TERMS AND CONDITIONS OF TRADE

Except to the extent otherwise expressly agreed in writing, these Terms and Conditions, any Credit Application and Credit Account (if applicable) and any applicable Services Terms, govern any Delivery of Goods, or provision of Goods or Services, by Lofts to the Customer. Requesting or accepting a Quote, placing an Order or accepting Delivery of Goods from Lofts by a Customer constitutes acceptance of these Terms and Conditions. To the extent of any inconsistency the following order of priority shall apply:

  1. first, these the Terms and Conditions;
  2. then each of the following, in the following order:
    1. Credit Terms;
    2. Services Terms; and
    3. a Quote or Order.

1. Definitions

In this document being the Terms and Conditions of Trade (“Terms” or “Terms and Conditions“), unless the contrary intention appears:

“ACL”
means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) as amended;
“Agreement”
means any agreement for the supply of Goods from the Suppler to the Customer;
“Application for Credit”
means the application by which the Customer applies for a Credit Account;
“consumer”
is as defined in the ACL and in determining if the Customer is a consumer, the determination is made if Customer is a consumer under the Agreement;
“Costs”
includes all costs incurred by the Supplier in supplying the Goods to the Customer or enforcing its rights under the Terms including without limitation all solicitors’ fees (on a full indemnity basis), commercial agents’ commission, freight, insurance and interest;
“Credit Account”
means a facility, whereby monies owing from the Customer to the Supplier are due and payable in the manner set out in these Terms;
“Credit Application”
means the credit application completed by the Customer (as applicable) and credit guarantees provided (if any).
“Customer”
means the person or corporation, jointly or severally, if more than one, acquiring Goods from the Supplier;
“Date of the Invoice”
means the date upon which an invoice was given by the Supplier to the Customer in respect of monies owing for Goods supplied;
“Deliver” or “Delivery”
means the supply and delivery of Goods 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 Goods.

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

  1. a number uniquely identifying a Delivery to be used as a reference;
  2. Customer name and account number;
  3. Customer Site address for Delivery and any specific Delivery instructions (including Customer Site access, specific truck requirements and Truck Capacities);
  4. date and times of loading and Delivery stages;
  5. description and system codes of Goods Delivered; and
  6. quantity of Goods.
“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 any of the following: (i) the Customer fails to pay any Outstanding Amount when due; (ii) the Customer breaches any of its obligations under these Terms and fails to remedy such breach within seven (7) days of written notice from the Supplier; (iii) (if the Customer is a corporation) the Customer ceases to trade or indicates that it is about to cease to trade, or any liquidation, receivership, administration, external management or any other act or event of insolvency (as defined in the Corporations Act 2001) of the Customer; (iv) (if the Customer is an individual) any act of bankruptcy (as defined in the Bankruptcy Act 1966) of the Customer; or (v) a material adverse change occurs in the financial position of the Customer;
“Goods”
means goods ordinarily sold or supplied by the Supplier and includes any goods supplied by the Supplier to the Customer and includes any goods with which the goods have been mixed or commingled or which the goods have formed a component of as well as any device, fitted to any goods in compliance with all applicable laws, with the purpose of protecting, or attempting to protect any person from harm from those goods;
“Force Majeure Event”
means any cause whatsoever beyond the reasonable control of the Supplier, including restrictions of government or other statutory authorities, wars, fires, epidemics, failure or fluctuations in electrical power supply, storm, flood, earthquake, accident, labour dispute, plant breakdown, materials or labour shortage, the change or introduction of any law or regulation, an act or omission of any supplier (including a quarry or recycling site) or other third party, or any failure of equipment owned or operated by them;
“Customer Site”
means the location for delivery of the Goods or performance of the Services specified in the relevant Quote or Order;
“Invoice”
means any invoice for Goods or Services supplied by the Supplier to the Customer;
“Order”
means any order for Goods or Services placed by the Customer with the Supplier;
“LQ Platform”
means the Lofts Mobile Application as available on the App Store and Google Play Store (as updated from time to time) and/or any other website, application or online platform operated by or on behalf of the Supplier for Quotes, Orders or delivery of Goods;
“Outstanding Amounts”
means all amounts due and payable by the Customer to the Supplier (including the Purchase Price) for any Goods supplied to it by the Supplier and all Costs and Taxes which the Customer is liable to pay to the Supplier;
“Operating Hours”
means the Supplier’s standard operating hours, being Monday to Friday 7.00 am to 5.00 pm and Saturday 7.30 am to 12.00 pm, unless otherwise notified by the Supplier;
“Purchase Price”
means the price for Goods supplied by the Supplier to the Customer as stated on the Invoice to the Customer but not including Costs and Taxes;

