1. DEFINITIONS 1.1 “Cackle” shall mean Cackle Incorporated Limited, or any agents or employees thereof. 1.2 “Client” shall mean the Client, any person acting on behalf of and with the authority of the Client, or any person purchasing products and services from Cackle. 1.3 “Products” shall mean: 1.3.1 all Products of the general description specified on the front of this agreement and supplied by Cackle to the Client; and 1.3.2 all Products supplied by Cackle to the Client; and 1.3.3 all inventory of the Client that is supplied by Cackle; and 1.3.4 all Products supplied by Cackle and further identified in any invoice issued by Cackle to the Client, which invoices are deemed to be incorporated into and form part of this agreement; and 1.3.5 all Products that are marked as having been supplied by Cackle or that are stored by the Client in a manner that enables them to be identified as having been supplied by Cackle; and 1.3.6 all of the Client’s present and after-acquired Products that Cackle has performed work on or to or in which goods or materials supplied or financed by Cackle have been attached or incorporated. 1.3.7 The above descriptions may overlap but each is independent of and does not limit the others. 1.4 “Products and Services” shall mean all products, services, goods and advice provided by Cackle to the Client and shall include without limitation the supply, installation and maintenance of telephone headsets and telephones and all associated services and all charges for time and attendances, hire charges, insurance charges, or any fee or charge associated with the supply of Products and Services by Cackle to the Client. 1.5 “Price” shall mean the cost of the Products and Services as agreed between Cackle and the Client and includes all disbursements eg charges Cackle pay to others on the Client’s behalf subject to clause 4 of this contract. 1.6 Cackle Incorporated Limited may assign any Contract or any of its rights, duties or obligations under any Contract at any time 2. ACCEPTANCE 2.1 Any instructions received by Cackle from the Client for the supply of Products and Services shall constitute a binding contract and acceptance of the terms and conditions contained herein. 3. COLLECTION AND USE OF INFORMATION 3.1 The Client authorises Cackle to collect, retain and use any information about the Client, for the purpose of assessing the Client’s credit worthiness, enforcing any rights under this contract, or marketing any Products and Services provided by Cackle to any other party. 3.2 The Client authorises Cackle to disclose any information obtained to any person for the purposes set out in clause 3.1. 3.3 Where the Client is a natural person the authorities under clauses 3.1 and 3.2 are authorities or consents for the purposes of the Privacy Act 1993. 4. PRICE 4.1 Where no price is stated in writing or agreed to orally the Products and Services shall be deemed to be sold at the current amount as such Products and Services are sold by Cackle at the time of the contract. 4.2 The price may be increased by the amount of any reasonable increase in the cost of supply of the Products and Services that is beyond the control of Cackle between the date of the contract and delivery of the Products and Services. 5. PAYMENT 5.1 Payment for Products and Services shall be made in full by 20th of the month following the date of the invoice (“the due date”). 5.2 Interest may be charged on any amount owing after the due date at the rate of 10% per month or part month. 5.3 Any expenses, disbursements and legal costs incurred by Cackle in the enforcement of any rights contained in this contract shall be paid by the Client, including any reasonable solicitor’s fees or debt collection agency fees. 5.4 Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full. 5.5 A deposit may be required. 6. QUOTATION 6.1 Where a quotation is given by Cackle for Products and Services: 6.1.1 Unless otherwise agreed the quotation shall be valid for seven (7) days from the date of issue; and 6.1.2 The quotation shall be exclusive of goods and services tax unless specifically stated to the contrary; 6.1.3 Cackle reserve the right to alter the quotation because of circumstances beyond its control. 6.2 Where Products and Services are required in addition to the quotation the Client agrees to pay for the additional cost of such Products and Services. 7. AGENCY 7.1 The Client authorises Cackle to contract either as principal or agent for the provision of Products and Services that are the matter of this contract. 7.2 Where Cackle enters into a contract of the type referred to in clause 7.1 it shall be read with and form part of this agreement and the Client agrees to pay any amounts due under that contract. 8. TITLE AND SECURITY (PERSONAL PROPERTY SECURITIES ACT 1999) 8.1 Title in any Products and Services supplied by Cackle passes to the Client only when the Client has made payment in full for all Products and Services provided by Cackle and of all other sums due to Cackle by the Client on any account whatsoever. Until all sums due to Cackle by the Client have been paid in full, Cackle has a security interest in all Products and Services. 8.2 If the Products and Services are attached, fixed, or incorporated into any property of the Client, by way of any manufacturing or assembly process by the Client or any third party, title in the Products and Services shall remain with Cackle until the Client has made payment for all Products and Services, and where those Products and Services are mixed with other property so as to be part of or a constituent of any new Products and Services, title to these new Products and Services shall deemed to be assigned to Cackle as security for the full satisfaction by the Client of the full amount owing between Cackle and Client.
