Terms and conditions, May 2014 Version
(Historical, current version here.)
Welcome to www.trademarknow.com (the “Website”) operated by Onomatics Inc. and its affiliates, located at Mikonkatu 17 B, FIN-00100 Helsinki, Finland (“Onomatics”, “we”, “our”, or “us”). Your use of Onomatics’s products, software, services (including any services provided to you by Onomatics under a separate written agreement, except when specifically indicated to the contrary) and the Website (referred to collectively as the “Services”) is subject to these Terms of Service (this “Agreement”).
(May 2014, address updated)
1. Use of Services
Please read this Agreement carefully before using the Services. By accessing the Services, you acknowledge and agree that you have read this Agreement, are at least eighteen (18) years of age, and wish to be bound by the terms and conditions set forth in the Agreement. If you are not at least eighteen (18) years of age or do not wish to be bound by the Agreement, you are not authorized to use the Services. Additional terms and conditions may apply to certain Services, and your use of such Services indicates your agreement to such terms and conditions. We reserve the right to modify the Agreement at any time. You agree to review the Agreement periodically to be aware of such modifications. You further agree that your continued use of the Services shall be deemed to be your conclusive acceptance of any modified Agreement. We will indicate that changes to this Agreement have been made by updating the date indicated after “Last Modified” at the end of this Agreement. If you do not agree to abide by any modified version of this Agreement, you are not authorized to use the Services. A current version of this Agreement is accessible via the footer of the Website’s homepage. You acknowledge and agree that Onomatics may stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally at Onomatics’s sole discretion, without prior notice. You agree to use the Services only for purposes that are permitted by (a) this Agreement and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the European Union, United States or other relevant countries).
2.1 “Customer” means the legal entity or individual that enters into this Agreement by using the Services or, where applicable, as described on the Signature Page.
2.2 “Customer Data” means data, information or material provided or submitted by Customer or any User to Onomatics in the course of utilizing the Services.
2.3 “Onomatics Content” means Onomatics-supplied text, audio, video, graphics and other information and data available by means of the Services or on the Website.
2.4 “User” means one of Customer’s employees, representatives, consultants, contractors or agents and other persons expressly permitted by Customer in connection with Customer’s business affairs who are authorized to use the Services and have been supplied User identifications and passwords by Customer (or by Onomatics at Customer’s request).
3. User Accounts
3.2 User ID; Password. Users who create an Account will obtain a user ID and password (collectively, your “Profile”). You agree not to allow any third party to use your Profile to access the Services and to safeguard your Profile so as not to enable any third party to access the Services. You agree to be responsible for failure to safeguard your Profile and allowing any other person or entity to access the Services by using your Profile or otherwise by using your Account. No part of a Profile or Account may be transferred or sold by you to another party. You agree to notify Onomatics immediately of any unauthorized use of your Profile, Account or the Services. You agree that Onomatics shall not be liable for any loss that results from the unauthorized use of your Profile or Account, either with or without your knowledge.
3.3 Revocation of User Accounts. You agree that we have the right to cancel your Account and/or revoke your Profile for any reason at any time, in our sole discretion, and you agree that Onomatics shall have the right to take appropriate administrative and/or legal action, including criminal prosecution, to protect our interests. You acknowledge and agree that if Onomatics disables access to your Account, you may be prevented from accessing the Services, your Account details or any files or other content which is contained in your Account.
4. Intellectual Property
The Services contain copyrighted material, trademarks and other proprietary information. Without limiting the scope of Onomatics’s intellectual property rights, you acknowledge that Onomatics and/or its licensors own intellectual property rights in (i) the Services; (ii) the content contained within the Services (including the selection, coordination, and arrangement of the Services); and (iii) the trademarks used in connection with the Services. Content available through the Services are for your personal and professional use only and may not be modified, reverse engineered, redistributed, sold, publicly displayed, licensed, rented, or otherwise provided to a third party or commercially exploited except as expressly provided in this Agreement. We do not grant you any license, express or implied, to the intellectual property of Onomatics except as expressly set forth in this Agreement. We grant you a limited license to redistribute one copy of content available via the Services to each of your co-workers and professional clients. Unless you have agreed otherwise in writing with Onomatics, nothing in this Agreement gives you a right to use any of Onomatics’ trade names, trademarks, service marks, logos, domain names, and other distinctive brand features. You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) which may be affixed to or contained within the Services.
