1. In this document the term “the Company” refers to Trail Com Limited and the term “the
Buyer” refers to the person, firm, company entity to which this advice is addressed or with
whom the Company enters into a contract.
PERSONAL PROPERTY SECURITIES ACT 1999
2. (a) The Buyer and the Company acknowledge that these terms of contract constitute a
Security Agreement as defined by the Personal Property Securities Act 1999 (PPSA). For the
purposes of the PPSA collateral shall include all goods and services and the proceeds
thereof. The Buyer agrees not to allow any person to file a finance statement over any of the
collateral secured by this Security Agreement without the prior knowledge of the Company.
(b) Upon signing these terms and conditions the Buyer acknowledges that:
(i) These terms are a Security Agreement for the purposes of S26 of the PPSA, and
(ii) A security interest is taken in all goods previously supplied by the Company to the Buyer
and in all and any goods that will be supplied in the future by the Company to the Buyer
during the continuance of the parties relationship.
(iii) The Security Agreement is a continuing security and will operate irrespective or any
intervening payment or settlement of account until the Company has signed a release. The
security interest granted in the collateral has the same priority in relation to all and any goods
supplied to the Buyer by the Company at any time.
(c) The Buyer shall inform its creditors of the terms upon which it buys goods from the
Company including that the Company many create and register a Purchase Money Security
Interest over the goods under the PPSA and the Buyer agrees to waive the right to receive a
verification statement for the purposes of S148 of the PPSA and shall inform any trustee in
bankruptcy or liquidator of the Buyer or any receiver of the Buyer’s business or assets of the
rights of the Company and title to the proceeds of sale.
3. In consideration of the Company agreeing to supply goods to the Buyer / Purchaser at the
request of the Guarantor, which the Guarantor hereby confirms, on the terms set out in these
conditions, the Guarantor agrees to guarantee all obligations of the Buyer / Purchaser in
these conditions including payment for goods supplied. The obligations of the Guarantor shall
be those of a principal debtor and not just as a surety.
4. The price stated on the Company’s invoices and/or packing slips are based on rates and
costs as at the date noted on the invoices and/or packing slips for materials, transport, labour,
customs duty, insurance and other rates and charges. The price shall be increased or
decreased by the amount of any increase or decrease in any of such items or any other
factors affecting the cost of production and/or delivery due to circumstances beyond the
control of the Company after the date hereof. Where the price specified includes the cost of
delivery to the site or premises shown, on the invoices / packing slips such allowance for
delivery is upon the basis that reasonable access to the premises is available. If such access
is not available an extra charge for handling will be added.
TERMS OF PAYMENT
5. Payment is to be made in full without deduction or setoff.
Unless the Company has agreed to extend credit to the Buyer payment is to be made in cash
in full on delivery of the goods.
Where the Company agrees to extend credit payment is to be made on or before the 20th day
of the month following the month of delivery.
If payment is not made in full by the due date, the Company is entitled to charge the Buyer
interest on the unpaid overdue balance at the rate of 5% per annum above the current rate
charged by the Company’s bank calculated from the due date of payment down to the actual
date of payment, and the Company at its option may suspend further delivery of goods
regardless of the term of their contract until the overdue amounts are paid in full.
If at any time the Company reasonably deems the credit of the Buyer to be unsatisfactory, it
may require the Buyer to provide at the Buyer’s cost, security for payment, including personal
guarantees, and / or the Company may suspend performance of its obligations under this
contract until security is provided to the Company’s satisfaction and the Company may
require the Buyer to pay all costs incurred as a result of suspension and re-commencement of
6. Unless otherwise agreed in writing all goods are sold ex works. If the Company arranges
freight or insurance for the Buyer it does so as agent without derogation of the ex works
nature of this contract, and all costs thereof shall be to the Buyer’s account. If the Buyer fails
or refuses to take or accept delivery then the materials shall be deemed to be delivered when
the Company was willing to deliver them. The Company reserves the right to deliver the
goods by installments and each installment shall be deemed to be a separate contract subject
to the same conditions as the main contract. Should the Company fail to deliver or make
defective delivery of one or more installments this shall not entitle the Buyer to repudiate the
main contract. The Company may charge storage and transportation expenses if the Buyer
fails or refuses to take or accept delivery at the times specified, or at such other times as the
Company is able to deliver. If any time for delivery shall be stated such time shall be
approximate only and shall not be deemed to be the essence of the contract. The Company
shall not be liable for failure to deliver due to any delay in materials, goods or substances as
required in the manufacture of the materials, shortage, or other prohibitions or restrictions,
fire, flood, hostilities, commotions or other causes whatsoever (whether similar in nature or
not to be foregoing) beyond the Company’s control.
7. Risk of any loss damage or deterioration of or to the goods shall be borne by the Buyer
from the date when the materials have been delivered or deemed to have been delivered
under Clause 5 hereof.
