Terms and Conditions of Trade

Definitions and Interpretation

1. ln these terms and conditions:
   
   (a) ‘Agreement’ means the agreement between Thunderbird and the Purchaser to provide Goods to the Purchaser subject to these terms and conditions as defined in clause 2, 3 and 4 below;
   
   (b) ‘Thunderbird’ means Thunderbird Corporation Pty Ltd ABN 93 620 173 864;
   
   (c) ‘Goods’ means the products, software and services supplied by Thunderbird to the Purchaser as described in the Quotation or purchase order accepted by Thunderbird;
   
   (d) ‘Purchaser’ means the purchaser of the Goods;
   
   (e) ‘Proposal’ means any proposal given by Thunderbird to the Purchaser;
   
   (f) ‘Quotation’ means any quotation given by Thunderbird to the Purchaser;
   
   (g) ‘Estimate’ means any estimate given by Thunderbird to the Purchaser;
   
   (h) ‘PPSA’ means the Personal Property Securities Act 2009 (Cth).

Terms

2. Thunderbird may amend these terms and conditions by giving notice in writing, any amended terms and conditions shall apply immediately after giving such notice.
   
3. The Purchaser agrees that, upon placement of an order for Goods with Thunderbird, the Goods will be supplied by Thunderbird under these terms and conditions and the Purchaser will accept the purchase of the Goods under these terms and conditions.
   
4. These terms and conditions, the credit application, the credit terms, and any other written instruction or authority provided by Thunderbird to proceed constitutes the entire agreement between the Purchaser and Thunderbird to the maximum extent permitted by law.

Proposals, Estimates or Quotations

5. Any Proposal, Estimate or Quotation will remain valid for 14 days from the date of issue, unless otherwise stated in the Proposals, Estimates or Quotations.
   
6. The Purchaser acknowledges and agrees that:
   
   (a) it is their responsibility to verify that Goods are fit for purpose;
   
   (b) prices in the Proposal, Estimate or Quotation unless specifically stated otherwise are exclusive of GST, freight and other taxes, duties and charges;
   
   (c) all Proposals, Estimates or Quotations are strictly confidential and will not be disclosed to any other party;
   
   (d) the prices in the Proposal, Estimate or Quotation may vary after the date of issue of the Proposal, Estimate or Quotation and that it will pay for additional charges as required by Thunderbird or any other party.

Orders and Cancellations

7. Orders will not be binding upon Thunderbird until accepted either formally in writing or by way of positive action to invoice, provide or despatch the Goods.
   
8. Thunderbird may in its discretion refuse to supply any order or service for any reason whatsoever.
   
9. Any order cannot be cancelled upon issuance by the Purchaser, unless it is expressly rejected or not accepted by Thunderbird.
   
10. Furthermore, no order may be varied or cancelled except with the written consent of Thunderbird, which consent may include such terms which will indemnify Thunderbird against any losses incurred due to the cancellation.
    
11. The Purchaser acknowledges and agrees that each order placed by it is a representation to Thunderbird that the Purchaser is solvent and able to pay Thunderbird’s accounts as and when they are due.

Price

12. Subject to these terms and conditions, the price of all Goods supplied by Thunderbird to the Purchaser will be set at:
    
    (a) Thunderbird’s listed price current at the time of delivery; or
    
    (b) Thunderbird’s listed price less any discount agreed to in writing by Thunderbird (trade price).
    
13. lf currency exchange rates or customs duties for goods imported by Thunderbird change between Quotation or Order and time of delivery, Thunderbird may adjust the price to reflect such changes.
    
14. All prices unless specifically stated otherwise are exclusive of GST. Any GST payable must be paid by the Purchaser to Thunderbird in the same manner and at the same time as the consideration for the supply is required to be paid by the Purchaser under these terms and conditions. Prices are subject to change at any time without notice.

Terms of Payment

15. Payment terms are strictly cash on delivery unless a credit facility is granted by Thunderbird to the Purchaser.
    
16. lf a credit facility is granted, Thunderbird will invoice the Purchaser for Goods at the time of supply. All invoices are due and payable within 7 days from the date of issue unless otherwise stated in the invoice.
    
17. The Purchaser acknowledges and agrees that Thunderbird is authorised to allocate the payment of any monies received from the Purchaser against any outstanding Thunderbird account of the Purchaser.
    
