Dennemeyer & Associates Terms and Conditions for Trademark Clearinghouse Services

Transcription

1 Dennemeyer & Associates Terms and Conditions for Trademark Clearinghouse Services Published on September 30, 2013 Issued by: Dennemeyer & Associates S.A. 55, rue des Bruyères 1274 Howald, Luxembourg

2 Table of contents 1 Acceptance of Terms Definitions TMCH Agent Services Limitations of the Services Termination Client s Obligations Privacy; Confidentiality Limitation of Liability Notifications Dispute Resolution Governing Law and Jurisdiction...7

3 1 Acceptance of Terms Please note that before you start using directly or indirectly the Trademark Clearinghouse agent services (hereinafter the "TMCH Agent Services" or short the Services ), you must read and agree to these Dennemeyer & Associates Terms and Conditions for Trademark Clearinghouse Services as amended from time to time (hereinafter "the TOS"). The latest version of the TOS can be reviewed at any time at In addition, when using the TMCH Agent Services you shall be subject to the TMCH Guidelines, the Clearinghouse Validation Terms and Conditions for Trademark Holders, and the Dispute Resolution Procedures, which latest versions are available at 2 Definitions Activated (Trademark Record) CHIP Client or you Database Operator Deactivated Deloitte Dennemeyer & Associates or short D & A Eligibility Requirements ICANN shall mean a Trademark Record, which Deloitte has determined to be compliant to the Eligibility Requirements specified in the TMCH Guidelines. shall mean CHIP société anonyme, the Luxembourgish entity acting as technical services provider for the TMCH. shall mean the individual or legal entity that is placing an order with D & A for the Services. shall mean the party appointed by ICANN to operate and manage the central database for storage of the Activated Trademark Records. shall mean a Trademark Record (i) that has not been renewed, (ii) for which documentary evidence requested by Deloitte in connection with the Verification Services has not been provided by you within the delay set forth in the TMCH Guidelines, or (iii) that has been successfully disputed under the Dispute Resolution Procedures. shall mean Deloitte Enterprise Risk Services (a department of Deloitte Bedrijfsrevisoren BV ovve CVBA) or any Deloitte entity or subcontractor that is providing the Verification Services. shall mean Dennemeyer & Associates société anonyme, a patent law firm ( Conseil en propriété industrielle ) registered and admitted under the laws of Luxembourg, having its principle place of business in 55 rue des Bruyères, L Howald, Luxembourg, or any of its affiliated companies or its assigned agents providing the TMCH Agent Services. shall mean the requirements that a Trademark Record must satisfy in order to be accepted into the TMCH as an Activated Trademark Record. shall mean the Internet Corporation for Assigned Names and Numbers, a California public-benefit non-profit corporation.

4 Invalid shall mean a Trademark Record deemed invalid by Deloitte. Mandatory License shall have the meaning given to it in section 6.3. Notification of Registered Name or short NORN Personal Data Signed Mark Data File or short SMD Sunrise Period Sunrise Period Services Trademark Clearinghouse Agent Services or short "TMCH Agent Services" or the Services Trademark Agent Trademark Clearinghouse or short TMCH Trademark Clearinghouse Services Order Form Trademark Claims Period Trademark Claims Period Services shall mean a notification sent to you during a Sunrise Period or Trademark Claims Period that a domain name matching a label for one of your Trademark Records has been registered. shall mean data provided by you directly or indirectly to Dennemeyer & Associates pertaining to any identified or identifiable natural persons, or as otherwise specified by applicable law. shall mean the file that is generated by the TMCH for each Activated Trademark Record and for which you have indicated your will to use such Trademark Record for the Sunrise Periods. shall mean the mandatory period of time during which each registry will accept domain name registrations on a priority basis. shall mean the notification to the Trademark Holder of the availability of a new gtld and the right to register certain domain names before they are offered to the general public. shall mean the Sunrise Period and Trademark Claims Period Services. shall mean a person or organization authorized to act on behalf of Trademark Holders before the TMCH. shall mean the organization established by the ICANN the following two primary functions: (i) the authentication of contact information and verification of Trademark Records and (ii) the storage of such Trademark Records in a database in order to provide information to the new gtld registries to support the providing of NORNs. shall mean the form that needs to be completed and signed by the client in order to place an order for TMCH Agent Services with Dennemeyer & Associates. shall mean the period of time following the opening of a top-level domain for general domain name registration during which Trademark Holders are entitled to receive NORNs. shall mean the provision of NORNs to the Trademark Holder.

