, invalidating, challenging or putting in dispute the ownership, use or title of the Software or CTA’s Intellectual Property Rights anywhere in the world;
- not adapting, modifying, copying, reproducing, opening, disassembling, or reverse engineering the Hardware or the Software, or allowing or causing a third party to do so; and
- continuing to pay all Fees when due and payable.
- If at any time during the Term, the Customer breaches clause 2, CTA may immediately suspend or disable use of the Licence until the Customer resolves the issue to CTA’s reasonable satisfaction.
- The Customer must not permit or sub-licence to any other individual, company, entity or organisation the use of the Software. CTA will not be liable for any loss or damage incurred by a third party as result of the Customer breaching this clause 8.
- Nothing in these Terms and Conditions shall restrain or prohibit CTA from using, modifying, altering, adapting, installing, integrating, copying or commercialising the Software anywhere in the world.
9 CUSTOMER OBLIGATIONS & WARRANTIES
- The Customer acknowledges and agrees that:
- CTA does not guarantee that Callisto will be free of bugs or interruption;
- components of Callisto may be unavailable from time to time for maintenance and/or updates (or as otherwise contemplated by clause 15.3(b)); and
- CTA may change, update or otherwise amend components of Callisto at CTA’s absolute discretion and without notice to the Customer.
- The Customer is responsible for obtaining, maintaining and operating all information technology and telecommunications equipment used to access and operate Callisto (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 Callisto and the Customer Components.
- The Customer must:
- comply with all reasonable directions regarding access to, and use of, Callisto provided to the Customer from time to time by CTA including any procedures imposed by CTA to prevent unauthorised access to Callisto; and
- permit CTA, or its agents or officers to access the Customer’s use of Callisto to verify that the Customer’s use is within the terms of this Agreement.
- Should CTA recommend an upgrade to any component of Callisto (including associated sim cards or data plans) to ensure the continuity or quality of Callisto, CTA will advise the Customer in writing of the upgrade cost and if agreed by the Customer, CTA will charge the Customer for a corresponding amount and such amount will be payable by the Customer in accordance with clause 3. For the avoidance of doubt, this will include an upgrade in Hardware or associated additional data charges due to a required increase in frequency of data traffic or Hardware located in a difficult cellular reception area. If the Customer does not indicate it’s acceptance of the upgrade within 14 days of receiving notification, CTA may suspend Callisto until an agreement between the Customer and CTA is reached.
- Should the Customer’s service requirements fall outside of the Standard Service, CTA reserves the right to increase the SaaS Fees to cover the costs of providing an increased service level. The increased SaaS Fees will be payable by the Customer in accordance with clause 2.
- 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.
- 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.
- The Customer indemnifies and holds harmless CTA from and against all costs, loss, claims, demands or liabilities that CTA may suffer or incur as a result of, arising from or in connection with:
- any breach of these Terms and Conditions by the Customer (or any of its related bodies corporate) and any of their respective personnel, officers, directors, agents, contractors, successors or assigns (together, the “Indemnifying Parties”);
- any negligent, unlawful, wilful or fraudulent act or omission by the Indemnifying Parties, including any misuse of Callisto; or
- any failure of Notifications or internet connections beyond the control of CTA.
10 CTA WARRANTIES & EXCLUSIONS
- CTA warrants and represents (to the Customer only) that:
- the Hardware will not be defective in respect of materials and workmanship for the period of 12 months from the date of CTA’s acceptance of an Order for that Hardware (Warranty Period). Proof of original purchase must be produced when claiming on this warranty;
- it will perform all Services under this Agreement with reasonable care and skill; and
- it will obtain and maintain insurance coverage for professional indemnity and product liability, each with limits of up to A$20 million in aggregate.
- CTA does not warrant against delays or errors in data transmission between the Customer (including the Customer Components) and Callisto. 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 Callisto (or any part thereof) not being made available in consequence of delays or errors in data transmission.
- Any warranties specified in this clause 10 apply only in relation to components of Callisto that are manufactured by CTA. All other items of hardware supplied by CTA together with Callisto are subject to the warranties granted by the manufacturers of those goods.
- The warranties specified in this clause 10 will not apply to defects arising (directly or indirectly) from:
- the operation or storage of any item comprising of Callisto outside of CTA’s operating specifications;
- misuse, misapplication, improper handling and maintenance of and accident and damage to any component comprising Callisto; and
- unauthorised modification of any component comprising of
- Notwithstanding any other provision of these Terms and Conditions to the contrary, 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:
- repairing or replacing components of Callisto with the same or equivalent components; or
- paying the cost of repairing or replacing the components of Callisto.
- Except in the case of death or personal injury resulting from its negligence and to the maximum extent permitted by law, the aggregate liability of CTA under or in relation to these Terms and Conditions (however arising) will not exceed the total Fees paid by the Customer for the month in which the liability arises.
- In no event shall CTA be liable under this Agreement in respect of any incidental, special, indirect or consequential loss or damage (however arising).
11 INTELLECTUAL PROPERTY
- CTA owns all Intellectual Property Rights in Callisto (and each of its components) including, without limitation, any modifications or improvements to, or customisation of, Callisto 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.
- The Customer must not reverse compile, reproduce, disassemble, remove, release, disclose, reveal, copy, extract, modify or otherwise reverse engineer all or any part of Callisto in any way for itself or for others or permit or encourage any such act to be done by a third party.
- The Customer must not engage a third party to provide Callisto or any component of Callisto.
- The Customer must not threaten, institute, invalidate, challenge or put in dispute the ownership, use or title of the Software.