18. lf the Purchaser defaults in making payment in accordance with these terms and conditions, Thunderbird may in its absolute discretion and without notice:
    
    (a) suspend payment discounts;
    
    (b) withdraw the approval of a credit facility and refuse any subsequent orders from the Purchaser for the supply of Goods;
    
    (c) charge the Purchaser interest on that portion of the Purchaser’s account overdue at the penalty rate fixed under the Penalty lnterest Rates Act 1983 (Victoria), calculated and payable daily, compounded from the due date until the invoice is paid in full;
    
    (d) require the Purchaser to reimburse Thunderbird for all legal costs and expenses on a solicitor/client basis as a consequence of Thunderbird instructing its solicitor to provide advice in connection with the default and/or to commence any recovery process and any other costs, expenses, losses or damages arising out of a breach of the Agreement.
    
19. The Purchaser agrees at the request of Thunderbird to procure its directors to sign a personal guarantee and indemnity of the Purchaser’s obligations to pay any amount due and payable to Thunderbird, if and when required.
    
20. Any credit application approved by Thunderbird for the Purchaser is granted by Thunderbird on the basis of its reliance on information supplied by, and representations made on behalf of, the Purchaser.
    
21. The Purchaser must inform Thunderbird of any changes to the ownership of the Purchaser by notice in writing immediately. Until such notice is received by Thunderbird the Purchaser, and if the Purchaser is a trustee each of the trustees, will hold Thunderbird indemnified against all losses of whatsoever nature incurred or suffered by Thunderbird in trading with any person, company or other entity which may have purchased the Purchaser’s business or any interest therein and used the Purchaser’s previously approved credit account for trading.
    
22. The Purchaser hereby grants Thunderbird the authority to lodge a consent caveat over any real property owned or partly owned by the Purchaser to protect its interests in respect of, and to secure any monies that are owed by the Purchaser to Thunderbird.

Delivery and Freight

23. Thunderbird accepts no responsibility either to deliver or to load Goods at the point of despatch.
    
24. Thunderbird may in its sole discretion elect to arrange delivery of the Goods and charge the Purchaser a freight charge. lf Thunderbird elects to arrange delivery, it is at the Purchaser’s cost and risk.
    
25. Thunderbird will make all reasonable efforts to deliver the Goods by the agreed delivery date but will not be liable in any way should delivery not be made on this date.
    
26. Where the Goods supplied comprise of services, upon completion of provision of the services:
    
    (a) the Purchaser is responsible for ensuring that the goods operate in accordance with the specifications; and
    
    (b) the services are deemed accepted within 5 business days of the date of completion of provision of the services unless the Purchaser notifies Thunderbird that the goods do not conform with the specifications by written notice.

Reservation of Title

27. The Purchaser acknowledges that the ownership of Goods delivered by Thunderbird is only transferred to the Purchaser when the Purchaser has paid all sums owing to Thunderbird on any account whatsoever and that until such time Thunderbird has the right to call for or recover the Goods at Thunderbird’s option (for which purposes Thunderbird’s employees or agents may enter the Purchaser’s premises) and the Purchaser is obliged to deliver up the Goods if so directed by Thunderbird.
    
28. The Purchaser agrees to keep the Goods in a fiduciary capacity for Thunderbird until such time as ownership is transferred to the Purchaser.
    
29. Notwithstanding clause 28, the Purchaser may sell the Goods to a third party in the ordinary course of business provided that the Purchaser will hold on trust for Thunderbird the proceeds of such sale and will keep those amounts in a separate bank account and immediately apply same in payment to Thunderbird.

PPSA

30. The Purchaser acknowledges and agrees that it grants Thunderbird a security interest in the Goods and their proceeds including any accounts and accessions by virtue of these terms and conditions.
    
