- These Terms and Conditions form the basis by which You can Use our Website and our online trade mark application services (Service) and regulate any agreements between Us and You (either an individual or a legal entity that You represent as an authorized employee or agent) (You)).
- Please read them carefully. By Using the Service, You are stating that You have legal capacity to form legally binding contracts and that You agree to be bound by all of these terms and conditions of the Service. The Service is offered to You conditioned on Your acceptance without modification of the terms, conditions, and notices contained herein.
- Before We can process Your order, You will be given the choice of accepting or rejecting the terms and conditions. If You accept them, You may Use the Service. If You reject them, You will not be able to Use the Service. When You place Your order for the Service, You agree to have read the relevant terms and conditions carefully.
- We may change the Terms and Conditions at any time. Your continued Use of this Website is deemed to be Your acceptance of those changes.
- For the purposes of these Terms of Service and unless the context otherwise indicates:
- GST means goods and services tax or similar value added tax levied or imposed in Australia under A New Tax System (Goods and Services Tax) Act 1999 (Cth) or otherwise on a supply;
- Services means the services as advertised as being provided by Us on this Website including the online application trade mark application filing service, trade mark searching and other legal work You have retained Us for.
- Terms and Conditions means the terms and conditions for the Use of the Website and engaging Us for our Services set out in this document as amended from time to time.
- You and Your means the person/s Using this Website and/or their principal/s.
- We, Us and Our means Natalie Murray-Jones t/a The TradeMark Factory and/or brandU Legal, its employees, officers, agents and contractors.
- Information about You includes but is not limited to information about Your computer, Your computer’s operating system, Your internet protocol address (IP address), Your email address, and any other information that may be collected about Your by Us through Your Use of this Website.
Formation of a binding contract
- By placing an order through our Website You are offering to contract with Us for the supply of the Service in consideration of payment of Our fees and any costs incurred as a result of or in relation to Your order.
- Your order is only accepted by Us upon subsequent review wherein We will perform a number of checks to decide whether to accept Your order or not, including whether a conflict of interest exists with any of Our existing clients. Once We have completed Our review and We are satisfied that Your order is acceptable, We will forward an email to You with confirmation of Our acceptance of Your order.
- There may be instances where We need to discuss Your order with You prior to Our acceptance of Your order wherein We will contact You by email or by telephone.
- Only when You received a further confirmation from Us that We have accepted Your order can You consider Your order accepted. A binding contract will be deemed to be formed at the time when Our email to You is received within the meaning of section 14A(1)(a) of the Electronic Transactions Act 1999 (Cth).
- We reserve the right not to accept Your order at Our sole discretion.
Termination of Contract and Cancellation of Your Order
- You will be provided the opportunity to review Your order prior to completion and submission to Us. It is Your responsibility to ensure the information and details are correct prior to submitting Your order to Us.
- Upon receipt of Your order, You will receive confirmation from Our Website confirming We have received Your order. We will send You a further email advising whether We have accepted or rejected Your order. We will commence undertaking work on Your order within one (1) business day after accepting Your order.
- You may cancel or withdraw Your order at any time prior to Our acceptance of Your order by emailing Us at firstname.lastname@example.org. We will confirm receipt of Your cancellation by return email within a reasonable time.
- You agree that We may terminate the contract without notice in the event of a serious breach or default by You including but not limited to the following:
- non-payment of our fees;
- non-payment of any costs incurred or associated with Your order;
- a breach of any of Your warranties under these Terms and Conditions;
- any false representation by You;
- if We form the view that You have lost confidence in Us;
- if there are any ethical ground which We consider require Us to cease acting for You, for example a conflict of interest;
- Your failure to respond to Our communications within a reasonable time;
- You refuse to accept Our advice;
- if in Our sole discretion We consider it is no longer appropriate to act for You; or
- for just cause.
- Upon cancellation of Your order, We will refund any payments made by You less all fees, costs and expenses incurred as a result of Your order pursuant to these Terms and Conditions.
Our fees and pricing
- The pre-authorised fees is calculated based on filing a Australian trade mark.
- Our fees are calculated in accordance with Our Pricing which is available on our Website or as provided to You on request.
- In addition to Our fees, You may be required to pay further or additional costs including:
- Government application fees, payable in 2 parts, the first of which is payable prior to formally lodging Your application with the relevant authority;
- Third party fees or costs, such as fees for a legal opinion in a contentious matter, local agent’s fees or fee incurred in respect of a foreign application. We will endeavour to advise You of, and obtain Your consent to, such expenses prior to incurring those costs.