- The Customer warrants that it will:
- follow all reasonable instructions given by CTA from time to time regarding the CTA Solution IP; and
- not do anything to diminish the value of, contest in any way, the CTA Solution IP.
- 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.
- CTA need not initiate action against any party that infringes the CTA Solution IP 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.
12 FAIR USE
- Callisto includes the provision of pre-programmed notifications and alerts from CTA to the Customer in response to measurements recorded by the Hardware (Notifications).
- The Customer acknowledges that the provision of the Notifications is subject to the Customer complying with CTA’s configuration requirements for the Hardware (as published at constellationtechnologies.com.au from time to time) (Configuration Requirements).
- If the Customer fails to comply with any of the Configuration Requirements, CTA may at its discretion (and without notice to the Customer):
- cease providing Notifications to the Customer;
- change the format by which it provides Notifications to the Customer; or
- invoice additional Notification fees to the Customer in accordance with clause 3.
- Failure to comply with the Configuration Requirements includes, but is not limited to:
- operating equipment being monitored by the Hardware outside commonly accepted operating conditions for such equipment;
- failing to respond to any incident detected by the Hardware; or
- configuring the Hardware with incorrect tolerances, sampling frequency or reporting
13 TERMINATION AND SUSPENSION
- CTA will have the right to immediately terminate the Agreement if:
- the Customer is more than 7 days in default of any payment when due under these Terms and Conditions;
- the Customer experiences an Insolvency Event; or
- the Customer breaches any other provision of these Terms and Conditions which is incapable of remedy, or where capable of remedy, has not been remedied to CTA’s satisfaction within 7 days of notice from CTA setting out the substance of that breach,
(each, an Event of Default).
- Notwithstanding clause 1, CTA may otherwise terminate the Agreement:
- for any reason by providing the Customer with 3 months’ prior written notice; or
- if a Force Majeure Event occurs which prevents CTA from performing its obligations under these Terms and Conditions, either directly or indirectly, for a period of more than 20 Business Days. In such event, CTA will refund any amount paid by the Customer for any component comprising Callisto which has not yet been delivered to the Customer.
- If the Agreement is terminated for any reason:
- the Licence will immediately terminate;
- the Customer’s access to the Software, and the Services will immediately cease; and
- subject to clause 7(a), the Customer must pay to CTA all accrued but unpaid Fees up to the date of termination.
- CTA reserves the right to suspend the Customer’s access to Callisto during any period in which the Customer is in breach of any term of these Terms and Conditions.
- If CTA suspends access, CTA will not be liable for any loss or damage suffered by the Customer, and the Customer agrees that it will not seek to recover any such loss or damage.
- If the Customer breaches any provision of these Terms and Conditions, CTA may, in addition to any other rights under these Terms and Conditions or at law, refuse any future supply or delivery of any item comprising Callisto until the Customer remedies every breach.
- The Customer may terminate this Agreement:
- during the Term at any time, by paying to CTA the total of:
- (i) all accrued but unpaid Fees as at the date of termination; plus
- (ii) all Fees which would have been payable to CTA under the Agreement from the date of termination until the expiry of the Term; or
- on expiry of the Term, by giving 3 months’ notice prior to the end of the Term that the Customer does not wish for the Agreement to continue.
- Where the Agreement does not terminate on expiry of the Term, then the Agreement shall automatically continue in effect and CTA will continue to provide the SaaS in consideration for payment by the Customer of SaaS Fees, until such time as either:
- the Customer terminates the Agreement by giving 3 months’ prior notice in writing to CTA; or
- the Agreement is terminated by CTA in accordance with clauses 1 or 13.2.
14 ELECTRONIC TRANSACTIONS
- 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.
- 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.
- Payment of 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 OR https://gocardless.com/legal/, depending on the gateway provider used.
15 CUSTOMER INFORMATION & PRIVACY
- 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.
- 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.
16 HOT SPARE SERVICE
- Hot Spare Service (HSS) is a service only offered to Enterprise Customers.
- Should the Hardware installed at an Enterprise Customer’s site stop working for any reason, CTA will provide to an Enterprise Customer, replacement Hardware within 14 days subject to:
- availability of suitable replacement Hardware that meets the Enterprise Customer’s currently installed specifications; and
- the Enterprise Customer completing a Replacement Request under clauses 5 and 6.6(a) of the Agreement.
- For the avoidance of doubt, the HSS is a service offered to Enterprise Customers only to ensure the continuity of service to their business. All other clauses under these Terms and Conditions will continue to apply to Enterprise Customers (including specifically, clause 7).
- This Agreement contains the entire agreement between the parties.
- This Agreement is governed by the law of Victoria, Australia and the parties submit to the non-exclusive jurisdiction of the Victorian courts.
- 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.
- 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.
- 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.
- CTA may assign any contract made under this Agreement without the Customer’s consent.
- The Customer shall not assign any contract made under this Agreement without the prior written consent of CTA.
- Any prices, fees and other charges under this Agreement are exclusive of any and all taxes and duties excluding GST.
- 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.
- Unless otherwise indicated by context:
- words importing the singular include the plural and vice versa;
- headings are for convenience only and do not affect the interpretation of this Agreement;
- 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;
- an expression importing a natural person includes a body corporate, partnership, joint venture, association or other legal entity;
- a reference to a statute, statutory provision or regulation includes all amendments, consolidations or replacements thereof;
- a reference to a party to a document includes that party’s successors and permitted assigns; and
- a covenant or agreement on the part of two or more persons binds them