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General Terms and Conditions

General Terms and Conditions of Pro4TM.com
 
Version: May 2015
 
pro4TM.com, s.r.o.
Obchodna 43-45
81106 Bratislava
Slovakia
 
Commercial court of registration: Court of Bratislava I
Commercial registration number: Sro 86792/B
VAT ID number: SK2023713153
 
  1. General, Power to Amend Decisions, Scope
     
    1. Pro4TM.com s.r.o. ("Pro4TM") renders services ("Services") to the client exclusively on the basis of the following General Terms and Conditions (“GT&Cs”) that constitute an integral part of each contract concluded by Pro4TM even without explicit reference insofar as not otherwise expressly agreed upon in writing. Supplementary or amending contractual terms as well as any client GT&Cs are expressly contradicted. They shall have validity when expressly acknowledged by Pro4TM in writing, only.
       
    2. The provision of services by Pro4TM requires that the client (i) be a corporation in the sense of the Austrian Commecial Code [Unternehmensgesetzbuch – UGB] and (ii) have concluded a corresponding contract with Pro4TM.
       
  2. Object of the Contract, Conclusion of the Contract, Services by Pro4TM
     
    1. The object of the contract consists of services rendered against payment in the area of trademarks and brands.
       
    2. The offers at the website www.pro4tm.com ("Website") are exclusively subject to confirmation. The client’s order via the Website for a service according to Pt. 3 constitutes an offer in the legal sense. Pro4TM shall promptly issue a confirmation of receipt of this order ( “Order Receipt Confirmation”) by email. This Order Receipt Confirmation shall include the client’s order details and constitutes acceptance of the offer.
       
    3. Prior to execution of the first order, the client is required to register at the Website. The client must enter its information (name, address VAT ID number, email address, password) and select its preferred method of payment (see Pt. 5).
       
    4. By executing the registration, the client confirms the accuracy of its information, in particular its corporate status, name, VAT ID and address. The client is responsible for the confidentiality of the self-selected password. Pro4TM can verify whether a password matches the associated email address, only. Pro4TM bears no responsibility to conduct further verification. Any individual who logs in with the email address and associated password shall be considered to be legally authorized to make orders for the client registered in this way as well as to undertake other actions in the Website’s client area. The client shall be liable to Pro4TM for any damages arising from violations of this provision.
       
    5. Pro4TM is entitled to accept orders only partially or to decline them without offering justification. Oral modifications or supplementary agreements are not binding on Pro4TM. Services not established in the contract are therefore not warranted.
       
    6. Services for which no direct contract may be concluded via the Website shall be correspondingly indicated by Pro4TM.
       
  3. Pro4TM Services Catalogue
     
    1. The precise content and scope of services included in the selected service packages (for example, Basic and Multi) are described in detail at the Website, whereat the provisions of these GT&Cs take precedence. The final scope of services shall be specified in writing by the client in the order. Any claims by the client to more extensive services are without warrant.
       
    2. Pro4TM notes that the provision of services is dependent upon the availability, completeness, currency and correctness of third-party systems, in particular governmental and official sites for the registration of trademarks and domains, as well as other third-party databases, specifically including Google® and Google® AdWords®, that make the data available and by means of which the data are retrievable.
       
    3. In principle, the client has no claim as part of the provision of services to a specific completion date or a specific reaction time insofar as this is not expressly agreed upon in writing in the contract. Even in such a case, the client must accept slight delays without claim to damages or compensation.
       
    4. Domains with country codes not listed in www.pro4tm.com/services/domains are kept confidential by the respective countries. Pro4TM is unable to access the entire registration list (“zone file”) in such cases. Therefore the client accepts that comparison of its search terms cannot be achieved with domains registered in these unlisted countries.
       
    5. The client may review Pro4TM’s performance results at any time at the area of the Website accessible via its personal password. The Website operates daily, 24 hours per day. However, Pro4TM is entitled to take the Website offline temporarily or to halt specific services in order to undertake essential systems operations or tasks, particularly maintenance operations or services to avoid disruption or breakdown, or to interrupt or limit access time. The same shall apply when third-party upstream technical services (for example, third-party databases) necessary for the provision of services are temporarily inaccessible. Clients shall be informed via the Website in a timely fashion regarding these or other objectively justifiable modifications of operational hours. The client shall have no right to claims arising from such temporary suspensions or interruptions of service.
       
    6. The service results of pro4TM are available for six months and then deleted. Before they are deleted, however, the service results are filed, though without granting any legal claim to such files. If available, customers may commission pro4TM to provide such filed service results at the customers’ expense.
       
