Thank you for using Trademarky (collectively, “Trademarky”, “we”, “us”, “our”). Our services and website provide clients with trademark filing services (hereinafter, Trademarky’s website, platform and services are collectively referred to herein as the “Trademarky Services”).
The specific Trademarky Services that you request will be ordered online and will appear in your Trademarky account. To register for a Trademarky account, you must review and accept this Agreement. Your use of any Trademarky Services is conditioned on your acceptance of this Agreement.
For purposes of clarity, this website and the software that operates it are denominated the “Trademarky Platform.”
PLEASE REVIEW THIS AGREEMENT CAREFULLY. BY ACCEPTING THIS AGREEMENT OR BY USING THE TRADEMARKY SERVICES, YOU AGREE HERETO.
Your account registration acknowledges that you are able to electronically receive, read and understand this Agreement, and that you consent to it.
This Agreement applies to all users of the Trademarky Services including, as applicable, individual employees or contractors. If you are registering to use the Trademarky Services as an individual, references to “you” are to you. If you are registering to use the Trademarky Services for an entity or organization, references to “you” include such entity or organization and its employees and contractors. In such instance, you represent that you have the authority to bind that entity or organization to this Agreement.
Furthermore, Trademarky and you may be referred to individually as a “party” or collectively as the “parties.”
THIS AGREEMENT CONTAINS AN AGREEMENT TO MANDATORY MEDIATION AND ARBITRATION WHICH REQUIRES, AMONG OTHER THINGS, THAT DISPUTES CONCERNING THIS AGREEMENT, YOUR ACCOUNT OR THE TRADEMARKY SERVICES MUST BE RESOLVED BY BINDING ARBITRATION AND ON AN INDIVIDUAL BASIS ONLY.
1.1 Provision of Trademarky Services.
(a) Provision of Trademarky Services. The Trademarky Services are being made available to you under this Agreement and any supplemental policies made applicable from time-to-time (collectively, “Supplemental Terms“), all of which are incorporated herein. In the event of a conflict between the provisions of this Agreement and any Supplemental Terms, the Supplemental Terms will control.
(b) Trademarky Services. The Trademarky Services principally include the following: (i) an assessment of your chances to obtain registration of your trademark with the US Patent and Trademark Office (the “Office”); (ii) the completion of your proposed trademark application for filing with the Office; (iii) the filing of your trademark application with the Office; and (iv) the prosecution of your trademark application with the Office.
1.2 Additional Services. Trademarky may make certain additional services available to you from time-to-time for which additional terms may apply. If you are transferred to an external site while using the Trademarky Services, your use of such third-party site is subject to the terms of its owner.
1.3 Eligibility and Jurisdiction. The Trademarky Services are available to persons in jurisdictions in which the Trademarky Services may be legally sold. Nothing on the Trademarky Platform shall be considered a solicitation to buy or an offer to sell anything in a jurisdiction in which such offer, solicitation, purchase or sale would be unlawful. The Trademarky Services are designed primarily for use within the United States, and you are responsible for their use outside of the United States. For that reason, Trademarky disclaims any liability regarding use of the Trademarky Services outside of the United States or outside of the terms of this Agreement.
1.5 User Limitations. The Trademarky Services may only be accessed by Users that are at least 18 years of age and are not otherwise barred from using them under applicable law.
1.6 No Follow-On Sales. It is a violation of this Agreement for you to sell your own products or services to others using the Trademarky Platform. You therefore agree to use the Trademarky Platform solely for its intended purpose (i.e., for us to assist you in filing a trademark application with the Office), and not as a vehicle for you to market or sell products or services to others.
1.7 Mobile Services. The Trademarky Services are available through your mobile device, including (i) the ability to view and upload content to the Trademarky Platform; (ii) the ability to browse and use the Trademarky Platform; and (iii) the ability to access certain features in the Trademarky Platform, including your account (collectively, the “Mobile Services”). If you access the Trademarky Services through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using Mobile Services, you agree that we may communicate with you by email, SMS, MMS, text message or other electronic means to your mobile device, and that certain information about your usage may be communicated to us. If you change or deactivate your mobile telephone number, promptly update your account information with us to ensure that your messages are not sent to the person that acquires your old number.