8. The terms of the contract are these terms and conditions. All other conditions, warranties,
descriptions, representations and agreements whether expressed or implied by law, trade
custom or otherwise are hereby expressly excluded. No agent or representative of the
Company is authorised to make any representations, statements, conditions or agreements
not expressly confirmed by the Company in writing and the Company is in no way bound by
any such unauthorised statements. Any quotation given by the Company shall include these
terms and conditions which shall prevail in the case of any conflict with the terms of the
9.(a) The ownership of the goods shall not pass to the Buyer until the Buyer has paid for the
same in full without setoff. This reservation of title and ownership is effective whether or not
the parts and materials have been altered from that supplied or mixed with other parts and
materials. Receipt by the Company of any cheque or other bill of exchange or any
promissory note shall not be deemed to be payment or conditional payment until the same
has been honoured or cleared and until such time shall not prejudice or affect the Company’s
rights, powers or remedies against the Buyer and/or the goods.
(b) Until payment in full has been made the Buyer acknowledges and agrees as follows: -
(i) that the goods supplied (whether or not intermingled with or forming parts of
products supplied by the Buyer) are held by the Buyer as bailee to be sold by and as agent
for and on behalf of the Company.
(ii) that the Buyer shall store the goods supplied separately from the Buyer’s own
goods and any other goods supplied by the Buyer.
(iii) that the Buyer hereby irrevocable gives the Company, its agents and
servants, leave and licence without the necessity of giving any notice to enter on and into any
premises occupied by the Buyer to search for and remove any of the goods supplied to or in
which the Company has ownership as aforesaid without in any way being liable to the Buyer
or any person or company claiming through the Buyer and if the goods or any of them are
wholly or partially attached to or incorporated in any other goods, the Company may, where
practical, disconnect or sever in any way whatsoever as may be necessary to remove the
(iv) without the written consent of the Company, the Buyer is not permitted to
dispose of the goods, until the Company has been paid in full for the goods, and as a
condition of any such consent all moneys from the sale of the goods, by the Buyer shall be
placed in a separate account and held in trust for the Company until the Company has been
fully paid for the goods.
(v) this clause is inserted to protect the Company and is intended (amongst other
things) to enable the Company to retake possession for the goods and at the Company’s
option to resell the goods which it has resumed possession of, following the default of the
Buyer and in the event of the receivership or insolvency of the Buyer.
10. The liability of the Company whether in contract or in tort for any loss, damage or injury
arising directly or indirectly from any defect or non-compliance of the materials supplied or
any defect in the installation thereof is limited to replacement or repair of such defective or
non-complying materials or damages not exceeding the invoice value of such defective or
non-complying materials at the option of the Company, or to the cost of remedying such
defective installation as the case may be. The Company shall not be liable for any
consequential indirect or special damage or loss of any kind whatsoever. Nor shall the
Company be liable for any damage or loss caused to the Buyer’s servants, agents,
contractors, visitors, tenants, trespassers or other persons whatsoever (whether similar to the
foregoing or not) in respect of any loss, damage or injury arising from any defect or noncompliance
of the materials supplied or from any defect in the installation thereof. No claim
by the Buyer either for damages or for repudiation of the contract shall be effective or
enforceable unless made in writing and received by the Company within fourteen days after
delivery of the materials to the Buyer or the completion of the installation thereof where the
contract includes installation. The Buyer shall not be entitled to withhold any payment or to
make any deduction there from for any reason whatsoever.
DEFAULT IN PAYMENT
11. If the Buyer defaults in the due payment of the contract price or any installment thereof
the Company, without prejudice to any other right it has at law or in equity, may suspend or
terminate the contract and the Company also reserves the right to enter upon the premises
where the products are situated and take possession and remove the same without being
responsible for any damage thereby caused and the Company may resell such products and
apply the proceeds in or towards payment of the purchase price. All costs and expenses of or
incurred by the Company as a result of any such action shall be payable by the Buyer upon
demand. All costs and expenses incurred by the Company as a result of employing any third
party to collect funds on the Company’s behalf, and/or legal action taken to recover any
outstanding funds shall be payable by the Buyer upon demand.
Any marketing materials supplied to the Buyer, including merchandisers, remain the property
of the Company, and shall be returned forthwith in a good and proper condition to the
12. All the original rights powers and exemptions and remedies of the Company shall remain
in force notwithstanding any neglect forbearance or delay in the enforcement thereof. The
Company shall not be deemed to have waived any condition unless such waiver shall be in
writing under the signature of a Director of the Company, and any such waiver unless the
contrary shall be expressly stated, shall apply to and operate only in the particular transaction
dealing or matter.
13. These conditions of contract are entered into on behalf of, and are intended to bind and
to be for the benefit of, the Company hereunder and the Company’s successors and assigns.
The provisions of these conditions of contract, including this one, shall be given a large and
liberal interpretation in favour of the Company and so that the Contra-Proferentem Rule shall
not in any case apply against or to the disadvantage of the Company