CORSEARCH MAY CHANGE, ADD OR REMOVE ANY PART OF THE AGREEMENT AT ANY TIME. SUCH CHANGES SHALL BE POSTED ON THE CORSEARCH WEBSITE AT WWW.CORSEARCH.COM. IF ANY FUTURE CHANGES ARE UNACCEPTABLE TO YOU, YOU SHOULD DISCONTINUE USING THE SERVICES. YOUR CONTINUED USE OF THE SERVICES NOW, OR FOLLOWING THE POSTING OF NOTICE OF ANY SUCH CHANGES, WILL INDICATE YOUR ACCEPTANCE OF THESE TERMS, AND OF ANY SUCH CHANGES.
The provision of the Trademark Clearinghouse Services are subject to the Terms and Conditions set forth below (“Agreement”).
You are referred to as “Customer” or “Trademark Holder” and Corsearch, Inc. herein referred to as “Corsearch” or “Trademark Agent” in this Agreement. Customer and Corsearch are sometimes referred to herein individually as a “Party” or together as the “Parties”.
1.1 Trademark Clearinghouse Services. Corsearch shall provide the trademark clearinghouse services to Customer as set forth in Exhibit A, in accordance with the terms of this Agreement, and as may be amended or modified from time to time as permitted hereunder (collectively, the "Trademark Clearinghouse Services" or “Services”). The provision of the Trademark Clearinghouse Services are further subject to the Terms and Conditions of the User Agreement and such Terms and Conditions are hereby incorporated into and made a part of this Agreement.
1.2 Accuracy of Information. Customer acknowledges and agrees that the performance of the Trademark Clearinghouse Services is dependent on the timely completion of the Customer’s responsibilities and obligations under this Agreement. Customer will be responsible for the timely preparation, delivery, accuracy and completeness of all required documentation and other information (including the Trademark Records (as defined below)) provided to Corsearch in connection with the Trademark Clearinghouse Services and shall provide Corsearch with any changes or updates related to such Trademark Records and other documentation. The implementation of any such updates or changes may be subject to additional charges/fees. Customer will also be responsible for the consequences of any instructions Customer may give to Corsearch.
1.3 Third Party Provider. Customer acknowledges and agrees that the Trademark Clearinghouse Services provided by Corsearch under this Agreement will be provided through a third party (“Third Party Provider”) and that Corsearch will be acting on behalf of Customer as its Trademark Agent in connection with the Trademark Clearinghouse Services. As a condition to receive the Trademark Clearinghouse Services, (i) Customer is required to execute the Trademark Agent Authorization attached hereto as Exhibit B authorizing Corsearch to act on Customer’s behalf in submitting information concerning the trademark or other mark of Customer (“Trademark Records”) for inclusion in the trademark clearinghouse of the Third Party Provider (the “Trademark Clearinghouse”) and (ii) Customer’s Trademark Records has to be accepted for inclusion in the Trademark Clearinghouse by the Third Party Provider. Corsearch shall be Customer’s sole point of contact with respect to the Trademark Clearinghouse Services, and Customer shall not contact or deal directly with the Third-Party Provider in connection with the Trademark Clearinghouse Services or this Agreement.
2. THE TERM . This Agreement is effective as of the Effective Date and shall remain in effect until the first anniversary of the Effective Date in accordance with the terms of this Agreement (the “Initial Term”). After the Initial Term expires, this Agreement shall automatically renew for additional one year periods (each a “Renewal Term”) unless terminated by either party in accordance with the terms of this Agreement. The Initial Term and each subsequent Renewal Term shall be referred to herein as the “Term.”
3.1 Termination for Cause. Either party may terminate this Agreement by written notice to the other party if (i) such other party fails to perform any material obligation (including, with respect to Customer, the payment of amounts owed hereunder) and such failure continues for 30 days after the breaching party receives written notice from the other party, or (ii) a bankruptcy related event occurs with respect to such other party.