2.1 Consent to Electronic Delivery; Electronic Signature.
(a) Electronic Signature. By agreeing hereby, you consent to sign this Agreement electronically, and you agree that your electronic signature is the legal equivalent of your manual or handwritten signature.
(b) Electronic Delivery. You agree that Trademarky may electronically deliver service-related documents and/or disclosures to you. Trademarky may provide electronic deliveries to you via email to the email address that you provide. If you are using the Trademarky Services on behalf of an entity or organization and/or its employees and contractors, you represent that you have affirmative consent from such entity or organization and its employees and/or contractors to receive electronic disclosures for them through the Trademarky Services.
(c) Withdrawing Consent. You are entitled to withdraw your consent to electronic signatures or electronic disclosures at any time. However, you acknowledge that, if you withdraw such consent: (i) Trademarky cannot guarantee that you will obtain relevant disclosures or maintain full access to the Trademarky Services; (ii) you may be required to obtain paper copies of your documents and notices directly from Trademarky or your employer or contractor; and (iii) you may incur additional fees for requesting paper copies. You acknowledge that Trademarky relies on electronic communications as a core component of its services; accordingly, if you are using the Trademarky Services on behalf of a company or entity and/or its employees and contractors, and you withdraw electronic consent, Trademarky may not be able to provide the Trademarky Services to you, and may terminate your use of the Trademarky Services in whole or in part.
2.2 Accuracy of Information. The Trademarky Services are based on information that you provide to us (the “User Representations”). You must review all User Representations to ensure that they are accurate and complete. You acknowledge that Trademarky is entitled to rely conclusively on all User Representations, and that Trademarky does not have an obligation to verify, correct, or otherwise ensure the accuracy or quality of User Representations. You further acknowledge that Trademarky bears no responsibility and shall not have liability for errors, omissions, penalties, fines, or other losses incurred from inaccurate or incomplete User Representations provided to us.
2.3 User Data. As to personal information that you provide us (i.e., such as your name, address, phone number, email address)(collectively, “User Data”), you represent and warrant that you have the necessary rights and permissions to use, make available and provide us with User Data (i.e., including those belonging to others within your organization).
You acknowledge and agree that Trademarky may preserve and disclose User Data if required by law or in a good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal process, applicable laws or government requests; (ii) enforce this Agreement; (iii) respond to claims that any content violates the rights of third parties; or (iv) protect the rights, property or personal safety of Trademarky, its users and the public. You understand that the technical processing of the Trademarky Services, including User Data, may involve transmissions over various networks for which Trademarky has no control.
2.4 Account Administration; Authorizations.
(a) Accounts. To use the Trademarky Services, you must create an account (an “Account”) by providing your email address (“Account Email”) and a master password (the “Master Password;” collectively, the “Credentials.”) For purposes of clarity, the term Credentials includes User Data (as defined above). You are responsible for the security of your Account and keeping all Credentials secure. You understand that your Account is solely for your use, and that you will not share your Account or Credentials with anyone else, unless you are part of an entity or organization that has an account with us, and you are an authorized user for such entity or organization. You are fully responsible for all activities on the Trademarky Platform associated with your Account. You are also fully responsible for all activities of your employees and contractors that use the Trademarky Services.
(b) Account Information. To access or use certain aspects of the Trademarky Services, you may need to provide your account information at third party institutions, such as credit card companies or banks.
(c) Communications and Notifications. You are responsible for reviewing any reports, filings, information, requests for information, documents or materials (collectively, the “Materials”) made available to you by Trademarky, if any, and you must notify Trademarky of any inaccuracies in the Materials. You must also promptly notify Trademarky of any third party notices that you receive that may affect our ability to provide the Trademarky Services to you (e.g., for example, notices from the Office).
2.5 Third Party Products.
(a) Independent Services. The Trademarky Services may work with third-party websites, services and applications (“Third Party Products”). Trademarky does not provide any representations, warranties, indemnities, or support with respect to such Third Party Products, unless otherwise agreed in writing.