“Quote”
includes any:

  1. document titled ‘Quote’ provided by Lofts to the Customer itemising the Goods and/or Services and the Rates at which Lofts is willing Deliver these to the Customer at the Customer Site; and/or
  2. Rates provided by Lofts to the Customer through the LQ Platform relating to any Goods and/or Services which Lofts is willing to Deliver to the Customer at the Customer Site;
“Services”
means any services provided by the Supplier to the Customer pursuant to the Services Terms;
“Services Terms”
means the separate conditions applicable to other services provided by Lofts, including “Terms and Conditions – Concrete” in relation to readymix concrete and stabilized sand; “Terms and Conditions Skip Hire” in relation to skip bin hire; “Terms and Conditions – Bulk Bag” in relation to the provision of Bulka Bags and “Terms and Conditions – Spoil” in relation to the removal of waste;
“Security Deposit”
means any refundable deposit or other security for payment that the Supplier requires the Customer to provide under Clause 6A as security for the due performance of the Customer’s obligations and the payment of all Outstanding Amounts;
“Supplier” or “Lofts”
means Lofts Quarries Pty Ltd ACN 005 671 465 and includes its servants, contractors, agents, successors and assigns;
“PPSA”
means the Personal Property Securities Act 2009 (Cth);
“PPSR”
means the Personal Property Securities Register established under the PPSA;
“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.
“Taxes”
means all present and future government or semi-government Taxes, levies, imposts, deductions, charges, compulsory loans and withholdings together with any applicable interest, penalties and expenses for which the Supplier may be liable as a result of any Quote, Order and/or Invoice.
“Truck Capacities”
has the meaning given to that term under a Quote or Order (as applicable).

2. Conditions Applicable

2.1
Unless otherwise agreed in writing, these Terms cannot be varied or replaced by other terms including the Customer’s terms of purchase (if any).
2.2
The Supplier may vary or amend these Terms by written notice to the Customer at any time, acting reasonably. Any variations or amendments will apply to Orders accepted after the notice date. If the Customer does not accept the variation, the Customer may terminate the Credit Account by written notice to the Supplier within fourteen (14) days of receipt of the variation notice, provided all Outstanding Amounts are paid in full. The Customer acknowledges and agrees that if it terminates the Credit Account, it can no longer purchase Goods or Services from the Supplier.

3. Quotes and Orders

3.1
Subject to clauses 4, 9 and 10, the Supplier agrees to supply Goods and Services to the Customer upon receipt of an Order from the Customer and the Customer agrees to purchase the Goods and Services upon placing the Order with the Supplier.
3.2
Requesting or accepting a Quote, placing an Order or accepting delivery of Goods or provision of Services from the Supplier constitutes acceptance of these Terms.
3.3
A Quote is an offer open to acceptance by the Customer within 30 days from the date of the Quote, and any such acceptance is on the basis that delivery of the Goods or performance of the Services is within 3 months after the date of the relevant Quote. All Quotes and Orders are subject to the Customer meeting the Supplier’s credit approval requirements and complying with the relevant terms of any Application for Credit and Credit Account.
3.4
The Customer acknowledges that the Supplier’s Operating Hours are Monday to Friday 7.00 am to 5.00 pm and Saturday 7.30 am to 12.00 pm, unless otherwise notified by the Supplier.
3.5
To the extent an Order is placed through the LQ Platform, the Customer acknowledges and agrees that the Supplier is not liable for any information provided by the Customer, for correcting, updating or revising any information provided by the Customer on the LQ Platform, or for whether the selection of the delivery vehicle is suitable for delivery of the Goods, including in relation to any Customer Site access issues.
3.6
The Customer consents to the Supplier recording and disclosing any telephone conversations between the Supplier and the Customer. At the Customer’s request, the Supplier may, using reasonable endeavours, arrange for the originating quarry or recycling site to perform further testing of the Goods. The costs of any testing are payable by the Customer as Additional Charges, and the Supplier will provide the Customer with copies of any such additional third-party testing conducted.

