1.1 “Gigpiglet” shall mean Gigpiglet Productions Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of Gigpiglet Productions Pty Ltd.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by Gigpiglet to the Client.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4 “Services” shall mean all Services supplied by Gigpiglet to the Client and includes any advice or recommendations.
1.5 “Price” shall mean the price payable for the Services as agreed between Gigpiglet and the Client in accordance with clause 3 of this contract.
2.1 Any instructions received by Gigpiglet from the Client for the supply of Services and/or the Client’s acceptance of Services supplied by Gigpiglet shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of Gigpiglet.
2.4 The Client shall give Gigpiglet not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by Gigpiglet as a result of the Client’s failure to comply with this clause.
3. Price And Payment
3.1 At Gigpiglet’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Gigpiglet to the Client in respect of Services supplied; or
(b) Gigpiglet’s quoted Price (subject to clause 3.2 which shall be binding upon Gigpiglet provided that the Client shall accept Gigpiglet’s quotation in writing within thirty (30) days.
3.2 Gigpiglet reserves the right to change the Price in the event of a variation to Gigpiglet’s quotation.
3.3 At Gigpiglet’s sole discretion a deposit may be required.
3.4 At Gigpiglet’s sole discretion:
(a) payment shall be due on delivery of the Services; or
(b) payment for approved Clients shall be made by instalments in accordance with Gigpiglet’s payment schedule.
3.5 Time for payment for the Services shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due fourteen (14) days following the date of the invoice.
3.6 Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by electronic banking, or by any other method as agreed to between the Client and Gigpiglet.
3.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
4. Delivery Of Services
4.1 At Gigpiglet’s sole discretion delivery of the Services shall take place when:
(a) the Client takes possession of the Services at Gigpiglet’s address; or
(b) the Client takes possession of the Services at the Client’s nominated address (in the event that the Services are delivered by Gigpiglet or Gigpiglet’s nominated carrier).
4.2 The costs of Delivery are included in the Price.
4.3 The Client shall make all arrangements necessary to take delivery of the Services whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Services as arranged then Gigpiglet shall be entitled to charge a reasonable fee for redelivery.
4.4 Delivery of the Services to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
4.5 The failure of Gigpiglet to deliver shall not entitle either party to treat this contract as repudiated.
4.6 Gigpiglet shall not be liable for any loss or damage whatever due to failure by Gigpiglet to deliver the Services (or any of them) promptly or at all.
5.1 If Gigpiglet retains ownership of the Services nonetheless, all risk for the Services passes to the Client on delivery.
5.2 The Client shall be liable for the cost of any damaged equipment if that equipment is damaged at an event organised by Gigpiglet for the Client.
6.1 Gigpiglet and the Client agree that ownership of the Services shall not pass until:
(a) the Client has paid Gigpiglet all amounts owing for the particular Services; and
(b) the Client has met all other obligations due by the Client to Gigpiglet in respect of all contracts between
Gigpiglet and the Client.
6.2 Receipt by Gigpiglet of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then Gigpiglet’s ownership or rights in respect of the Services shall continue.
6.3 It is further agreed that:
(a) until such time as ownership of the Services shall pass from Gigpiglet to the Client Gigpiglet may give notice in writing to the Client to return the Services or any of them to Gigpiglet. Upon such notice the rights of the Client to obtain ownership or any other interest in the Services shall cease.
(b) if the Client fails to return the Services to Gigpiglet then Gigpiglet or Gigpiglet’s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Services are situated and take possession of the Services.
7. Client’s Disclaimer
7.1 The Client hereby disclaims any right to rescind, or cancel the contract with Gigpiglet or to sue for damages or to claim restitution arising out of any misrepresentation made to the Client by Gigpiglet and the Client acknowledges that the Services are bought relying solely upon the Client’s skill and judgment.
8. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
8.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
9. Intellectual Property
9.1 Where Gigpiglet has designed, drawn or written Goods for the Client, then the copyright in those designs and drawings and documents shall remain vested in Gigpiglet, and shall only be used by the Client at Gigpiglet’s discretion.
9.2 The Client warrants that all designs or instructions to Gigpiglet will not cause Gigpiglet to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Gigpiglet against any action taken by a third party against Gigpiglet in respect of any such infringement.
10. Default & Consequences of Default
10.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month and such interest shall compound monthly at such a rate after as well as before any judgment.
10.2 If the Client defaults in payment of any invoice when due, the Client shall indemnify Gigpiglet from and against all costs and disbursements incurred by Gigpiglet in pursuing the debt including legal costs on a solicitor and own client basis and Gigpiglet’s collection agency costs.
10.3 Without prejudice to any other remedies Gigpiglet may have, if at any time the Client is in breach of any obligation (including those relating to payment), Gigpiglet may suspend or terminate the supply of Services to the Client and any of its other obligations under the terms and conditions. Gigpiglet will not be liable to the Client for any loss or damage the Client suffers because Gigpiglet has exercised its rights under this clause.
10.4 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten
percent (10.00%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
10.5 Without prejudice to Gigpiglet’s other remedies at law Gigpiglet shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Gigpiglet shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to Gigpiglet becomes overdue, or in Gigpiglet’s opinion the Client will be unable to meet
its payments as they fall due; or
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
11. Security And Charge
11.1 Despite anything to the contrary contained herein or any other rights which Gigpiglet may have howsoever:
(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to Gigpiglet or Gigpiglet’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that Gigpiglet (or Gigpiglet’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should Gigpiglet elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify Gigpiglet from and against all Gigpiglet’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Gigpiglet or
Gigpiglet’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 11.1.
12.1 Gigpiglet may cancel any contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services are delivered by giving written notice to the Client. On giving such notice Gigpiglet shall repay to the Client any sums paid in respect of the Price. Gigpiglet shall not be liable for any loss or damage whatever arising from such cancellation.
12.2 In the event that the Client cancels delivery of Services the Client shall be liable for any loss incurred by Gigpiglet (including, but not limited to, any loss of profits) up to the time of cancellation.
13. Privacy Act 1988
13.1 The Client and/or the Guarantor/s agree for Gigpiglet to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by Gigpiglet.
13.2 The Client and/or the Guarantor/s agree that Gigpiglet may exchange information about the Client and the Guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the credit worthiness of Client and/or Guarantor/s.
13.3 The Client consents to Gigpiglet being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
13.4 The Client agrees that personal credit information provided may be used and retained by Gigpiglet for the following purposes and for other purposes as shall be agreed between the Client and Gigpiglet or required by law from time to time:
(a) provision of Services; and/or
(b) marketing of Services by Gigpiglet, its agents or distributors in relation to the Services; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Services.
13.5 Gigpiglet may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
14.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
14.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales.
14.3 Gigpiglet shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Gigpiglet of these terms and conditions.
14.4 In the event of any breach of this contract by Gigpiglet the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Services.
14.5 The Client shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Client by Gigpiglet.
14.6 Gigpiglet may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
14.7 Gigpiglet reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Gigpiglet notifies the Client of such change.
14.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
14.9 The failure by Gigpiglet to enforce any provision of these terms and conditions shall not be treated as a waiver of
that provision, nor shall it affect Gigpiglet’s right to subsequently enforce that provision.