You acknowledge that Trademarky is not responsible for use, disclosure, modification or deletion of User Data that is transmitted to or accessed by a Third Party Product, and that the handling of User Data within the Third Party Product will be exclusively governed by separate terms and agreements, if any, between you and such third party provider. You must comply with all terms and conditions applicable to such Third Party Products. You will not use the Trademarky Services in a manner that damages, disables, overburdens, or impairs any websites, servers, or otherwise interferes with the Third Party Products. You acknowledge that you have sole responsibility for and assume all risks arising from your use of any Third Party Products. Trademarky does not guarantee the continued availability, operation, or utility of Third Party Products and their use with the Trademarky Services.
2.6 Prohibited Activities. Your access to and use of the Trademarky Services extends only to those that you have acquired. You will not (nor will you permit another person or entity to):
For the avoidance of doubt, Trademarky welcomes and encourages the responsible disclosure of security vulnerabilities at notices@thetrademarky.com.
2.7 Compliance with Laws; Digital Millennium Copyright Act.
(a) Compliance with Laws. You will be solely responsible for compliance with any applicable laws, rules and regulations affecting your use of the Trademarky Services. You are also responsible for ensuring that your employees and contractors comply with all applicable laws while using the Trademarky Services including the intellectual property and third-party rights of others.
2.8 Trademarks. The names and logos of Trademarky and any third parties belong to Trademarky and their respective owners and are used with permission. You may not use the name or logo of Trademarky or third parties that appear on the Trademarky Platform without written consent. Such names and logos are protected by common law, state law and/or Federal trademark laws.
3.1 Term. This Agreement will commence on the date that you create your account with Trademarky, or if earlier, the date that you begin using any Trademarky Services (the “Commencement Date”), and will end as provided herein.
3.2 Termination by You. You may terminate this Agreement at any time on written notice to Trademarky at notices@thetrademarky.com.
3.2 Termination by Trademarky. Trademarky may terminate your access to the Trademarky Services without liability to you on five (5) days’ prior notice for any actual or suspected violation of this Agreement. Trademarky may also terminate this Agreement if you fail to provide requested information within thirty (30) days (i.e., as such failure will prevent us from prosecuting your trademark application), or if you fail to pre-pay our fees.
3.3 Results of Termination. If your Trademarky account is terminated, (i) the terms of this Agreement shall continue to apply to protect Trademarky’s intellectual property rights; (ii) you will remain obligated to pay to Trademarky any outstanding fees pursuant to Section 4.1; and (iii) you will forfeit any prepaid fees. Upon termination, the provisions hereof that by their nature extend beyond termination shall continue to apply. Therefore, if you intend to terminate this Agreement, please notify us at notices@thetrademarky.com.
3.3 Suspension. Trademarky may temporarily suspend your access to the Trademarky Services without prior notice if (a) Trademarky reasonably determines that (i) there is a threat or attack on the Trademarky Services or other event that may create a risk to the Trademarky Services or to you; (ii) your use of the Trademarky Services disrupts or poses a security risk; (iii) you are in breach of Section 2.6 (Prohibited Activities) or Section 2.7 (Compliance with Laws; DMCA)(collectively, “Service Suspensions”). Trademarky will provide notice of any Service Suspension and updates regarding resumption thereof, if applicable. Trademarky will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur due to a Service Suspension. It is within the sole discretion of Trademarky to issue a Service Suspension or terminate this Agreement if either right is available to it hereunder.
4.1 Fees. You agree to pre-pay the Trademarky Services that you purchase. No work shall be performed on your behalf unless you prepay our fees and, if applicable, those required by the Office (i.e., mandatory filing fees). Your payment may be made by credit card or bank debit. Trademarky uses third party payment processors; therefore, your payment will be subject to the terms imposed by such third party payment processors, as applicable.
4.2 Fee Disputes. You must notify Trademarky in writing if you dispute fees paid or payable under this Agreement. Notwithstanding the receipt of such notice, Trademarky will not refund any fees, but may, in its sole discretion, provide you with additional services at no charge.