4. Retention of Title and PPSA

4.1
The Customer acknowledges that the Supplier’s interest in the Goods constitutes a security interest (including a purchase money security interest) for the purposes of the PPSA and until such time as payment in full of any relevant Outstanding Amount is made by the Customer to the Supplier, the Customer will hold the Goods as bailee only.
4.2
The Customer must provide all information reasonably requested by the Supplier to enable the Supplier to register a financing statement on the PPSR, and must do so promptly and in any event prior to the Supplier delivering any Goods to the Customer.
4.3
Subject to this Clause 4, the property in the Goods and all legal and equitable rights in all Goods supplied by the Supplier to the Customer remains with the Supplier at all times until all Outstanding Amounts are paid by the Customer. Without limiting the foregoing, the Customer grants to the Supplier a security interest (including a purchase money security interest) in the Goods, all proceeds of the Goods (including accounts, debts and receivables arising from the sale or disposal of the Goods), and any goods into which the Goods have been mixed, commingled or become a component of, to secure payment of all Outstanding Amounts.
4.4
The Customer consents to the Supplier registering a financing statement on the Personal Property Securities Register in respect of any security interest arising under or contemplated by these Terms and agrees not to object to, or seek to amend or discharge, any such registration. The Customer agrees not to disclose information of the kind referred to in section 275(1) of the PPSA to any interested person, and the parties agree that section 275(7)(c) of the PPSA does not apply to these Terms or any security interest arising under them. The Customer waives its right to receive a verification statement in respect of any financing statement or financing change statement relating to any security interest contemplated by these Terms, to the extent permitted by section 157(3) of the PPSA. To the maximum extent permitted by section 115 of the PPSA, the Customer waives its rights under sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4), 135, 137(3), 142 and 143 of the PPSA, and the Customer agrees that, to the extent permitted by law, the Supplier need not comply with those provisions in exercising its rights under these Terms or the PPSA.
4.5
Property in Goods supplied pursuant to these Terms passes to the Customer only when all Outstanding Amounts due to the Supplier for any Goods supplied to the Customer have been paid for in full by the Customer to the Supplier.
4.6
The Customer will, and the Customer irrevocably appoints the Supplier and each of its directors and officers as the Customer’s attorney to do all things and execute all documents that the Supplier considers necessary or desirable to give effect to, perfect, maintain, protect or enforce any security interest arising under or contemplated by these Terms (including registering, amending or discharging any financing statement on the PPSR). The Customer must notify the Supplier in writing at least fourteen (14) days prior to any change in the Customer’s name, ABN, ACN, registered address, principal place of business, or any other details that may affect the accuracy of any financing statement registered on the PPSR by the Supplier.
4.7

Where there are Outstanding Amounts remaining unpaid to the Supplier, the Customer must hold any proceeds received from third parties to which the Goods are supplied (including any amounts received in connection with projects in which the Goods have been incorporated, mixed, commingled or used) on trust for the Supplier, and must:

  1. clearly identify and record which proceeds relate to the Supplier’s Goods;
  2. notify the Supplier promptly upon receipt of such proceeds; and
  3. not use, set off, or otherwise deal with such proceeds except to pay Outstanding Amounts to the Supplier.
4.8

If any Event of Default occurs, to the extent possible, the Customer must:

  1. assist the Supplier to retake possession of the Goods which remain the property of the Supplier and must, to the extent reasonably practicable, keep the Goods separately stored and clearly identified as the Supplier’s property, and must maintain accurate records of the location, quantity and condition of the Goods sufficient to enable the Supplier to identify and trace the Goods or their proceeds;
  2. licence the Supplier to enter any premises under the control or ownership the to repossess the Goods where possible; and
  3. not sell, assign or let the Goods or any interest in them, or permit any charge, pledge, lien or other encumbrance or security interest to be created in relation to the Goods, without the prior written consent of the Supplier (whether or not an Event of Default has occurred, for so long as any Outstanding Amounts remain unpaid).

