1 ABOUT THESE TERMS AND CONDITIONS
1.1 By accessing or using this website You agree to be bound by the Terms and Conditions set out below.
1.2 You should carefully read these Terms and Conditions before You use this website.
1.3 We may change the Terms and Conditions at any time. Your continued use of this website is deemed to be Your acceptance of those changes.
1.4 You should not use this website if You do not agree to these Terms and Conditions.
For the purposes of these Terms and Conditions, unless the context otherwise indicates:
2.1 “GST” means goods and services tax or similar value added tax levied or imposed in Australia under A New Tax System (Goods and Services Tax) Act 1999 (Cth) or otherwise on a supply;
2.2 “Terms and Conditions” means the terms and conditions for the use of the website and engaging our services set out in this document as amended from time to time;
2.3 “Our Services” means the services advertised as being provided by Us on this website including, but not necessarily limited to, trademark searching, trademark registration, trademark advisory services and trademark opposition services;
2.4 “We”, “Us” and “Our” means Mark My Words Trademark Services Pty Ltd t/as Quick Off the Mark, its employees, officers, agents and contractors;
2.5 “You” and “Your” means the person/s using this website and/or their principal/s; and
2.6 Information about You includes but is not limited to information about Your computer, Your computer’s operating system, Your internet protocol address (IP address), Your email address, and any other information that may be collected about You by Us through Your use of this website.
3.1 You acknowledge and agree that:
3.1.1 we may collect, use and retain information about You required for the provision of this website or Our services to you.
3.2 All personal information collected by Us about You is collected, used, and retained in accordance with the Privacy Act 1988 (Cth).
3.3 You expressly permit and authorise Us to disclose so much of Your personal information to third-party providers as is required to enable the provision of this website or Our Services.
You agree and acknowledge that your preferred method of communication and of concluding agreements or contracts with Us is by email.
5 FORMATION OF CONTRACT
5.1 This website enables You to submit an order for Our Services. Your order is an offer to enter into a contract with Us for the supply of Our Services in consideration of payment of our fees and any costs incurred as a result of or in relation to Your order.
5.2 We may accept or reject Your offer in our absolute discretion, and will advise you of our acceptance or otherwise by email to the email address that You have provided in the order form.
5.3 A binding contract will be deemed to be formed at the time when Our email to You is received within the meaning of section 14A(1)(a) of the Electronic Transactions Act 1999 (Cth).
6 TERMINATION OF CONTRACT
6.1 You will be provided the opportunity to review your order prior to completion and submission to Us. It is Your responsibility to ensure the information and details are correct prior to submitting your order to Us.
6.2 Upon receipt of Your order, We will send You an email confirming we have received Your order.
6.3 We will send You a further email advising whether We have accepted or rejected Your order. Typically, We will commence undertaking the work involved in Your order within one (1) business day after accepting Your order.
6.4 You may cancel or withdraw Your order at any time prior to Our acceptance of Your order by emailing us at email@example.com. We will confirm receipt of your cancellation by return email within a reasonable time. You agree that we may contact you by telephone to discuss Your request to cancel Your order.
6.5 You agree that We may terminate the contract without notice in the event of a serious breach or default by you including, but not limited to, the following:
6.5.1 non-payment of our fees (including insufficient funds available in your credit card account at the time of processing);
6.5.2 non-payment of any costs incurred or associated with Your order (including insufficient funds available in your credit card account at the time of processing);
6.5.3 a breach of any of your warranties under these Terms and Conditions;
6.5.4 a false representation by You; or
6.5.5 Your failure to respond to our communications within a reasonable time.
6.6 Upon cancellation of Your order We will refund any payments made by You less all fees, costs and expenses incurred as a result of Your order, under this contract, or pursuant to these Terms and Conditions.