4.3 Government Filing Fees. The Office charges fees for the filing of trademark applications. It maintains 45 separate substantive categories in which trademarks may be filed for goods and services, and it charges a separate fee of $250 for each category in which protection is sought. At Trademarky, we require that you prepay the fees charged by the Office, so that we may promptly submit and prosecute your trademark application. We do not surcharge the Office’s fees. Just to be clear, the more categories in which you seek protection, the more fees you will pay the Office. For example, if you seek protection in 1 category, you will pay the Office a fee of $250. But if you seek protection in 3 categories, you will pay the Office a sum of $750 (i.e., $250 x 3 = $750). Furthermore, if you seek protection in more than 2 categories, we require that you pay additional fees to us, as you are asking us to do more work.
4.4 Taxes. All payments referenced in this Agreement are exclusive of taxes, duties, levies, tariffs, and other governmental charges (collectively, “Taxes”). You are responsible for payment of Taxes for your purchase of the Trademarky Services, other than those based on Trademarky’s net income.
4.5 Other Services; Responses to US Patent and Trademark Office Action Letters. Trademarky may provide you with other services for additional fees. We also charge you separately for responding to an action letter issued by the Office (i.e., regarding your trademark application), if the letter raises significant issues that require extensive analysis. For example, if the Office rejects your application due to the similarity of another registered trademark, engaging with the Office could require extensive work, for which we charge additional fees. Our additional fees are billed in intervals of 1/10th of each hour at an hourly rate of $350 per hour. Trademarky reserves the right, in its sole discretion, to determine what work is simple or complex (i.e., in responding to an action letter), and whether additional fees are required. If we can quickly and easily address an action letter, we will do so for you at no charge.
If, in response to an action letter, you chose to abandon (i.e., not further pursue) your application, or you do not agree to pay our additional fees, Trademarky may terminate its representation of you and notify the Office that it no longer represents you.
Notwithstanding the foregoing, rest assured that Trademarky does the best that it can to position your trademark for registration. However, we cannot guaranty registration of your trademark or the severity of issues raised by the Office as to your application.
5.1 Trademarky ’s Ownership Rights. Trademarky maintains all right, title, and interest in the Trademarky Services and its own name, logos and taglines. You may not use Trademarky’s name, logo or taglines without its consent.
5.2 Your Name, Logo or Tagline. You retain all rights to the name, logo or tagline that you seek to register through use of the Trademarky Services. Moreover, your use of the Trademarky Services does not transfer to Trademarky an ownership interest in or rights to your name, logo or tagline simply because we are helping you register them.
5.2 Feedback. If you provide Trademarky with suggestions or comments for enhancements or improvements to the Trademarky Services (“Feedback”), Trademarky will have full discretion to determine whether to use them. Furthermore, Trademarky will have the full, unencumbered right to use, incorporate and otherwise exploit any such Feedback in connection with its products and services, all of which Trademarky shall own.
5.3 User Data. All right, title, and interest in and to the User Data, including the Account Information and Materials that you provide to Trademarky, will remain vested in you. Upon termination, Trademarky will delete any User Data unless otherwise prohibited by law or its standard business practices.
5.4 Confidentiality. For purposes hereof, “Confidential Information” means any information or data disclosed by us to you, or by you to us, and that should be reasonably understood by either of us to be confidential in light of the nature of the information. For purposes of clarity, Confidential Information need not be marked as such to be confidential for purposes of this Agreement. As to Trademarky, its Confidential Information includes, without limitation, its technology, the Trademarky Services, the Trademarky Platform, and details regarding your user experience, among other things. Your confidential information includes information that you provide to Trademarky, that is not intended for public consumption, and that is not included in your trademark application.
Confidential Information will not include any information which (a) is in the public domain through no fault of the receiving party; (b) was properly known to the receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information. Each party will protect any Confidential Information of the other with the same care that it would use to protect its own similar information, but in no event less than reasonable care. Each party will use Confidential Information only for the purpose of fulfilling its obligations or exercising its rights under this Agreement, and as otherwise set-forth in Trademarky’s Privacy Policy (a separate policy that is posted at www.thetrademarky.com). Neither party will disclose any Confidential Information of the other to any third party without the prior written consent of the owner, other than furnishing such Confidential Information (e) to the Office as part of a trademark application; (f) by a party to its employees and consultants who need such Confidential Information to fulfill its obligations under this Agreement; (g) by a party to its professional advisers (e.g., lawyers and accountants); and (h) by a party as is permitted under Trademarky ’s Privacy Policy; provided, however, that any employees, consultants and advisers of a party that receive Confidential Information are bound by agreements or, in the case of professional advisers, ethical duties to treat, hold and maintain such Confidential Information in a manner consistent with the terms hereof.