3.2 Termination for Convenience. Either party may terminate this Agreement at any time, without cause, upon 60 days prior written notice to the other party.
3.3 Effect of Termination. In the event of any such terminations, the following shall apply:
3.3.1 Customer will pay Corsearch for Trademark Clearinghouse Services provided under this Agreement to Customer up through the date of termination;
3.3.2 All rights granted to Customer under this Agreement by Corsearch will be terminated and Customer’s access to the Trademark Clearinghouse Services will cease;
3.3.3 All Trademark Records will be deactivated from the Trademark Clearinghouse in accordance with the Third-Party Provider’s policy;
3.3.4 Corsearch will cease acting as Trademark Agent of Customer;
3.3.5 Each Party shall return or destroy the Confidential Information of the other Party in its possession; provided, however, neither Party shall be required to return or destroy copies of any Confidential Information which have been created pursuant to any automatic archiving, back-up or disaster recovery procedures (including backup tapes), provided, further that such Confidential Information shall be kept confidential in accordance with Section 6 below; and
3.3.6 Customer shall no longer have access to its Sunrise registration keys (SMD Files).
4. FEES AND PAYMENT TERMS. For Trademark Clearinghouse Services performed by Corsearch under this Agreement, Customer hereby agrees to pay Corsearch the applicable fees for the Trademark Clearinghouse Services as set forth on the Order Form or otherwise provided to Customer by Corsearch in accordance with the payment terms set forth herein. Corsearch shall submit to Customer a reasonably detailed invoice which will set forth the fees charged for the Trademark Clearinghouse Services, consistent with the terms of this Agreement. Customer agrees to pay Corsearch the applicable invoice amount within thirty (30) days of receipt of such invoice.
5. TAXES. Unless otherwise provided in the Agreement, Customer shall pay all sales, consumer, use and similar taxes in connection with the Trademark Clearinghouse Services, provided, however, Customer shall not be responsible for the payment of any taxes on Corsearch’s net income.
6.CONFIDENTIAL INFORMATION AND TRADE SECRETS
6.1 Confidential Information. “Confidential Information” includes all trade secrets, processes, proprietary data, pricing, technology and product information, client data or lists, business and any other proprietary or confidential information provided by the disclosing Party to the receiving Party in connection with this Agreement, but excludes any information which: (a) is generally available to the public through no fault of the receiving Party or any of its Subsidiaries, other Affiliates, directors, officers, employees, contractors, subcontractors, or other agents (collectively, a Party’s “Representatives”); (c) is or becomes available to the receiving Party through a source other than the disclosing Party or its Representatives that is not known or reasonably believed to have any legal, contractual or fiduciary duty of confidentiality; or (d) is or has been developed by the receiving Party independently of the disclosing Party or any of its Representatives and their respective Confidential Information.
6.2 Treatment of Confidential Information. Each Party covenants and agrees that it will keep and maintain all Confidential Information of the other Party in strict confidence, using such degree of care as is appropriate and reasonable to avoid unauthorized use or disclosure (including but not limited to reasonable technical and procedural safeguards and policies), it will not disclose the other Party’s Confidential Information to any third party, except with disclosing Party’s prior written consent and it will use and disclose Confidential Information of the other Party solely for the purposes set forth in this Agreement. In the event either Party receives a subpoena or other validly issued administrative or judicial process demanding Confidential Information of the other party, the receiving Party shall promptly notify the other Party and cooperate with such other Party, at its cost and expense, in such other Party’s efforts to avoid, limit the required disclosure of or otherwise request confidential treatment for any such Confidential Information. Unless the demand shall have been timely limited, quashed or extended, then notwithstanding the confidentiality terms in this Section 6, the receiving Party shall be entitled to comply with such demand as, when and to the extent required or permitted by law; provided the receiving Party shall only provide such Confidential Information as is required to be disclosed.
