TERMS AND CONDITIONS

1 DEFINITIONS
Fennu Pty Ltd, ABN 94 078 253 915 (“the Company”) and any of its subsidiaries hereby agrees with the Customer (“the Customer”) that unless expressly amended in writing by Fennu Pty Ltd these General Terms and Conditions (“T&C”) comprise the sole terms and conditions of the contract between Fennu Pty Ltd and the Customer, (“the Contract”) notwithstanding anything that may be implied or expressed to the contrary on the Customer’s enquiries or orders.
These T&C shall supersede all other conditions and agreements between the parties and shall without further notice apply to all future transactions between Fennu Pty Ltd and the Customer whether or not these T&C are delivered or executed in the course of such transactions.
In these T&C, “goods” means all goods and services supplied by Fennu Pty Ltd.

2 QUOTATIONS (ESTIMATES)
2.1 A quotation by Fennu Pty Ltd shall be an invitation to the Customer to trade with Fennu Pty Ltd; it shall not constitute any offer. Quotations will remain valid for 21 days from the date of the quotation after which date they are subject to alteration or withdrawal without notice unless specified otherwise.
2.2 Any modification to a quotation will be effective only if such modification is expressed in writing by Fennu Pty Ltd.
2.3 Prices given in any quote are applicable to that quote only and will not apply in any other instance.

3 SALE BY SAMPLE
Where the Contract is subject to the Customer’s approval of a sample provided by Fennu Pty Ltd, every effort will be made to supply goods similar to the sample and to an assurance standard approved by the Customer. However, Fennu Pty Ltd gives no undertaking, express or implied, that the goods supplied will be exactly the same as the sample. The Customer shall not be discharged from its obligations under the Contract should the goods be found not to be exactly the same as the sample from which they are ordered.

4 FENNU PTY LTD WARRANTIES
4.1 All warranties, guaranties and conditions, other than those stated in the Contract, and whether implied by statute, common law, and custom of the trade or otherwise are to the extent that the law permits, expressly excluded.
4.2 Any advice, recommendation, information or assistance (collectively referred to as “advice”) provided by Fennu Pty Ltd in relation to the goods sold or supplied by it, or any advice in relation to the use, application, suitability, performance or tolerance (collectively referred to as “performance”) or the goods is subject always to the Customer’s proposed use of those goods, is given in good faith and is believed by Fennu Pty Ltd to be appropriate and reliable. However, such advice and/or performance is provided with a disclaimer for any liability or responsibility on the part of Fennu Pty Ltd.

5 THE CUSTOMER’S WARRANTIES
The Customer warrants that:-
5.1 If it seeks from Fennu Pty Ltd a recommendation that in respect of the goods, the goods will be used for the purpose for which they were intended to be used when that recommendation was sought;
5.2 the goods the subject of any proposed claim pursuant to clause 13 have not continued to be used by the Customer -
5.2.1 when it has become aware that the goods do not perform, have been damaged or in any way affected; or
5.2.2 after written notice of any alleged defect or alleged performance deficiencies has been given to Fennu Pty Ltd.

6 PRICES
6.1 The customer is required to pay the price for the goods to Fennu Pty Ltd in Australian dollars. If Fennu Pty Ltd quotes subject to exchange rate variation then any variation from the rate quoted to the rate paid by Fennu Pty Ltd to its supplier shall be to the benefit or detriment of the Customer.
6.2 All prices for the goods exclude:-
6.2.1 any statutory charges, taxes, duties or imposts levied in respect of the goods which have not already been allowed for by Fennu Pty Ltd or the manufacturer in calculating the price; and
6.2.2 the costs of freight, delivery, transportation, packaging, shipping, clearances fees and other costs, charges and expenses incurred by Fennu Pty Ltd in the course of supplying and delivering the goods to the Customer.
6.2.3 Subject to clause 2, if Fennu Pty Ltd has not specified the price to be charged to the Customer at the time that the Customer places its order, the price(s) charged to the Customer shall be the price(s) as at the date of delivery. The Customer acknowledges that Fennu Pty Ltd prices are subject to alteration from time to time.