5.5 Data Security and Data Processing; Privacy.
(a) Data Security. Trademarky maintains commercially reasonable and industry standard administrative, physical, organizational and technical safeguards to prevent the unauthorized use, access, processing, destruction, loss, alteration or disclosure of any User Data. Such safeguards will include, at minimum, an industry standard information security program to safeguard User Data and procedures to ensure that only those with authorization may access such User Data. Trademarky will promptly notify you upon becoming aware of an incident that may compromise the security, confidentiality or integrity of User Data. Trademarky will comply with notification obligations required by state and federal laws and regulations. Trademarky reserves the right to protect its network and services from external threats by restricting network access from various hosting providers, traffic proxies, and locations where Trademarky does not conduct business.
THE TRADEMARKY SERVICES ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW. TRADEMARKY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
WITHOUT LIMITING THE FOREGOING, TRADEMARKY DOES NOT WARRANT THAT THE TRADEMARKY SERVICES WILL RESULT IN OBTAINING A REGISTERED TRADEMARK WITH THE UNITED STATES PATENT AND TRADEMARK OFFICE.
TRADEMARKY DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY PRODUCTS. IF THIS DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER THE APPLICABLE LAW.
7.1 Indemnification by You. You agree to indemnify, defend and hold harmless Trademarky against any claim, demand, suit, or proceeding (“Claim”) arising out of (a) your unauthorized use of or access to the Trademarky Services; (b) your violation of any term of this Agreement; (c) your violation of any third-party rights, including any right of privacy or any intellectual property rights regarding your ownership of the names, logos or tag lines that you seek to register; (d) your violation of any applicable law, rule or regulation; (e) your use of the User Data and any User Representations in a manner that violates the terms hereof or applicable law; and (f) the use of the Trademarky Services by unauthorized persons with your Credentials. To receive the benefit of the foregoing, Trademarky will give you prompt written notice of the Claim and its reasonable cooperation, at your expense, in defense and settlement of the Claim.
YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 8 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN YOU AND TRADEMARKY AND TO LIMIT POTENTIAL LIABILITY, GIVEN THAT THE FEES THAT YOU HAVE PAID TRADEMARKY WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF TRADEMARKY WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET-FORTH HEREIN. TRADEMARKY HAS RELIED ON THESE LIMITATIONS IN DETERMINING THE PRICING FOR ITS SERVICES AND ACCEPTING YOU AS A CLIENT.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TRADEMARKY, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS AND LICENSORS SHALL NOT BE LIABLE FOR (A) ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ITS AND THEIR SERVICES IN ATTEMPTING TO REGISTER YOUR PROPOSED TRADEMARK, INCLUDING YOUR USE OF OR INABILITY TO USE THE TRADEMARKY SERVICES; (B) ERRORS, MISTAKES OR INACCURACIES OF THE TRADEMARKY SERVICES; (C) PROPERTY DAMAGE OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE TRADEMARKY SERVICES OR YOUR FAILURE TO OBTAIN A REGISTERED TRADEMARK; (D) THE CONTENT OF YOUR USER DATA; (E) ANY INTERRUPTION OR CESSATION OF TRANSMISSION OF THE TRADEMARKY SERVICES; (F) ANY BUGS, VIRUSES, TROJAN HORSES OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE TRADEMARKY SERVICES BY ANY THIRD PARTY; (G) ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF CONTENT POSTED, EMAILED, TRANSMITTED OR OTHERWISE MADE AVAILABLE THROUGH THE TRADEMARKY SERVICES; AND/OR (H) THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY. TRADEMARKY, ITS AFFILIATES, AGENTS, EMPLOYEES, SUPPLIERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR DIRECT DAMAGES, IN THE AGGREGATE, EXCEEDING THE AMOUNT YOU PAID TO TRADEMARKY HEREUNDER FOR THE CLAIM THAT GAVE RISE TO SUCH LIABILITY. THE LIMITATIONS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, EVEN IF TRADEMARKY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE EXCLUSIONS AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
9.1 Assignment; Delegation. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Trademarky. Any attempted transfer or assignment in violation hereof shall be null and void. Trademarky may use vendors or contractors (i.e., such as the hosting agent of its platform) to provide the Trademarky Services to you. Trademarky may change its vendors or contractors without notice to you. Notwithstanding, Trademarky will remain responsible for the acts and omissions of its vendors and/or contractors.