31. The Purchaser agrees that:
    
    (a) these terms and conditions, or such other terms and conditions as Thunderbird may adopt from time to time, apply to the supply of Goods by Thunderbird to the Purchaser to the exclusion of all other terms and conditions of trade;
    
    (b) no variation to these terms and conditions will be of any effect unless agreed to by Thunderbird in writing;
    
    (c) the Goods supplied by Thunderbird secure the payment of the purchase price of those Goods and of any other Goods supplied by Thunderbird;
    
    (d) it will do all things necessary including providing all information required to register a financing statement or financing change statement on the Personal Property Securities Register (PPSR) as a security interest and a purchase money security interest (PMSI) pursuant to the PPSA;
    
    (e) it will not change its name, ACN or ABN or other details required on the PPSR without first notifying Thunderbird;
    
    (f) it waives its right to receive any notice under the PPSA including a verification statement in respect of any financing statement or financing change statement in respect of the security interest created pursuant to these terms and conditions;
    
    (g) it must pay Thunderbird’s costs of any discharge or necessary amendment of any financing statement or financing change statement.
    
32. To the maximum extent permitted by law, the Purchaser agrees that the following sections of the PPSA will not apply:
    
    (a) section 118;
    
    (b) section 121(4);
    
    (c) section 125;
    
    (d) section 130;
    
    (e) section 142; and
    
    (f) section 143.
    
33. To the maximum extent permitted by law, the Purchaser waives any rights it may have pursuant to, and hereby contracts out of the following sections of the PPSA:
    
    (a) section 95;
    
    (b) section 118;
    
    (c) section 121(4);
    
    (d) section 123;
    
    (e) section 129(2);
    
    (f) section 130;
    
    (g) section 132;
    
    (h) section 134(2);
    
    (i) section 135;
    
    (j) section 157; and
    
    (k) Part 4.3.
    
34. Unless otherwise defined in these terms and conditions, the terms and expressions used in this clause have the meanings given to them or by virtue of the PPSA.

Risk

35. Notwithstanding the provisions of clauses 27 through 34 the Purchaser accepts all risk of loss and damage of the Goods, whether caused by the Purchaser or not, once the Goods have left the Thunderbird premises.

Returns Policy

36. Thunderbird will not accept returns for credit without prior authorisation.
    
37. Any customised or non-stocked Goods may not be returned for credit under any circumstances.
    
38. Thunderbird may allow returns of physical Goods for credit at its sole discretion, but in any event:
    
    (a) requests for return and credit must be made within 7 days of invoice, and will be refused after 7 days of invoice;
    
    (b) the physical Goods which the Purchaser wishes to return for credit must be in their original unmarked and undamaged packaging and in ‘as new’ and saleable condition free of any damage whatsoever;
    
    (c) the physical Goods must be accompanied by Thunderbird’s completed Goods Return Request Form;
    
    (d) the Purchaser will be responsible for the cost of and for effecting delivery of the physical Goods returned to Thunderbird, unless the return is due to incorrect supply or faulty goods;
    
    (e) upon receipt of the returned physical Goods, Thunderbird will credit the Purchasers account less a 10 percent restocking fee. The restocking fee charged by Thunderbird may be greater than 10 percent in its sole discretion.
    
39. Clause 36 through 38 is subject to the Purchaser’s statutory rights under the Competition and Consumer Act 2010 (Cth).

Claims

40. Any claims by the Purchaser for short delivery must be made within 7 days of the delivery.
    
41. Any other claims for adjustment to any invoice for any reason whatsoever must be made in writing within 7 days of the invoice date.

Withholding Supply

42. Thunderbird reserves the right, irrespective of whether or not an order has been accepted and without notice to the Purchaser, to withhold supply to the Purchaser and Thunderbird will not be liable for loss or damage resulting directly or indirectly from such action where:
    
    (a) the Goods ordered have been discontinued; or
    
    (b) Thunderbird has determined, in its absolute discretion, that credit should no longer be extended to the Purchaser.

Non-availability

43. Whilst every effort will be made to fulfil the Purchaser’s order for the Goods, Thunderbird will not be liable for any loss or damage whatsoever resulting directly or indirectly from non-availability of the Goods.

Licences and Regulations

44. lt is the Purchaser’s responsibility to obtain any licence, consent or approval required by any government or other authority for the purchase or use of the Goods.
    
45. The Purchaser must comply with all applicable laws, regulations and requirements in connection with its use, re-sale or other on-supply of the Goods to third parties, including but not limited to the Competition and Consumer Act 2010.

