Terms & Conditions
(English 08/2020)

GENERAL TERMS AND CONDITIONS

 

1. General

1.1. SAMT Aktiengesellschaft (hereinafter referred to “SAMT AG”) is a corporation incorporated and domiciled in Switzerland. Under the website tm.legal the legal branch of SAMT AG is providing the legal service of trademark registration. The contract is concluded with the SAMT AG in Schaffhausen (Switzerland).

1.2. The following terms and conditions apply to all contracts that are concluded with a user (hereinafter referred to “Client”) via the online platform www.tm.legal (hereinafter referred to “platform”).

1.3. This B2B offer on the platform is aimed at companies and not at consumers.

 

2. Object of the contract and scope of services

 2.1. The subject matter of the contract and the scope of services depend on which activity the Client books through the platform. Some packages include consulting or legal services, other packages are on a “just execution” basis. 

2.2. The packages contain standardized services that SAMT AG offers at a flat fee. Details of the price and services can be found in the description of the packages under tm.legal. 

2.3. The core of the service to be provided is the preparation and submission of the trademark application. The achievement of a certain success, in particular the successful registration of an industrial property right, is not owed. Especially for the “just execution” packages without legal consulting SAMT AG is using the information provided by the client and should not be hold responsible for any circumstances resulting from the execution.

 

3. Obligations on the part of the client

 3.1. The Client is obliged to take full and careful note of the information made available to him. In addition to the terms and conditions and the privacy policy, this includes in particular any information that SAMT AG sends to the Client as part of the trademark registration.

3.2. The Client must provide SAMT AG with all the information necessary or significant for the execution of the order when placing the order. This includes in particular all background information known to the Client (e.g. about potentially relevant rights of competitors), which may be relevant for the risk assessment.

3.3. The Client is responsible for the timely, correct and proper provision of the required documents and information and guarantees the accuracy and completeness thereof.

3.4.The Client is responsible for notifying SAMT AG of name and/or address changes, or of any other relevant changes.

3.5. The Client is responsible for giving timely instructions, failing which SAMT AG has the right, but is not obliged, to act at its own discretion, at the account, risk and expense of the Client.

 

4. Payment

 4.1. Unless otherwise stated, the prices are net prices excluding VAT. It is an out-of-court, flat-rate remuneration.

4.2. All payment claims are due upon invoicing and are payable immediately without any deductions. If an invoice is not paid within the payment term and the invoice amount must therefore be reminded, a flat rate reminder fee will be charged. 

4.3. The biggest processing effort and the greatest liability risk for SAMT AG is the examination of the trademark and not its registration. If the Client decides to refrain from registering the trademark after partial performance of the agreed services, in particular due to the test results or for other reasons, this has no effect on the agreed and owed flat fee.

4.4. The fees charged by the European Union Intellectual Property Office (EUIPO) are charged on a pass through basis. SAMT AG will try to choose the lowest possible cost but whatever the EUIPO office charges has to be paid by the client. Especially if the registration is thrown out of the “fast process” and higher EUIPO office fees apply the client has to pay these fees.

4.5. The costs of the packages are mentioned on the internet site. These prices are for the SAMT services only, all EUIPO costs come in addition.

4.6. SAMT AG begins processing the mandate immediately upon receipt of the assignment. If the Client withdraws from the contract after the order has been placed, wants to cancel it, revoke it or otherwise want to withdraw from it, this has no effect on the obligation to pay.

4.7. All payments are made to SAMT AG and SAMT AG will pass the fees for the official registration to the EUIPO office. 

 

5. Communication

 5.1. In terms of simple and fast communication between SAMT AG and the client, communication is generally via email or the login area https://login.tm.legal/. The Client agrees that mandate-related information is sent to him by email and will ensure to make a login under the email address he provided in the login area.

5.2. Communication and the sending of documents over the Internet are at the Client’s own risk. SAMT AG is neither responsible nor liable for disruptions in the line networks of the Internet or for server and software problems of third parties.

5.3. SAMT AG is not offering a walk-in or physical office. All verbal communication have to be over telephone.

 

6. Liability

 6.1. In order to fulfill the order, SAMT AG sometimes uses databases from specialized third-party providers. Due to the dependency of the third-party providers on the data provided by the trademark offices and the necessary incorporation of the data provided into the database of the third-party provider, the database is not always up to date. SAMT AG is not liable for the information provided by third parties, neither for its completeness nor for its accuracy or timeliness.

6.2. SAMT AG is authorised, where possible in consultation with the Client, but without being obliged to give prior notice to the Client, to engage third parties in the performance of the assignment.  SAMT AG is not liable for any shortcomings on the part of these third parties, except in the event of intent or gross negligence on the part of  SAMT AG itself, which expressly excludes intent or gross negligence on the part of any employee.

6.3. SAMT AG accepts no liability for any damage suffered by the Client or third parties, except in the case of its intent or gross negligence, expressly excluding intent or gross negligence on the part of any employee of SAMT AG.

6.4. Without prejudice to the provision from the preceding paragraph, the total direct damage to be compensated by SAMT AG as a result of liability in respect of an assignment or agreement is limited in any event to a maximum of ten percent of the amount of the fee owed by the client to SAMT AG for the purposes of the assignment in the calendar year in which the damage has occurred.

6.5. SAMT AG will never be liable for damage resulting from:

1. incorrect and/or incomplete information and/or information not provided by the client in good time;
2. errors and/or defects in the search engines it uses;
3. the choice of the trademark, model, patent, plant breeder’s right or other intellectual property right including description and classification;
4. any shortcoming on the part of the Client in the fulfilment of their obligations.

