These Terms are the terms on which Landmark will supply Goods to you. By ordering or purchasing or continuing to order or purchase Goods from Landmark, you agree that you are bound by these Terms.
Cash Sale means a sale of Goods for which payment is made to Landmark by cash or other cleared funds at or before delivery or collection of the Goods (as applicable).
Credit Sale means a sale of Goods for which payment is due pursuant to the terms of a Landmark Account.
Delivery Date means any date by which Landmark expects the Goods to be delivered to you or available for you to collect (as applicable), as Landmark notifies you of from time to time.
Goods means any agricultural or other products or items sold to you by Landmark.
GST has the meaning given to it by the GST Act.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended, varied or modified from time to time.
Insolvency Event means, in relation to a body corporate, a liquidation or winding up or the appointment of a voluntary administrator, receiver, manager or similar insolvency administrator to a party or any substantial part of its assets, or, in relation to an individual, becoming bankrupt or entering into a scheme or arrangement with creditors or, in relation to an individual or any entity, the occurrence of any event that has a substantially similar effect to any of the above events.
Landmark means Landmark Operations Limited ACN 008 743 217 and its related bodies corporate.
Landmark Account means any credit account that Landmark extends to you from time to time.
Loss means any loss, liability, cost, claim, expense, damage, charge, penalty, outgoing or payment.
Nominated Persons includes, if you are not an individual, any of your directors, secretaries, partners, promoters, public officers, any employee with the word ‘Manager’ or ‘Senior’ in their title or any other person who has actual or implied authority to act on your behalf. If you are an individual, Nominated Person includes your spouse or de facto spouse, son, daughter, brother, sister, father or mother, any employee of yours with the word ‘Manager’ or ‘Senior’ in their title or any other person who has actual or implied authority to act on your behalf.
Order means any order or other request by or for you to Landmark for it to sell you any Goods, whether written, verbal or implied in the circumstances.
Terms means the terms and conditions of sale set out in this document.
You means the buyer who Orders or receives Goods.
2. How a contract is formed
Each Order placed by you or a Nominated Person is an offer by you to buy the Goods specified in that Order from Landmark on these Terms. Subject to clauses 17 and 18, Landmark will be taken to have accepted each such offer unless it advises you otherwise within a reasonable time (as determined by Landmark) after it receives the relevant Order.
3. Authority of Nominated Persons
You agree that your Nominated Persons have authority to bind you in respect of all matters relating to your purchase of Goods, including, without limitation, making and changing Orders, collecting Goods and accepting delivery of Goods.
4. Amendments to order
At any time after placing an Order and before the Goods the subject of the Order are collected or picked up for delivery, you may request changes to the Order by submitting a request to Landmark in writing. Landmark may (in its sole discretion) accept or reject any requested changes.
If Landmark has not agreed in writing to arrange for the Goods to be delivered to you, you must collect the Goods from Landmark (or as it directs) during normal trading hours within five business days after the nominated Delivery Date (if any).If you collect the Goods, you must comply with all directions from Landmark or its employees, agents or officers regarding the loading of the Goods. You acknowledge that Landmark may refuse to allow you to collect Goods if Landmark reasonably believes that the loading or collection of the Goods would breach its occupational health and safety procedures or otherwise endanger your safety or the safety of its employees, agents or officers or any other person.
If Landmark or its transportation contractor delivers the Goods to an address that you nominate, you must pay the delivery costs pursuant to clause 10, comply with the terms of any such delivery arrangements and do all other things necessary to accept delivery of the Goods. You agree that Goods when delivered do not need to be signed for and may be unloaded and left on any part of the delivery address which Landmark considers reasonable in the circumstances.
If you collect Goods, you must inspect them when you collect them and immediately notify Landmark of any damage to or other issues with the Goods. If Goods are delivered to you, you must inspect them when they are delivered (if you are present) or within 2 business days after delivery (if you are not present) and must immediately notify Landmark of any damage to or other issues with the Goods.