5. Third Party Content
Onomatics re-distributes (but does not publish) certain content supplied by third parties and has no editorial control over such content. Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties, including those made in publications made available to you by our Services, are those of the respective author(s) or publisher(s) and not of Onomatics. Neither Onomatics nor any third-party provider of information guarantees the accuracy, timely availability, completeness, or usefulness of any content. Under no circumstance will we be liable for any loss or damage caused by your reliance on information obtained through the Services.
The use of third party trademarks or other intellectual property as contained in the Services is for information purposes only and Onomatics claims no rights to such intellectual property and grants no license thereto.
6.1 Purchase of Certain Services. Certain of our Services are offered for sale through the Website. In the event you wish to purchase any of these Services, you will be asked by Onomatics or an authorized third party on Onomatics’s behalf to supply certain information to us such as your full name, address and credit card and/or other billing information. You agree to provide us or such third party with accurate, complete and current information at all times, and to comply with the terms and conditions of any ancillary agreement that you may enter into which governs your purchase of Services. You shall be responsible for all charges made under your Account as well as for any applicable taxes.
6.2 Purchase of Specific Services. Access to Specific Services may also be offered subject to this Agreement as specified in a separate written agreement. Any terms or conditions in such an agreement take precedence over those specified in this Agreement.
6.3 Purchase of Add-On Services. As a User belonging to a Customer organization with a subscription agreement for Specific Services under Section 6.2, you may also access some Services which are not included in said agreement, such as additional trademark databases not covered by the subscription. Such Add-On Services are invoiced quarterly at the unit price displayed clearly at the time of each add-on transaction. By consenting to access Add-On Services you warrant that you are authorized to enter into this Agreement on behalf of Customer so far as the Add-On Services are concerned.
6.4 Payment. Your right to any Services that are available is conditional on our receipt of the appropriate payment for such Services. If such payment cannot be charged to your credit card or if a charge is refunded for any reason, including chargeback, or, in the case of billed charges, if prompt payment of our bills is not rendered, you agree that we reserve the right to cancel your order and/or suspend or terminate your Account. Fees are due and payable upon receipt of our invoice.
6.5 Non-Payment. In addition to other applicable remedies, Onomatics reserves the right to suspend and/or terminate Customer’s access to the Service and/or terminate this Agreement, upon five days’ email notice, if Customer no longer has a license in force. Customer’s site may be reinstated by purchasing more licenses. Customer data in our format will be available for 90 days, upon written request following expiration of all licenses.
6.6 Risk of Loss. You acknowledge and agree that your only remedy for failures, delays or interruptions with respect to Services ordered by you is limited to a refund for such Services, at Onomatics’s sole discretion. All Services are acquired by you “as is” and “where is”.
6.7 Product Descriptions. We attempt to be as accurate as possible in describing Services (including pricing) offered for purchase; however, we do not warrant that all such descriptions are complete, current or error-free.
Onomatics and/or third parties may provide links to other websites of possible interest to you. Because we have no control over such websites, you acknowledge and agree that we are not responsible for the availability of such websites and do not endorse and are not responsible or liable for any content, advertising, services, software, products, or other materials on or available from such websites. You also acknowledge and agree that Onomatics shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any content, advertising, services, software, products, or other materials on or available from such websites. All such websites shall be subject to the policies and procedures of the owner of such websites.