5. Credit Limit, Provision of Credit and Charge

5.1
The Supplier, at its absolute discretion, may agree to provide the Customer with a Credit Account.
5.2
The Customer authorises the Supplier to open a Credit Account in the name of the Customer and to record transactions on the Credit Account and to debit the Customer with all amounts owing to the Supplier.
5.3
The Supplier may impose a credit limit on the Credit Account. The amount of such a limit is at the absolute discretion of the Supplier.
5.4
The Supplier, at its absolute discretion may supply goods to a value over and above the nominated credit limit.
5.5
In consideration of the Supplier having agreed or agreeing to sell Goods or provide services or to extend credit to the Customer and to further secure any amount owing to the Supplier, the Customer charges (as beneficial owner) all freehold and leasehold interest in land that the Customer now owns or during the course of these Terms may acquire, in favour of and for the benefit of the Supplier.
5.6
The Customer also grants the Supplier a general security interest over all of the Customer’s present and after-acquired property (including but not limited to accounts, receivables, inventory, equipment, and all other personal property) to secure payment of all Outstanding Amounts.
5.7
The Customer consents to the Supplier lodging a caveat or caveats noting its interest pursuant to such charge and registering any financing statement on the PPSR in respect of any security interest granted under these Terms. The PPSA provisions set out in Clause 4 (including all waivers, consents and acknowledgements given by the Customer in respect of the PPSA) apply to any security interest granted under this Clause 5 as if set out in full herein.

6. Security Deposit

6.1
The Supplier may, at its absolute discretion and as a condition of supplying Goods or providing a Credit Account, require the Customer to pay to the Supplier a Security Deposit of such amount as the Supplier reasonably determines. The Supplier may require the Security Deposit to be provided before, or at any time during, the supply of Goods, and may require the Customer to increase the Security Deposit where the Customer’s Outstanding Amounts or anticipated Orders increase.
6.2
The Security Deposit is refundable and, subject to Clause 6.3, will be repaid to the Customer (without interest, unless required by law) within a reasonable time after all Outstanding Amounts have been paid in full or if the Customer has ceased to trade with the Supplier or the Credit Account has been closed.
6.3

The Supplier may apply, retain or set off the whole or any part of the Security Deposit against any amount owing by the Customer to the Supplier, including in any of the following circumstances:

  1. the Customer fails to pay any Outstanding Amount when due or an Event of Default occurs;
  2. the Customer cancels or purports to cancel an Order or job after the Supplier has incurred costs in connection with that Order or job, in which case the Supplier may retain and set off so much of the Security Deposit as equals the Costs and other losses reasonably incurred by the Supplier; or
  3. the Customer orders a volume of Goods that is materially less than the volume specified in a relevant Quote (a material under-order), in which case the Supplier may retain and set off so much of the Security Deposit as equals the Costs, price differential and other losses reasonably attributable to the shortfall.
6.4
If the Supplier applies, retains or sets off all or part of the Security Deposit under Clause 6.3, the Customer must, on written demand, pay to the Supplier such amount as is necessary to restore the Security Deposit to the amount required by the Supplier under Clause 6.1.
6.5
The Supplier’s rights under this Clause 6 are in addition to, and do not limit, any other right or remedy the Supplier has under these Terms or at law or in equity, including its rights under Clauses 14 and 15.

7. Price and Payment

7.1
Prices are subject to change for any actual cost increases due to variations in customs, tariffs, insurance and freight costs, and any other Taxes or duty between the date of the Order and the date of delivery of the Goods or Services. 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 Goods or Services the subject of the relevant Order or Quote, Supplier reserves the right to pass on such charge or Tax to the Customer.
7.2
The rates set out in a Quote or Order are based on delivery of the Goods or Services in accordance with the Delivery Details provided by the Customer and remain subject to any increases, rises and falls as set out in these Terms and Conditions, the Services Terms or as notified by Supplier to the Customer. To the extent the Customer requires any variation to the Delivery Details or any changes within the quarry industry are experienced, the Supplier may adjust the prescribed rates in its sole discretion.
7.3
The Customer acknowledges 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, and the prescribed rates apply to the actual metres or tonnes delivered notwithstanding any such variance. The Customer must pay for Goods according to the actual quantities delivered, as shown on the Delivery Docket, and actual quantities shown on the Delivery Docket will be measured by the relevant originating quarry or recycler’s weighbridge or as otherwise determined by that originating quarry or recycling site.
7.4
To the extent any Costs or Additional Charges are not ascertainable at the time of payment, the Customer acknowledges and agrees that the Supplier may deduct those amounts from the original payment method upon completion of delivery or levy those amounts against the Customer’s Credit Account (as applicable).
7.5
At the Customer’s request, Lofts may, using reasonable endeavours, arrange for the originating quarry or recycling site to perform further testing of the Goods. 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.
7.6
If the Customer does not hold a current Credit Account with the Supplier (or if any current Credit Account has Outstanding Amounts which are overdue), payment is due in full for the Delivery of the Goods at the time the Product is loaded for Delivery at the relevant quarry or recycling site. Where Goods are being Delivered in more than one single Delivery, full payment must be received prior to each Delivery.
7.7
If the Customer has a current Credit Account with Supplier, and provided there are no Amounts Outstanding which are overdue, any Purchase Price, Costs and/or Taxes payable by the Customer to the Supplier for any Goods will become payable by the Customer within 30 days from the Date of the Invoice.
7.8
The Customer authorises the Supplier at the Supplier’s discretion to appropriate any money received from the Customer against whatever Outstanding Amounts are due by the Customer to the Supplier.
7.9
All payments made by the Customer to the Supplier must be made by electronic funds transfer, cash, cheque, direct debit, credit or debit card, or other method approved by the Supplier in writing and any payments made by cheques or other negotiable securities will not be deemed to have been paid until such time as those cheques or negotiable securities have been cleared.
7.10
Payments made by credit and/or debit card incur a surcharge of 1.5% for Visa and Mastercard and 2.7% for American Express.