7. OWNERSHIP RIGHTS. Customer shall retain title to and all ownership rights in any data, documentation or materials, including without limitation, Trademark Records, delivered by Customer to Corsearch as part of the Trademark Clearinghouse Services or otherwise pursuant to this Agreement. Customer hereby grants to Corsearch and the Third-Party Provider a non-exclusive, transferable, sub-licensable, royalty free, worldwide license to use any data submitted by Customer, including but not limited to the Trademark Records, for the purpose of performing the Trademark Clearinghouse Services. All ownership and intellectual property rights in the Trademark Clearinghouse Services and products (including related tutorials and documentation) provided or made available to Customer by Corsearch as a part of the Trademark Clearinghouse Services (including all improvements, enhancements, modifications or updates) (“Corsearch Products”) shall remain the exclusive, sole and absolute property of Corsearch or the third parties from whom Corsearch has obtained the right to use the Corsearch Products. Intellectual property created by Corsearch pursuant to this Agreement shall be owned by Corsearch. Customer shall have a personal, non-transferable, non-exclusive, right to access and use the Corsearch Products in connection with the Trademark Clearinghouse Services solely for the internal business purposes of Customer during the Term. Customer shall not permit any third party to use the Trademark Clearinghouse Services or Corsearch Products in any way whatsoever without the prior written consent of Corsearch.
8. DISCLAIMER. CORSEARCH PROVIDES THE SERVICES AND ANY RELATED DOCUMENTATION, SOFTWARE OR EQUIPMENT ON AN “AS IS” AND AN “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER WRITTEN, ORAL, EXPRESS OR IMPLIED. THEREFORE, CORSEARCH DISCLAIMS AND EXCLUDES ANY AND ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF QUALITY, TITLE, NON-INFRINGEMENT, MERCHANTABILITY, SUITABILITY AND FITNESS FOR A PARTICULAR PURPOSE, IRRESPECTIVE OF ANY COURSE OF DEALING OR PERFORMANCE, CUSTOM OR USAGE OF TRADE. CORSEARCH FURTHER EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION TO CUSTOMER OR TO ANY THIRD PARTY. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE AND SUITABILITY OF THE SERVICES AND THEREFORE, CORSEARCH SHALL HAVE NO LIABILITY. NO EMPLOYEE, AGENT OR CONTRACTOR OF CORSEARCH OR ANY OF ITS SUBSIDIARIES OR AFFILIATES IS AUTHORIZED TO MAKE ANY STATEMENT THAT ADDS TO OR AMENDS ANY OF THE WARRANTIES OR LIMITATIONS CONTAINED IN THIS AGREEMENT.
9. INDEMNIFICATION. Customer agrees to be responsible for and indemnify and defend Corsearch and any subsidiaries, Affiliates, directors or employees of Corsearch, from and against any and all claims, loss, damages, expense, liability or judgment (including reasonable attorneys’ fees, costs and settlements) based upon or arising out of: (a) any acts or omissions by Customer or any Customer Representative that involve fraud, willful misconduct and/or criminal acts or omissions, whether or not such acts or omissions relate to the Trademark Clearinghouse Services; (b) any breach of this Agreement by Customer or Customer Representative, or (c) incorrect or outdated information submitted by Customer which is maintained in the Trademark Clearinghouse.
10. LIMITATION OF REMEDIES/DAMAGES. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NEITHER PARTY HERETO SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL LOSSES OR DAMAGES (INCLUDING LOSS OF PROFITS, REVENUES, SAVINGS, BUSINESS OR DATA), REGARDLESS OF THE FORM OF THE CLAIM OR ACTION (WHETHER BASED ON CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT, STATUTE OR ANY OTHER LEGAL THEORY) AND EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBLE EXISTENCE OF SUCH LOSSES OR DAMAGES. CORSERACH DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM THE ACTS OR OMISSIONS OF THE THIRD PARTY PROVIDER PERFORMING THE SERVICES. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, CORSEARCH’S TOTAL LIABILITY WITH RESPECT TO THE PROVISION OF TRADEMARK CLEARINGHOUSE SERVICES HEREUNDER SHALL NOT EXCEED THE FEE PAID BY CUSTOMER TO CORSEARCH FOR THE AFFECTED SUBMISSION IN QUESTION.