7 COSTS AND PAYMENT
7.1 Any prices or costs displayed on this website or provided to You as a result of Your use of this website are:
7.1.1 expressed in Australian dollars;
7.1.2 exclusive of GST (unless otherwise stated);
7.1.3 based on information supplied to Us by third-party providers; and
7.1.4 subject to change without notice.
7.2 Our Fees are calculated in accordance with Our Trademark Prices as set out in this website, and are due and payable at the time you submit Your order.
7.3 In addition to Our Fees you may be required to pay further or additional costs including:
7.3.1 government application fee, payable prior to lodging your application with the relevant authority or government agency or department;
7.3.2 third-party fees or costs, such as fees for a legal opinion in a contentious matter, local agent’s fees, or fees incurred in respect of a foreign application. We will use our best efforts to advise you of, and obtain your consent to, such expenses prior to incurring those costs.
7.4 For orders processed via Our Wesbite, all payments must be made by credit card.
7.5 You agree to pay Our Fees and any government application fees at the time of submitting Your order and warrant that you have sufficient funds available in your credit card account for payment of Our Fees and other costs.
7.6 You agree to pay any additional costs when due and payable or immediately upon our request.
7.7 A tax invoice will be provided to You after We receive Your payment of Our Fees and other costs.
7.8 We use a third-party provider to process all credit card payment transactions. Whilst we endeavour to ensure the safe and secure use of your credit card details, we do not guarantee or warrant the services or security of any third-party service provider.
7.9 We do not store your credit card details on our system and may require you to confirm or update your credit card details for future or additional payments.
7.10 The third-party credit card payment service provider may charge a transaction fee to your credit card account. You agree that any transaction fee is reasonable and that you will not dispute the amount or charging of such fees to your credit card account.
7.11 If we reject Your order, or if You cancel Your order before We accept it, We will refund all monies paid by You less any associated third-party processing fees, bank fees and taxes.
8 SEARCHING OF TRADEMARKS
A preliminary search of the Australian trademarks register will be carried out on receipt of Your order. Whilst we exercise all reasonable care and diligence in undertaking trademark searches on your behalf, to the maximum extent possible we do not guarantee or warrant that we will identify all potentially conflicting trademarks or that preferred trademark is available for registration.
9 REGISTRATION OF TRADEMARKS
9.1 We will apply our skill, knowledge and experience in providing Our Services including with respect to the review and assessment of Your proposed trademark/s for registration.
9.2 Notwithstanding clause 8, You acknowledge that We rely on Your instructions and the information provided to Us in Your order submitted to Us via this website in providing Our Services.
9.3 You further acknowledge that the registration of a trademark under the Trade Marks Act 1995 (Cth) is subject to a number of factors including, but not limited to:
9.3.1 the regulations prohibiting the registration or use of the proposed trademark as a trademark;
9.3.2 the proposed trademark being represented graphically;
9.3.3 the proposed trademark being capable of distinguishing the applicants goods or services in respect of which the proposed trademark is sought to be registered;
9.3.4 whether the proposed trademark contains of consist of scandalous matter or its use would be contrary to law;
9.3.5 whether the use of the trademark in relation to the goods or services in respect of which it is sought to be registered would be likely to deceive or cause confusion; and
9.3.6 whether the proposed trademark is substantially identical with or deceptively similar to another trademark.
9.4 If, as a result of applying our skill, knowledge and experience, We formed the view that Your proposed trademark application is likely to be rejected We will advise you of our opinion and discuss Your options with You. If at this stage You:
9.4.1 decide to discontinue Your order and trademark application We will refund all monies paid to Us less $110.00 (inclusive of GST) on account of our reasonable fees to that point; or
9.4.2 change or amend Your proposed trademark to a trademark that We are satisfied is likely to be registered and otherwise continue with Your order then, subject to any of these Terms and Conditions to the contrary, Our Fees and other costs will not alter.