    7. Pro4TM also offers support to the client in the (i) initial search and review of obstacles to registration and (ii) registration of a new trademark through a firm of Pro4TM’s choosing ( “Partner Firm”). The client may use the platform to communicate the details of the desired new trademark by filling out the online form at the platform. Concrete suggestions and support concerning the use of the online tools are also available at this site. The client acknowledges that the actual execution of the initial search and the review of registration obstacles are exclusively conducted by the Partner Firm. Details provided by the client shall be relayed to the Partner Firm (for detail, see the Supplementary Terms and Conditions of the Partner Firm).
       
  4. Duration of the Contract
     
    1. As a part of its order, the client may select among different service packages. The contract duration and service contents vary according to the individual package and may be viewed here: www.pro4tm.com/shop/prices.
       
    2. The contract of the product "Basic" automatically ends upon expiry of the subscription term. The contracts of all other products are automatically extended by the original contract term unless pro4TM receives the customers’ cancellation at least one month prior to expiry of the contract term.
       
  5. Charges, Terms of Payment
     
    1. The charges displayed at the Website regarding service charges at the time of the conclusion of the contract shall be in Euro and exclusive of taxes, fees and public levies.
       
    2. Statutory VAT shall be added to every payment as indicated by national and EU VAT laws. The payment shall be due and payable immediately upon conclusion of the contract, net cash without discounts and free of charges. Any objections by the client concerning invoices shall be raised within 14 calendar days from the date of the invoice. The invoice shall otherwise be considered approved. The due date of the invoice amount shall not be affected by the submission of objections.
       
    3. Depending on the payment method selected by the client, the services offered by Pro4TM may be exercised at once (immediate transfer, credit card) or upon receipt of the payment by Pro4TM (advance payment). Pro4TM thus begins to provide the agreed-upon services only when the invoice has been fully paid. Should payment be made by credit card, the client authorizes Pro4TM at the time credit card details are disclosed to charge the full amount of the invoice to the client’s credit card upon the due date.
       
    4. The client may only withhold or offset payments to Pro4TM in the case of uncontested or legally valid counterclaims. Justified complaints do not entitle the client to retain the entire balance but only an appropriate portion of the invoiced amount.
       
    5. Any fees, levies and taxes arising from the conclusion of the contract and the use of the services shall be borne by the client.
       
  6. Limitation of Liability
     
    1. Except in the case of personal damages, Pro4TM’s liability shall be limited only to deliberate or grossly negligent damages whereby the amount of liability for grossly negligent damages shall be limited to the total agreed-upon payment. It is the client’s responsibility to establish that damages were caused by Pro4TM in a deliberate or grossly negligent manner.
       
    2. Liability is excluded, furthermore, in cases where damages may arise
      1. from cessation or interruption of operations or other technical defects;
      2. from possible disturbances such as communication errors, data errors, transmission errors, database errors or the utilization of requested data;
      3. due to incorrect or incomplete data and information from third-party databases underlying the services;
      4. from possible loss of data and/or information;
      5. from possible loss of Internet connection or third-party upstream services;
      6. from losses due to software malfunctions, hacker attacks or other damages caused by the Internet; or
      7. from claims by third parties.
         

       
    3. Pro4TM assumes neither responsibility for lost earnings, expected but not realized savings, indirect and consequential damages, nor for damages to recorded data. The client shall take all reasonable measures, especially daily data backup and ongoing verification of results, to recognize any occurrence of damages at the earliest possible moment and to minimize their adverse impact (duty to minimize damages).
       
    4. The client accepts liability, indemnifies Pro4TM and holds it harmless from any consequences arising from violation of these GT&Cs and the contract as well as from any damages caused by the client or by persons attributable to the client in violation of the agreement in connection with the utilization of the services or with the data and information provided by Pro4TM. This includes the loss or disclosure of login information shared with client as well as possible modifications to the login information caused by the client.
       
    5. The client shall assert in court any claims against Pro4TM not acknowledged in writing within six months after becoming aware of the damage and the originator of the damage; otherwise the time period for such assertion shall expire.
       
  7. Warranty
     
    1. Pro4TM places the greatest value on the reliability, accessibility and quality of its services. However, because it relies on third-party infrastructure and in particular on third-party databases and their accessibility capacity, Pro4TM can make no guarantee that these will be accessible at all times without interruption. Should data or information not be accessible, or should Pro4TM’s access be limited, or if the data or information are not or have not yet been made public or if they contain errors, Pro4TM cannot, cannot yet (or cannot completely) gather or report these. Thus the client has no claim regarding the completeness and accuracy of data and information stored and/or transmitted by Pro4TM and indemnifies Pro4TM from any warranty and/or liability resulting therefrom.
       
