Truffles Terms & Conditions
Diggens Truffles – Terms & Conditions
These Terms and Conditions apply to each contract for the provision of business brand-naming services by or on behalf of Truffles to any Customer.
2.1 ‘Contract’ means the contract for the supply of Brand Naming Services referred to in paragraph 3 of these Terms and Conditions.
2.2 Contract Particulars’ means the quotation, tender response, schedule or other applicable document describing the Brand Naming Services forming part of this Contract.
2.3 ‘Customer’ means the entity that has engaged Truffles to provide the Brand Naming Services identified in the Contract Particulars.
2.4 ‘Deposit’ means the amount specified in the Contract Particulars.
2.5 ‘Brand Naming Services’ means, but not limited to, the business brand-naming services to be supplied by Truffles to the Customer as described in the Contract Particulars.
2.6 ‘Truffles’ means Diggens Truffles Pty Ltd ACN 618 092 470.
2.7 ‘Price’ means the cost of the Brand Naming Services as agreed between Truffles and the Customer as set out in the Contract Particulars as amended from time to time.
3. Terms and Conditions
3.1 A Contract for the supply of the Brand Naming Services will be formed incorporating these Terms and Conditions, immediately upon Truffles receiving a signed copy of the Contract Particulars, payment of any Deposit monies or any form of written or verbal acceptance for supply of the Brand Naming Services.
3.2 No subsequent terms and conditions will apply in substitution of these Terms and Conditions or in any way override or amend these Terms and Conditions.
3.3 The Contract Particulars and these Terms and Conditions constitute the entire agreement between Truffles and the Customer.
3.4 The Customer may not cancel any Contract without the prior written consent of Truffles.
4. Truffles’ obligations
Truffles will use all reasonable endeavours to perform its obligations as set out in the Contract.
4. Customers obligations
The Customer must:
5.1 provide all information, instructions, decisions and information sufficient to facilitate the provision of the Brand Naming Services;
5.2 comply with all reasonable directions given to it by Truffles; and
5.3 comply with all of its obligations as set out in the Contract.
6. Price and payment
6.1 Truffles will provide tax invoices for the Brand Naming Services to the Customer during and/or at the conclusion of Truffles’ engagement.
6.2 In the event that there is any increase in Truffles’ costs beyond its reasonable control, Truffles will inform the Customer as soon as practicable, and the Customer acknowledges that Truffles may have to increase the Price reasonably to reflect any additional increases in Truffles’ costs.
6.3 Time for payment for the Brand Naming Services will be of the essence and will be due fourteen (14) days following the date of the invoice.
6.4 Unless otherwise stated, all prices are exclusive of GST. If GST is, or becomes, payable for supply of the Brand Naming Services, the payment for that supply will be increased by an amount equal to the GST payable.
6.5 The Deposit is not refundable to the Customer in any circumstances, except for a material breach of this Contract by Truffles, in which case it will first be applied as a credit towards all amounts to which Truffles is entitled under this Contract, and the remaining balance will be repaid to the Customer.
6.6 If the Customer fails to pay any part of the Price at the times specified in this Contract, the Customer must pay to Truffles any costs, expenses or losses incurred by Truffles as a result of that failure including costs associated with the collection of any outstanding amounts and Truffles may (without prejudice to any other rights or remedies that it may have):
6.6.1 charge interest at a rate not exceeding the Commonwealth Bank of Australia's overdraft rate plus 2% on overdue amounts for each day overdue;
6.6.2 charge the Customer for all expenses and costs incurred by Truffles resulting from the Customer’s failure to pay;
6.6.3 take any reasonable action it deems appropriate to recover any amount due; and
6.6.4 suspend any further Brand Naming Services to the Customer and/or terminate this Contract;
7.1 The Customer may request a variation to the Brand Naming Services at any time.
7.2.1 will use reasonable endeavors to accommodate any variation to the Brand Naming Services requested by the Customer and any such variations will be subject to additional costs to be determined by Truffles; and
7.2.2 in its sole discretion, will determine whether or not it is reasonably able to accommodate any such variations as requested by the Customer.
8.1 Truffles will not be liable for any delay in the provision of the Brand Naming Services beyond Truffles’ reasonable control including, but not limited to:
8.1.1 A variation requested by the Customer;
8.1.2 loss or damage by fire, explosion, earthquake, lightning, storm, tempest, civil commotion or any similar cause;
8.1.3 disputes between employers and employees or strikes or lockout affecting the trades employed in the provisions of the Brand Naming Services;
8.1.4 Truffles or the Customer acting in accordance with a notice or order given by an any governmental or semi governmental or local government authority; or
8.1.5 any other delay beyond the reasonable control of the Truffles.