8. Statements

8.1

The Supplier will send the Customer monthly statements detailing the monies then owing from the Customer to the Supplier. However, no statements will be sent to the Customer if:

  1. No amounts have been debited or credited to the Customer’s account during that particular month; or
  2. the Supplier has withdrawn the Credit Account from the Customer, or the Customer has closed the Credit Account with the Supplier.

9. Right to Supply

9.1
The Supplier reserves the right to accept or decline in whole or in part any Order made by the Customer for the supply of Goods.
9.2
All Orders are subject to the Supplier having the Goods available to fulfil the Order.
9.3
Time is not of the essence for delivery, however, time for payment of all Outstanding Amounts is of the essence.

10. Delivery and Risk

10.1
The Goods will be at the Customer’s risk from the time the Customer takes possession of the Goods or immediately on the Goods being delivered to the Customer or to the nearest kerbside to the Customer Site, whichever occurs first. Unless the Customer specifies otherwise and the Supplier agrees, delivery will be made to the nearest kerbside to the Customer Site.
10.2

The Customer acknowledges and agrees that:

  1. during the course of Delivery of the Goods from the quarry or recycling site to the Customer Site, settling of the Goods 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;
  2. Customer must provide the Supplier with written notification of any discrepancies within 1 hour of delivery, including discrepancies in quantity or specification, and failure to make such notification or notation on the Delivery Docket is deemed conclusive evidence that the Delivery Docket is accurate and that the Goods have been delivered in accordance with the Quote, Order and these Terms. In the case of any such notification, the Customer must allow the Supplier a reasonable opportunity to inspect the Goods in the same condition and place in which they were delivered; and
  3. use, spreading or compacting of the Goods is deemed acceptance of the Goods by the Customer.
10.3
The Supplier will not be bound to accept any return of Goods by the Customer unless the return is authorised by a representative of the Supplier, or unless recoverable from the Supplier on the failure of any statutory guarantee under the ACL. Where a return is accepted by the Supplier, the Supplier may, at its sole election, replace the Goods, issue a credit note, or provide a refund of the Purchase Price paid for the returned Goods.
10.4
The Customer must accept delivery of the Goods in a timely manner. If the Customer is delayed in accepting delivery and the Goods cannot be unloaded within 15 minutes after arrival at the Customer Site, the Customer must pay the Supplier an additional waiting time surcharge in accordance with the Supplier’s applicable additional charges schedule until delivery is completed.
10.5
If the Customer is not present at the Customer Site on the scheduled date and time for performance of the Services, and Supplier is unable to perform the Services, Customer will pay the Supplier an additional waiting time surcharge in accordance with the Supplier’s applicable additional charges schedule until commencement of the Services can occur.
10.6
The Supplier will use reasonable endeavours to deliver Goods within any delivery timeframe notified by the Supplier. However, to the extent delivery is early or delayed for any reason beyond the Supplier’s control or as a result of any cause which the Customer is or should reasonably have been aware of, all loss arising from the delay is the responsibility of the Customer and the Customer indemnifies the Supplier in respect of that loss.
10.7
If the Customer is not present at the Customer Site at the time of delivery or is unavailable to sign the Delivery Docket, the signature of the driver on the Delivery Docket is prima facie evidence of delivery in accordance with the Quote or Order, or the Supplier may, in its absolute discretion, refuse to deliver the Goods and the Customer will nonetheless be liable to pay for those Goods as if they had been delivered, including any associated re-allocation or return fees.
10.8
The Customer is responsible for providing the Supplier with timely, safe and adequate access to the Customer Site to effect delivery or performance of the Services, and must notify the Supplier before 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%. The Supplier’s driver may refuse to complete delivery if the driver considers, acting reasonably, that there is or may be a safety or access issue at the Customer Site. Performance of a delivery is not an assessment of the safety of the Customer Site and does not relieve the Customer of its obligations under these Terms.