    2. The client is itself responsible in every case for selecting the specific services and technical application conditions. It bears the risk that these may not meet its requirements. For this reason Pro4TM assumes no responsibility to ensure that these possess the properties that are stipulated by the client and not explicitly agreed to, or that they are able to be performed for the purposes the client hopes to accomplish.
       
    3. The burden of proof of the existence of defects shall be borne by the client. Presumption of defectiveness in accordance with Sec. 924 of the Austrian Civil Code [Allgemeines Gesetzbuch der Republik Österreich – ABGB] is excluded.
       
    4. No warranty exists for defects and errors attributable to the sphere of the client or its other suppliers and service providers.
       
  8. Force Majeure
     
    1. Insofar and so long as obligations cannot be met in a timely or proper manner as a result of force majeure such as, for example, war, terrorism, natural disasters, fire, strike, lockout, embargo, sovereign acts, power failure or telecommunications network or data link failure, such situations shall not constitute a violation of the contract.
       
  9. Notice Periods and Rescission
     
    1. The ordinary right to rescind a contract that has been concluded based on these GT&Cs is excluded.
       
    2. Either party is entitled to rescind this contract in writing prematurely and without notice for good cause. A good cause shall exist in particular if, in spite of written admonition and after a reasonable grace period and threat of termination, the other party is in violation of key obligations of the contract, or upon the client’s revocation of Pro4TM’s direct debit authorization for payment of the services rendered without an alternative form of payment having been previously agreed upon in writing with Pro4TM.
       
    3. In the case of rescission for good cause originating in the client’s sphere, or of the client’s unjustified termination, Pro4TM shall be entitled to claim payment without deduction for all services up to the agreed-upon total payment amount.
       
    4. In the event of good cause according to Pt. 9.2, Pro4TM is entitled to halt the provision of services immediately and to block the client’s access. Other contractual obligations of the client remain unaffected by this right. Access shall be restored, however, as soon as the reasons for the blockage are resolved. The costs of blockage and restoration shall be borne by the client.
       
  10. Other Rights and Obligations
     
    1. For reference purposes, Pro4TM is entitled to cite to third parties the client and/or the nature of the services rendered for it.
       
    2. Each party warrants the other that it will treat all business secrets of which it becomes aware in connection with this contract and its execution as confidential, insofar as these are not generally known nor part of a decision to disclose by a public authority or court. This obligation is valid for an indefinite period of time beyond the end of the contractual relationship. Pro4TM obligates its employees in this context to comply with the provisions of Sec. 15 of the Data Protection Act [Datenschutzgesetz - DSG].
       
    3. The client specifically consents that personal data it makes available in its registration may be automatically processed by Pro4TM for market research purposes. Insofar as the client consents by marking the appropriate check box, Pro4TM may issue electronic messages ten times per year for advertising purposes according to Sec. 107 of the Telecommunications Act [Telekommunikationsgesetz – TKG], for example regarding law- and economics-related innovations in marketing law. This consent may be revoked by the client at any time, whether in its personal area at the Website, in writing, by telephone, or by email.
       
    4. Pro4TM may transfer to one or more third parties its rights and obligations under an individual contract without the client’s consent. In the event of such contract transfer, the client shall have no termination right. Pro4TM is further entitled to charge subcontractors with the fulfilment of its contractual obligations.
       
  11. Final Provisions
     
    1. The place of performance of any services under this contract is Vienna.
       
    2. In the event of contradiction between a contract and these GT&Cs, the contract shall take precedence.
       
    3. Legally invalid provisions of these GT&Cs or of a contract shall not affect the validity of the remaining provisions. Invalid provisions shall be replaced by valid provisions that meet the economic purpose of the invalid and unfeasible clause as nearly as possible.
       
    4. Modifications and supplements to these GT&Cs or to a contract must be in writing, and this stipulation also applies to suspension of the written form. Communications in writing via email, mail or fax are considered to be written statements in the sense of these GT&Cs. This form requirement does not, however, apply to the content of these GT&Cs or to direct communication between the parties regarding the contract.
       
    5. The jurisdiction for any disputes, including regarding the question of the lawful conclusion of an individual contract, is exclusively the court having local and factual jurisdiction for 1010 Vienna.
       
    6. These GT&Cs and any contracts that may be concluded based on them are subject to the substantive law of the Republic of Austria with the exception of the reference provisions and the UN convention on sales.


Supplementary Conditions for the Order of an Initial Search and Assessment through our Partner Firm
 
  1. General, Scope
     
    1. Whenever the client uses the platform to order an initial search and assessment for a trademark registration, the following conditions shall apply.
       
