Date: April 2017
1.1 To be eligible for the Service, you must hold one of the following types of trademarks:
(a) Nationally or regionally registered word marks from any jurisdiction(s);
(b) Word marks that have been validated through a court of law or other judicial proceeding;
(c) Word marks protected by a statute or treaty in effect at the time the mark is submitted to the Trademark Clearinghouse for inclusion; or
(d) Other marks that constitute intellectual property may be recorded in the Trademark Clearinghouse by arrangement with a registry;
as such marks are specified by ICANN in the Trademark Clearinghouse Guidelines.
1.2 Subject to you holding an eligible trademark under clause 1.1, providing us with complete and accurate information and documentary evidence in accordance with clause 2, and paying us in advance the fees for the Service, we will submit your trademark information directly to the Trademark Clearinghouse to receive the Verification Services and, if successful, Activation.
1.3 Following the submission of a Trademark Record, subject to payment of our fees for the Service, we will promptly provide you with all information relating to such Trademark Record until the earlier of (a) the expiration of the selected Trademark’s registration period (as renewed), (b) the Trademark Record is deemed Invalid, or (c) the date such Trademark Record is Deactivated.
1.4 If eligible, upon our receipt of a NORN from the Database Provider for a label linked to your Trademark Record, we will promptly forward such NORN to you.
2.1 You must provide us with all information required to register your trademark with the Trademark Clearinghouse, and any other supporting information or documentation reasonably requested by Melbourne IT, ICANN, the Trademark Clearinghouse Operator or Deloitte, within a reasonable time.
2.2 If you hold and wish to register a registered trademark in the Trademark Clearinghouse, you must provide us with the following information:
2.3 If you hold a registered trademark and wish to participate in Sunrise and Trademark Claims Periods, you must also provide the following documentary evidence:
2.4 In respect of registered trademarks:
2.5 If you hold and wish to register a court-validated trademark in the Trademark Clearinghouse, you must provide us with the following information:
2.6 If you hold and wish to register a trademark protected by statute or treaty in the Trademark Clearinghouse, you must provide us with the following information:
2.7 If you are a licensee or assignee of a trademark, you are also required to provide a completed and signed Licensee or Assignee Declaration (as applicable) for all court-validated trademarks and trademarks protected by statute or treaty, and for registered trademarks where the licence is not recorded with the relevant trademark office.
2.8 In the event any information specified by ICANN or the Trademark Clearinghouse Guidelines conflicts with any of the above clauses 2.2 – 2.7, the Trademark Clearinghouse Guidelines shall prevail in respect of that conflict.
3.1 If ICANN or Deloitte are unable to verify your Trademark Record or determine that it is Invalid, we will notify you and inform you of the reason and request that you correct the trademark information and/or provide further documentary evidence (as applicable) within 20 days. Failure to provide the requested additional information to the Trademark Clearinghouse within the required time may result in your Trademark Record being Deactivated.
3.2 We will not submit your Trademark Record to the Trademark Clearinghouse when we have reason to believe that some or all of the information provided to us is false, deceptive, misleading, inaccurate or incomplete.
3.3 You agree that all information submitted by you to us, ICANN and the Trademark Clearinghouse will be accurate and correct and that in the event any changes occur during the Term of this Contract or the term of a registration of a Trademark Record you will promptly notify us of such change. In the event you request a change to a Trademark Record, such change may be considered a new Trademark Record and you may be charged a fee for any Verification Services that Deloitte may need to perform. Notwithstanding the above, changes to contact information, such as a change of address, should not result in any additional charge.
3.4 If your Trademark Record is recorded with the Trademark Clearinghouse for a period longer than one year, Deloitte will re-verify the Trademark Record on an annual basis for the duration of the recording of the Trademark Record at no additional charge during that period.
You grant us, Deloitte, ICANN, the Database Provider and any of such parties’ successors or assigns a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any data submitted by you, including but not limited to Trademark Records, for the purposes of the Trademark Clearinghouse and this Contract (Mandatory License). The Mandatory License automatically terminates for the period in which a Trademark Record has been Deactivated or upon the termination of this Contract. For the avoidance of doubt, you understand that the Mandatory License is necessary for you to receive NORNs. We will not, nor will any other party that has received rights under a Mandatory License, access or use the information provided in a Mandatory License for purposes other than those stated in this Contract.
You and we acknowledge that the information provided in your Trademark Record are predominantly comprised of information owned or provided by you and information that is in the public domain (e.g. trademark registration numbers) and that any rights in the underlying trademarks remain solely held by you. We represent and warrant that we will not disclose or use any Trademark Record information for any purpose other than providing the services contemplated by this Contract or as required by law. You agree that, even following the termination of this Contract and the corresponding termination of the Mandatory License, we may retain copies of all information provided to us by you under this Contract.