11. Indemnity and Limitation of Liability

11.1

The Customer acknowledges that:

  1. the Supplier gives no express warranty in relation to the supply of the Goods or Services and the Customer acknowledges that no warranties and/or representations have been made by the Supplier in relation to the capacity, use, performance, adequacy or suitability of any use for the Goods or Services or otherwise, and that it has relied upon its own inspections and own independent enquiries (including any representations made by third parties such as quarries) in making the decision to purchase the Goods or acquire the Service;
  2. quarry or recycling materials of a particular description delivered may vary in uniformity, grading, material size, shape, moisture content, degradation factor, hardness, texture and other characteristics, and the Supplier expressly disclaims any liability with respect to such variations; and
  3. the Customer has not made known, either expressly or by implication, to the Supplier any purpose for which it requires the Goods or Services and it has the sole responsibility of satisfying itself that the Goods or Services are suitable for the use of the Customer.
11.2
Except as these terms specifically state, or as contained in any express warranty provided in relation to the Goods or Services, the Agreement does not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Goods or Services or any contractual remedy for their failure.
11.3
Weights and dimensions given by the Supplier in the Quote or otherwise are approximate only and are provided for the assistance only of the Customer. No warranty is given by the Supplier in respect of any weights or dimensions. The Goods are not manufactured to any prescribed specification standard unless expressly identified and stated on the face of the Quote or Order, and the Supplier provides no warranty in relation to the Goods’ compliance with any environmental law, regulation or standard or any failure of the Customer or other parties to blend the Goods.
11.4
If the Customer is a consumer, nothing in these Terms restricts, limits or modifies the Customer’s rights or remedies against the Supplier for failure of a statutory guarantee under the ACL.
11.5
In the case of any defect, breach of these Terms in relation to the Goods or Services, or any other claim in respect of the Goods or Services, the Supplier may, at its election, offer to repair or replace the Goods (or reperform the Services), or to refund the price paid for the Goods or Services.
11.6
If clause 11.4 or 11.5 does not apply, then other than as stated in the Terms or any written warranty statement the Supplier is not liable to the Customer in any way howsoever arising under or in connection with the sale, use of, storage or any other dealings with the Goods or Services by the Customer or any third party.
11.7
The Supplier is not liable for any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party, except to the extent of any liability imposed by the ACL.
11.8
Nothing in these Terms is to be interpreted as excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of Goods or supply of Services which cannot be so excluded, restricted or modified, including without limitation the Building and Construction Industry Security of Payment Act 2002 (Vic). Nothing in these Terms limits or affects any right the Supplier may have to make a payment claim, serve an adjudication application, or otherwise exercise rights under that Act.
11.9

Lofts shall not be liable in any circumstances for:

  1. any damage to any property of whatsoever kind situated in, or on adjacent to the Customer Site resulting from the Goods Delivered, or Services performed, in accordance with the Quote or Order and these Terms and Conditions;
  2. for any defects in the Goods unless the Customer has, if applicable, complied with the notification time frames set out in clause 10.2(b) or, if that clause does not apply, the Customer notifies Lofts within 3 days of the date of Delivery of the Goods to the Customer Site, specifying the defect;
  3. for any Loss arising from delay in Delivery;
  4. for any Loss arising from the Goods 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 Goods or Services.

11.10
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 Customer, its employees, contractors, subcontractors or agents.