5 Trademark Holder Trademark Record Verification Services shall mean you, a client of Dennemeyer & Associates, acting as or on behalf of, the owner, licensee or assignee of a trademark or other mark. shall mean a complete and correct set of information concerning a trademark or other mark submitted to the TMCH. shall mean the verification of each Trademark Record by Deloitte to ensure that the information provided is accurate and correct and meets the Eligibility Requirements Guidelines. 3 TMCH Agent Services Dennemeyer & Associates in its capacity as service provider for the TMCH Agent Services will provide you with the Services described herein and in the Trademark Clearinghouse Services Order Form, insofar as you have placed an order for the Services with D & A and paid all fees applicable to such order. Upon receipt of an order filled with all mandatory information pertaining to the trademark to be submitted for inclusion in the TMCH and after receipt of the full amount invoiced for this Service, D & A shall process such order and submit the applicable trademarks via its assigned Trademark Agent to the TMCH for Deloitte to operate the Validation Services. Should any of the mandatory information be missing in your order, D & A or its authorized representatives will contact you so that the missing information can be procured. 4 Limitations of the Services 4.1. You acknowledge and accept that D & A and its representatives do not guarantee the successful validation and registration with the TMCH of any of the trademarks you will submit via the Service You further acknowledge that the success of an order is highly dependent on the information provided with your order and any attachments thereto. Notwithstanding the foregoing D & A shall make commercially reasonable efforts to ensure that you have provided all mandatory information before submitting your order to the TMCH. 5 Termination 5.1. You may terminate this Service, at any time by giving a thirty (30) days written notice to D & A or the authorized representatives with whom you have placed your order. Notwithstanding the foregoing, in case of termination you shall transfer all Trademark Records managed under D & A s Trademark Agent's accreditation to your own account with CHIP. Your are expressly informed that CHIP does not allow Trademark Records to be transferred from a Trademark Agent account to another. Failing to proceed to this transfer your Trademark Records still under D & A s management will be Deactivated after the 30 days period following the termination notice and you will no longer be entitled to receive any of the benefits of the TMCH, including the receipt of NORNs.

6 5.2. D & A may terminate the provision of the Services if you are in material breach of these TOS and such breach has not been cured within thirty (30) calendar days from receipt of a written notice. 6 Client s Obligations 6.1 Representations and Warranties As a Trademark Holder or as its authorized representative, you represent and warrant that: (a) you are either acting on behalf of, or are the holder, assignee or licensee of the trademark you have submitted for registration with the TMCH, (b) you are responsible for any selections made in your order that could result in not receiving a NORN, (c) you acknowledge that, upon Activation, a copy of the Trademark Record may be transferred to the Database Operator in order to obtain NORNs, (d) you are authorized to perform all obligations under these TOS, (e) you will provide D & A and its authorized representatives with accurate contact information and keep it current so that D & A, can verify whether such information is correct, and (f) in case you are acting as an assignee or licensee for one or several trademarks that you (i) have been permitted by the assignor or licensor to submit the Trademark Records, and (ii) you have the authority to grant the Mandatory License. 6.2 Compliance You commit to only use the Services provided hereunder for their intended purposes. When submitting an order to D & A or to its authorized representatives, you will comply with the TMCH Guidelines and the Dispute Resolution Procedures in force at any particular time. You commit not to submit any order if you have reason to believe that any of the following applies or could apply: (a) Some or all information provided is false, deceptive, misleading, inaccurate or incomplete; or (b) you do not have the right to submit such order. You agree that, to the best of your knowledge, any and all information you will submit to D & A directly or via its authorized representatives will be accurate and correct and that in the event any changes occur during the term of this Agreement or the term of a registration of a Trademark Record you will promptly notify D & A or its authorized representatives of such change. In the event you request a change to a Trademark Record, such as a change to (a) the name of the mark or Trademark Holder, (b) the status of the Trademark Holder, (c) the jurisdiction or country of protection for the mark, (d) the classes of goods and services for the mark, (e) the description of goods and services for the mark, or