8. Disclaimer for Trademark Searches and Prosecution
8.1 You understand and agree that Onomatics may assign its employees or independent contractors to perform trademark search and prosecution, (e.g. filing and renewal) Services. Onomatics will require such employees and independent contractors to sign a confidentiality agreement which will, among other things, prohibit the unauthorized use or disclosure of confidential information and trade secrets. In the event of unauthorized use or disclosure of confidential information and trade secrets by such independent contractors, Onomatics shall take appropriate legal action against them. However Onomatics, and its officers and directors, shall not be liable for any such unauthorized use or disclosure of confidential information and trade secrets by independent contractors, and you hereby waive any such claim, demand, or cause of action against Onomatics, its officers and directors.
8.2 You understand and agree that the results of searches conducted by Onomatics do not constitute a legal opinion of any kind or nature as to any aspect of the trademark. If you desire a legal opinion as to the registrability of any trademark or the validity or enforceability of any trademark, you are invited to obtain legal counsel for this purpose. Onomatics’ trademark searches are based solely on public information made available e.g. by the United States Patent and Trademark Office (“USPTO”), Office for Harmonization in the Internal Market (“OHIM”) and by certain proprietary database providers, and others, up to and including the date of the trademark search, and assume the proper recordation and indexing of all such information. Relevant trademark information filed with the trademark granting authorities but not yet made available for public scrutiny, or information which has not been properly recorded or indexed, or information which is missing or misinterpreted for any reason whatsoever (including but not limited to data missing or misinterpreted due to any technical or human error) may not be taken into account for purposes of the trademark searches and Onomatics assumes no responsibility for discovering or disclosing of such information as part of any trademark search or for accuracy or correctness of any information.
8.3 You agree that Onomatics has no liability of any kind or nature for failing to provide you with any information, including but not limited to (i) information submitted to the USPTO, OHIM and/or any other trademark granting authority, but not yet available to the public, (ii) information submitted to the USPTO, OHIM, and/or any trademark granting authority not properly indexed or recorded, or (iii) trademark information disclosed by the USPTO, OHIM and/or any trademark granting authority after the date stated on the trademark search.
8.4 Any assessments made by our system relating to the prior rights cited in a Trademark Search Report are based upon the system’s interpretation of the information you provided in your disclosure to us. Our system does not practice law; therefore you are encouraged to engage legal counsel to assess the documents we provide to you.
9. GENERAL DISCLAIMER OF WARRANTIES
9.1 YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. ONOMATICS DOES NOT MAKE ANY REPRESENTATION OR WARRANTY (i) AS TO THE ACCURACY, CORRECTNESS, COMPLETENESS OR USEFULNESS OF THE SERVICES OR ANY CONTENT APPEARING IN THE SERVICES AND IS NOT RESPONSIBLE FOR ANY ERRORS OR OMISSIONS IN THE SERVICES OR ANY CONTENT APPEARING IN THE SERVICES, OR (ii) GENERALLY FOR THE ACCURACY, RELIABILITY, OR QUALITY OF THE SERVICES OR ANY CONTENT APPEARING IN THE SERVICES. ONOMATICS IS NOT RESPONSIBLE FOR ANY FAILURES, DELAYS OR INTERRUPTIONS OF THE SERVICES. THE SERVICES ARE PROVIDED TO YOU “AS IS” AND ONOMATICS MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND TO YOU, EITHER EXPRESS OR IMPLIED. SPECIFICALLY, ONOMATICS DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, NON- INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
9.2 YOU ACKNOWLEDGE AND AGREE THAT UNDER NO CIRCUMSTANCES WILL ONOMATICS BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON THE SERVICES OR CAUSED BY YOUR CONDUCT. ONOMATICS DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE SERVICES, AND THE OPERATION OF THE SERVICES MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF OUR CONTROL.