Warranty and Liability

46. Thunderbird warrants that the physical Goods are free from defects in materials and workmanship. This is the only warranty provided by Thunderbird for the Goods. This warranty is for 12 months (or in the case of software provision, 30 days) from the effective date of delivery of the Goods, or such period provided in the manufacturer’s warranty documentation accompanying the Goods, whichever is the lesser. This warranty is conditioned upon the Purchaser providing Thunderbird prompt written notice of the Goods’ failure to perform in accordance with its specifications. Thunderbird provides no warranty, representation or guarantee that any Goods’ use or performance, or that the operation of the Goods will be fail-safe, uninterrupted, free from error or defects, free from cyber threats or events, or be compatible with any other product, software or system. The entire risk arising out of the use or performance of the Goods remains with the Purchaser. The Goods may contain or be integrated with independent third-party products and rely on them to perform certain functionality. Thunderbird makes no warranty as to the operation of any third-party products or the accuracy of any third-party information. lf any service is provided by Thunderbird for a fee, whether in connection with any supply of Goods or not, Thunderbird warrants that such services are provided with reasonable care and meet the specifications agreed in writing between Thunderbird and the Purchaser (if any). The Purchaser agrees to be bound by, comply with and ensure that its customers comply, at all times, with any licence terms pertaining to Goods sold by Thunderbird to it.
    
47. lf the Purchaser makes a valid warranty claim in respect of any goods, Thunderbird will, at its option, either repair the Goods, supply replacement Goods, or reimburse the Purchaser for the price; or in respect of any services provided for a fee, Thunderbird will, at its option, reperform the services or reimburse the Purchaser for the price. Thunderbird shall not be liable for defects arising from fair wear and tear and the warranty for the Goods set out in clause 46 above shall not apply to the Goods which have been subjected to misuse or abuse, neglect, accident, damage, improper storage, improper installation, use or maintenance, or a malfunction caused by any equipment or software not provided by Thunderbird.
    
48. The Purchaser is liable for the transport or other cost of sending warranty claim Goods to Thunderbird, and for collection of repaired or replacement Goods.
    
49. Thunderbird does not exclude or limit the application of any provision of any applicable statute, legislation or other regulation (including the Competition and Consumer Act 2010 (Cth)) where to do so would contravene that statute, legislation or regulation or cause any part of these terms and conditions to be void and nothing in these terms and conditions is to be interpreted as doing so.
    
50. Except for the warranty provided by Thunderbird in Clause 46 above, the Goods are provided “as is”. Subject always to clause 49 and unless otherwise stated above, Thunderbird excludes all statutory or implied conditions and warranties to the maximum extent permitted by law, including but not limited to, the implied warranties of merchantability, quality, fitness for a particular purpose, title or non-infringement, except any implied term, condition, guarantee or warranty the exclusion of which would contravene any statute or cause this clause to be void (‘Non-excludable Condition’).
    
51. To the fullest extent permitted by law, Thunderbird’s liability to the Purchaser for breach of any Non-excludable Condition which is applicable is limited to, at the option of Thunderbird:
    
    (a) in the case of goods:
    
    i. the replacement of the goods or the supply of equivalent goods, the repair of the goods; or
    
    ii. the payment of the cost of replacing the goods or acquiring equivalent goods; or
    
    iii. the payment of the cost of having the Goods repaired; or
    
    (b) in the case of services:
    
    i. rectification services or the re-supply of the services; or
    
    ii. the payment of the cost of rectification or re-supply of the services.
    
52. To the maximum extent permitted by law, Thunderbird excludes its liability (including, but not limited to, liability in tort, contract and for breach of statute) to the Purchaser or any other person for:
    
    (a) any loss or damage of any kind whatsoever, arising from the supply of the Goods by Thunderbird to the Purchaser consequential or otherwise for any special, incidental, indirect, punitive or consequential damages or injury including, but not limited to, any loss or corruption of data, loss of profits, contracts, or revenue arising out of or in connection with the provision of the Goods and whether as a result of any breach, default, negligence or otherwise by Thunderbird suffered or incurred by the Purchaser or any other person in relation to the Goods directly or indirectly, even if the loss or damage was foreseeable or Thunderbird may have been advised of the possibility of such damages; and
    
    (b) in particular, but without limiting clause 52(a), any loss or damage consequential or otherwise suffered or incurred by the Purchaser or any other person caused by or resulting directly from any failure, defect or deficiency of any kind of or in the Goods.
    