7 DELIVERY OF THE GOODS
7.1 If the Customer directs that delivery of the goods to be staggered over different times or to different addresses from those specified in the Contract, then the Customer:-
7.1.1 shall be liable for any additional costs, charges and expenses incurred by Fennu Pty Ltd in complying with the Customer’s said direction; and
7.1.2 shall pay for the whole of the order when invoiced pursuant to Clause 11 notwithstanding the said staggered deliveries or that the Customer may not have signed receipt for the goods.
7.2 The Customer is deemed to accept delivery of the goods when they are delivered to the Customers’ premises.
7.3 If the goods are to be collected by the Customer from Fennu Pty Ltd, then delivery occurs when the goods are loaded on the Customer’s vehicle
7.4 If the Customer is unable or fails to accept delivery of the goods, Fennu Pty Ltd may deliver them to a place determined by Fennu Pty Ltd. Such delivery shall be deemed to be delivered to the Customer. The Customer shall be liable for all costs, charges and expenses incurred by Fennu Pty Ltd on account of storage, detention, double cartage/delivery or similar causes if these costs are caused by the Customer’s inability or failure to accept delivery of the goods when delivered or ready for delivery by Fennu Pty Ltd.
7.5 Subject to clause 9.2.2 and 9.2.3, the Customer agrees that it will be obliged to and shall pay for the goods on the due date for payment pursuant to Clause 11 notwithstanding that delivery is made after the delivery date specified in the Contract.
7.6 Subject to clause 9.2.2, the Customer acknowledges that:-
7.6.1 delivery dates are estimates only and the Customer agrees that it shall not be entitled to make any claim in respect of Fennu Pty Ltd’s delay in delivering goods ordered by the Customer; and
7.6.2 delivery of the goods will be delayed by a period commensurate with the Customer’s delay in providing Fennu Pty Ltd with all necessary specifications.
7.7 The Customer shall not be entitled to make any claim in respect of Fennu Pty Ltd’s delay occasioned by extensions of delivery dates pursuant to clause 7.5.

8 RISK AND INSURANCE
8.1 All risk in the goods shall pass to the Customer upon delivery of the goods by Fennu Pty Ltd to its common carrier, notwithstanding that delivery of the goods to the Customer may not have been effected or that the Customer may not have signed a receipt for the same.
8.2 The Customer’s assumption of risk in the goods delivered to it shall not be interpreted as inconsistent with the retention of Fennu Pty Ltd’s title in those goods pursuant to clause 12.

9 DELAYS
9.1 Subject always to clause 7.6 hereof, Fennu Pty Ltd will make reasonable efforts to have the goods delivered to the Customer on the date(s) agreed between the parties as the delivery date(s), but shall be under no liability whatsoever should delivery not be made on the date(s) agreed it by the period stated. Subject to clause 9.2.2, and pursuant to clause 7.6, the Customer shall be obliged to pay for the goods when payment is due, notwithstanding any delays in delivery.
9.2 If for reasons beyond its control Fennu Pty Ltd is prevented or hindered from delivering the goods (or any part thereof) by reason of any acts of God, wars, insurrection or internal disturbances, fire, floods or accidents, breakdowns of plant or machinery, unavailability of or delays in shipping or other transport strikes or lock-outs of workmen, shortages or other default by suppliers of fuel, power or raw material, priority for supplies claimed by the Federal or State Governments of the Commonwealth of Australia or any overseas government, or any other happening or event, then:-
9.2.1 any delay in delivery thereby incurred shall not give rise to any cause of action by the Customer against Fennu Pty Ltd:
9.2.2 during the period such delay continues, and subject always to Clause 10, Fennu Pty Ltd and the Customer shall each have the option to suspend or cancel any subsequent obligations or balance of obligations of the Contract on either of their parts provided that:-
(A) the delay has continued for no less than 180 days after the delivery date specified in the Contract;
(B) written notice shall be given by the party exercising such option;
(C) on any such suspension or cancellation by the Customer, any goods appropriated to the Contract by Fennu Pty Ltd whether partly or fully processed at the time of such suspension or cancellation, shall be accepted by the Customer when delivered by Fennu Pty Ltd;
(D) in the case of cancellation, the Customer shall be entitled a credit against purchases in relation to any sums paid by the Customer in respect of goods subject to the cancellation and not subsequently delivered by Fennu Pty Ltd pursuant to clause 9.2.2(C); and
9.2.3 the Customer shall accept and pay for all of the goods which Fennu Pty Ltd has delivered or which Fennu Pty Ltd in it’s judgement is then able to deliver.

10 CANCELLATION
10.1 Subject to clause 9.2, no purported cancellation or suspension of the Contract or any part thereof by the Customer shall be binding on Fennu Pty Ltd.
10.2 Notwithstanding clause 10.1 Fennu Pty Ltd may agree to suspend or cancel the Contract or any part thereof PROVIDED THAT the agreement of Fennu Pty Ltd to suspend or cancel is in writing and the Customer pays to Fennu Pty Ltd what Fennu Pty Ltd considers to be a fair and reasonable amount to fully compensate Fennu Pty Ltd for any costs, charges, expenses, loss of profit and consequential damage that Fennu Pty Ltd has or may suffer in relation to such suspension or cancellation.
10.3 The Customer acknowledges that in the event that it:-
10.3.1 enters into any form of external administrations as recognised by the Corporations Law or Bankruptcy Act 1966; or
10.3.2 is named as a debtor to any winding up or bankruptcy petition or conducts any act of bankruptcy, Fennu Pty Ltd shall, in its absolute discretion, be entitled to cancel or suspend the Contract as it thinks fit.

