General

Markify is an online trademark filing service for assisting trademark applicants in the filing and prosecution of trademark applications. Please read these Terms of Service carefully as they form the basis by which you can use our website www.markify.com.au and our services ("the Service") and regulate any agreements between us (IP Monitor PTY LTD ACN 149 150 309 ("Us, We, Our") 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.

Formation of a binding contract

By placing an order through www.markify.com.au you are offering to contract with us for the supply of paid for trade mark services. Upon receipt of your order, our system will send you an automated e-mail address confirming receipt of your order and the details of your order for your review.

However, 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. 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 e-mail confirmation from us that we have accepted your order can you consider your order accepted. Our acceptance of your order creates a legally binding contract between us.

We reserve the right not to accept your order at our sole discretion.

Costs

Please note that, having made an application, there are further fees and costs in relation to your trademark application.

Future costs include 1) the government application fee payable once we have reviewed your application and before we file your application with the government and 2) registration fees payable in about 4 months time.

Additional costs may be payable too. For example, in the unlikely event of the acceptance of your trademark application being opposed by a third party and you wish to defend your application, there may be additional costs involved in defending your application.

In certain circumstances, we may refer work to a third party, especially contentions matters or a local agent in respect of foreign applications. In such a case, the fees and costs are at the third parties discretion are out of our control.

Please familiarise yourself with any such further costs on our pricing page at www.markify.com.au/info/trademark_pricing.

Payment of invoices

All invoices which we send to you are due upon receipt and you may not set off against, or deduct from the invoice, any sums owed or claimed to be owed to you by us nor to withhold payment of any invoice because part of that invoice is in dispute.

Payment may be made by cash, cheque, bank cheque, credit card, direct credit, or by any other method as agreed between you and us.

Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of one percent (1%) per calendar month.

In the event that your payment is dishonoured for any reason then you shall be liable for any dishonour fees incurred by us.

You indemnify us from and against all costs and disbursements incurred by us in pursuing any debt owed by you to us, including legal costs on a solicitor and own client basis and our collection agency costs.

If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) 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.

In the event that a Limited Company is unable to meet its liability in respect of our fees as and when they fall due, then the company’s directors are personally, jointly and severally liable in respect of our outstanding fees.

We will normally send invoices for funds in advance to cover our out-of-pocket expenditure, including but not limited to payment of official fees and disbursements to overseas associates.

Payment transactions

Payment must be made using credit card. We use an industry leading payment processing gateway to process our to perform payment transaction and do no store or handle your credit card credentials in our system.

When receiving a payment our payment processing gateway sends us a secure customer token which we will record against your application. We use this secure customer token for the purposes of initiating further payments in relation to your trademark application, saving your having to initiate a payment yourself each time, such as by re-entering your credit card credentials or making payment by way of bank transfer. This efficiency is one of the ways in which Markify is able to offer the most cost effective trademark registration costs in Australia.

These future payments which we will initiate using your secure customer token include the official govt. application fees payable at the time of filing and our and the govt. registration fee which becomes payable in about 4 months time.

By making an application with us, you irrevocably authorise us to process the govt. application fee prior to the filing of your application and the registration fees using your secure customer token. For any other fees which we intend to process using your customer token, we will seek yoour authority in advance.

No guarantee as to registration

You should be aware that registerability of trade marks and not always certain and depends on a number of factors, including the similarity of your mark to other marks, your mark's capability to distinguish and the like. Furthermore, the examination practice is not always consistent.

As such, while the Markify software and our systems are adapted to maximise the probability of registration of your application, you should be aware that we cannot guarantee or promise the registration of your trademark application.

As such, you should not invest significant time or money in a venture until your trademark is registered in case you are unable to obtain the registration of your trademark.

Markify Searching

During the configuration of your trademark using our website, our software will conduct an availability search to identify potentially conflicting trademarks that may cause problems for your application during examination.

While our searching algorithm is sophisticated, Markify does not guarantee that our searching algorithm will always identify potentially conflicting trademarks. As such, Markify does not guarantee or warrant that your trademark is available.

