General Terms and Conditions
1. Overview
1.1. By submitting an Order or Order Form for a Tempest Technica Service/s, the Customer acknowledges that they are bound to the Terms and Conditions outlined in this document.
1.2. The Contract shall be governed by the laws in force in the State of QLD and each party submit to the exclusive jurisdiction of the Courts of that State.
1.3. This document constitutes the full and entire understanding between the parties in relation to the Service. Any other representations may be contrary to this document and not valid.
1.4. The Customer may only enter into a Contract with Tempest Technica if they are at least 18 years of age as at the date of the Order.
1.5. The Customer must be authorised to enter into the Contract and although the Customer may choose to appoint an Authorised Representative/s, the Customer acknowledges that the Contract is at all times between Tempest Technica and the Customer.
1.6. Should there be any conflict between the terms of this document then the following order of precedence shall apply:
1.7. The Terms and Conditions of any promotional offer as supplied; then
1.8. The Terms and Conditions of the Order Form; then
1.9. The General Terms and Conditions.
1.10. Tempest Technica reserves the right to refuse an Order, without reason.
2. Customer Obligations
2.1. By entering into a Contract with Tempest Technica the Customer agrees:
2.2. That the Service/s selected meet their requirements. To pay charges as set out on the relevant Order Form.
2.3. Not to assign or otherwise transfer this or the Customer’s rights under it, delegate Customer’s obligations or re-sell or sub-licence the Service.
2.4. To provide Tempest Technica with a current and active email address.
2.5. To promptly notify Tempest Technica of any changes to email address and/or other contact details.
2.8. To review the current version of the Tempest Technica Terms and Conditions from time to time.
3. Changes to Terms and Conditions
3.1. Tempest Technica may need to change the Terms and Conditions, including fees and charges and plans, due to circumstances beyond its control, including changes in law, urgent changes required for security reasons, changes by a Third Party Supplier of the terms on which they supply services to Tempest Technica or to the functionality or nature of a service or its underlying technology. Tempest Technica are therefore not always able to provide the Customer with ongoing supply of a Service on the same Terms and Conditions that existed when Tempest Technica first commenced providing that Service to the Customer.
3.2. In addition to changes which Tempest Technica are required to make due to circumstances beyond its control, Tempest Technica may elect to make changes for its own purposes during the term of the Contract. Any changes Tempest Technica elect to make will take effect for the Customer’s Service in accordance with clauses 3.4 and 3.5 below.
3.3. The Customer acknowledges and agrees that in accordance with clauses 3.1 and 3.2, from time to time the nature of the Services and the terms on which Tempest Technica supply those Services may change and that if Tempest Technica elect to change those terms notice will be given in accordance with clauses 3.4 below.
3.4. Tempest Technica will give the Customer notice of any proposed changes to the Terms and Conditions of the Contract, at least 21 days prior to the date on which those changes are to take effect.
If the proposed changes will cause material detriment to the Customer, for example, the changes will result in a material increase in the fees or unreasonably and materially change the characteristics or functionality of the Service Tempest Technica initially supplied to the Customer, then the Customer may immediately cancel the affected Service without incurring a Cancellation fee or penalty (provided that Tempest Technica can recover any outstanding fees incurred up to the date on which the Contract ends and any outstanding amounts that cover Establishment Fees or installation costs or equipment where such equipment can be used in connection with services provided by other suppliers), by giving Tempest Technica notice in writing to that effect within 42 days of the date of the notice referred to in clause 3.4 above.
3.5. The Customer acknowledges and agrees that if notice is not given to Tempest Technica within the 42 day period referred to in clause 3.4, the Customer is deemed to have accepted the changes from the date those changes are to take effect and that the Terms and Conditions of the Contract, as amended by those changes, will govern the relationship between the Customer and Tempest Technica from that date.
4. Notices
4.1. All notices to be served on either party by the other shall be in writing and shall be sent by hand delivery, post, facsimile or electronically to the parties at their respective billing or email addresses as supplied
5. Fees and Charges
5.1. The Customer is responsible for and agrees to pay for all Service fees and charges /as outlined on the relevant Order or Order Form
5.2. The Customer agrees to pay all Service fees and charges within the terms of trade. The terms of trade for Tempest Technica services are 21 days from invoice issue date, with exceptions for various Services, as outlined in the Product Terms and Conditions and/or the relevant Order or Order Form
5.3. The Ursa appliance remains the property of Tempest Technica. If the appliance is lost or damaged a recovery fee of $400 may be charged.
5.4. All fees and charges are quoted and charged in Australian Dollars and exclde Goods and Services Tax (GST)
5.5. For customers invoiced to an entity outside of Australia, a valid credit card must be provided, which will be used for payment of all and any services
5.6. Service fees and charges and the Contract Term (where applicable) commence from the Start Date of the Service as advised by Tempest Technica, not when the Customer first uses the Service or attempts to use the Service. Should the Start Date be disputed for any reason Tempest Technica must be informed in writing within 10 days of the said Start Date or no claim or billing change will be considered
5.7. Tempest Technica reserves the right to change pricing and/or plans and to withdraw plans and/or Services by providing 30 days written notice to the Customer.
6. Billing
6.1. Tempest Technica will provide an Invoice for the Service/s, unless otherwise specified in the Product Terms and Conditions, Order or by Tempest Technica.
6.2. All invoices will be emailed as a PDF attachment to the Customer’s nominated Authorised Representative (Billing). Mailing of paper invoices is available and if requested will attract a $1.50 surcharge per invoice.
6.3. By providing credit card details, the Credit Cardholder and/or the Customer authorises Tempest Technica to process payments to that card immediately once the invoice is raised for any and all charges associated with the Service/s as outlined on the relevant invoice/s and described in these Terms and Conditions. Tempest Technica does not hold any customer credit card information.