8.3 The Client gives irrevocable authority to Cackle to enter any premises occupied by the Client or on which Products and Services are situated at any reasonable time after default by the Client or before default if Cackle believes a default is likely and to remove and repossess any Products and Services and any other property to which Products and Services are attached or in which Products and Services are incorporated. Cackle shall not be liable for any costs, damages, expenses or losses incurred by the Client or any third party as a result of this action, nor liable in contract or in tort or otherwise in any way whatsoever unless by statute such liability cannot be excluded. Cackle may either resell any repossessed Products and Services and credit the Client’s account with the net proceeds of sale (after deduction of all repossession, storage, selling and other costs) or may retain any repossessed Products and Services and credit the Client’s account with the invoice value thereof less such sum as Cackle reasonably determines on account of wear and tear, depreciation, obsolescence, loss or profit and costs. 8.4 Where Products and Services are retained by Cackle pursuant to clause 8.3 the Client waives the right to receive notice under s.120 of the Personal Property Securities Act 1999 (“PPSA”) and to object under s.121 of the PPSA. 8.5 The following shall constitute defaults by the Client: 8.5.1 Non payment of any sum by the due date. 8.5.2 The Client intimates that it will not pay any sum by the due date. 8.5.3 Any Products and Services are seized by any other creditor of the Client or any other creditor intimates that it intends to seize Products and Services. 8.5.4 Any Products and Services in the possession of the Client are materially damaged while any sum due from the Client to Cackle remains unpaid. 8.5.5 The Client is bankrupted or put into liquidation or a receiver is appointed to any of the Client’s assets or a landlord distains against any of the Client’s assets. 8.5.6 A Court judgment is entered against the Client and remains unsatisfied for seven (7) days or more. 8.5.7 Any material adverse change in the financial position of the Client. 8.6 If the Credit Repossession Act applies to any transaction between the Client and Cackle, the Client has the rights provided in that Act despite anything contained in these terms and conditions of trade. 9. DISPUTES AND RETURN OF PRODUCTS 9.1 No claim relating to Products and Services will be considered unless made within seven (7) days of delivery or installation. 9.2 The Client shall be deemed to have accepted the Products and Services unless the Client notifies otherwise within seven (7) days of delivery or installation of the Products and Services. 9.3 No Products and Services will be accepted for return by Cackle without prior approval. 10. LIABILITY 10.1 The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon Cackle which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on Cackle, Cackle’s liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute. 10.2 Except as otherwise provided by clause 10.1 Cackle shall not be liable for: 10.2.1 Any loss or damage of any kind whatsoever, arising from the supply of Products & Services to the Client by Cackle, including consequential loss whether suffered or incurred by the Client or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Products and Services provided by Cackle to the Client; and 10.2.2 The Client shall indemnify Cackle against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of Cackle or otherwise, brought by any person in connection with any matter, act, omission, or error by Cackle its agents or employees in connection with the Products and Services. 10.3 If, contrary to the disclaimer of liability contained in these terms and conditions of trade, Cackle is deemed to be liable to the Client, following and arising from the supply of Products and Services by it to the Client, then it is agreed between Cackle and the Client that such liability is limited in its aggregate to $500.00. 11. WARRANTY 11.1 Manufacturer’s warranty applies where applicable. 12. CONSUMER GUARANTEES ACT 12.1 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Client acquires Products and Services from Cackle for the purposes of a business in terms of section 2 and 43 of that Act. 13. MISCELLANEOUS 13.1 Cackle shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control. 13.2 Failure by Cackle to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of the rights or obligations Cackle has under this contract. 13.3 If any provision of this contract shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
A proudly New Zealand-owned company, Cackle was established in 2005 and quickly grew as one of the leading specialist suppliers of Telecommunications and IT Hardware.