11. INJUNCTIVE RELIEF In the event either Party reasonably concludes that an actual or impending breach of Section 6 or Section 7 exists, such non-breaching Party, in addition to any remedy available at law, will be entitled to seek equitable relief, including injunctive relief.
12. ASSIGNMENT. This Agreement is not assignable by either Party without the prior written consent of the other which consent shall not be unreasonably withheld. Notwithstanding anything to the contrary in this Agreement, either party may assign this Agreement in whole or in part and/or any of its rights, licenses, duties and/or obligations hereunder, upon written notice to the other party and without the other party’s consent, to any of its parent companies, or to any of its and/or their Affiliates, subsidiaries and business divisions, or in connection with a reorganization, demutualization or change of control of a party, a business unit, division or line of business; provided that any such assignment shall not release the assigning party from its obligations under this Agreement. This Agreement is binding upon the Parties’ respective successors and permitted assigns.
13. COMMUNICATIONS. All notice requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given: (a) on the date of service if served personally on the party hereto to whom notice is to be given; (b) on the day after delivery to Federal Express or similar overnight carrier or the Express Mail Service maintained by the United States Postal Service; or (c) on the fifth day after mailing, if mailed to the party to whom such notice is to be given, by first class mail, registered or certified, postage prepaid and properly addressed, to the Party as follows: (i) if to Corsearch, Inc., 220 West 42nd Street, 11th Floor, New York, NY 10036, Attention: General Counsel, and (ii) if to Customer, at the address set forth in the Order Form. Any Party hereto may change its address for the purpose of this Section by giving the other party written notice of its new address in the manner set forth above.
14. SURVIVAL; SECTION HEADINGS. All provisions hereof relating to proprietary rights, confidentiality and non-disclosure, indemnification and limitation of liability shall survive the completion of the Trademark Clearinghouse Services or any earlier termination, expiration or rescission of this Agreement. The section headings are used in this Agreement for reference and convenience only and do not affect this Agreement’s construction or interpretation.
15. PUBLICITY. Neither Party shall use the name, trademark, service mark, trade name, logo or other commercial or product designations of the other Party in any way, in print or electronic format or on a web or internet site, without the prior written consent of the other Party in each instance; unless it relates directly to the provision of Trademark Clearinghouse Services hereunder.
16. APPLICABLE LAW; FORUM; WAIVER OF TRIAL BY JURY. The laws of the New York govern all matters arising under or relating to this Agreement and all of the transactions it contemplates, including, without limitation, its validity, interpretation, construction, performance and enforcement, excluding any laws of such state which would render the selection of New York law ineffective. The parties further agree that the Uniform Computer Information Transactions Act (UCITA) does not apply to this Agreement. Any party bringing a legal action or proceeding against any other party arising out of or relating to this Agreement shall bring the legal action or proceeding in the courts of the State of New York sitting in New York City. Each Party waives, to the fullest extent permitted by law, (a) any objection which it may now or later have to the laying of venue of any action or proceeding arising out of or relating to this Agreement brought in such New York City courts; and (b) any claim that any action or proceeding brought in any such court has been brought in an inconvenient forum. EACH PARTY, TO THE EXTENT PERMITTED BY LAW, HEREBY WAIVES ITS RIGHT TO A TRIAL BY JURY.
17. SEVERABILITY. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal or unenforceable under any applicable statute or rule of law, such provision is to that extent deemed omitted, and the balance of the Agreement remains in full force if the essential terms and conditions of this Agreement for each Party remain valid, binding and enforceable.
