Current as at 1 May 2005 (subject to change)
Search orders/ instructions are accepted, processed and reports delivered on the basis that the Client has been made aware of the existence of terms and conditions that are as detailed below. Should you not accept these conditions and wish to cancel your order at this time, please advise us immediately.
1.1 These general terms and conditions (“Terms and Conditions”) apply to all services provided by INSIGNIA TRADE MARK SERVICES PTY LIMITED, ABN 003 870 611, trading as SEARCHMARK (“SEARCHMARK”).
2.1 The provisions of the search acknowledgement (“Search Acknowledgment”) and these Standard Terms of Trading form a contract between SEARCHMARK and the person/ entity who has executed the foot of the Order Form and/ or provided instructions to an officer of SEARCHMARK (“the Client”).
3.1 The main activities of SEARCHMARK are the conduct of trade mark searches, the compilation of reports and delivery of reports and information. We reserve the right to refuse to accept or process instructions.
4.1 Where the services requested by the Client are to provide products or services as described under the heading “Search Product” on our Search Acknowledgement, then SEARCHMARK undertakes to provide such products or services. SEARCHMARK’s obligations to the Client are limited to the goods and/ or services that SEARCHMARK acknowledges to the Client, by way of our standard Search Acknowledgement.
4.2 The reports provided by SEARCHMARK are presented in a format most suited for consideration/ analysis by lawyers and/ or other persons fully versed in trade mark matters.
4.3 SEARCHMARK does not give legal opinion regarding the adoption, use and/ or registrability of trade marks. Neither the report(s) nor any verbal comments or observations made by an officer of SEARCHMARK in relation to such report(s) constitutes a legal opinion. SEARCHMARK will, upon request, refer clients to law firms to provide legal opinion to supplement the search reports provided by SEARCHMARK.
5.1 SEARCHMARK will make all reasonable efforts to adhere to the deadlines for the delivery of the results of ordered searches. SEARCHMARK does not, however, accept any liability for the delay in delivery of reports.
5.2 Should it not be possible to provide a report by the chosen turnaround time, SEARCHMARK will provide the report as soon as possible and charge for the search at the actual turnaround time rate.
6.1 The charges applicable to the goods, services and any other things provided by SEARCHMARK are those as appearing next to the relevant services on our Scale of Charges or any quotation provided by SEARCHMARK or associated companies.
6.2 SEARCHMARK is entitled to render an invoice for the charges for goods, services or any other thing provided at the time of delivery of the search/ report or at any such time after instructions are received from the Client.
7.1 Invoices are the sole responsibility of the Client.
7.2 Invoices are rendered with the corresponding search reports and are due for payment within 7 days of the date of issue by the Client, in accordance with our terms of trading or as otherwise agreed in advance. Invoices will not, without prior agreement, be issued in the name of third parties and we do NOT accept delays by third parties as a valid reason for delays for non-payment of our invoices.
7.3 If our invoices are not paid in accordance with these Terms of Trading, without reasonable explanation or just cause, SEARCHMARK will, to the extent permissible by law, have no liability to the Client whatsoever hereunder.
7.4 We reserve the right to refuse to accept or action further instructions where previous invoices remain outstanding for 60 days or more.
7.5 Invoices outstanding 60 days from date of issue are liable to a late payment penalty of 10% per month.
8.1 All prices quoted or advertised are GST exclusive prices, unless otherwise advised.
8.1.1 But for this clause 1, all amounts expressed or described in this Agreement are GST exclusive amounts.
8.2 All amounts are to be increased for any GST.
8.2.1 If any GST (within the meaning of the A New Tax System (Goods and Services Tax) Act 1999 as amended from time to time, “GST”) is payable by any party (“Supplier”) in respect of the supply of any goods, services or any other things to any other party (“Recipient”), then the amount expressed or described in this Agreement (“Original Amount”) is to be increased so that the Supplier receives an amount (“Increased Amount”) which, after subtracting the GST liability of the Supplier on that Increased Amount, results in the Supplier retaining the Original Amount after payment of that GST liability.
8.3 Out of pocket expenses are GST inclusive.
8.3.1 But for this clause 1, all out of pocket expenses referred to in this Agreement are GST inclusive out of pocket expenses.
8.4 Out of pocket expenses to be reduced for any input tax credits.
8.4.1 If the Recipient is obliged to reimburse the Supplier for all or any part of any out of pocket expense, the amount which the Recipient must reimburse is limited to the Recipient’s portion of the amount paid or payable by the Supplier in respect of that out of pocket expense less the corresponding proportionate amount of any input tax credit claimable by the Supplier in respect of that out of pocket expense.
8.5 The Supplier to act reasonably to minimise any increase in amounts or out of pocket expenses due to the GST.
8.5.1 The Supplier will do all things reasonably available to it to minimise any increase in any original amount under this clause 1, and to minimise any increase in any out of pocket expenses.
8.6 Supplier to assist Recipient.
8.6.1 The Supplier will do all things reasonably available to it to assist the Recipient to claim on a timely basis any input tax credits (if any) the Recipient may be entitled to claim for any acquisition of goods, services or any other thing from the Supplier. This includes the Supplier maintaining it’s registered status for GST purposes and issuing tax invoices for supplies made under this Agreement on a timely basis as reasonably requested by the Recipient.
9.1 SEARCHMARK reports are prepared and delivered with the utmost care and attention, but are subject to limitations that may affect all documentary research and compilations.
9.2 SEARCHMARK’s sole obligation is limited to that of taking due care and making all reasonable efforts. Any liability arising out of the conduct, preparation, content and/ or delivery of reports and information is limited to a refund of the fee paid.
9.3 SEARCHMARK takes all reasonable steps to ensure the completeness and accuracy of its reports. However, in common with all documentary research, searches are inherently subjective and dependent upon uncertain contingencies. As a result, SEARCHMARK cannot otherwise guarantee its reports.
9.4 The Client should be aware that the Trade Marks Office might raise objections to any application for registration of a trade mark we have searched, on the basis of similarity to marks that our reports may or may not have detailed.
9.5 The reports and information provided by SEARCHMARK are for the exclusive use of SEARCHMARK’s Client. SEARCHMARK does not accept any obligation towards any third party or generally to any person who is not aware of or does not accept these terms and conditions.
10.1 SEARCHMARK holds all copyrights to literary work, including search results, and no licence is to be implied in favour of the Client to exercise any of the rights of a copyright owner in relation to such work, including the right to reproduce same, until all fees payable to SEARCHMARK under these Terms and Conditions have been received. |