Specifically, the Markify trademark search searches for direct hit trademarks. However, your trademark may still be rejected by an Examiner during examination if your trademark is similar to another trademark, such as by sounding like the another trademark or being a spelling variation. Furthermore, your trademark may be rejected for other reasons, such as where your trademark is too descriptive of your goods and services and is therefore incapable of distinguishing.

For logo trademarks, the Markify software does not search for existing trademarks. If your logo comprises words, you should first consider using the word trademark process to search for existing trademarks.

Cancellation and amendment

At the time of checkout you will be provided the opportunity to review your trademark application to ensure that the application is correct and contains no errors. You are responsible for ensuring the application information is correct.

You must let us know in writing (such as by email) if you wish to cancel or amend your order and please wait for confirmation from us before assuming that we have received your instructions. If we do not confirm your instructions within a reasonable time, please contact us again.

Your right to cancel or amend ends once we have begun to carry out your order. For example, where we accept your order to file a trademark application, such filing occurs typically within 24 hours. In the event of cancellation or amendment, you may be liable for any costs, expenses or losses incurred in our carrying out your order including any costs or expenses arising from any contract with or instructions to third parties or agents for the purpose of performing your order.

Your right to a refund of your application fees ends once we have reviewed your application and sent you our pre-filing reporting letter.

Furthermore, our registration fees, while only becoming due in about 4 months time, represents the work in our managing your trademark application through to registration which includes our standing in as your address for service, receiving and forwarding (with our advice) official correspondence on your behalf, including the receipt and forwarding of your filing receipt, early notice of acceptance, notice of acceptance and registration certificate, the monitoring of deadlines, advising in the instance your application is opposed by a third party and the payment of your official registration fee. As such, if you don't wish for us to perform this work, you must let us know prior to our commencing this work.

Once we have filed your application changes or additions to the specification cannot be made. We accept no liability for filing of your specification as instructed.

Confirmation of instructions having been carried out

We always send out email confirmation of having carried out your instructions. As such, if you do not receive such confirmation, you are not to assume that such work has been carried out. We are not liable for any delays for any work you have assumed to have been carried out but has not. If you believe that work may not have been carried out including in accordance with a misunderstanding of instructions, you must send us a query within a reasonable time to clarify.

Disclaimers & limitations of liability

If you do not receive notification by e-mail of our acceptance of your order within 30 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 60 days of the date on which you placed your order. 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 for us in question.

You are responsible for complying with the applicable regulations and legislation to register your trade mark. You irrevocably authorise us to lodge on your behalf, others individuals or bodies all documents necessary with 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.

While we have taken care in the preparation of our content, including for any prices mentioned therein, we reserve the right to accept your order in the event of material error in the description or the relevant prices as advertised by us.

Furthermore, time frames mentioned by us are approximate only.

Our services are limited to providing trade mark search and application services. Any other service suggested or implied by us is unintentional.

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.

Any information we provide, or that of our agents, is not legal advice and should not be taken as a substitute for informed legal opinion. Furthermore, we are not responsible for any loss or damage resulting from the action taken or refrained from as a result of advice given by us or our agents.

You accept that we may use agents and third parties in providing us to you.

You accept that our acceptance or non acceptance of your order is non-prejudicial to the registerability of your mark as a trade mark.

Our liability is limited to direct damages up to the amount of the price paid by you for our services, excluding any Government fees already paid. We shall not be liable for any special, indirect or consequential loss or damage whatsoever, whether caused by our negligence or otherwise, which arises out of or in connection with the supply of our service.

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 us 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.

Use of our services is provided on an "as is" basis; to the maximum extent permitted by law, we disclaim all representations and warranties, express or implied, with respect to any information, services, products and materials, including, but not limited to, warranties of fitness for a particular purpose, title, non-infringement, freedom from computer virus and implied warranties arising from course of dealing or course of performance. In addition, we do not represent or warrant that the information accessible via us is accurate, complete or current.

This disclaimer of liability applies to any damages or injury caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction or unauthorized access to, alteration of, or use of record, whether for breach of contract, tortious behavior, negligence, or under any other cause of action. You specifically acknowledge that we are not liable for the defamatory, offensive or illegal conduct of other users or third-parties and that the risk of injury from the foregoing rests entirely with you.