6.1 You and we acknowledge that, in the context of these Services, Personal Data will be exchanged by and between you, us, Deloitte, the Database Provider, ICANN, registries, registrars and domain name registrants.
6.2 You and we agree that any Personal Data sent by you and received and processed by us in the context of the Trademark Clearinghouse will be treated in accordance with applicable privacy laws and regulations. We shall only collect, process and share (a) such Personal Data which is necessary for the purpose of giving us access to the Trademark Clearinghouse, (b) any Personal Data related to a Trademark Record, (c) any Personal Data necessary to allow us to use the Trademark Clearinghouse, (d) any Personal Data necessary to allow us to manage your account, (e) any Personal Data that is necessary to allow Deloitte and/or ICANN to perform the Verification Services, (f) any Personal Data that is necessary to allow the Database Provider to provide NORNs, (g) any Personal Data that is necessary to allow registries and registrars to provide notices to prospective domain name registrants that the domain name that the prospective domain name registrant has requested matches a Trademark Record during a Sunrise Period or Trademark Claims Period, and (h) any Personal Data that is necessary to allow ICANN to maintain the continuation of the Trademark Clearinghouse.
6.3 You acknowledge and consent to the transfer of Personal Data provided by you between us, Deloitte, ICANN, the Database Provider, registries, registrars, domain name registrants and our respective subcontractors and affiliates for the performance of services contemplated by this Contract and operation of the Trademark Clearinghouse, including transfers of such Personal Data in connection with the inclusion of Trademark Records in the database operated by the Database Provider. If you do not provide the minimally required Personal Data and do not consent to the transfer of such data, we may not be able to perform all services contemplated in these Service Terms.
6.4 By giving us Personal Data, you may be transferring Personal Data to us, Deloitte, ICANN, the Database Provider, registries, registrars, domain name registrants and our respective subcontractors and affiliates to another jurisdiction that may not have the same level of data protection as your jurisdiction, including, but not limited to, the United States. However, you agree and consent to our collection, transfer, and processing of Personal Data in accordance with this Contract.
6.5 You agree that you accept the Trademark Clearinghouse Operator’s Privacy Notice located at http://www.trademark-clearinghouse.com/content/privacy-notice.
7.1 You agree to pay in advance the fees for this Service (which include applicable fees set by the Trademark Clearinghouse for registering your trademark for your selected registration period). All fees paid are non-refundable, regardless of whether your trademark is Activated by ICANN or Deloitte.
7.2 You agree that we will not submit your Trademark Record to the Trademark Clearinghouse until we have received all fees dues from you.
8.1 The Service shall commence when the Contract is accepted by you and will continue for the Trademark Clearinghouse trademark registration period you selected when purchasing this Service (the Term).
8.2 The Service (and the Contract) will automatically cease on (i) the expiration of the Term, unless (subject to payment of additional applicable fees to us) you renew your existing trademark registration in the Trademark Clearinghouse for a further period, and/or (ii) your Trademark Record being Deactivated in the Trademark Clearinghouse.
8.3 Subject to clause 8.8, you may terminate this Contract for convenience at any time on thirty (30) days written notice.
8.4 Melbourne IT may terminate this Contract with thirty (30) days written notice to you if:
(a) You fail to provide us with all required information and documentation, and any other information reasonably requested by us, to submit your Trademark Record to the Trademark Clearinghouse for registration, or to correct that information and/or provide further documentary evidence upon request by us, ICANN or Deloitte, within a reasonable time;
(b) You provide us with inaccurate, incomplete, false, misleading or deceptive information, or information which may infringe a third party’s intellectual property or other rights; or
(c) if, for a period of thirty (30) consecutive days, you have not submitted any trademark information to us which has resulted in a Trademark Record being deemed either Activated or Invalid (i.e. that have been submitted and are pending review).
8.5 If we intend to terminate our Trademark Agent Agreement with the Trademark Clearinghouse Operator, we will notify you and advise that you have thirty (30) days to either:
(a) enter into an agreement directly with the Trademark Clearinghouse Operator as a Trademark Holder; or
(b) have your Trademark Record Deactivated from the Trademark Clearinghouse upon termination of the Trademark Agent Agreement.
8.6 We may terminate this Service if you are in material breach of these Service Terms Contract, which breach has not been remedied within fourteen (14) days from your receipt of a written notice from us.
8.7 If you do not comply with any of the obligations contained in this Contract we may suspend your account with the Trademark Clearinghouse with immediate effect.
8.8 Upon early termination of this Contract:
(a) all fees paid by you to us for the Service will be forfeited, including any fees paid to the Trademark Clearinghouse for your trademark registration period; and
(b) the Mandatory Licence will automatically terminate.
