Terms and Conditions – Sale

TERMS AND CONDITIONS

1. Agreement

1.1 Except to the extent otherwise expressly agreed in writing, these Terms and Conditions (including any Credit Application and Credit Account (if applicable)) govern any Delivery of Product(s) by Lofts to the Customer. Requesting or accepting a Quote, placing an Order or accepting Delivery of Product(s) from Lofts by a Customer constitutes acceptance of these Terms and Conditions.

1.2 To the extent of any inconsistency between the Terms and Conditions, a Quote or Order and (to the extent applicable) a relevant Credit Application and/or Credit Account terms, these Terms and Conditions shall prevail.

2. Validity

2.1 A Quote is an offer open to acceptance by the Customer within 30 days from the date of the Quote and any such acceptance must be on the basis that the Delivery of the Product(s) is performed within 3 months of the date of the relevant Quote.

2.2 To the extent the Customer makes a Credit Application, all Quotes and Orders are made subject to the Customer meeting Lofts credit approval requirements and the Customer complying with the relevant terms of the Credit Application and Credit Account.

3. Variations

3.1 The Rate(s) set out under a Quote or Order (as applicable) are:

(a) based on the Delivery of Product(s) in accordance with the Delivery Details provided by the Customer; and

(b) Remain subject to any increases, rises and falls,

accordingly, to the extent that the Customer requires any variations to the Delivery Details or any changes within the quarry industry are experienced, Lofts reserves the right to adjust the prescribed Rate(s) in its sole discretion.

3.2 While Lofts shall use all reasonable endeavours to effect Delivery in accordance with the requirements of a Quote or Order, the Customer acknowledges and agrees that the number of metres or tonnes cannot be accurately guaranteed and may be subject to a one (1) tonne or metre variance above or below the Quote on a per vehicle basis. Notwithstanding any variances, the prescribed Product Rate(s) shall apply.

4. Material Quality

The Customer acknowledges and agrees that:

4.1 quarry or recycling materials of a particular description Delivered shall vary in the uniformity and grading of material size, shape, moisture content, degradation factor, hardness, texture and other characteristics and Lofts expressly disclaims any liability with respect to such variations;

4.2 the Product(s) are not manufactured to any prescribed specification standard unless expressly identified and stated on the face of the Quote or Order (as applicable) and Lofts makes no representations as to the suitability of the Product(s) for the Customer’s intended use; and

4.3 Lofts provides no warranty in relation to Product(s) compliance with any environmental law, regulation or standard and that it shall not be liable to the Customer for any failure of the Customer or other parties to blend the Product(s).

5. Payment

5.1 The Customer shall pay to Lofts for the Delivery of the Product(s) at the specified Rates according to the actual quantities Delivered, as shown on the Delivery Docket, subject to the Quote or Order and these Terms and Conditions, or as otherwise notified by Lofts to the Customer.

5.2 To the extent any Additional Charges are not ascertainable at the time of payment, the Customer acknowledges and agrees that Lofts shall be entitled to deduct such Additional Charges from the original payment method upon completion of Delivery at the Customer Site or levy such Additional Charges against the Customer’s Credit Account (as applicable).

5.3 Payment means and refers to payment in cleared funds. Payment shall not be deemed to be made until the clearance of any cheque or payment by other means such as electronic funds transfer, credit card and any applicable Lofts credit.

5.4 Unless the Customer holds a current Credit Account, payment is due in full for the Delivery of the Product(s) at the time the Product is loaded for Delivery at the relevant quarry or recycling site. Where Product(s) are being Delivered in more than one single Delivery, full payment must be received prior to each Delivery.

5.5 Where a Customer holds a current Lofts Credit Account, payment must be made within 30 days of the end of a calendar month. The Customer acknowledges and agrees that:

(a) any overdue amounts shall be a debt due and owing to Lofts (“Debt”);

(b) Lofts reserves the right to charge interest on the value of any Debt(s) at a rate equivalent to 3% per annum above the Bank Bill Swap Bid Rate; and

(c) the Customer is liable to pay to Lofts any third party debt recovery costs incurred by Lofts in pursuing any Debt from the Customer.

5.6 Actual quantities shown on the Delivery Docket shall be measured by the relevant originating quarry or recycler’s weighbridge or as otherwise determined by that originating quarry or recycling site.

5.7 Lofts is under no obligation to accept any Product(s) ordered in excess of the Customer’s requirements as shown on the Delivery Docket for return or credit.