18. MODIFICATIONS; WAIVER. Corsearch reserves the right at any time to modify this Agreement and to impose new or additional terms or conditions on your use of the Trademark Clearinghouse Services. Such modifications and additional terms and conditions will be effective immediately and incorporated into this Agreement. Your continued use of the Trademark Clearinghouse Services will be deemed acceptance thereof. A Party may not waive a right or remedy except pursuant to a writing executed by such party. No failure or delay in exercising any right or remedy or requiring the satisfaction of any condition under this Agreement, and no course of dealing between the Parties, operates as a waiver or estoppel of any right, remedy or condition.
19. FORCE MAJEURE. Neither Party shall be liable for failure or delay in the performance of its obligations hereunder when such failures or delay is caused by events or causes beyond the control of such Party, including, without limitation, any of the following events, acts of God, extreme weather, natural calamities, labor strikes or unrest, terrorist attacks, government actions, power outages and disruptions in communication lines.
20. EXHIBITS. All exhibits, schedules, and attachments to this Agreement are incorporated into this Agreement by reference and made a part of this Agreement.
21. NO THIRD-PARTY BENEFICIARIES. Nothing in this Agreement creates or will be deemed to create, third party beneficiaries of or under this Agreement.
22. INDEPENDENT CONTRACTOR STATUS. Each party to this Agreement hereby agrees, and represents and warrants that it is an independent contractor and is not the other party’s agent or employee or partner or joint venture for any purpose whatsoever.
23. COUNTERPARTS. This Agreement may be executed by the Parties in separate counterparts by original, .pdf (or similar format for scanned copies of documents) or facsimile signature, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument.
24. ENTIRE AGREEMENT. This Agreement, together with the exhibits, schedules, and attachments and all terms and conditions incorporated by reference, constitutes the entire agreement between the Parties in connection with the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, of the parties, and there are no warranties, representations and/or agreements between the parties in connection with the subject matter hereof except as set forth in this Agreement. Neither Party shall be bound nor liable to the other Party for any representation, warranty, promise, covenant or understanding made by any agent, employee or other person that is not embodied or incorporated by reference in this Agreement.
TRADEMARK CLEARINGHOUSE SERVICES
A. DESCRIPTION OF TRADEMARK CLEARINGHOUSE SERVICES
1. Description of the Trademark Clearinghouse Services :
Corsearch will be offering the Trademark Clearinghouse Services using the Trademark Clearinghouse of a Third-Party Provider. The Services are designed to assist Customers with placing Customer’s registered trademarks into the Trademark Clearinghouse.
Customers who have their trademarks successfully validated by the Third Party Provider will have the option to take part in the following services (“Trademark Clearinghouse Services”):
Sunrise Services: Sunrise Services are offered during a “Sunrise Period” which is an initial pre-registration period of at least 30 days before domain names are offered to the general public. Trademark Holder can take advantage of the Sunrise Period to safeguard the domain name that matches their trademark. A Sunrise Period is mandatory for all new generic top-level domain names (“gTLDs”), and having a validated trademark entry in the Trademark Clearinghouse is the minimum requirement to participate in this limited pre-registration period. Each successfully validated mark will be given a signed mark data file (“SMD”) that will allow Trademark Holder to take part in new gTLD Sunrise Periods. These SMDs will be provided to Corsearch by the Third-Party Provider via the application programming interface between Corsearch and the Third-Party Provider (“API”) and will be housed on Corsearch’s website for customers to access.
Trademark Claims Services: The Trademark Claims Service follows the Sunrise Service. It is a notification service mandated by ICANN for all new gTLDs to warn both domain name registrants as well as trademark holders of possible infringements. The Trademark Claims Service works as follows:
A potential domain name registrant gets a warning notice when attempting to register a domain name that matches a Trademark Holder’s trademark term in the Trademark Clearinghouse. If, after receiving and accepting the notice, the domain name registrant does continue to register the domain name which matches Trademark Holder’s trademark in the Trademark Clearinghouse, Trademark Holder will receive notification of the domain name registration as set forth below. The Trademark Clearinghouse will not prevent a third party from registering Trademark Holder’s trademark as a domain. These alerts will be available for review on the Corsearch.com website, and an email notification will be sent to Trademark Holder once a claims notice is received by Corsearch from the Third-Party Provider. Upon receipt of the alert, it is the Trademark Holder’s responsibility to take appropriate action.