8.9 If our agreement with the Trademark Clearinghouse Operated is terminated for any reason (other than at our direction), we will provide as much notice to you as practicable.
9.1 You acknowledge that we have not, and do not, provide any legal opinions or advice in relation to:
(a) this Service or any action taken by us as a result of this Service; or
(b) the eligibility or suitability of any trademark rights or registration of your trademark in the Trademark Clearinghouse.
You should seek legal advice in respect of the eligibility or suitability of any trademark rights or registration of your trademark in the Trademark Clearinghouse (including but not limited to any infringement or intellectual property law questions arising out of any such trademark rights or Trademark Clearinghouse registration).
9.2 You are solely responsible for any losses or damages incurred due to your Trademark Record being Deactivated by the Trademark Clearinghouse for any reason.
10.1 You acknowledge, represent and warrant that:
(a) You authorize us to act as your Trademark Agent and submit Trademark Records on your behalf for inclusion in the Trademark Clearinghouse;
(b) You are aware that upon Activation, the Trademark Record may be transferred to the Database Operator in order to obtain NORNs;
(c) You give us the right to download and use the Trademark Holder’s SMD Files (where applicable);
(d) You understand that we will directly receive from the Trademark Clearinghouse and distribute to you your NORNs and that only we may make selections in the Clearinghouse User Interface that could result in the Trademark Holder not receiving a NORN (i.e. opting to not receive NORNs for a certain label for a Trademark Record);
(e) You understand that your Trademark Record may not be transferred by us to another Trademark Agent or other third party;
(f) You give us authority to grant the Mandatory Licenses (as defined above) for you and that such Mandatory Licenses will be binding on you;
(g) You authorize us to act on the Trademark Holder’s behalf with respect to the Dispute Resolution Procedures; and
(h) You authorize us to perform any other obligation under these Service Terms.
10.2 You will provide the name or organization of the Trademark Holder and their contact information, including e-mail address, to us to submit to the Trademark Clearinghouse on your behalf and will at all times keep such information up to date. You acknowledge that Deloitte may, from time to time and at its sole expense, verify whether your contact information which we provide to the Trademark Clearinghouse on your behalf is correct, accurate and reliable, in which case we will notify you with reasonable notice. You agree to cooperate with us, the Trademark Clearinghouse and Deloitte in any such verification.
10.3 If you wish to transfer a Trademark Records to another Trademark Holder, you must contact us and the Trademark Clearinghouse, which will assist you in making such transfer (subject to any reasonable conditions to such transfer that the Trademark Clearinghouse may require).
10.4 You further warrant that:
11.1 We warrant that we will not transfer, in any form or by any means, your Trademark Record to another Trademark Agent or other third party except as contemplated by this Contract.
11.2 You agree that this Service and the Trademark Clearinghouse and associated services provided by us, ICANN, the Trademark Clearinghouse Operator, Deloitte, and/or the Database Provider are provided on an “as is” and “as available” basis.
11.3 To the extent permitted by law, neither Melbourne IT, ICANN, the Trademark Clearinghouse Operator, Deloitte or the Database Provider, nor any employees, affiliates, agents, subcontractors, third-party information providers or licensors (each a Relevant Party) of Melbourne IT, ICANN, the Trademark Clearinghouse Operator, Deloitte or the Database Provider make any representations or warranties of any kind (express, implied, written or oral) relating in any way to the subject matter of this Contract or the Trademark Clearinghouse or any part thereof, including, but not limited to, warranties of quality, performance, merchantability or fitness for a particular purpose, or non-infringement for the Services, and all such warranties are hereby excluded.
11.4 In addition to clause 11.3, to the extent permitted by law, Melbourne IT, ICANN, the Trademark Clearinghouse Operator, Deloitte or the Database Provider, or, any Relevant Party of Melbourne IT, ICANN, the Trademark Clearinghouse Operator, Deloitte or the Database Provider do not make any warranties that:
12.1 Unless stated otherwise specified in this Contract, neither you, us, the Trademark Clearinghouse Operator, Deloitte, ICANN nor the Database Provider or any of their successors or assigns shall be liable to the other for any direct or indirect, special, incidental, punitive or consequential damages, including but not limited to loss of business opportunity, business interruption, loss of profits or costs of procurement of substitute goods or services, arising out of or relating to this Service or the Trademark Clearinghouse, under any theory of liability and whether or not you or any such third party has been advised of the possibility of such damages. Your sole remedy for claims arising from or related to the Verification Services shall be through the Dispute Resolution Procedures.
You will hold us, Deloitte, ICANN and the Database Provider and their successors and assigns harmless against any and all claims of any kind whatsoever and any damages, interests, settlements or costs of any investigation, litigation or settlement (including any reasonable attorney’s fees or other legal fees) that may arise or result from (a) your breach of these Service Terms, (b) allegations of intellectual property infringement from third parties, or (c) incorrect, outdated, misleading or fraudulent information submitted by you and maintained in the Trademark Clearinghouse.