5.8 The Customer acknowledges and agrees that payments made by way of credit and/or debit card shall incur a surcharge of 1.5% for Visa and Mastercard and 2.7% for American Express.

6. Limitation of Liability and Indemnity

6.1 Lofts shall not be liable in any circumstances for:

(a) any damage to any property of whatsoever kind situated in, or on adjacent to the Customer Site resulting from the Product(s) Delivered in accordance with the Quote or Order and these Terms and Conditions;

(b) for any defects in the Product(s) unless the Customer notifies Lofts within 3 days of the date of Delivery of the Product(s) to the Customer Site, specifying the defect;

(c) for any Loss arising from delay in Delivery;

(d) for any Consequential Loss; and

(e) for any Loss arising from the Product(s) being placed or installed by others,

and Lofts’ total aggregate liability in all circumstances shall not exceed (to the extent permitted by law) the amount paid by the Customer for the Delivery of the Product(s).

6.2 To the maximum extent permitted by law, the Customer indemnifies and holds harmless Lofts for all Losses caused or contributed by any negligence and/or wilful act or omission or any breach of these Terms and Conditions by Lofts, its employees, contractors, subcontractors or agents.

7. Risk and Title

7.1 Upon Delivery to the Customer Site (or the nearest kerbside to the Customer Site), all risk in relation to the Product(s) shall pass to the Customer.

7.2 Title in the Product(s) shall not pass to the Customer until Lofts has been paid in full for the Delivery of the Product(s).

8. Delivery

8.1 Unless the Customer specifies otherwise, Delivery will be made to the nearest kerbside to the Customer Site.

8.2 The Customer undertakes to accept Delivery of the Product(s) in a timely manner. To the extent the Customer is delayed in the acceptance of Delivery and the Product(s) cannot be unloaded within 15 minutes of arrival at the Customer Site, the Customer shall be liable to pay to Lofts an additional waiting time surcharge in accordance with the Additional Charges Schedule until Delivery is completed.

8.3 Lofts shall use reasonable endeavours to Deliver the Product(s) within the Delivery timeframe (as notified by Lofts to the Customer). However, to the extent Delivery of the Product(s) is early or delayed for any reason beyond the control of Lofts or as a result of any cause which the Customer is or should have been reasonably aware of, all Loss arising from the delay will be the responsibility of the Customer and the Customer shall indemnify Lofts in respect of such Loss.

8.4 The Customer acknowledges and agrees that:

(a) during the course of Delivery of the Product(s) from the quarry or recycling site to the Customer Site, settling of the Product(s) may occur and the Customer must ensure that it checks that the Product description(s) and quantity on the Delivery Docket accord with the relevant Quote or Order;

(b) it must provide Lofts with written notification of any discrepancies within 1 hour of Delivery, including but not limited to discrepancies in quantity and specification;

(c) failure by the Customer to make such notations on the Delivery Docket is deemed conclusive evidence that the Delivery Docket is accurate and the Customer accepts the Product(s) have been Delivered in accordance with the terms of the Quote or Order and these Terms and Conditions; and

(d) use, spreading or compacting of the Product(s) will also be deemed acceptance of the Product(s) by the Customer.

8.5 If the Customer is not present at the Customer Site at the time of Delivery or is unavailable to sign the Delivery Docket:

(a) the signature of the driver on the Delivery Docket shall be prima facie evidence of delivery in accordance with the Quote or Order (as applicable); or

(b) Lofts may, in its absolute discretion, elect to refuse to Deliver the Product(s) and the Customer will nonetheless be liable to pay for those Product(s) as if they had been Delivered (including any associated Re-allocation Fees incurred in returning the Product(s) to the originating quarry or recycling site as set out in the Additional Charges Schedule).

9. Site Access and Safety

9.1 The Customer shall indemnify Lofts for all Loss:

(a) arising out of or in connection with Lofts’ entry into the Site for the purposes of Delivery; and

(b) incurred by Lofts as a result of the Customer’s failure to provide adequate access to the Customer Site (including but not limited to delay costs, establishment costs and outlays).

9.2 The Customer is and shall be responsible for providing Lofts with timely access, and ensuring safe and adequate access, to the Customer Site to effect Delivery.

9.3 The Customer shall notify Lofts prior to Delivery of any obstacles or peculiarities in relation to the Customer Site including whether the Customer Site or its approach has a gradient greater than 8%.