8.2 If, for any of the reasons specified in this clause, Truffles is prevented from supplying the Brand Naming Services by the date determined between the parties, then the date will be extended for such period as Truffles determines (in its absolute discretion) acting reasonably.
8.3 Truffles is not responsible for any delays or failure in delivering the Brand Naming Services to the extent that those delays are caused by any act or omission of the Customer.
9.1 Truffles warrants that it will:
9.1.1 use due care and skill in the performance of the Brand Naming Services; and
9.1.2 make all reasonable efforts to provide the Brand Naming Services in a timely manner.
9.2 The Customer warrants:
9.2.1 that the information supplied to Truffles for the purposes of providing the Brand Naming Services to the Customer is true and accurate;
9.2.2 that is the owner of any material information it provides to Truffles for the purposes of providing the Brand Naming Services;
9.2.3 that it is either the owner or the authorised agent of the person owning or having any interest in any part of the Brand Naming Services and enters into this Contract on its own behalf or as authorized agent of that person.
10. Intellectual Property Rights
10.1 In this clause ‘Intellectual Property’ means all rights in relation to the Brand Naming Services including but not limited to all rights conferred under statute, common law and equity in and in relation to trade names, designs, inventions, patents, know-how, trademarks, trade secrets, logos, confidential information and copyright.
10.2 Until full payment is received by Truffles all Intellectual Property with respect to the Brand Naming Services will remain with Truffles. Upon full payment of the Brand Naming Services all Intellectual Property with respect to those Brand Naming Services will pass to the Customer.
10.3 The Customer hereby agrees not to use in any way any Intellectual Property with respect to the Brand Naming Services in its possession that it has not purchased in full from Truffles.
10.4 The obligations set out in this clause survive termination of these Terms and Conditions.
11. Limitation of liability and indemnity
11.1 This clause does not exclude or limit the application of any statutory provision where to do so would contravene that statute or cause any part of this clause to be void.
11.2 Truffles will take all reasonable endeavors to ensure it does not infringe any intellectual property rights of any third party when preforming the Brand Naming Services. In the event that any intellectual property rights of any third party are infringed when preforming the Brand Naming Services then the Customer agrees to immediately cease using any such infringing material with respect to the Brand Naming Services. In any such event Truffles will take all reasonable endeavors to remedy the Brand Naming Services so as not to be in breach of any third party intellectual property rights.
11.3 Truffles will only be accountable to work set out specifically in the Contract Particulars. Any other work not specific to the Brand Naming Services (such as trademark application, et cetera) will be the responsibility of the Customer.
11.4 In no event will Truffles be liable to the Customer or any third party in connection with the unintentional misuse of intellectual property belong to the Customer or any third party with respect to the Brand Naming Services for all claims, expenses and liabilities of whatever nature including without limiting loss of profit, which may be made against Truffles or which Truffles may sustain, pay or incur arising out of the performance of the Brand Naming Services.
11.5 The Customer must keep Truffles indemnified against:
11.5.1 all claims, expenses and liabilities of whatever nature including without limiting loss of profit, which may be made against Truffles or which Truffles may sustain, pay or incur arising out of the performance of the Brand Naming Services; and
11.5.2 any unforeseen costs incurred by Truffles in relation to the Brand Naming Services.
11.6 In any event whatsoever, the liability of Truffles is limited to re-performance or the cost of the Brand Naming Services.
11.7 Truffles will not be liable to the Customer for any incidental damages, consequential losses, loss of profit, costs of business interruption, loss of opportunities or any like claims whatsoever.
11.8 The Customer must continually indemnify Truffles against any liability, penalty or expense incurred by Truffles as a result of a breach of these Terms and Conditions by the Customer.
12.1 Either party may terminate this Contract with immediate effect by giving notice to the other party if:
12.1.1 that other party breaches any provision of this Contract and fails to remedy the breach within 21 days after receiving notice requiring it to do so; or
12.1.2 that other party breaches a material provision of this Contract where that breach is not capable of remedy.
12.2 Either party may terminate this Contract for any reason by giving 2 weeks notice to the other party.
12.3 Upon termination of this Contract any accrued rights or remedies of Truffles are unaffected.
12.4 Upon termination of this Contract by Truffles the Customer will remain liable for any monies owed to Truffles by the Customer.
13.1 The Contract is governed by the laws of South Australia and the parties agree to submit to the non-exclusive jurisdiction of the courts of South Australia.
13.2 If any term or part of a term in these Terms and Conditions is illegal or unenforceable it may be severed and the remaining terms or parts will continue in force.