12. Cancellation and Termination

12.1
If the Supplier is unable to deliver or provide the Goods, then it may cancel the Customer’s Order (even if it has been accepted) by written notice to the Customer.
12.2
No purported cancellation or suspension of an Order or any part of it by the Customer is binding on the Supplier once the Order has been accepted.
12.3
Where the Customer commits an Event of Default, the Supplier may immediately suspend or terminate its engagement under a Quote or Order and these Terms.
12.4
Without limiting the Supplier’s other rights, the Supplier may terminate any Quote or Order and these Terms at its absolute discretion for any reason upon one (1) day’s written notice to the Customer. Upon termination, the Customer must pay the Supplier for the value of deliveries performed up to the date that the termination takes effect, and the Supplier is not liable to the Customer for any loss arising out of termination in accordance with this clause.

13. Site Access and Safety

13.1

The Customer is and shall be responsible for providing Supplier with timely access, and ensuring safe and adequate access, to the Customer Site to effect Delivery. The Customer shall indemnify Supplier for all Loss:

  1. arising out of or in connection with Suppliers’ entry into the Site for the purposes of Delivery; and
  2. incurred by Supplier or its drivers as a result of the Customer’s failure to provide adequate or safe access to the Customer Site.
13.2
The Customer shall notify Supplier 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%.
13.3
The Suppliers’ 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.
13.4
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.

14. Default and Force Majeure

14.1
If the Customer defaults or breaches these Terms (other than a failure to pay Outstanding Amounts when due, which shall constitute an immediate Event of Default), it shall remedy any default or breach within seven (7) days of receipt of written notice by the Supplier requesting the Customer to immediately rectify such default or breach.
14.2
If the Customer breaches these Terms the Customer will indemnify and continue to indemnify the Supplier for all Outstanding Amounts and Costs associated with remedying the Customer’s breach of these Terms.
14.3

If the Customer fails to make payments in accordance with Clause 7, or if an Event of Default occurs, the Supplier has the right to:

  1. declare all Outstanding Amounts immediately due and payable;
  2. commence proceedings in a Court of competent jurisdiction for all Outstanding Amounts owing by the Customer to the Supplier (including interest and legal costs on an indemnity basis);
  3. exercise any rights available to it under the PPSA, including appointing a receiver or receiver and manager over any property of the Customer in which the Supplier holds a security interest; and
  4. take any other action available at law or in equity, in each case without any notice to the Customer.
14.4
The Supplier is not liable in any way for any delay in delivery of Goods where such delay occurs by reason of any Force Majeure Event.
14.5
Where a Force Majeure Event subsists for more than 28 days, the Supplier may, in its absolute discretion, immediately terminate its engagement under the Quote or Order.

15. Interest

15.1

All payments must be made within 30 days of the end of a calendar month. The Customer acknowledges and agrees that:

  1. any overdue amounts or Outstanding Amounts shall be a debt due and owing to Lofts (“Debt”);
  2. Lofts reserves the right to charge interest on the value of any Debt(s) at the rate of 2% above the rate set in section 2 of the Penalty Interest Rates Act 1983 from time to time per annum, compounded monthly from the date of the relevant invoice; and
  3. the Customer is liable to pay to Lofts any third party debt recovery costs incurred by Lofts in pursuing any Debt from the Customer.

16. Costs and Enforcement Expenses

16.1

The Customer must pay all costs (including legal costs on a full indemnity basis) of the Supplier and State Government or Federal Government taxes, fees and charges imposed on the Supplier, in association with the following events:

  1. the preparation, stamping and registration of any security interest or financing statement arising under or in connection with these Terms;
  2. any default or breach of any of these Terms; and
  3. the failure of the Customer to make payments to the Supplier in accordance with Clause 7.
16.2
The Purchase Price and any rates specified under a Quote or Order do not include statutory or government charges unless expressly stated otherwise. If any such charge or any other Tax becomes applicable to the Goods or Services the subject of the relevant Order or Quote, the Supplier may pass on that charge or Tax to the Customer.
16.3
All prices under a Quote or Order are exclusive of GST unless expressly stated otherwise, and GST will be added in accordance with applicable GST laws.

17. Financial Information

17.1
The Customer authorises the Supplier to obtain and use personal information about the Customer in relation to the collection of any Outstanding Amounts from the Customer.
17.2
The Customer agrees and consents to the Supplier giving any information relating to the collection of any Outstanding Amounts to any credit reporting agency to the extent allowed by the Privacy Act 1988 (Cth) or any other applicable law.
17.3
The Customer will provide any and all necessary instructions and/or authorities required by the Supplier’s accountants, debtor insurers, and bankers to enable the Supplier to make investigations from time to time into the Customer’s trading and financial position.