9.2 Governing Law. This Agreement will be governed by the laws of the State of Florida, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
9.3 Notices. Trademarky may provide notifications to you via email notice, text message, written or hard copy notice, or through posting of such notice on the Trademarky Platform. Trademarky reserves the right to determine the form and means of its notifications, and you may opt-out of certain notifications. Trademarky is not responsible for automatic filtering that you or your network provider may apply to email notifications sent to the email address that you provide. Trademarky may, in its sole discretion, modify or update this Agreement from time to time. When material changes are made, a change will be made to the ‘Last Updated’ date at the top of this page. Any changes will become effective no earlier than thirty (30) days after they are posted, except that changes that address new functions of the Trademarky Services or made for legal reasons will be effective immediately. Your continued use of the Trademarky Services after changes are made constitutes your acceptance of this Agreement, as updated. Notices to Trademarky shall be made to notices@thetrademarky.com.
9.4 Waiver. No waiver of any rights will be effective unless assented to in writing. Any waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply to any repeated or continued violation of the same provision. Failure or delay to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or another provision.
9.5 Relationship. Nothing herein will constitute any association, partnership, agency, employment or joint venture between Trademarky and you, or be construed to evidence an intention to establish such relationship. Neither Trademarky nor you will have the authority to obligate or bind the other in any manner, and nothing herein will give rise or is intended to give rise to any rights of any kind to any third parties.
9.6 Unenforceability. If a court of competent jurisdiction determines that a provision of this Agreement is invalid, illegal, or unenforceable, such provision will be enforced as nearly as possible with the stated intention of Trademarky and you, while the balance hereof will remain in full force and effect according to its terms.
9.7 Force Majeure. Trademarky will not be in breach hereof for cessation, interruption or delay in performance of its obligations due to causes beyond its reasonable control including, without limitation, earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared) or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
9.8 Entire Agreement. This Agreement and supplemental policies that may be adopted comprise the entire agreement between you and Trademarky with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements. No oral or written information or advice given by Trademarky, its agents or employees will create a warranty or increase the scope of the warranties in this Agreement.
9.9 Marketing. You agree that Trademarky may use your name and logo on its website and in other promotional marketing materials, unless you opt out of such usage by sending an email to opt-out@thetrademarky.com.
10.1 First Try Support. If you have issues with the Trademarky Services, you must try to resolve them through Trademarky support. If you are unable to resolve them through Trademarky support within sixty (60) days, you may pursue the dispute resolution procedures detailed in this Section 10.
10.2 Mandatory Mediation. If you have a dispute that is not resolved through Trademarky support, you must commence mediation by providing notice to Trademarky and the American Arbitration Association (the “AAA”), who will have jurisdiction over the mediation. The mediation shall be conducted under the AAA’s commercial mediation rules as then in effect. The cost of the mediation shall be born exclusively by you. A mediator shall be jointly selected or selected by the AAA absent an agreement. The mediation shall take place within thirty (30) days of appointment of the mediator, who will be appointed within thirty (30) days of the filing of the notice. The mediation shall be non-binding, and shall be conducted over Zoom, Microsoft Teams or similar application.