8. Uncollected Goods
If you do not collect Goods as required by clause 5, then from the date the Goods are made available for collection, the Goods will be at your risk and, if Landmark requires, you must also pay Landmark for all costs incurred by Landmark in storing the Goods, provided that Landmark will not have any obligation to store or otherwise care for the Goods.
9. Partial or late delivery
Landmark may deliver or make available for collection a portion of the Goods ordered and may invoice or otherwise charge you for that portion. You may not refuse to accept delivery of or to collect Goods or to pay for Goods solely because only a portion of the quantity ordered is delivered or made available or because Goods were delivered or made available after the Delivery Date. Notwithstanding the above, if Goods are not made available for you to collect or delivered to you within 30 days after their Delivery Date or such longer time as you and Landmark agree, you may cancel the Order in respect of the undelivered portion of the relevant Goods. You agree that Landmark will not be liable for any Loss that you suffer as a result of any delay or cancellation.
The price that you must pay for Goods that you Order is the price shown in Landmark’s confirmation of the Order for those Goods. If there is no confirmation, the price is the then current price for those Goods shown in any applicable price list of Landmark. Unless otherwise specified, all prices do not include any applicable taxes (such as GST) or any costs for the delivery or installation of the Goods. You agree that in addition to the price shown in Landmark’s confirmation or price list (as applicable), you must pay any amounts for taxes, delivery (including any insurance) or installation which Landmark notifies you of from time to time.
You must pay for all Goods which you or a Nominated Person Orders or collects. Unless Landmark gives its prior written consent or you have a Landmark Account, you must pay for all Goods as Cash Sales. If you buy Goods pursuant to a Landmark Account, you must pay for the Goods in accordance with the terms of the Landmark Account.
12. Landmark Rewards
If you are a member of the Landmark rewards program or any other rewards program offered by Landmark from time to time, you may be eligible for rewards points in respect of the Goods you purchase from Landmark, subject to the terms and conditions of the relevant rewards program.
All amounts payable by you in connection with any Order do not include an amount for GST. If GST is or becomes payable on any supply made by Landmark in connection with any Order, you must pay to Landmark, in addition to and at the same time as the payment for the supply, an amount equal to the amount of GST on the supply. Where you are required by these Terms to reimburse or indemnify Landmark for any Loss or other amount incurred, the amount to be reimbursed or paid will be reduced by the amount of any input tax credit that Landmark will be entitled to claim for the Loss or amount incurred and increased by the amount of any GST payable by Landmark in respect of the reimbursement or payment. This clause does not merge on completion or termination of any Order or contract. In this clause, words and expressions which are defined in the GST Act have the same meaning given to them by the GST Act.
14. Title and risk
Title in the Goods only passes to you once Landmark has received the price and any and all other amounts that you are required to pay for or in connection with those Goods. Risk in the Goods passes to you upon the earlier of the Goods being collected by or for you or when the Goods are picked up for delivery to you. You must indemnify and keep Landmark indemnified against any Loss to the Goods that may occur after they are collected or picked up for delivery and before they have been fully paid for.
15. Your obligations pending passing of title
From the date the risk in the Goods passes to you and until title in the Goods passes to you, you must insure the Goods for their full replacement value and, if required by Landmark store the Goods separately from any other goods and in a way that that enables the Goods to be clearly identifiable as Landmark’s.
16. Goods purchased for business purposes only
You represent and warrant to Landmark that Goods Ordered by you are predominantly for business purposes, and not for personal, household or domestic use or consumption. You acknowledge that Landmark may rely on the representation in this clause 16 in supplying the Goods to you.
17. Cancellation for breach
Without limiting its other rights under these Terms, Landmark may cancel any Order or any contract referred to in clause 2, effective immediately upon providing you with written notice of cancellation, where:
(a) you do not pay an amount due to Landmark by the due date for payment;
(b) you are subject to an Insolvency Event;
(c) you breach any other provision of these Terms or your Landmark Account and do not remedy the breach within 5 business days of Landmark providing you with written notice specifying the breach and the remedy required; or
(d) you commit a breach of these Terms or your Landmark Account which, in Landmark’s reasonably held opinion, cannot be remedied.