18. General

18.1
These Terms are governed by the laws of the State of Victoria and the Supplier and the Customer irrevocably submit to the jurisdiction of the courts of the State of Victoria and all Courts of Appeal from those courts.
18.2
If the Customer is a trustee of any trust then the Customer will be liable both in its own capacity and in its capacity as trustee of the trust for performance of all of its obligations to the Supplier.
18.3
A reference to a party to these Terms includes that party’s successors and permitted assigns.
18.4

The Terms shall remain in full force and shall not be abrogated, prejudiced or affected by the Supplier:

  1. granting the Customer time, credit or other indulgence or concession; or
  2. compounding or compromising, releasing, abandoning, waving, varying, relinquishing or renewing any of its rights.
18.5
If any provisions of these Terms and Conditions are illegal, void or unenforceable then those provisions will be ineffective to the extent only of such illegality, voidness or unenforceability without invalidating the remaining provisions.
18.6
Headings in these Terms are for ease of reference only and do not constitute any part of these Terms.
18.7
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.

Welcome to our website. This website with URL address http://www.lofts.com.au/ or www.lofts.au is owned and operated by Lofts Quarries Pty Ltd (19 005 671 465). Should you continue to use this website, you are agreeing to comply with and be bound by the following terms and conditions of use, which together with our privacy policy govern Lofts’relationship with you in connection with this website. Should you not agree with any of these terms and conditions, please do not use our website.

The term ‘Lofts Quarries’, ‘Lofts’ or ‘us’ or ‘our’ or ‘we’ refers to Lofts Quarries Pty Ltd, the owner of the website, whose registered office is 2 Chapel St, Cremorne VIC 3121, ABN 19 005 671 465. The term ‘you’ or ‘your’ refers to the website user.

Your use of this website is subject to the following terms and conditions:

1. The content of this website is for your general information and use only. It is subject to change without prior notice.

2. This website uses cookies to monitor browsing preferences. If you allow cookies to be used, the following personal information may be stored by us for use by third parties: date of birth, sex and address.

3. Neither we nor any third parties provide any warranty or guarantee as to the performance, accuracy, timeliness, completeness or suitability of the information and materials found or offered on this website for any particular purpose. You hereby acknowledge that such information and materials may contain mistakes, inaccuracies or errors and we expressly exclude any liability for such to the fullest extent permissible by law.

4. Your use of any information or materials on this website is entirely at your own risk, for which we shall not be liable. It shall be your own responsibility to ensure that any products, services or information available through this website meet your specific requirements.

5. This website contains material which is owned by or licensed to us. This material includes, but is not limited to, the content, design, layout, appearance, look and graphics of the website. Any reproduction of the website’s material is prohibited other than in accordance with the copyright notice, which forms part of these terms and conditions.

6. All trademarks reproduced in this website, which are not the property of, or licensed to us, are acknowledged on the website.

7. Unauthorised use of this website may be a criminal offence and/or give rise to a claim for damages.

8. This website may also, on occasion, include links to other websites which are not controlled by us. These links are provided for your convenience to provide you with further information. You acknowledge that they are used at your own risk. They do not signify that we recommend or endorse the websites. We have no control over the nature, content and availability of those websites.

9. Your use of this website and any dispute arising out of your use of it is subject to the laws of Victoria.

10. You may only use the website for lawful purposes and in a manner consistent with the nature and purpose of the website.

11. These terms and conditions do not relate to your use of any product or service described on our website unless otherwise agreed. You must refer to the individual warranty relevant to any particular product or service.

12. These terms and conditions may be amended from time to time. Your continued use of our website following any such amendments will be deemed to be confirmation that you accept those amendments.

13. You indemnify us from and against all claims, suits, demands, actions, liabilities, costs and expenses (including legal costs and expenses on a full indemnity basis) resulting from your use of the website.

14. In no event will we be liable for any loss, damage, cost or expense including legal costs and expenses (whether direct or indirect) incurred by you in connection with the use of this website.

15. Every effort is made to keep the website up and running smoothly. However, we take no responsibility for, and will not be liable for, the website being temporarily unavailable due to technical issues beyond our control.

Main Menu