10.3 Mandatory Arbitration. If a dispute is not resolved at mediation, a party must file a claim to arbitrate it with the AAA under its then applicable commercial arbitration rules. ANY DISPUTE OR CLAIM RELATING TO YOUR USE OF OR ACCESS TO THE TRADEMARKY SERVICES OR ANY PRODUCT OR SERVICE INTEGRATED WITH THE TRADEMARKY SERVICES, AS WELL AS ANY DISPUTE OR CLAIM RELATING TO OR ARISING UNDER THIS AGREEMENT (INCLUDING UNDER TRADEMARKY ’S PRIVACY POLICY AND ANY APPLICABLE ADDITIONAL TERMS), SHALL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION UNDER THE JURISDICTION OF THE AAA, RATHER THAN IN COURT. THIS ARBITRATION AGREEMENT IS MANDATORY AND APPLIES TO ALL SUCH CLAIMS BROUGHT UNDER ANY LEGAL THEORY. YOU SHALL PAY ALL OF THE COSTS OF THE ARBITRATION.
This Agreement is governed by the Federal Arbitration Act (“FAA”), including its procedural provisions. That means that the FAA governs, among other things, the interpretation and enforcement of this Agreement and all of its provisions including, without limitation, the class action waiver discussed below. State arbitration laws do not govern.
This Agreement is intended to be broadly interpreted and will survive termination of this Agreement, which means (among other things) that this Agreement applies even after you have stopped using the Trademarky Services. The arbitrator and not any federal, state or local court or agency shall have exclusive authority to the extent permitted by law to resolve all disputes arising from or relating to the interpretation, applicability, enforceability, or formation of this Agreement including, but not limited to, any claim that all or a part of this Agreement is void or voidable. If the parties have a dispute about whether this Agreement can be enforced, whether this Agreement applies to a dispute, or any other dispute about the meaning or scope of this Agreement, the arbitrator shall have the exclusive authority to resolve the dispute. The costs of the arbitration shall be shared evenly by Trademarky and you.
There is no judge or jury in arbitration, and a court’s review of an arbitration award is limited. However, an arbitrator can award, on an individual basis, the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow this Agreement as a court would. For the avoidance of doubt, the arbitrator may award public injunctive relief.
If this Agreement is, for any reason, held unenforceable or inapplicable to a claim, any litigation against Trademarky may be commenced only in a federal or state court located within Miami-Dade County, Florida, and both parties consent to the jurisdiction of those courts for such purposes.
10.4 Details of Arbitration Procedure.
(a) Selection of Arbitrators and Costs; Location. There shall be one (1) arbitrator who shall be jointly selected by Trademarky and you, or appointed by the AAA if an agreement is not reached by the parties within thirty (30) days. The arbitration shall take place in Miami-Dade County, Florida. The arbitration shall take place within sixty (60) days of its commencement.
(c) Discovery. Each party will be entitled to obtain a copy of non-privileged, relevant documents in the possession or control of the other party, and each party may take two (2) depositions. All such discovery will be in accordance with the procedures approved by the arbitrator. This Agreement does not alter in any way the statute of limitations that would apply to any claims or counterclaims asserted by either party.
(d) Arbitration Award. The arbitrator’s award will be based on the evidence admitted and the substantive law of the State of Florida and the United States, as applicable, and will contain an award for each issue and counterclaim. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify this Agreement, and may not award any relief that is inconsistent with this Agreement.
(e) Final and Binding. Except as provided in the FAA, the arbitration award will be final and binding on the parties. Judgment may be entered in any court of competent jurisdiction.
10.5 Class Action Waiver. You and Trademarky agree that any claims or controversies between us must be brought on an individual basis only, and not in a class, consolidated, or representative action. That means neither you nor Trademarky may bring a claim as a plaintiff or class member in a class action, consolidated action, or representative action. The arbitrator cannot combine or consolidate more than one person’s or entity’s claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless all parties agree otherwise in writing). Further, the arbitrator’s decision or award in one person’s or entity’s case can only impact the person or entity that brought the claim and not any other entities including Trademarky, you or your employer or contractors, and cannot be used to decide other disputes with other parties. YOU AGREE (i) TO WAIVE ANY RIGHT TO A JURY TRIAL; (ii) TO WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-WIDE OR REPRESENTATIVE ARBITRATION OR LAWSUIT; AND (iii) TO WAIVE ANY RIGHT TO PARTICIPATE IN ANY CLASS ACTION LAWSUIT (INCLUDING FOR ANY CLAIM THAT IS DETERMINED NOT TO BE SUBJECT TO ARBITRATION UNDER THESE TERMS).
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