11 PAYMENT
11.1 Subject always to clause 11.3 herein all goo ds ordered by the Customer from Fennu Pty Ltd will be paid for by the Customer by the 21st of the month, following the month of the date of the invoice.
11.2 Subject always to clause 11.7, the Customer shall pay for the whole of the value of the order as invoiced when the same is due for payment notwithstanding that the Customer may have directed that delivery of the goods be staggered over different times, to different addresses or that the Customer may not have signed a receipt for the whole or any part of the goods.
11.3 Fennu Pty Ltd’s express or implied approval of a credit facility to the Customer as contemplated by clause 11.1 hereof may be revoked or withdrawn by Fennu Pty Ltd at any time.
11.4 Time for such payment shall be the essence of the Contract.
11.5 In the event that the Customer is a Customer to which clause 11.1 applies, and the Customer fails to pay any amounts due in accordance therewith, then:-
11.5.1 the Customer shall, in addition to that amount and without prejudice to all or any of the Fennu Pty Ltd’s other rights and remedies under the Contract, pay:-
(A) interest on all amounts outstanding, due and payable to Fennu Pty Ltd at the rate equal to that specified from time to time by the Australia and New Zealand Limited as its “overdraft Index Rate” and if no such rate then exists, at the rate charged by the Australia and New Zealand Banking Group Limited on overdrafts in excess of $100 000.00 calculated from the date such amount falls due until it is received in full by Fennu Pty Ltd and any payment received will be applied first against such interest; and
(B) all costs, charges and expenses incurred by Fennu Pty Ltd in enforcing or attempting to enforce any of its rights under the Contract (including recovering any unpaid amounts). Such costs in the case of legal costs shall be charged on a “solicitor and own client” basis; and
11.5.2 the Customer shall deliver up the goods to Fennu Pty Ltd upon receipt of a demand in writing requiring Fennu Pty Ltd’s goods to be delivered up returned to Fennu Pty Ltd. In the event that the Customer does not comply with the demand within 1 business day of receipt of the demand, Fennu Pty Ltd shall be entitled to enter upon the Customers’ premises at any time to do all things necessary in order to take possession of the goods. The Customer shall be liable for all costs of and associated with the exercise of Fennu Pty Ltd rights under this clause, which shall be payable on demand.
11.6 Any payments received from the Customer on overdue accounts will be applied first to satisfy interest which may have accrued and/or costs which may have been incurred, and then to principal.
11.7 Fennu Pty Ltd reserves the right to require the Customer to pay the price as determined by Clause E to Fennu Pty Ltd at any time prior to the delivery of the goods at the Customer’s premises.
11.8 In the event of a dispute, the Customer acknowledges that it shall not be entitled to withhold payment of any undisputed balance then due to Fennu Pty Ltd for the goods, and agrees that it shall pay the whole of any undisputed balance pursuant to this clause 11.

12 RETENTION OF TITLE
12.1 Subject to clause 12.2, and unless otherwise notified in writing, the Customer is authorised to sell the goods if it is the ordinary course of its business to do so.
12.2 Until full payment in cleared funds is received by Fennu Pty Ltd for all goods sold and supplied by it to the Customer, as well as all other amounts owing to Fennu Pty Ltd by the Customer:-
12.2.1 title and property in the goods shall remain vested in Fennu Pty Ltd and shall not pass to the Customer;
12.2.2 the Customer shall hold the goods as fiduciary bailee and agent for Fennu Pty Ltd; and
12.2.3 the Customer shall keep all goods as supplied and delivered to it by Fennu Pty Ltd separate from its other property, and in a manner to enable them to be identified.
12.3 If the Customer sells, disposes of or uses the goods before full payment in cleared funds is made to Fennu Pty Ltd, until such full payment is made, all monies resulting from such sale, disposal or use shall be held on trust for Fennu Pty Ltd and shall be kept in a separate account, shall not be mixed with the Customer’s or any other monies and further shall be specifically earmarked in the accounts of the Customer as the property of Fennu Pty Ltd.
12.4 The goods remain Fennu Pty Ltd goods notwithstanding that they may have been machined, cut or attached to other goods not the property of Fennu Pty Ltd.
12.5 If the Customer combines or incorporates the goods with other goods (not being the property of Fennu Pty Ltd) before full payment in cleared funds is made to Fennu Pty Ltd, so that Fennu Pty Ltd’s goods become mixed with goods of others, the Customer hereby authorises Fennu Pty Ltd to dismantle and remove its goods from the other goods.
12.6 Fennu Pty Ltd shall have a lien on all goods of the Customer in its possession in the event that any amounts remain outstanding on account of those or any other of the Customers goods.