- Expenses and disbursements including, but not limited to search fees, enquiry fees, file storage fees, telephone and fax charges, courier costs, photocopying of documents, downloading and other Internet charges. Any such expenses and disbursements will be charge to You at cost.
- You agree to reimburse Us for all disbursements reasonably necessary and which We have paid or are liable to pay in working on the matters referred to in this agreement.
- We or our agents may ask You in advance for payment on account of large disbursements including but not limited to their legal fees and/or government fees.
- In case of agent’s fees, including international agent’s fees, barrister’s fees, notary’s charges or any other agents retained by Us on Your behalf, You agree that such fees will be invoiced directly to You and that You will be solely responsible for the payment thereof. In the event that such fees are not paid within the time specified by the agent, You agree that We may charge the amount of said invoice to Your credit card which may incur additional third party charges including but not limited to bank fees and charges.
- If it is necessary to recover files from outside storage, those costs will be payable by You.
- Our fees and relate to the straightforward registration of Your trade mark. These fees do not include Our fees for legal advice at any time during the processing of Your order or fees incurred by third parties including but not limited to fees for a legal opinion in contentious matters, legal agent’s fees, or fees incurred in respect of a foreign application. We will endeavour to advise You of, and obtain Your consent to, such expenses prior to incurring those costs.
- Our fees and any further or additional costs are paid at the time of placing Your order.
- For orders processed via Our Website, You must provide Your credit card details to proceed with the order.
- On receipt of Your credit card details, We will not charge Your credit card until after We have accepted Your order by email which will also include a tax invoice outlining Our fees and disbursements and expenses in accordance with Your order.
- By providing Your credit card details at the time of placing Your order, You agree to pay Our Fees and any further or additional costs, including but not limited to government fees and warrant that You have sufficient funds available in Your credit card account for payment of Our Fees and other costs as relevant.
- If additional costs are payable, You agree to pay these when due and payable or immediately on Our request.
- We Use a third-party provider to process all credit card payment transactions. As such, only that third-party provider and the acquiring bank have access to Your payment instrument details. While We endeavour to ensure the safe and secure Use of Your credit card details, We do not guarantee or warrant the services or security of the third-party service provider.
- The third-party credit card payment service provider will charge a transaction fee to Your credit card account. You agree that any transaction fee is reasonable and that You will not dispute the amount or charging of this fee to Your credit card account.
- If We reject Your order, or if You cancel Your order before We accept it, We will refund all monies paid by You less any associated third-party processing fees, bank fees and taxes as relevant.
- We do not store Your credit card details on Our system and may require You to confirm or update Your credit card details for future or additional payments.
No guarantee as to registration
- We will conduct a preliminary exact trade mark search of the IP Australia trade mark database for Your trade mark prior to filing Your order. If, an identical mark is revealed by this preliminary search, and We are of the view that Your proposed trade mark is likely to be rejected, We will advise You of our opinion and discuss Your options with You.
- If at this stage You decide to discontinue Your order, We will refund all monies paid to Us less $275 including GST on account of our reasonable fees to that point.
- We generally recommend a full availability searches be conducted before any trade mark is filed. Without first conducting an availability search, You should be aware that under the Trade Marks Act 1995 (Cth) registrability of trade marks are not always certain and depends on a number of factors, including but not limited to the similarity of Your mark to other marks, Your mark’s capability to distinguish, whether the trade mark is likely to deceive or cause confusion and the like. Furthermore, the examination practice is not always consistent.
- As such, You should be aware that We cannot guarantee or promise the registration of Your trademark application. Without first conducting a full availability search, You should not invest significant time or money in a venture until Your trade mark is registered in case You are unable to obtain the registration of Your trade mark.
- You acknowledge that We rely on the information provided in Your order submitted via this Website.
Disclaimers & limitations of liability
- If You do not receive notification by e-mail of Our acceptance of Your order within 5 working days of the date on which You placed Your order, We accept no liability to You unless You notify Us in writing of the problem within that time. Where such a notification is made by You, We, at Our sole discretion, may choose to carry out Your order, or issue a refund for the amount paid by You to Us.
- Subject to any responsibilities implied by law and which cannot be excluded, We are not liable to You for any loss or damage whatsoever arising out of or in connection with:
- Your Use of, or inability to access, this Website or any linked site; or
- the delivery or non-delivery of Services and any act or omission of suppliers or other third parties;
- If We offer an opinion, You accept that it is an opinion only and not necessarily determinative of the registrability or otherwise of Your proposed trademark.
