General Terms and Conditions PatentProfs
Article 1: Definitions
- PatentProfs: PatentProfs is a division of Patents4all LLC
- Partner: A (European) patent office (legal entity) that is affiliated with PatentProfs and wishes to receive applications via PatentProfs;
- Cient: Natural and/or legal persons interested in a service of one of the Partners of PatentProfs.
- Orders: All requests of clients that PatentProfs receives and forwards to a relevant Partner.
Article 2: General
2.1 These General Terms and Conditions apply to all contracts entered into by PatentProfs in the context of execution of work for any client, and to all legal relations between PatentProfs and the Client deriving from this.
2.2 All quotations and offers by PatentProfs shall be non-binding and shall be considered invitations for placement of orders, unless otherwise agreed in writing or provided to the contrary in these General Terms and Conditions.
2.3 In case of deviation from these General Terms and Conditions, such deviations shall be agreed in writing. Provisions of these General Terms and Conditions from which no deviation has been made shall remain in full force.
Article 3: Execution of order, information and instructions
3.1 PatentProfs shall have the placed order executed to the best of its ability and with due diligence by an affiliated Partner of PatentProfs. In performing its activities, PatentProfs shall exercise the care of a good contractor.
3.2 The Partner of PatentProfs shall execute the order based on the information provided by the Client. To enable the Partner to execute the order, the Client is bound to provide PatentProfs with full, detailed and clear written information on the order. This shall include information known to the Client in connection with past inquiries and publications relating the subject of the order, or a similar subject. If the Client furnishes inaccurate and/or incomplete data, even in good faith, PatentProfs shall be entitled to rescind the contract.
3.3 In executing the order, PatentProfs shall rely (in whole or in part) on the Client's instructions. The Client shall pass all instructions to PatentProfs clearly and in writing. If, in a given case, PatentProfs is unable to wait for the Client's instructions, PatentProfs may act as it deems fit to safeguard the Client's rights.
3.4 In case of an order for search, due to limitations (of the agreed scope of the search) or possible inaccuracies in classifications, indices, computer databases and official registers, PatentProfs cannot guarantee the completeness and accuracy of the results.
3.5 If, despite PatentProfs request to do so, the Client does not give PatentProfs necessary instructions to carry out the order, or does not supply them promptly, or does not promptly ensure a payment, necessary for this purpose, to PatentProfs, PatentProfs may unilaterally terminate the order.
Article 4 Confidentiality
4.1 PatentProfs shall observe total confidentiality concerning any communication of a confidential nature made to PatentProfs in the context of fulfillment of an order.
4.2 In performing its work, PatentProfs also communicates by electronic means. It cannot wholly be excluded that errors may occur in this mode of communication, or that the content of communications passed in this way may become known to third parties. PatentProfs shall not be liable for any loss or damage resulting from this mode of communication. The Client may request PatentProfs not to communicate with her in this way.
Article 5 Third-party services
5.1 By entering into a contract with PatentProfs, the Client shall grant PatentProfs power of attorney to involve third parties if PatentProfs considers this desirable for the proper performance of the order placed with it. Such third parties shall include experts in the field of search to be carried out. In involving such third parties, PatentProfs shall act as the Client's attorney. Such power shall specifically include authority to accept general terms and conditions of third parties on behalf of the Client.
5.2 PatentProfs shall pass the costs of services performed by third parties on to the Client. In this regard, PatentProfs shall act purely as a payment address. PatentProfs shall pay on to third parties the portion of the amounts declared by PatentProfs which is due to them. Unless the Client and PatentProfs have expressly agreed otherwise in writing, payments to a third party, necessary for the order, shall only be carried out by PatentProfs, after the sum has been paid by the Client into PatentProfs' bank account. In the event of payments to a third party residing outside of the Netherlands, the sum has to be paid by the Client into PatentProfs' bank account not later than one week before payment is due.
5.3 When involving third parties on behalf of the Client, PatentProfs shall always use due diligence and attention. PatentProfs shall not be liable for loss deriving from failures of third parties, save culpable failure by PatentProfs in the context of its involvement of such third parties. This shall not prejudice the effectiveness of Article 9 of these General Terms and Conditions.
Article 6 Fee and expenses
6.1 PatentProfs' fees are exclusive of VAT and not dependant of the the result of the work done. In addition to its fee, PatentProfs shall charge the Client the expenses which are not included in the PatentProfs' tariffs. Such expenses shall include those of third parties involved, or to be involved, by PatentProfs. PatentProfs may add to the latter expenses its own administrative fee, as may be reasonable, having regard to all circumstances.
6.2 Cost estimates supplied by PatentProfs to the Client shall serve purely as a non-binding guide, unless expressly stated otherwise in writing.
6.3 PatentProfs shall charge its fee, plus any expenses not included in its tariffs, to the Client by advance, interim and/or final invoices. PatentProfs shall be free to choose whether to issue advance, interim and/or final invoices.