6.6. SAMT AG’ liability for consequential damage and/or loss of profits is excluded at all times. Consequential damage is understood in any event to mean damage as a result of the adaptation of printed matter, internet sites, damage to the reputation, costs of research and the costs of registration of intellectual property.

6.7. The Client indemnifies SAMT AG against all claims from third parties against SAMT AG.

6.8. If the Client transfers to another party the risks associated with any assignment/agreement covered by insurance, it is obliged to indemnify SAMT AG against the application of any right of recourse on the part of the insurer.

6.9. Any liability on the part of SAMT AG will lapse if the Client fails to report any shortcoming as described in these terms and conditions to SAMT AG by registered letter with signature for receipt within five working days after its discovery.

 

7. Research

 7.1. Registration and use of a trademark always carry the risk that third parties will take action against it based on older rights. This includes the risk of an objection, deletion request, warning or the assertion of claims for damages. This can create a cost risk for the Client. SAMT AG therefore recommends that Clients carry out the similarity search contained in the packages including consulting and further checks of the registration in order to ensure the availability of the trademark for registration and use. However, if the Client does not carry out a similarity search, he has to release SAMT AG from liability and to sign a corresponding indemnification agreement on request.

7.2. If SAMT AG carries out an availability search, it creates a professional research report for the Client. 

7.3. The Client is aware that certain residual risks cannot be ruled out, even with a professional and conscientiously performed similarity search. This includes, for example, that priorities can be shifted ahead of time. Such brands cannot be considered without performing a follow-up search after the deadline for claiming priority, as they do not exist at the time of the search. Research on older company trademark rights is also only possible to a limited extent, since such rights already arise through usage and, unlike brands, can only be researched to a limited extent in databases.

7.4. An availability search is carried out for a European Union trademarks through the registry kept by the EUIPO. The risks are carried out from a pan-European perspective without consulting lawyers familiar with the national law. In addition, the registry kept at WIPO is also checked, provided that the international registrations there claim protection  for the EU.

7.5. The company search is an identity search, i.e. it is checked whether the intended brand name has already been registered as a company in a EU member state. The company search is conducted based on the data from the European central platform according to Directive 2012/17/EU containing data from national business registers of the EU member states. As not all of the member states are currently connected to this database, SAMT AG is not liable for the information provided by the European central platform, neither for its completeness nor for its accuracy or timeliness.

 

8. Follow-up mandates

8.1. The services offered under the tm.legal brand are limited to the activities mentioned on the platform and partly described in more detail in the terms and conditions. The following are expressly not included, for example representation of the Client in the event of a threat of rejection of the trademark by the respective trademark office or in opposition and cancellation proceedings before the office. 

8.2. In certain cases, SAMT AG is contacted by the trademark offices or by a third party. In these cases SAMT AG will inform the Client of this and offer a follow-up mandate if necessary. 

 

9. Termination

 9.1. If the Client fails to perform any obligation imposed on it through the assignment/agreement, or fails to do so properly and in good time, as well as in the event of the standstill, liquidation, suspension of payments and/or bankruptcy of their company, they will be deemed to be in default by operation of law and SAMT AG will have the right to cancel the assignment or to declare the agreement cancelled in full or in part without any summons, notice of default or judicial intervention being required, and to claim payment from the Client for the work already carried out as well as for the costs incurred as a result of any default on the part of the Client.

9.2. In such a case, the Client is obliged to fully compensate SAMT AG for damage, which damage also includes the loss of profit incurred by SAMT AG.

9.3. The provisions of clauses 9.1. and 9.2. do not affect SAMT AG’ right to suspend the performance of the assignment/agreement and to demand immediate and full payment of all that the Client owes or would owe pursuant to the assignment/agreement.

 

10. Confidentiality

 10.1. The parties will observe the confidentiality of all confidential information concerning the other party which becomes known of has become known to them during the execution of an assignment. Without the other party’s prior written consent, one party will not disclose, publish or otherwise distribute confidential information of the other party, nor permit its disclosure, publication or distribution.

10.2. The confidentiality obligation referred to in clause 10.1. applies only if and to the extent that the information in question is not already in the public domain or has become accessible to the public.

10.3. The confidentiality obligation does not apply if and to the extent that it is in conflict with any statutory obligation or a court decision.

10.4. The client agrees that all documents and reports stay under the copyright of SAMT AG and he is only allowed to use the reports for the determined purpose. The client agrees not to publish or make available for free any of the reports provided by SAMT AG. The client agrees to pay at least 5000 CHF to SAMT AG if the reports are published.

 

11. Privacy Policy

 SAMT AG processes personal and address details on the basis of care and trust. If the proper performance of the agreement so requires, SAMT AG may require proof of identity, for example for the registration of intellectual property rights. The full privacy policy can be found on https://tm.legal/en/data-protection/ 

 

12. Choice of law and place of jurisdiction

 12.1. The parties agree that the only place of justice for any legal disputes is Schaffhausen in Switzerland. Only Swiss law like it is normally used in Switzerland should apply for any dispute.

12.2. We have done the translation of this terms carefully but in case of doubt only the German version of this terms should be valid.

12.3. All communication for legal disputes with SAMT AG has to take place in Swiss/German and SAMT AG can not be held responsible for any cost of translation from other languages.

  

13. Miscellaneous

 13.1. Changes and additions to these terms and conditions must be made in writing. This also applies to the written form requirement.

13.2. Should individual provisions of these general terms and conditions be or become ineffective, the legal validity of the remaining provisions is not affected. The relevant provision is to be replaced by an effective provision that comes as close as possible to the intended economic purpose.