53. Subject to clauses 52 and 54, Thunderbird’s maximum aggregate liability (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Purchaser whether for tort (including negligence or breach of statutory duty), breach of contract (including deliberate, repudiatory breach by Thunderbird), misrepresentation, restitution or otherwise, in connection with any Goods supplied by Thunderbird, shall in no circumstances exceed the purchase price of the relevant Goods which give rise to such liability, as determined by the net price invoiced to the Purchaser.
    
54. Where the Goods supplied comprises solely of services which are supplied on a subscription basis where a periodic fee is paid in relation to the services supplied, Thunderbird’s maximum aggregate liability (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Purchaser whether for tort (including negligence or breach of statutory duty), breach of contract (including deliberate, repudiatory breach by Thunderbird), misrepresentation, restitution or otherwise shall in no circumstances exceed the price of the relevant service which give rise to such liability as determined by the net price invoiced to the Purchaser in the three (3) month period immediately preceding the date of the claim. For the avoidance of doubt, if the Goods comprises of the supply of goods and services initially (Initial Services), followed by a subscription service, Thunderbird’s liability in relation to the lnitial Services is limited in accordance with the provisions of clause 53 and Thunderbird’s liability in relation to the subscription services is limited in accordance with the provisions of clause 54. lf the cost of the lnitial Services are bundled with the subscription services and the parties have not agreed in writing to a breakdown of the fees associated with the lnitial Services and subscription services, then Thunderbird’s liability will be limited in accordance with the provisions of clause 54.
    
55. The Purchaser acknowledges that Goods supplied by Thunderbird to certain customers who may be appropriately certified may be supported by free technical support without additional charge. When using those free services the Purchaser acknowledges that it voluntarily accepts all risks associated with their use of those services and that Thunderbird owes no duty of care in relation to the provision of those services. The Purchaser indemnifies and keeps indemnified Thunderbird against all liability and claims arising out of or in connection with the Purchaser’s use of the free technical support services.

Force Majeure

56. Thunderbird will not be liable for any loss or damage sustained by the Purchaser through delay in delivering the Goods caused by circumstances outside of the reasonable control of Thunderbird.

Intellectual Property Rights

57. The Purchaser acknowledges that it does not have any intellectual property rights, whether by way of copyright or registered design or otherwise, in the Goods and that Thunderbird retains ownership of all such intellectual property.

Indemnity

58. Except as otherwise provided herein, the Purchaser indemnifies and holds harmless Thunderbird against any and all actions, claims, proceedings, costs, losses, expenses, liabilities, including legal fees, whatsoever and howsoever caused or arising out of, connected with, or resulting from breach or non-compliance with any of its covenants, representations, undertakings or obligations under this agreement these terms and conditions, the Goods themselves or use of the Goods including without limitation the manufacture, selection, delivery, possession, use, operation, return or any and all damages or injuries caused thereby to anyone whatsoever.

Termination

59. Thunderbird may immediately terminate all outstanding obligations to supply Goods, and/or suspend the Purchaser’s credit facility, if the Purchaser:
    
    (a) breaches this Agreement;
    
    (b) commits an act of bankruptcy or makes an arrangement with all or any number of its creditors, or has a receiver or liquidator appointed.
    
60. Upon termination provided by clause 59:
    
    (a) Thunderbird may enforce its rights under this Agreement without prejudice to any other rights it may have;
    
    (b) all other obligations upon the Purchaser shall remain, and any amounts owing to Thunderbird then unpaid whether or not due under the terms of this Agreement shall immediately become due and payable.

General

61. The Agreement will be governed by the law of the State of Victoria. The Purchaser irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of that state.
    
62. The invalidity or unenforceability of any provision of the Agreement shall not adversely affect the validity or enforceability of the remaining provisions.
    
63. Any failure by Thunderbird to insist on strict compliance with any term of the Agreement shall not be deemed a waiver of such term. Such failure shall in no way affect the right later to enforce such term.
    
64. The Purchaser shall immediately notify Thunderbird of any agreement to sell or otherwise transfer ownership or possession of more than 20% of the assets or business of the Purchaser, or to sell more than 20% of the capital stock or other ownership interest of the Purchaser.
    
65. Thunderbird reserves the right to correct clerical errors without notification.

Thunderbird Terms and Conditions of Trade v1.0, effective date: 1st of January 2022