    2. The provision of services in this area takes place exclusively through the Partner Firm and is therefore based on a separate contractual relationship between the client and the Partner Firm. The validity of Pro4TM’s GT&Cs is thus subordinate to these provisions. In the event of any contradictions, the Supplementary Conditions take precedence.
       
  2. Services of the Partner Firm
     
    1. The Partner Firm may provide the following services via the platform upon assignment by the client:
       
    2. Initial search and assessment
       
      1. Based on details regarding a desired new trademark to be communicated by the client and forwarded by Pro4TM, the Partner Firm can carry out a cursory comparison with already existing older trademark rights (“initial search”) and an examination of the existence of obstacles to registration in Austria and/or in the territory in which the Community Trade Mark will be applied (“initial assessment”).
         
      2. The Partner Firm reserves the right to contact the client directly regarding uncertainties related to the details provided. At its own discretion, the Partner Firm is further entitled to refuse an initial search and assessment request, particularly in the case of terms that are of questionable legality or that offend common decency, as well as in cases where a conflict arises, with reimbursement of the basic payment already made for such services.
         
      3. The initial search will be accomplished through the use of the "eSearch plus" and "ROMARIN Online" search tools as well as the database of the Austrian Patent Office [Österreichisches Patentamt]. At the same time the Partner Firm will conduct a brief search using an Internet search engine. The client’s brand term will be searched using the search tools and a comparison made of the results obtained. Neither the agreement nor the basic payment covers a further, more extensive search. The Partner Firm’s performance of the initial search depends on the accessibility, completeness, currency and accuracy of third-party systems, particularly governmental and official trademark and domain registration sites, as well as the abovementioned search tools that offer access to the data and by means of which the data are retrievable.
         
      4. As a part of the initial search, the Partner Firm also delivers an assessment of the existence of possible obstacles to legal registration. The initial assessment provided to the client focuses on the legal provisions of the Austrian trademark protection law [Markenschutzgesetz - MSchG] as well as the Community Trade Mark Regulation [Gemeinschaftsmarkenverordnung], relevant established case law and the practical experience of the Partner Firm.
         
      5. The basic payment for an initial assessment indicated at the Website covers the services of the Partner Firm described in Pt. 2.2.1, limited to three classes of the Nice Classification. Any further class must be separately compensated with the supplementary fee as indicated. Any further search criteria or services such as, in particular, a more thoroughgoing search and analysis, must occur exclusively by means of a separate order to the Partner Firm and through separate compensation.
         
      6. Pro4TM’s role in the client’s payment for the Partner Firm’s initial assessment according to Pt. 2.2.4 is solely as a provider of payment services involving the Partner Firm.
         
    3. Trademark registration
       
      1. It is not possible to commission a trademark registration directly via the platform. This requires a separate, direct commission in keeping with the procedures, conditions and costs indicated by the Partner Firm.
         
      2. Costs and fees shown for a possible trademark registration are solely guidelines; valid costs and fees are those of the responsible authorities, current at the time the client’s respective application is made. The actual costs are dependent on the conditions agreed upon between the client and the Partner Firm, including but not limited to (i) the scope and form of the list of goods and services (Nice Classification) and (ii) the desired extent of trademark protection. A final agreement regarding compensation is therefore only possible following provision of the respective details by the client to the Partner Firm.
         
      3. Possible claims as well as the accounting and payment related to trademark registration shall be transacted directly between the Partner Firm and the client, and Pro4TM shall have no role as provider of payment services in this area.
         
  3. Liability
     
    1. The Partner Firm is liable for the competent execution (Sec. 1299 ABGB) of the client’s order. It is therefore obligated according to Sec. 9 of the Attorneys Code [Rechtsanwaltsordnung – RAO] to represent the client’s interest with zeal, faithfulness and diligence. Apart from that, the Partner Firm bears a comprehensive commitment to confidentiality and loyalty.
       
    2. The client acknowledges that the Partner Firm’s initial assessment cannot guarantee the success of a corresponding trademark registration process. There always exists a practical risk of failure of a trademark registration, particularly but not exclusively because (i) the final decision always lies with the respective responsible patent office, and this can possibly also affect individual case decisions that deviate from previous practice, (ii) holders of earlier rights may lodge (successful) complaints in the case of even slight similarities, (v) unrecorded trademark laws and, in the case of Community Trade Marks, unexamined national trademark laws may exist and (vi) modifications between the time of the initial search and the actual registration may have occurred (for example, statutory changes; registrations in the intervening period; etc.).
       
    3. The Partner Firm’s liability is limited to deliberate and grossly negligent infliction of damage in which the client’s serious injury shall be proved by the client. In the case of grossly negligent infliction of damage, the compensation amount is limited to the value of the order.
       
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