7 (f) a court order, statute or treaty that affects any of the foregoing (a)-(e), such change may be considered a new Trademark Record and you may be charged a fee for any Verification Services that Deloitte may need to perform. 6.3 Mandatory License By submitting an order for the Service, you and/or the Trademark Holder on whose behalf you are acting are granting D & A, its assigned Trademark Agent, CHIP, Deloitte, ICANN, the Database Operator and any of such parties' successors or assigns a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any data you will submit, including but not limited to Trademark Records, for the purposes of the ICANN Trademark Clearinghouse and the TMCH Service (the "Mandatory License"). The Mandatory License will automatically terminate upon the termination of the Service. For the avoidance of doubt, you understand that the Mandatory License is necessary to receive NORNs. D & A will not, nor will any other party that has received rights under a Mandatory License, access or use the information provided under a Mandatory License for purposes other than those stated in this TOS. 7 Privacy; Confidentiality 7.1. You acknowledge and consent that, in the context of the Services, Personal Data will be exchanged by and between you, D & A, its assigned Trademark Agent, CHIP, Deloitte, the Database Operator, ICANN, registries, registrars, and domain name registrants. You agree that any Personal Data sent by you and received and processed by D & A in the context of the TMCH Services will be treated in accordance with applicable privacy laws and regulations, and D & A undertakes to take all commercially reasonable organizational and technical measures to ensure such compliance. D & A shall only collect, process and share Personal Data, which is necessary for complete performance of the Services, D & A will not process Personal Data in a way inconsistent with the above-mentioned purposes. If you do not provide the minimally required Personal Data and do not consent to the transfer of such data, D & A will not be able to perform all services contemplated hereunder You agree that, even following the termination of this Service and the corresponding termination of the Mandatory License, D & A may retain copies of all information you have provided under this TOS. 8 Limitation of Liability 8.1. Unless otherwise stated herein, neither you, D & A, its assigned Trademark Agent, CHIP, Deloitte, ICANN nor the Database Operator or any of their successors or assigns shall be liable to the other for any direct or indirect, special, incidental, punitive or consequential damages, including but not limited to loss of business opportunity, business interruption, loss of profits or costs of procurement of substitute goods or services, arising out of or relating to the TMCH, under any theory of liability and whether or not any such third party has been advised of the possibility of such damages. Your sole remedy for claims arising from or related to the Verification Services shall be through the procedures specified in Dispute Resolution Procedures.

8 8.2. Except for the express warranties stated herein, the Services are provided on an "as is" and an "as available" basis, and D & A disclaims any and all other warranties, conditions, or representations (express, implied, oral or written) relating to the Services or any part thereof, including, without limitation, any and all implied warranties of quality, performance, merchantability or fitness for a particular purpose You will hold D & A, its assigned Trademark Agent, CHIP, Deloitte, ICANN and the Database Operator and their successors and assigns harmless against any and all claims of any kind whatsoever and any damages, interests, settlements or costs of any investigation, litigation or settlement (including any reasonable attorney's fees or other legal fees) that may arise or result from (a) your breach of those TOS (b) any incorrect or fraudulent use by you of the TMCH Services, (c) allegations of intellectual property infringement from third parties, or (d) incorrect or outdated information submitted by you and maintained in the TMCH. 9 Notifications All communication between D & A or its authorized representatives and you shall, to the extent reasonably possible, be organized in an electronic manner, including . You expressly acknowledge and accept that transmitting data electronically is not totally secure, virus-free or without error and, hence, such transmissions may be intercepted, tampered with, lost, destroyed, delayed or rendered unusable. You hereby recognize that no systems or procedures can wholly mitigate such risks. You confirm that you accept these risks, duly authorize the use of electronic communications and agree to use commercially reasonable means to detect the more widely known viruses prior to sending information by electronic means. Each party shall be responsible for the protection of its own systems and interests in respect of electronic communications, and neither party shall be held liable in any manner or form, whether on a contractual, criminal (including negligence) or any other basis, for any loss, error or omission resulting from or relating to the use of electronic communications between the parties. 10 Dispute Resolution In the event a dispute arises between you out of or relating to the Verification Services provided by Deloitte, such dispute shall be handled in accordance with the Dispute Resolution Procedures as available under 11 Governing Law and Jurisdiction The Services provided by D & A shall be governed by, construed and enforced under the laws of Luxembourg without regard to conflict of law rules, and the parties irrevocably agree that the courts of Luxembourg are to have exclusive jurisdiction to settle any disputes which may arise out of or relating to this Agreement.