Following cancellation under this clause 17 Landmark may refuse to accept any further Orders from or for you.
18. Cancellation where Landmark cannot supply
Without limiting clause 17, Landmark may cancel or suspend any Order or any contract referred to in clause 2 effective immediately upon providing you with written notice of cancellation or suspension where Landmark believes (for any reason) that it will be unable to supply the relevant Goods to you, provided that if Landmark cancels a contract or Order under this clause 18 it will refund to you any amounts already paid by you for the Goods subject to the cancellation.
19. Consequences of non payment or insolvency
Without limiting Landmark’s rights of cancellation under clauses 17 and 18, if you do not pay the price for any Goods or any other amounts payable to Landmark under these Terms, or you are subject to an Insolvency Event, Landmark may (regardless of whether it exercises any cancellation right):
(a) enter any premises or site that you own, occupy, possess or control to recover or attempt to recover possession of the Goods for which the price or other amount has not been paid or Goods of a reasonably equivalent value. You agree that Landmark and each person acting on its behalf has an irrevocable licence to enter any such premises for the purposes specified in this clause without incurring liability for any Loss you or any person claiming through you suffers as a result of any action taken by Landmark or on its behalf under this clause 19;
(b) charge you interest on all amounts overdue in accordance with the terms of your Landmark Account, or if the terms of your Landmark Account do not apply to the relevant amount, charge you interest at an interest rate of 18% per annum calculated daily from the due date for payment until paid in full;
(c) require that you pay all costs incurred by Landmark in recovering or attempting to recover the outstanding amount including (without limitation) legal or debt collection costs;
(d) refuse to accept further Orders, sell, make available for you to collect or deliver to you other Goods (including, without limitation, Goods you have already paid for), until such time as all outstanding amounts are paid in full; and
(e) set off the outstanding amount owed by you under these Terms or a Landmark Account against any amounts Landmark (including any of its related bodies corporate) owe to you (whether such amounts are owed to you under these Terms, a Landmark Account or any other agreement between you and Landmark or its related body corporate), with such set off effective immediately upon Landmark providing you with written notice of the set off.
20. Catalogues, samples and price lists
Landmark’s price lists, product catalogues and other similar documents do not constitute an offer by Landmark to supply goods appearing in those lists or catalogues or an offer by Landmark to supply goods at the prices set out in those lists or catalogues. Landmark’s price lists and product catalogues may be changed by Landmark at any time without notice.
Landmark will use reasonable endeavours to supply Goods that accord with samples or descriptions provided to you. Any samples or descriptions are for identification purposes only and the use of samples or descriptions will not constitute a sale under these Terms as a sale by description or by sample.
21. No warranty
Landmark expressly excludes all conditions, terms and warranties in relation to the Goods, except any manufacturer warranties referred to below and any implied condition, term or warranty that would cause this provision to be void or would cause a statutory provision to be contravened if the condition, term or warranty was excluded. You acknowledge that if you wish to make a claim under any warranty offered by the manufacturer of Goods, Landmark may require that you deal directly with the relevant manufacturer, provided that Landmark will use reasonable endeavours to assist you in making any such claim.
22. Liability of Landmark
Where a condition, term or warranty is implied into these Terms by any statutory provision and that statutory provision prevents or prohibits the exclusion or modification of the condition, term or warranty, or Landmark supplies Goods to you which are damaged or materially defective, Landmark’s liability to you for breach of the condition, term or warranty or supply of the damaged or defective goods is limited, at Landmark’s option, to any one or more of the following:
(a) replacement of the Goods or supply of equivalent goods;
(b) repair of the Goods or payment of the cost of having the Goods repaired; or
(c) a refund of the price of the Goods or payment of the cost of acquiring equivalent goods.