10. LIMITATION OF LIABILITY
10.1 IN NO EVENT SHALL ONOMATICS BE LIABLE FOR ANY LOSSES, EXPENSES, COSTS, OR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION FOR LOST PROFITS OR BUSINESS, OR ANTICIPATED LOST PROFITS OR BUSINESS, EVEN IF ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. ONOMATICS’S OR ITS AFFILIATES’ AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY IN ANY CIRCUMSTANCE ARISING OUT OF OR RELATED TO THE SERVICES OR THIS AGREEMENT IS LIMITED TO USD 1,000 OR THE AMOUNT OF THE FEE PAID BY YOU FOR A PARTICULAR ORDER (WHICHEVER IS LESS).
10.2 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENCIAL OR PUNITIVE DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS IN SECTIONS 9 OR 10 HEREOF MAY NOT APPLY TO YOU.
You agree to indemnify, defend and hold Onomatics harmless from any claim, expense or demand, including without limitation reasonable legal fees, made by any third party due to or arising out of your breach of this Agreement, or your violation of any law or the rights of a third party.
12. Restrictions on Use of the Services
Customer may not alter, resell or sublicense the Services or provide it as a service bureau. Customer agrees not to reverse engineer the Services or their software or other technology. Customer will not use or access the Services to: (i) build a competitive product or service, (ii) make or have made a product using similar ideas, features, functions or graphics of the Services, (iii) make derivative works based upon the Service or the Onomatics Content or (iv) copy any features, functions or graphics of the Services or the Onomatics Content. Customer will not “frame” or “mirror” the Services. Use, resale or exploitation of the Services and/or the Onomatics Content except as expressly permitted in this Agreement is prohibited.
13. Additional Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Customer represents and warrants that it has not falsely identified itself or provided any false information to gain access to the Service and that Customer’s billing information is correct.
14. Customer Data and Privacy
14.2 All Customer Data submitted by Customer to Onomatics, whether posted by Customer or by Users, will remain the sole property and confidential information of Customer or such Users to the full extent provided by law.
14.3 Subject to the terms and conditions of this Agreement, Customer grants to Onomatics a non- exclusive limited license to use, copy, store, transmit and display Customer Data solely to the extent reasonably necessary to provide and maintain the Service for the Customer.
14.4 Onomatics may aggregate anonymous statistical data regarding use and functioning of its system by its various Users. Such aggregated statistical data will be the sole property of Onomatics.
14.5 Onomatics will use industry standard security measures to protect Customer Data against unauthorized disclosure or use.
15.1 “Confidential Information” means non-public information, technical data or know-how of a party and/or its affiliates, which is furnished to the other party in written or tangible form in connection with this Agreement. Oral disclosure will also be deemed Confidential Information if it would reasonably be considered to be of a confidential nature or if it is confirmed at the time of disclosure to be confidential.
15.2 Notwithstanding the foregoing, Confidential Information does not include information which is: (i) already in the possession of the receiving party and not subject to a confidentiality obligation to the providing party; (ii) independently developed by the receiving party; (iii) publicly disclosed through no fault of the receiving party; (iv) rightfully received by the receiving party from a third party that is not under any obligation to keep such information confidential; (v) approved for release by written agreement with the disclosing party; or (vi) disclosed pursuant to the requirements of law, regulation, or court order, provided that the receiving party will promptly inform the providing party of any such requirement and cooperate with any attempt to procure a protective order or similar treatment.
15.3 Neither party will use the other party’s Confidential Information except as reasonably required for the performance of this Agreement. Each party will hold in confidence the other party’s Confidential Information by means that are no less restrictive than those used for its own confidential materials. Each party agrees not to disclose the other party’s Confidential Information to anyone other than its employees or subcontractors who are bound by confidentiality obligations and who need to know the same to perform such party’s obligations hereunder. The confidentiality obligations set forth in this Section will survive for one (1) years after the termination or expiration of this Agreement.
15.4 Upon termination or expiration of this Agreement, except as otherwise agreed in writing or otherwise stated in this Agreement, each party will, upon the request of the disclosing party, either: (i) return all of such Confidential Information of the disclosing party and all copies thereof in the receiving party’s possession or control to the disclosing party; or (ii) destroy all Confidential Information and all copies thereof in the receiving party’s possession or control. The receiving party will then, at the request of the disclosing party, certify in writing that no copies have been retained by the receiving party, its employees or agents.