6.4. The Customer understands and agrees that direct debits will be processed immediately and not after 10 business days as described in the 2012 Telecommunications Consumer Protections Code.
6.5. Where a credit card has been nominated for account payment the Customer must advise Tempest Technica immediately of any changes to the credit card details. Should the credit card be declined and payment unable to be processed Tempest Technica will attempt to contact the Customer advising of same.
6.7. Where an account becomes overdue, Tempest Technica will attempt to provide notice to the Customer by means of email and/or SMS. Such notices outline the process with regard to overdue accounts.
6.8. Tempest Technica reserves the right to disable, interrupt, restrict or cancel any and all services under an account, without liability, in the event that:
6.9. The account becomes overdue and the Customer fails to pay the amount overdue within the period stated in the notice.
6.10. The Customer appoints an external administrator, becomes bankrupt, insolvent or appears likely to do so and we have reasonable belief that it is unlikely that we will receive or retain amounts due and payable.
6.11. Services interrupted or disabled due to non-payment are subject to a re-enable fee for each Service billed on the account in addition to full payment of the balance due on the account.
6.12. All overdue accounts that have not been paid in full may be sent to a debt collection agency. At this time Tempest Technica may terminate and/or remove the Service/s. Should this occur and re-provision of Service/s is subsequently required, a fee of 25% of the overdue amount in question is payable, together with the Tempest Technica re-enable fee/s and a new Service Establishment Fee (where applicable).
6.13. Tempest Technica reserves the right to insist on credit card payment only for any Product or Service.
6.14. Tempest Technica reserves the right to refuse service based on credit history, or at its absolute discretion.
6.15. Credits applied to a Customer’s account may remain on the existing account in order to offset future charges or may be refunded to a Credit Card (if held on file) or Bank Account as deemed appropriate by Tempest Technica.
7. Contract Term / Cancellation of the Service
7.1. All Tempest Technica products and services have a contract length of one month.
7.2. When the Customer notifies Tempest Technica that they wish to cancel the Service, the monthly fee, for the month in which the Service is cancelled, is applicable.
7.3. Cancellation of any Service effectively cancels all/any products associated with that Service.
8. Technical Support
8.1. Tempest Technica technical support is provided by telephone, face-to-face, website support pages and remotely. On-site technical support is available pending approval, and charges may apply.
8.2. The Customer understands and accepts that when receiving technical support from Tempest Technica or its representatives, damage may be caused to computer software, hardware or data and may invalidate the computer warranty. The Customer should back up all existing files before seeking technical support as Tempest Technica does not accept any responsibility or liability for any loss or damage, even if the loss or damage is caused by a negligent act or omission of Tempest Technica and/or its representatives.
9. Privacy Statement
9.1. The Customer acknowledges and accepts the Tempest Technica Privacy Statement available at https://www.tempesttechnica.com.au/privacy
10. Information about Customer Rights
10.1. Information and advice about the Customer’s rights can be obtained by contacting the Australian Communications and Media Authority, the Telecommunications Industry Ombudsman, the Australian Competition and Consumer Commission or the relevant Department of Fair Trading or Department of Consumer Affairs in the relevant state or territory.
11. Limitation of Liability
11.1. The Customer acknowledges and agrees that, to the extent permitted by law, Tempest Technica will not be liable to the Customer for any loss of revenue, loss of profits, loss of data, loss of use, loss of contracts, loss of sales or damages from failure to supply Services, or for any indirect, economic, special or consequential loss or damages arising out of or in connection with use of the Services regardless of whether liability is based on any breach of contract, tort (including negligence) warranty, statute, or any other basis of liability.
11.2. The Customer acknowledges and agrees that all implied terms, conditions and warranties, except for Non-Excludable Terms, are excluded from the Terms and Conditions of the Contract.
11.3. The Customer’s remedy against Tempest Technica for breach of any Non-Excludable Term is limited, at the option of Tempest Technica, to:
11.4. If the breach relates to goods, replacing, repairing or supplying goods equivalent to, those goods or paying the cost of replacing or repairing them or acquiring equivalent goods, or;
11.5. If the breach relates to services, re-supplying or paying the cost of re-supplying, those services.
11.6. To the extent permitted by law, and subject to clause 17.3 if applicable in the circumstances, Tempest Technica and its Third Party Suppliers, agents, clients, servants, officers and employees, shall not be liable for any loss incurred by the Customer, whether direct or indirect and regardless of whether liability is based on any breach of contract, tort (including negligence) warranty, statute, or any other basis of liability, by reason of:
11.6.1. A Service Outage or non-supply;
11.6.2. The Customer’s use or inability to use the Services supplied by Tempest Technica;
11.6.3. An event of Force Majeure;
11.6.4. An act or default by a Third Party Supplier.
11.7 To the extent permitted by law, Tempest Technica’s cumulative, aggregate liability (whether in contract, tort (including negligence), under an indemnity or otherwise) under or in connection with each Service is limited to an amount equal to the value of the fees paid by the Customer under the Order or Customised Agreement at the time the event giving rise to liability occurs.
12. Service Suspension/Cancellation
12.1. Tempest Technica may suspend or cancel the provision of Services without prior notice to the Customer and without Tempest Technica having liability to the Customer, if:
12.2. The Customer breaches the Contract or Customised Agreement and does not remedy such breach within five (5) business days’ notice by Tempest Technica to remedy that breach;
12.4. Tempest Technica is required to perform any scheduled maintenance in connection with Tempest Technica’s facilities, network or systems;
12.5. There is a planned Outage period;
12.6. Tempest Technica is required by any Governmental Agency or emergency service organisation to suspend the Services;