6.4 All invoices shall be paid to PatentProfs, without discount or set-off, within thirty (30) days of the date of sending. If one or more advance invoices are sent, the Partner of PatentProfs shall only start to execute the order when they have been settled in full.
6.5 Each invoice shall be treated as a separate claim of PatentProfs against the Client.
6.6 If within this period the amount of the debit note is not paid off fully, then the Client is legally in default, and therefore automatically the lawful monthly interest is due. In case of late payment, PatentProfs shall be entitled to suspend its work for the Client, with immediate effect.
6.7 If the Client fails to pay promptly, PatentProfs is entitled to refer to third parties to undertake collection from the Client. The associated costs shall be reckoned at 15% of the outstanding amount, with a minimum of € 45.00, and shall be charged to the Client.
Article 7 Force Majeur
7.1 For the present purpose, force majeure shall mean any failure of performance not attributable to fault by, or for the account of, PatentProfs. Force majeure shall in any case exist on PatentProfs' side if, after entering into the contract, it is prevented from fulfilling its obligations under the contract due to illness or other prevention of a PatentProfs' employee.
7.2 In case of prevention of performance of the contract due to force majeure, PatentProfs shall be entitled to suspend fulfillment of its obligations for a maximum of thirty (30) days, or to cancel the contract, in whole or in part, without judicial involvement. PatentProfs shall not thereby become liable to pay any compensation.
Article 8 Suspension
8.1 Disputes of any kind whatsoever shall never entitle the Client to refuse or suspend settlement of invoices.
8.2 If the Client considers PatentProfs in breach of its obligations, it shall notify PatentProfs accordingly in writing within eight (8) days of the reasonable time of detection by the Client of such breach by PatentProfs. Unless such prompt written notice is given, the Client shall forfeit the right to invoke such breach.
Article 9 Liability
9.1 PatentProfs shall always use due diligence in the performance of its services. PatentProfs and her Partners shall only be liable for failures attributable to it in performance of its activities, including culpable failures in the context of third-party involvement per Article 4. The liability of PatentProfs for indirect damages, such as, but not limited to the loss of profit, is also excluded, unless the damage results from intent or wilful recklessness on the part of solely PatentProfs' executive staff. The burden of proof of any liability of PatentProfs shall rest with the Client.
9.2 If PatentProfs may be liable for any loss on any ground whatsoever, such liability will be limited to a maximum of the sum due and paid in the relevant case under the professional liability insurance taken out, plus the amount of the policy excess under the policy terms in the relevant case. Further information about the contents of the terms and conditions of the insurance policy will be provided upon request.
9.3 A claim in respect of an alleged failure on the part of PatentProfs or her Partner will not be sustainable if the client fails to protest within ten (10) days after he has discovered or reasonably could have discovered such failure. In any event, any claim for damages or any other claim in respect of an alleged failure on the part of PatentProfs shall lapse twelve (12) months after the event from which the damage directly or indirectly resulted and for which PatentProfs is responsible.
9.4 The Client will indemnify PatentProfs from and against all claims of third parties on any basis whatsoever in connection with the services rendered by PatentProfs to the Client, including any related costs made by PatentProfs, unless these claims are the result of intent or wilful recklessness on the part of solely PatentProfs’s executive staff. The burden of proof of any liability of PatentProfs shall rest with the Client.
9.5 PatentProfs shall not be liable for loss due to breach by the Client of its obligations under Article 2.
9.6 ‘Wilful intent’ within the meaning of these General Terms and Conditions will solely be understood as an act of which PatentProfs executive staff is (subjectively) aware that the possibility that this act will result in damage is substantially greater than the possibility that it will not result in damage.
Article 10 Termination of contract
10.1 The Client shall be entitled to terminate its contract with PatentProfs at any time. Termination shall not take effect before receipt by PatentProfs of written notice from the Client. The Client is bound to pay the fee for work already done, and expenses already incurred, at the time of termination. The Client shall also be bound, in such case, to meet the costs of handover of the file to PatentProfs.
10.2 If the Client fails to meet any obligation incumbent upon it under the contract, or does not meet it duly or promptly, and in case of bankruptcy, stay of payments, placement in receivership or closure or winding up of the Client's business, PatentProfs shall be entitled to cancel the contract, in whole or in part, otherwise to end the contract, or to suspend further performance thereof, without any liability to pay compensation and without prejudice to PatentProfs' further rights. All PatentProfs' claims against the Client shall, in such case, fall due immediately. The Client shall be liable for any loss incurred by PatentProfs in this respect, including loss of profit. All PatentProfs' claims against the Client shall, in such case, fall due immediately. The Client shall be liable for any loss incurred by PatentProfs in this respect, including loss of profit.
Article 11 Choice of law and jurisdiction
11.1 The entire legal relationship between the Client and PatentProfs shall be governed by Dutch law.
11.2 Disputes arising from the legal relations between the Client and PatentProfs shall be referred for settlement only to the Court of Justice of Midden Nederland, unless PatentProfs states a preference for referring the dispute for resolution to another competent judicial forum, Dutch or otherwise.
NL-Bilthoven, April 2015