15.5 In case a party receives legal process that demands or requires disclosure of the disclosing party’s Confidential Information, such party will give prompt notice to the disclosing party, if legally permissible, to enable the disclosing party to challenge such demand.
16. Term and Termination
16.1 The Term commences immediately upon the electronic approval of this Agreement by the Customer using the Website. Onomatics, in its sole discretion, may suspend or terminate Customer’s username and password, account, or use of the Service and/or terminate this Agreement if Customer materially breaches this Agreement and such breach has not been cured within 30 business days of notice of such breach.
16.2 For specific Services under a written agreement in accordance with Section 6.2, the agreement period is specified in said agreement, and the agreement is perpetually renewed and invoiced automatically under the standard Onomatics terms and conditions and fee schedule in force at each time upon the conclusion of the agreement period, at which time the Customer may terminate the Agreement by not paying the amount invoiced.
16.3 In the event that this Agreement is terminated (for any reason), Onomatics will, within 5 days of a Customer’s request, make available one backup of the Customer Data in Onomatics’s standard format. Customer agrees and acknowledges that Onomatics has no obligation to retain and may delete Customer Data that remains in Onomatics’s possession or control more than 90 days after termination.
16.4 The following provisions will survive termination: all definitions, Customer’s accrued financial obligations, the license to Customer Data to the extent reasonable for Onomatics’s discharge of its post-termination obligations, and the following Sections and paragraphs under this Agreement: Section 2 (Definitions), Section 4 (Intellectual Property), 8, 9 and 10 (Disclaimers and Limitations), 11 (Indemnification), Section 12 (Restrictions on Use of the Service), Section 14 (Customer Data and Privacy), Section 15 (Confidentiality), Section 16.3 (Return of Customer Data), Section 16.4 (Survival of Provisions), Section 17 (Notice), Section 18 (Assignment), Section 19 (Arbitration and Governing Law) as well as 20 (General).
Onomatics may give notice by means of electronic mail to Customer’s email address on record in Customer’s account or by written communication sent by first class mail or by courier service to Customer’s address on record in Customer’s account. Such notice will be deemed to have been given upon the expiration of 36 hours after mailing (if sent by first class mail) or sending by courier or 12 hours after sending (if sent by email), or, if earlier, when received. Customer may give notice to Onomatics by email to email@example.com. A party may, by giving notice, change its applicable address, email, or other contact information.
This Agreement may not be assigned by Customer without the prior written approval of Onomatics but may be assigned by Onomatics to (i) a parent or subsidiary, (ii) an acquirer of all or substantially all of Onomatics’s assets involved in the operations relevant to this Agreement, or (iii) a successor by merger or other combination. Any purported assignment in violation of this Section will be void. This agreement may be enforced by and is binding on permitted successors and assigns.
19. Arbitration and Governing Law
Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or validity thereof shall be finally settled by arbitration in accordance with the Rules of the Arbitration Institute of the Finland Chamber of Commerce. The place of arbitration is Helsinki, Finland. The arbitral tribunal is composed of one arbitrator. The language of arbitration is English. This Agreement shall be governed by the law of Finland, excluding conflict of laws provisions thereof.
If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. You agree that this Agreement may be assigned by Onomatics, at its sole discretion, to a third party. Section headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. This Agreement, along with any other terms and conditions regulating use of the Services, sets forth the entire understanding and agreement between us with respect to the subject matter hereof. The provisions of this Agreement and any ancillary terms and conditions will survive termination or expiration to the extent necessary to carry out the intentions of the parties.
21. Contact Us
If you have any questions or concerns regarding the Services, please contact us by e-mail at firstname.lastname@example.org or write to us at Onomatics Inc., Mikonkatu 17 B, FIN-00100 Helsinki, Finland.
Last Modified: May 2014