In no event will we be liable for any damages, including, without limitation, direct, indirect, incidental, special, consequential or punitive damages arising out of the use of or inability to use us. You hereby acknowledge that the provisions of this section shall apply to all content provided by us.

In addition to the terms set forth above neither, we, nor our affiliates, information providers or content partners shall be liable regardless of the cause or duration, for any errors, inaccuracies, omissions, or other defects in, or untimeliness or unauthenticity of, the information contained on us, or for any delay or interruption in the transmission thereof to you, or for any claims or losses arising therefrom or occasioned thereby. None of the foregoing parties shall be liable for any third-party claims or losses of any nature, including, but not limited to, lost profits, punitive or consequential damages. Neither, we, nor our affiliates, information providers or content partners warrant or guarantee the timeliness, sequence, accuracy or completeness of this information. Additionally, there are no warranties as to the results obtained from the use of the information.

Communication

You agree that email communication is the preferred method of concluding agreements with us. 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.

We are not responsible for communications that are not received by you if you have not updated your email address or contact details with us, or you have failed to check your email, or if the email does not reach you for any other reason. Emails sent to you will be deemed to have been received at the time that appears on our “sent” notification.

We reserve the right to act in your best interests, such as either by not acting until we receive your further instructions to proceed or acting on your behalf without further input from you, in the absence of your instructions within a reasonable period. Furthermore, we accept no liability for the filing of an application filed in accordance with your instructions.

Privacy Policy

All documents related to your application and the bibliographic information of your application including the name and address of the applicant will be published, including in the official trademarks journal and various databases and websites. Unless you inform us in writing before your application is filed, we reserve the right to provide details of your application on our website and marketing documentation.

We use Google Analytics to collect information about your usage of our website to help us improve the quality of our service. If you wish to be excluded from such collection of data, please install the Google Opt-out addon/extension for your browser.

Any information provided by you will be used for the purposes of processing your orders; for the purposes of advising you of the status of your orders, including of any convention deadlines; for statistical purposes to improve our services to you; to serve content and promotions to you during your visit; to administer www.markify.com.au; and with your consent, to notify you via email of products or special offers that may be of interest to you. You agree that you do not object to us contacting you for any of the above purposes whether by telephone, e-mail or in writing and you confirm that you do not and will not consider any of the above as being a breach of any of your rights.

As our privacy policy may change from time to time, we invite you to check this privacy policy frequently for any updates or changes.

Information provided by us

The information provided by us not in the nature of legal or other professional advice.

The information provided by us is derived from third parties and may contain errors. 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.

Invalidity

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.

Eligibility

You agree that they you are eligible to enter into binding legal contracts and that they are at least 18 years old. We reserve the right to perform your orders for perceived violation of this provision.

Disputes

Any dispute or difference whatsoever arising out of or in connection with us shall be submitted to arbitration in accordance with, and subject to, The Institute of Arbitrators & Mediators Australia Rules for the Conduct of Commercial Arbitrations

Applicable Law / Severability Clause

These Terms and your use of the Service shall be governed by the laws of the Australia and the State New South Wales without regard to its conflicts of laws principles. Any legal action or proceeding related to us shall be brought exclusively in a court of competent jurisdiction sitting in Sydney.

The contract between us and you is binding on the parties and on your respective successors and assigns. You may not transfer, assign, charge or otherwise dispose of any contract formed under these Terms or any of your rights or obligations without Our prior written consent.

We have the right to revise and amend our Terms from time to time at its absolute discretion but for reasons including but not limited to changes in market conditions affecting our business, changes in technology, changes in payment methods, changes in relevant laws and regulatory requirements and changes in our system capabilities.

The content of the Service may be protected by copyright laws and treaties around the world and all rights relating to the same are reserved. You may not modify any paper or digital copies of any materials printed or downloaded. You must also not use any illustrations, photographs, video or audio sequences or any graphics separately from any accompanying text. You must not use any part of the materials available on us for commercial purposes.

This Agreement 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. This Agreement shall be construed in accordance with the laws of the Australia, without regard to its conflict of laws rules. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import.