10 AMENDMENT OF TRADEMARK FOR REGISTRATION
10.1 You may submit an alternative or amended proposed trademark for registration by emailing Us at firstname.lastname@example.org at any time prior to lodgement of Your original trademark application with the relevant authority or government agency or department Typically, lodgement of Your original trademark application will occur within two (2) business days of placing Your order. Any alternative or amended trademark should be provided to Us as soon as possible.
10.2 You agree and acknowledge that by submitting an alternative or amended proposed trademark You may be liable for additional fees, costs and expenses. We will advise you of any applicable additional fees, costs or expenses at the relevant time.
10.3 As there are limited grounds for amending a proposed trademark after lodgement of the application, You agree and acknowledge if you request registration of a different trademark after lodgement of the trademark application in accordance with Your order such a request will be treated as a new order under these Terms and Conditions and You will be liable for all fees, costs and expenses as if your request were a new order.
10.4 Any changes, amendments or alterations arising in or required by circumstances not contemplated within these Terms and Conditions may result in additional fees, costs or expenses. In such circumstances, where practicable, we will seek your further instructions prior to incurring any further or additional fees, costs or expenses.
11 IRREVOCABLE AUTHORITY AND LIMITATION OF LIABILITY
11.1 You irrevocably authorise Us to lodge all documents necessary for your trademark application with, or required by, third parties including trademark registries.
11.2 Subject to any responsibilities implied by law and which cannot be excluded, We are not liable to You for any loss or damage whatsoever arising out of or in connection with:
11.2.1 Your use of, or inability to access, this website or any linked site; or
11.2.2 the delivery or non-delivery of services and any act or omission of suppliers or other third parties.
11.3 If We offer an opinion, You accept that it is an opinion only and not necessarily determinative of the registrability or otherwise of your proposed trademark.
11.4 Our liability for a breach of a condition or warranty implied by law or otherwise, and which cannot be excluded, is limited to the extent possible, at Our option, to:
11.4.1 refunding the fees, costs, and expenses already paid by you; or
11.4.2 the supply of the services again; or
11.4.3 the payment of the cost of having the services supplied again.
11.5 Except where expressly stated otherwise, Our Services are provided to You on an “as is” and “as available” basis, without any representation, warranties or conditions of any kind, either express or implied, including all implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, and non-infringement, freedom from computer virus, and implied warranties arising from course of dealing or course of performance. Nothing in this clause is to be taken as affecting any rights conferred upon You pursuant to the provisions of Schedule 2 of the Competition and Consumer Act 2010 (Cth) (“Australian Consumer Law”).
11.6 To the extent permitted by law, in no case shall We be liable for any injury, loss, claim, or any direct, indirect, incidental, punitive, special, or consequential damages of any kind including, without limitation, lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages whether based in contract, tort (including negligence), strict liability or otherwise, arising from Your use of this website or Our Services, including but not limited to any errors or omissions in any content, failure of performance, interruption, deletion, defect, delay, computer virus, communication line failure, or any other loss or damage of any kind incurred as a result of the use of this website or Our Services or any content posted, transmitted, or otherwise made available via this website or Our Services, even if advised of their possibility.
12 INTELLECTUAL PROPERTY
12.1 Except where otherwise provided, all material contained in or displayed on this website, including but not limited to software and coding, design, text, registered and unregistered trademarks, graphics, and layout (Intellectual Property), is owned or licensed by us or republished with the consent of the original author.
12.2 You must only copy or reproduce the Intellectual Property for the purpose of browsing this website or making a copy for Your own personal, private or research use.
12.3 You must not:
12.3.1 not alter or modify the Intellectual Property or remove any legal notice associated with it;
12.3.2 not modify, copy, distribute, transmit, display, perform, reproduce, publish or license any of the Intellectual Property;
12.3.3 not use or attempt to use any of the Intellectual Property to create any website or publication; or
12.3.4 not transfer or sell any information, functionality or products or services offered on this website without Our prior written consent.
13 EXTERNAL LINKS
13.1 The provision of a link on this website to the website of a third-party does not constitute a recommendation or endorsement of the third party or its website.