14.1 All communication between you and us will, to the extent possible and except as otherwise agreed upon between you and us, be organized in an electronic manner.
14.2 It is not possible, however, to guarantee that transmitting data electronically is totally secure, virus-free or without error and, hence, such transmissions may be intercepted, tampered with, lost, destroyed, delayed or rendered unusable. You and Melbourne IT hereby recognize that no systems or procedures can wholly mitigate such risks.
14.3 Each party shall be responsible for the protection of its own systems and interests in respect of electronic communications, and neither party shall be held liable in any manner or form, whether on a contractual, criminal (including negligence) or any other basis, for any loss, error or omission resulting from or relating to the use of electronic communications between the parties.
Activation (or Activated): A Trademark Record is activated when ICANN determine that a Trademark Record meets the Eligibility Requirements as stated in the Trademark Clearinghouse Guidelines (i.e. a “verified” status in the Clearinghouse User Interface).
Clearinghouse User Interface: The online web-application made available through the Website that enables Melbourne IT to, among other things, to submit Trademark Records on your behalf in order to receive the Verification Services.
Database Provider: The party appointed by ICANN to operate and manage the central database for storage of Trademark Records that have achieved Activation.
Deactivated: A Trademark Record is deactivated when (i) a Trademark Record has not been renewed, (ii) when documentary evidence that has been requested by Deloitte in connection with the Verification Services has not been provided by you in the time periods specified in the Trademark Clearinghouse Guidelines, or (iii) a Trademark Record has been successfully disputed under the Dispute Resolution Procedures located at http://www.trademark-clearinghouse.com.
Deloitte: Deloitte Enterprise Risk Services (a department of Deloitte Bedrijfsrevisoren BV ovve CVBA) or any Deloitte entity or subcontractor that is providing the Verification Services.
Dispute Resolution Procedures: The procedures specified by ICANN as set out at http://www.trademark-clearinghouse.com/dispute (as may be updated from time to time).
Eligibility Requirements: The requirements specified by ICANN from time to time that a Trademark Record must satisfy in order to be accepted into the Trademark Clearinghouse as an Activated Trademark Record, as described in the Trademark Clearinghouse Guidelines.
ICANN: The Internet Corporation for Assigned Names and Numbers.
Invalid: A Trademark Record is deemed invalid when Deloitte (or ICANN) determines that the Trademark Record does not meet the Eligibility Requirements.
Notification of Registered Name (NORN): Notifications sent by us to you during a Sunrise Period or Trademark Claims Period that a domain name has been registered that matches labels for one of your Trademark Records.
Personal Data: Data provided by you to us about any identified or identifiable natural person, or as otherwise specified by applicable law.
SMD File: If you have elected to participate (as a Trademark Holder) in Sunrise Periods and your Trademark Record meets the requirements related thereto specified in the Trademark Clearinghouse Guidelines, this is the file that is generated by ICANN that we will give to you once such Trademark Record is Activated. The SMD File allows you to register labels related to the Trademark Record within a top-level domain during a Sunrise Period as long as the registry’s policies are complied with.
Sunrise Period: Period of time during which a registry accepts domain name registrations prior to domain registrations becoming generally available.
Trademark Agent: A person or organization that acts on behalf of a Trademark Holder under the terms of these Service Terms. For the purposes of this Service, Melbourne IT is your ‘Trademark Agent’.
Trademark Claims Period: Period of time following the opening of a top-level domain for general domain name registration during which Trademark Holders are entitled to receive NORNs.
Trademark Clearinghouse: the trademark clearinghouse operated by ICANN in relation to the launch of new generic Top Level Domains.
Trademark Clearinghouse Guidelines: The Trademark Clearinghouse Guidelines located at http://www.trademark-clearinghouse.com (as may be updated by ICANN from time to time). These guidelines provide an overview of the Eligibility Requirements and the requirements to obtain an SMD File so as to be able to participate in Sunrise Periods, which stipulate what type of Trademark Records may be accepted for Activation in the Trademark Clearinghouse.
Trademark Clearinghouse Operator: CHIP S.A., having its registered office at Route d’Esch, 278, 1471, Luxembourg.
Trademark Holder: You, as the owner, licensee or assignee of a trademark or other mark for which Melbourne IT is acting as Trademark Agent for under this Service.
Trademark Record: A complete and correct set of information concerning a trademark or other mark submitted to the Trademark Clearinghouse.
Verification Services: Each Trademark Record will be verified by Deloitte to check that the information provided is accurate and correct and meets the Trademark Clearinghouse Guidelines.
Website: http://www.trademark-clearinghouse.com, or any successor website.