The limitations of Landmark’s liability in this clause 22 do not apply where the Goods supplied to you are goods of the kind normally acquired for personal, domestic or household use or consumption.
If there has been a breach by Landmark of any non-excludable condition, term or warranty referred to in clause 21, Landmark supplies damaged or materially defective Goods to you or Landmark (in its sole discretion) otherwise accepts any request by you to return the Goods, you may return the Goods to Landmark. Where Landmark accepts Goods for return, Landmark’s liability is limited as described in clause 22. Unless Landmark agrees otherwise, any Goods returned to Landmark must be returned at your expense.
24. Exclusion of Consequential Loss
Landmark expressly excludes all liability to you for any Consequential Loss (as defined in this clause 24) arising out of or in connection with these Terms or the supply of Goods to you. Consequential Loss means Loss beyond the normal measure of damages and includes, without limitation, indirect Loss, Loss of revenue, Loss of reputation, Loss of profits, Loss of actual or anticipated savings, Loss of bargain, lost opportunities, including opportunities to enter into arrangements with third parties, Loss of use, cost of capital or costs of substitute goods, facilities or services. This clause applies even if Landmark knew or ought to have known that it was possible or foreseeable that you would incur such Consequential Loss.
25. No representations
You acknowledge and agree that:
(a) you have not relied on any representations, inducements or statements made to you by Landmark regarding the Goods, the fitness for any purpose of the Goods, the qualities or characteristics of the Goods or any other matters in respect of the Goods;
(b) you have satisfied yourself that the Goods are fit for the purpose you require them for; and
(c) without limiting clause 25(a), you may only rely on agronomy or other similar advice provided by Landmark which in any way relates to Goods if such advice is provided by Landmark in writing and is signed by both you and Landmark.
26. Dispute resolution
You must notify Landmark in writing of any disputes relating to Landmark’s supply of Goods to you. Following any such notification, there will be a period of 60 days during which you must participate in good faith in any negotiations or discussions regarding the dispute which Landmark requests you to participate in. If the dispute has not been resolved by the end of this 60 day period, Landmark may require that the dispute be submitted to mediation in accordance with, and subject to, the Institute of Arbitrators & Mediators Australia Mediation and Conciliation Rules. You must not commence any court proceedings or other similar actions relating to a dispute unless you have complied with the dispute resolution procedure set out in this clause 26.
27. General provisions
You must not assign or otherwise deal with any of your rights or obligations under these Terms without Landmark’s prior written consent. Landmark may assign or deal with any of its rights or obligations under these Terms at any time and without any requirement to notify you.
Landmark may (at its discretion) appoint a sub-contractor in relation to any of Landmark’s rights or obligations under these Terms.
Landmark may vary these Terms from time to time and any variation takes effect as soon as Landmark has given you notice of the variation. If Landmark varies these Terms, any Orders placed by you after the date of a notice from Landmark will be subject to the new terms.
No failure to exercise or delay in exercising any right under these Terms constitutes a waiver and any right may be exercised in the future. Waiver of any of these Terms must be in writing and is only effective to the extent set out in that written waiver.
If any provision of these Terms is void, unenforceable or illegal and would not be so if words were omitted, then those words are to be severed and if this cannot be done, the entire provision is to be severed from these Terms without affecting the validity or enforceability of the remaining provisions.
These Terms, the relevant Order and any invoice constitute the entire agreement between you and Landmark in respect of the Goods and supersede all previous communications, representations, understandings or agreements. In the event of any inconsistency between these Terms, any special conditions that Landmark may agree with you and any Order or invoice, the Order or invoice will prevail to the extent of the inconsistency. If these Terms are inconsistent with any special conditions, the special conditions will prevail.
These Terms are governed by the laws in force in Victoria and you and Landmark submit to the non exclusive jurisdiction of the courts of Victoria.
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