- Our liability for a breach of a condition or warranty implied by law or otherwise, and which cannot be excluded, is limited to the extent possible, at Our option, to:
- refunding the fees, costs, and expenses already paid by You; or
- the supply of the Services again; or
- the payment of the cost of having the Services supplied again.
- Except where expressly stated otherwise, Our Services are provided to You on an “as is” and “as available” basis, without any representation, warranties or conditions of any kind, either express or implied, including all implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, and non-infringement, freedom from computer virus, and implied warranties arising from course of dealing or course of performance. Nothing in this clause is to be taken as affecting any rights conferred upon You pursuant to the provisions of Schedule 2 of the Competition and Consumer Act 2010 (Cth) (“Australian Consumer Law”).
- To the extent permitted by law, in no case shall We be liable for any injury, loss, claim, or any direct, indirect, incidental, punitive, special, or consequential damages of any kind including, without limitation, lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages whether based in contract, tort (including negligence), strict liability or otherwise, arising from Your Use of this Website or Our Services, including but not limited to any errors or omissions in any content, failure of performance, interruption, deletion, defect, delay, computer virus, communication line failure, or any other loss or damage of any kind incurred as a result of the Use of this Website or Our Services or any content posted, transmitted, or otherwise made available via this Website or Our Services, even if advised of their possibility.
- You irrevocably authorise Us to lodge on Your behalf all documents necessary for Your trade mark application, with, or required by, third parties including, without limitation, documents at trade mark registries.
- You warrant that You have legal capacity to act on behalf of such others individuals or bodies.
- You must respond to Us in a timely manner to Us or the trademarks office. Failure to do so may result in Your loss of rights. Note that doing so may involve significant additional expense on Your part including by taking legal advice.
- We shall assume that Your instructions are not to let Your rights lapse without specific instructions to do so and therefore We may elect to act without Your instruction to preserve Your rights in the event of Our not being able to obtain Your instructions in a reasonable manner. In such a case, You accept liability for any costs or fees incurred in Our preserving Your rights in this manner. If You do wish to let Your rights lapse, You agree to let Us know in writing within a reasonable time.
- You accept that Our acceptance or non-acceptance of Your order is non-prejudicial to the registrability of Your mark as a trade mark.
- You expressly agree that Use of the Service is at Your sole risk. Neither We, our affiliates nor any of their respective employees, agents, third party content providers or licensors warrant that the Service will be uninterrupted or error free; nor do they make any warranty as to the results that may be obtained from Use of the Service, or as to the accuracy, reliability or content of any information, service provided through Us.
- You agree that You indemnify Us in relation to any cost, loss, liability, or damage that You or a third party suffers because:
- the product You order is not suitable for its intended purpose or does not suit the relevant circumstances;
- You failed to obtain formal advice from an appropriately qualified professional adviser prior to Using the Services;
- the answers You provide to questions asked of You when Using the Service;
- You do not answer all questions completely and accurately;
- You modify the products after they are provided to You; or
- You breach these Terms and Conditions in some other way.
- You agree that email communication is the preferred method of concluding agreements with Us including the issuing of our invoices for the Services. You agree to inform Us promptly of any change of Your contact details, including address, telephone number or email address. Failure to do so may result in Our inability to contact You, potentially resulting in the loss of Your rights, for which We accept no responsibility.
- You acknowledge and agree that:
- We may collect, Use and retain information about You required for the provision of this Website or Our services to You;
- All personal information collected by Us about You is collected, Used, and retained in accordance with the Privacy Act 1988 (Cth).
- You expressly permit and authorise Us to disclose so much of Your personal information to third-party providers as is required to enable the provision of this Website or Our Services.
- You agree to advise Us in writing if You do not want Us to Use Personal Information disclosed by You to Us for marketing purposes.
- You agree that if You provide Us with Personal Information about another individual, You will ensure that that individual is aware:
- that You have supplied their Personal Information to Us and the reason; and
- of the details in this clause 8 which apply to information We collect about them.
- You are responsible for ensuring that if a third party is required to disclose Personal Information to Us for the purposes of these Terms and Conditions on Your behalf or at Your request, such disclosure by the third party complies with the Privacy Act.
- If You fail to provide any Personal Information requested by Us, We may be unable to supply the products that You order or request.