2. Process for Receiving Trademark Clearinghouse Services:
In order to receive the Services, Client shall be required to submit an order to Corsearch. Client shall submit its order via the Corsearch.com website or a printed Order Form available from Corsearch. Valid and complete orders are then forwarded by Corsearch to the Third-Party Provider for validation. Prior to Corsearch submitting any orders to the Third-Party Provider for validation, Customer is required to print, sign and submit to Corsearch the Trademark Agent Authorization, the form of which is attached to this Agreement as Exhibit B. Customer shall also be responsible for ensuring that all accurate information and other necessary documentation is properly submitted with their order.
Once an order is submitted to the Third-Party Provider by Corsearch, the Third Party Provider will validate the trademark information provided by Customer. Additional information or documentation may be requested by the Third-Party Provider to complete a validation, which Corsearch will relay to the Customer via an email notification and/or via the corsearch.com website. Customer shall be responsible for providing the requested information within the timeframe required by Third Party Provider (currently 20 days). Customer will have the ability to track the status of their submissions online via Corsearch’s website as provided to Corsearch via the API by the Third-Party Provider. .Corsearch does not guarantee the successful validation of trademark submitted to the Third Party Provider. If for any reason a trademark is not successfully validated, a new order must be submitted and Customer will be required to pay the stated Corsearch fee in connection with such resubmission.
Trademark Clearinghouse Services will only be available for the new gTLDs that are starting to launch this year, not for the already existing 23 gTLDs (.com, .net. etc.) or 250+ ccTLDs (country code top level domains), like .us, .eu. Although this service could be extended to include these already existing TLDs down the line.
3. Annual Revalidations :
All Trademark Records in the Trademark Clearinghouse are subject to annual revalidation. Customer will be notified in advance of upcoming renewals, and it will be the Customers responsibility to (i) re-verify that their Trademark Records are up to date and (ii) request the renewal of their trademarks through the corsearch.com platform. Corsearch shall not be held responsible for any trademarks that are not renewed in a timely fashion, or for resubmission costs that may be incurred for non-renewed trademarks. Customer will have access to review their trademarks and expiration date information, as provided by Third Party Provider, via the corsearch.com platform.
Once a renewal request is submitted, the Third-Party Provider will be responsible for re-verifying the trademark data and extending the life of the submission.
B. RESPONSIBILITIES MATRIX
Set forth below is a Responsibilities Matrix setting out certain responsibilities and obligation of Customer, Corsearch and the Third-Party Provider in connection with the Trademark Clearinghouse Services. The provision of the Services by Corsearch will be dependent on Customer’s completion of its responsibilities and obligations set forth below and in this Agreement.
|Third Party Provider|
|A. Pre-Service Tasks|
|1. Complete Order Form||v|
|2. Execute Trademark Agent Authorization Form||v|
|3. Provide a Connection to Third Party Provider for Order Submissions||v|
|4. Relay communications from Third Party Provider to Customer||v|
|5. Receive and Validate Customer Submissions||v|
|6. Handle Payment to Third Party Provider||v|
|7. Ensure Accuracy of all Trademark Information Provided||v|
|8. Provide Necessary Documentation for Submissions||v|
|9. Ensure that Trademark Owner Information Matches Current Trademark Record||v|
|B. Ongoing Services|
|1. Complete Correction Requests within the 20 Day Timeframe||v|
|2. Provide Access to SMD Files (Sunrise Keys)||v|
|3. Ensure that all Trademark Records Remain Updated||v|
|4. Provide Notification on Up-Coming Renewals||v|
|5. Track Claims Notifications||v|
|6. Provide Access to Claims Notifications Received||v|
|7. Take Action on a Claims Notification||v|
|8. Renew validated submissions||v|