13 CLAIMS AND RETURNS
13.1 Patent Defects; The Customer shall inspect all goods immediately upon receipt of delivery and, within 7 business days of receipt of the goods, shall give notice in writing to Fennu Pty Ltd of:-
13.1.1 the relevant packaging slip/consignment note number and date in respect of the goods the subject of the proposed claim;
13.1.2 the date and place of delivery in respect of the goods the subject of the proposed claim; and
13.1.3 the grounds upon which the Customer alleges that the goods do not comply with the Contract.
13.2 In the event that the Customer does not give written notice of any proposed claim within 7 days of receipt of delivery, the goods shall be deemed to comply with the specifications of the Contract and the Customer shall be bound to accept and pay for the goods in accordance with these T&C.
13.3 Disposal of use of any part of the goods in an order which is the subject of a claim shall constitute acceptance by the Customer of the whole of the order. The Customer acknowledges and agrees that it cannot and will not make a claim against Fennu Pty Ltd unless at the time of the claim all of the goods, the subject of relevant Contract, remain intact as a whole.
13.4 Upon giving written notice referred to in Clause 13.1, the Customer hereby grants to Fennu Pty Ltd full and unimpeded access to the premises of the Customer to enable representatives of Fennu Pty Ltd to investigate any claim by the Customer. Such investigation shall not constitute or be construed as a admission of liability by Fennu Pty Ltd.
13.5 After receipt of the said notice and after investigation by its representatives, Fennu Pty Ltd may accept the return of the goods the subject of the claim.
13.6 Any liability incurred by Fennu Pty Ltd as a consequence of the Customer’s claim shall at the option of Fennu Pty Ltd be limited to either replacement of the goods or a credit for the invoiced value of the goods in favour of the Customer, notwithstanding that that liability may have been incurred by reason of Fennu Pty Ltd’s error, omission, negligence or recklessness. In the event that Fennu Pty Ltd grants a credit for or replaces the goods, Fennu Pty Ltd shall have the right to retake possession of the goods and the Customer shall deliver up those goods to Fennu Pty Ltd.
13.7 Latent Defects; In the event that any defect in the goods is not apparent until after the goods have been machined, worked or cut, the Customer shall give written notice of the alleged defect to Fennu Pty Ltd as soon as it becomes aware of that defect. Upon giving the written notice referred to herein, the terms of clauses 13.4, 13.5, and 13.6 shall apply. In the event that Fennu Pty Ltd is inclined to credit the invoiced value of or replace the goods, Fennu Pty Ltd shall have the right to take possession of the machined, worked or cut goods, and the Customer shall deliver up those goods to Fennu Pty Ltd.
13.8 No Compensation; The Customer agrees that Fennu Pty Ltd shall not be liable for any consequential loss or damage, loss of contracts, loss of profits, loss of opportunity, reduction in resale price, storage or other charges (“loss and damage”) on account of any alleged or proved deficiency in the goods, or the performance of the goods supplied by Fennu Pty Ltd, and the Customer hereby releases and discharges Fennu Pty Ltd from all such loss and damage even if Fennu Pty Ltd has been advised of the possibility of such damages.
13.9 Neither shall Fennu Pty Ltd nor its suppliers, agents, servants, contractors or any other person or entities involved in any way in the creation, supply or maintenance of its services shall otherwise be liable for any injury, loss or damage which is caused by or arises out of the negligence or breach of statuary duty by Fennu Pty Ltd, its suppliers, agents, servants, contractors or other such persons or entities.
13.10 The Customer acknowledges that it has relied upon its own skill and judgment in the selection, supervision, management and use of the services and the results expected thereof.

14 MISTAKE
Any goods on any quotation, order, invoice, delivery docket or other document issued by Fennu Pty Ltd in relation to the Contract shall not be binding on Fennu Pty Ltd, and Fennu Pty Ltd may in its discretion issue such amended document as is required to rectify such mistake. The Customer shall comply with Fennu Pty Ltd’s amended document.

15 ACCESS
The Customer irrevocably grants to Fennu Pty Ltd authority to enter into, forcibly or otherwise, all of the owned and leased premises of the Customer for the purpose of inspecting or removing (subject to the terms of the Contract) any goods of Fennu Pty Ltd.

16 GOVERNING LAW / INTERPRETATION
16.1 The Contract is to be interpreted according to the laws of the State or Territory from which Fennu Pty Ltd’s goods are supplied to the Customer.
16.2 Singular includes the plural and vice versa and reference to any gender includes any other gender.