9.4 The Lofts driver(s) making Delivery to the Customer Site may refuse to complete the Delivery if it considers (acting reasonably) there is or may be a chance of any safety or access issues at the Customer Site.

9.5 For the avoidance of doubt, the performance or a Delivery shall not constitute an assessment of the safety of the Customer Site and in no way relieves the Customer of its obligations under these Terms and Conditions, including those in relation to safety.

10. Operating Hours

10.1 Lofts standard operating hours are Monday to Friday 7.00 am to 5.00 pm and Saturday 7.30 am to 12.00 pm (“Operating Hours”).

11. LQ Platform

To the extent an Order is placed through the LQ Platform, the Customer acknowledges and agrees that Lofts is not liable for:

11.1 any information provided by the Customer;

11.2 correcting, updating or revising any information provided by the Customer on the LQ Platform; and

11.3 whether the selection of the delivery vehicle is suitable for the Delivery of the Product(s), including in relation to any Customer Site access issues.

12. Force Majeure

12.1 Lofts shall not be liable in any way for any delay in the Delivery of the Product(s) where such delay occurs by reason of any cause whatsoever beyond the reasonable control of Lofts, including (but not limited to), restrictions of government or other statutory authorities, wars, fires, epidemics, failure or fluctuations in any electrical power supply, storm, flood, earthquake, accident, labour dispute, plant breakdown, materials or labour shortage, the change or introduction of any law or regulation or an act or omission of any supplier (i.e. a quarry or recycling site) or other third party or any failure of any equipment owned or operated by them.

13. Suspension and Termination

13.1 (Event of Default) Where the Customer commits an Event of Default, Lofts may immediately suspend or terminate its engagement under a Quote or Order (as applicable) and these Terms and Conditions.

13.2 (Force Majeure) Where a Force Majeure subsists for more than 28 days’, Lofts may in its absolute discretion immediately terminate its engagement under the Quote or Order and these Terms and Conditions shall apply.

13.3 (Termination for Convenience) Notwithstanding anything else contained in these Terms and Conditions and without prejudice to Lofts’ other rights, Lofts may terminate the Quote and/or Order and these Terms and Conditions at its absolute discretion, for whatever reason upon one (1) day’s written notice to the Customer. Upon termination the Customer must pay Lofts for the value of the Delivery(s) performed up to the date that the termination takes effect. Lofts shall not be liable to the Customer for any Loss arising out of any termination in accordance with this clause.

14. Taxes and Other Charges

14.1 The Rates specified under the Quote or Order do not include any statutory or government Charges. Should any such charges or any other tax become applicable to the Product(s) the subject of the relevant Order or Quote, Lofts reserves the right to pass on such charge or tax to the Customer.

14.2 Any reference in a Quote, Order and/or these Terms and Conditions to terms defined or used in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (“Act”) is, unless the context indicates otherwise, a reference to that term as defined or used in that Act.

14.3 All prices contained under a Quote or Order do not include GST. GST shall be added in accordance with all applicable GST laws.

15. Miscellaneous

15.1 The Customer consents to Lofts recording and disclosing any telephone conversations had between Lofts and the Customer.

15.2 At the Customer’s request, Lofts may, using reasonable endeavours, arrange for the originating quarry or recycling site to perform further testing of the Product(s). The costs of any testing will be payable by the Customer as an Additional Charge. Lofts shall provide the Customer with any copies of any such additional third-party testing conducted.

16. General

16.1 (Governing Law) These Terms and Conditions are governed by and are to be construed in accordance with the laws of Victoria, Australia. The Customer irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of the state of Victoria.

16.2 (Severance) Any provision of these Terms and Conditions which is unenforceable or partly unenforceable is, where possible, to be read severed to the extent necessary to make these Terms and Conditions enforceable, unless this would be materially change the intended effect of these Terms and Conditions.

16.3 (Waiver) A right may only be waived in writing, signed by the party giving the waiver, and no other conduct of a party (including a failure to exercise, or delay in exercising, the right) operates as a waiver of the right or otherwise to prevent the exercise of the right.

16.4 (Implied terms) To the maximum extent permitted by law, all terms, conditions or warranties that would be implied into these Terms and Conditions or in connection with the Delivery of the Product(s) by law, statute, custom or international convention (including, but not limited to, those relating to quality or fitness for purpose) are excluded.

17. Definitions

“Additional Charges” means those additional charges prescribed under the Additional Charges Schedule.