13.2 We accept no responsibility for the content, reliability or credibility of any website linked to this website and do not guarantee that this website or any linked website will be free from viruses, or that this website or any linked website will be uninterrupted.
14 NO AFFILIATION
You acknowledge that:
14.1 We may use agents and third-parties in providing Our Services to you;
14.2 unless We advise You otherwise, We are not directly associated with and have no direct affiliation with any third-party; and
14.3 We do not warrant the quality or merchantability of any goods or services supplied to You by a third-party that We referred You to.
15.1 Your warranties and representations
15.1.1 You represent and warrant to Us that You are:
(a) at least 18 years old;
(b) usually live in or are domiciled in Australia; and
(c) capable of entering into a legally binding contract.
15.1.2 If the party offering to enter into a contract with us is an incorporated entity, e.g. a company, (“the Company”) then You represent and warrant to Us that:
(a) the Company is duly incorporated under, or if the Company is a foreign company registered under, the Corporations Act 2001 (Cth); and
(b) You, the person using this website, are properly authorised to act for and on behalf of the Company and bind the Company to an agreement or contract with Us.
15.1.3 You warrant that you will:
(a) immediately inform us of any change of your contact details, including email address, billing and/or delivery address, usual residential address or address of domicile, or telephone number; and
(b) respond to us or to the trademarks office, relevant authority, or government agency or department within any specified timeframe, or if no timeframe is specified then in a timely manner.
15.1.4 You must not transmit any worms or viruses or any code of a destructive nature.
15.2 Non-merger of terms
A provision of this Contract capable of applying or taking effect after the settlement date does not merge on settlement and continues to bind the parties.
15.3 Contract binding jointly and severally
If a party to a contract formed under these Terms and Conditions comprises 2 or more persons, each person is liable for their obligations jointly and severally.
If any provision of these Terms and Conditions or part thereof is held illegal unenforceable or otherwise invalid, that provision or part shall be deemed to be severed and the remainder of these Terms and Conditions shall continue in effect.
15.5 No waiver
Our failure or delay to enforce at any time any of the provisions of these Terms and Conditions must not be interpreted as a waiver of such provision.
Information contained in this website may be obtained as a result of our searches and enquiries or supplied by third party providers. Whilst We take care to keep this information up-to-date, such information, particularly price comparisons, is for general information purposes only and is not to be relied on. We do not warrant or guarantee that such information, particularly price comparisons, is accurate or an exact reflection of the prices of all our competitors or suppliers of trademark registrations services.
15.7 Governing law
15.7.1 These Terms and Conditions are governed by the laws of Victoria, Australia and the Commonwealth of Australia.
15.7.2 These Terms and Conditions and any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to these Terms and Conditions and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of Victoria, Australia, and the Commonwealth of Australia without reference to conflict of law principles, notwithstanding mandatory rules.
15.7.3 You agree to submit personal jurisdiction to the courts located within Victoria, Australia, and you hereby waive all defences of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state of Victoria and the Federal Courts of Australia.
15.7.4 The validity of this governing law clause 11 is not contested.
15.7.5 These Terms and Conditions shall be binding to the benefit of the parties hereto and their successors and assigns.
15.7.6 You confirm and declare that:
(a) You have sought independent legal advice, or have had the opportunity to seek independent legal advice, regarding these Terms and Conditions; and
(b) the provisions of these Terms and Conditions are fair and reasonable.
16 DISPUTE RESOLUTION
16.1 If You have a concern please contact us on 1800 35 25 75. If We are unable to fully address your concern We ask you to lodge a formal complaint in writing to Us. We commit to responding to you within two (2) business days.
16.2 If You are not satisfied with Our response to Your formal written complaint, then You agree to participate in mediation in good faith, with an independent mediator appointed by agreement, prior to commencing proceedings in a Court or Tribunal of competent jurisdiction. You agree to share the cost of the mediator equally with Us.