- If We are required to retain any Personal Information by law:
- You warrant that You have taken all steps to ensure that We are permitted to do so; and
- on reasonable notice, and the payment of a reasonable charge, We will make such information available for inspection by You and Your auditors.
Information provided by Us
- You agree that We cannot, and do not, give You legal, commercial or other professional advice unless You contract with Us to do so.
- If Using the online application process, such Services is for the provision of information to help You answer the questions and to order the trade mark application and that that information is information only, not advice.
- Further, We cannot and do not warrant that a product You decide to order or a service You decide to Use is appropriate or suits Your needs. If You are unsure as to whether this service is suitable, You must contact a lawyer (including Us), taxation adviser, accountant, or commercial or other appropriately qualified professional adviser for advice concerning the suitability of a product You order Using our service.
- You must make Your own enquiries and seek independent advice from the relevant industry professionals before acting or relying on any information which is made available through Us.
- We reserve the right to update any information provided by Us at any time.
- Trademarks and trademark applications shown as lapsed or ceased may be restored at a later date.
- We own the copyright and every other intellectual property right in everything We create.
- Unless We agree otherwise You may not Use or permit others to Use anything We have created except for the purpose for which We deliver it to You or Your intended recipient.
- Except where otherwise provided, all material contained in or displayed on this Website, including but not limited to software and coding, design, text, registered and unregistered trademarks, graphics, and layout (Intellectual Property), is owned or licensed by Us.
- You must not:
- alter or modify the Intellectual Property or remove any legal notice associated with it;
- modify, copy, distribute, transmit, display, perform, reproduce, publish or license any of the Intellectual Property;
- Use or attempt to Use any of the Intellectual Property to create any Website or publication; or
- transfer or sell any information, functionality or products or services offered on this Website without Our prior written consent.
- The provision of a link on this Website to the Website of a third-party does not constitute a recommendation or endorsement of the third party or its Website.
- We do not accept responsibility whatsoever for the content, reliability or credibility of any Website linked to this Website nor do We guarantee that this Website or any linked Website will be free from viruses, or that this Website or any linked Website will be uninterrupted.
- You acknowledge that:
- We may Use agents and third-parties in providing Our Services to You;
- Unless We advise You otherwise, We are not directly associated with and have no direct affiliation with any third-party; and
- We do not warrant the quality or merchantability of any goods or services supplied to You by a third-party that We referred You to.
Your Warranties and Representations
- You represent and warrant to Us that You are:
- at least 18 years old;
- capable of entering into a legally binding contract.
- If the party offering to enter into a contract with Us is an incorporated entity, e.g. a company, (“the Company”) then You represent and warrant to Us that:
- the Company is duly incorporated under, or if the Company is a foreign company registered under, the Corporations Act 2001 (Cth); and
- You, the person Using this Website, are properly authorised to act for and on behalf of the Company and bind the Company to an agreement or contract with Us.
- You warrant that You will:
- immediately inform Us of any change of Your contact details, including email address, billing and/or delivery address, Usual residential address or address of domicile, or telephone number; and
- respond to Us or to the trademarks office, relevant authority, or government agency or department within any specified timeframe, or if no timeframe is specified then in a timely manner.
- These Terms and Conditions shall be binding to the benefit of the parties hereto and their successors and assigns.
- You confirm and declare that:
- You have sought independent legal advice, or have had the opportunity to seek independent legal advice, regarding these Terms and Conditions; and
- the provisions of these Terms and Conditions are fair and reasonable.
- If any provision of these Terms and Conditions or part thereof is held illegal unenforceable or otherwise invalid, that provision or part shall be deemed to be severed and the remainder of these Terms and Conditions shall continue in effect.
- Our failure or delay to enforce at any time any of the provisions of these Terms and Conditions mUst not be interpreted as a waiver of such provision.
- These Terms and Conditions are governed by the laws of New South Wales, AUstralia.
- You agree to submit personal jurisdiction to the courts located within New South Wales, AUstralia, and You hereby waive all defences of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state of New South Wales and the Federal Courts of AUstralia.
- Any dispute or difference whatsoever arising out of or in connection with Us shall be submitted to arbitration.
- If any part of these terms and conditions is unenforceable (including any provision in which We exclude or limit our liability to You) the enforceability of any other part of these conditions will not be affected.
- These Terms and Conditions and any operating rules for Us established by Us constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede all previous written or oral agreements between the parties with respect to such subject matter.