“Additional Charges Schedule” means the schedule titled ‘Annexure 1 – Additional Charges’ annexed to the Quote or Order (as applicable).

“Consequential Loss” means loss of revenue, loss of profits, loss of anticipated savings or business, loss of data, loss of value of equipment (other than cost of repair), loss of opportunity or expectation loss and any form of consequential, special, indirect, punitive or exemplary loss or damages, however it arises (including as a result of negligence).

“Credit Account” means a relevant credit account (if any) held by a Customer pursuant to a Credit Application made by the Customer and approved by Lofts.

“Credit Application” means the credit application completed by the Customer (as applicable) and credit guarantees provided (if any).

“Customer” means a person or entity seeking or accepting a Quote for, placing an Order or accepting the Delivery of Products by Lofts and includes that person or entity’s employees, agents, contractors, sub-contractors, successors and substitutes (including persons taking by novation).

“Customer Site” means the prescribed location for the Delivery of the Product(s) as specified on the relevant Quote or Order.

“Debt” has the meaning given to that term at clause 5.5(a).

“Deliver” or “Delivery” means the supply and delivery of Product(s) made pursuant to a Quote or Order which the Customer accepts, whether or not Lofts and the Customer have reached a concluded agreement about all of the terms of that delivery or supply of Product(s).

“Delivery Details” includes, in respect of a Delivery, details of:

(a) a number uniquely identifying a Delivery to be used as a reference;

(b) Customer name and account number;

(c) Customer Site address for Delivery and any specific Delivery instructions (including Customer Site access, specific truck requirements and Truck Capacities);

(d) date and times of loading and Delivery stages;

(e) description and system codes of Products Delivered; and

(f) quantity of Product(s).

“Delivery Docket” means a document (digital or paper based) prepared by Lofts which records the Delivery Details in respect of a Delivery.

“Event of Default” means:

(a) the Customer fails to pay for the Delivery of Product(s) in accordance with the terms of the Quote, Order, these Terms and Conditions and/or Credit Account (as applicable);

(b) the Customer is otherwise in breach of these Terms and Conditions;

(c) if the Customer is a company:

(i) subject to any applicable stay in accordance with the Corporations Act 2001 (Cth), the Customer resolves to appoint, or a receiver or provisional liquidator or an administrator, is appointed;

(ii) the Customer goes into liquidation or makes an assignment or an arrangement or composition with its creditors; and/or

(iii) the Customer stops payment or is deemed unable to pay its debts within the meaning of the Corporations Act 2001 (Cth); and/or

(iv) If the Customer is a natural person:

(A) an order is made for the Customer’s bankruptcy;

(B) an order is made to place the assets and affairs of the Customer under administration; or

(C) the Customer ceases to carry on a business.

“GST” has the meaning given to that term under the New Tax System (Goods and Services Tax) Act 1999 (Cth).

“GST Law” has the meaning given to that term under the New Tax System (Goods and Services Tax) Act 1999 (Cth).

“Lofts” means Lofts Quarries Pty Ltd (ABN 19 005 671 465) and includes any of its employees, agents, contractors, subcontractors, successors, assigns and substitutes (including persons taking by novation).

“Losses” means any liability, however it arises (including as a result of negligence) and includes any loss, claim, damage, demand, injury or death and a fine or penalty imposed by a statutory or other authority.

“LQ Platform” means:

(a) the Lofts Mobile Application as available on the App Store and Google Play Store (as updated from time to time); and/or

(b) the Lofts website, URL pathway http:www.lofts.au

“Operating Hours” has the meaning given to that term in clause 10.

“Order” means any order for the Delivery of Product(s) placed by a Customer by any means, which includes but is not limited to, orders via telephone (including text message), in person, facsimile, email or via the LQ Platform.

“Product” the product(s) to be Delivered by Lofts to the Customer, as identified and described in the Quote or Order (as applicable)].

“Quote” includes any:

(a) document titled ‘Quote’ provided by Lofts to the Customer itemising the Product(s) and the Rates at which Lofts is willing Deliver these to the Customer at the Customer Site; and/or

(b) Rates provided by Lofts to the Customer through the LQ Platform relating to any Product(s) which Lofts is willing to Deliver to the Customer at the Customer Site.

“Rate” means the unit rate for the Delivery of a relevant Product, as prescribed under a Quote or Order.

“Re-allocation Fee” has the meaning given to that term under the Additional Charges Schedule.

“Truck Capacities” has the meaning given to that term under a Quote or Order (as applicable).