Trademark Clearinghouse Registration Service Agreement

Last published: 11/14/2014

Webnames^™ Services Inc.
Agreement for Trademark Clearinghouse Registration Services

Webnames Services Inc. (“WSI”) and Customer (collectively the “Parties” and each a “Party”) covenant and agree as follows:

1. Introduction
   1. This Agreement: This Agreement is a binding agreement that governs Customer’s use of WSI’s Trademark Clearinghouse registration services (details of which are set forth below). This Agreement is in addition to all other agreements that Customer may have with WSI or any of its affiliates (including Webnames.ca Inc.) regarding the registration and renewal of domain names and other matters, and does not amend those agreements in any way. This Agreement must be read together with Orders, which are part of, and are governed by, this Agreement.
   2. Definitions: In this Agreement: (i) “Authorized Representative” means Customer’s representative authorized to provide instructions to WSI regarding Services, as identified in this Agreement, an Order or other notice by or on behalf of Customer; (ii) “Order” means a valid and binding Order for Services made by Customer and WSI, as set forth in section 2(a); (iii) “Services” means the various Trademark Clearinghouse registration services to be provided by WSI to or for the benefit of Customer as described in Orders and this Agreement; (iv) “TCh Operators” means the persons that own, administer or operate the Trademark Clearinghouse and their service providers and subcontractors; (v) “Trademark” means a trademark or other mark of which Customer is the owner, licensee or assignee; (vi) “Trademark Clearinghouse” means the trademark registration and clearing system that is part of the program for new generic top-level domains (“gTLDs”) established by The Internet Corporation for Assigned Names and Numbers. Other capitalized terms are defined elsewhere in this Agreement.
2. The Services
   1. General: WSI will use commercially reasonable efforts to provide the Services specified in each Order. The Services may include services relating to the creation of an activated record for a Trademark in the Trademark Clearinghouse and services for Customer’s use of an activated record for a Trademark in connection with a sunrise procedure for a new gTLD.
   2. Orders: An Order will not be valid or binding unless and until it is accepted by WSI. Customer and WSI may agree to change an Order from time to time, but a change will not be valid or binding unless and until it is expressly agreed to in writing by both Customer and WSI, and a change may result in delays and additional fees.
   3. Excluded Services: The Services do not include the purchase or registration of a domain name or related services. Those services may be available from WSI’s affiliates, including Webnames.ca Inc.
   4. Disclosure of Customer Information: Customer hereby authorizes WSI to disclose information about Customer and Trademarks to TCh Operators and to other persons as reasonably required to perform the Services.
   5. No Legal Advice: Customer acknowledges that the Services are administrative services only, and do not include any legal advice, including advice regarding: (i) the validity or enforceability of a Trademark or Customer’s rights in or to a Trademark; (ii) Customer’s entitlement to a domain name; or (iii) any dispute between Customer and the registrant of a domain name. Customer is solely responsible and liable for conducting appropriate investigations and due diligence and obtaining appropriate independent legal advice regarding those and other relevant matters before Customer submits an Order for Services.
   6. Trademark Clearinghouse Authorization: Customer acknowledges and agrees to the Authorization set forth in Schedule “A” to this Agreement. WSI may provide a copy of the Authorization to a TCh Operator or other persons as reasonably required to perform the Services or to comply with applicable law.
   7. Other Customers: Customer acknowledges that WSI provides services to other customers whose interests may conflict with Customer’s interests and who might also wish to use WSI’s services regarding the registration in the Trademark Clearinghouse of a trademark or other mark that conflicts with Trademarks, and Customer hereby consents to WSI providing services to both Customer and those other customers.
3. Fees and Charges
   1. General: Customer will promptly pay to WSI the fees for the Services specified or referenced in each Order. In addition, Customer will pay, or reimburse WSI for, all fees and charges payable to third parties (including TCh Operators) in connection with the provision of the Services. Fees and charges specified in an Order do not include applicable taxes, which are the responsibility of, and will be fully paid by, Customer. Invoices for fees and charges may be invoiced by Webnames.ca Inc. on behalf of WSI.
   2. Payment: WSI will issue invoices to Customer for fees and charges payable under this Agreement. Fees and charges are payable in advance before Services are provided. Except to the extent required by law, all amounts payable under this Agreement are payable in full without any deduction or withholding. Customer will reimburse WSI for all costs (including legal fees, disbursements and expenses) incurred in collecting overdue payments. Except as expressly set forth in this Agreement, fees and charges are payable regardless of the results of the Services, and payments are not refundable under any circumstances.
      
4. Customer’s Obligations
   1. Authority: Customer represents and warrants to WSI that Customer has the right, power, capacity and authority (including all required rights and interests in Trademarks and all requisite consents, licenses, rights, authorizations and permissions from all interested persons) to enter into and perform Customer’s obligations under this Agreement and to use and take the benefit of the Services.
   2. Acceptable Use/Compliance with Law: Customer represents and warrants to WSI that Customer will use the Services in good faith, in accordance with all applicable laws, and in compliance with this Agreement, and all applicable policies issued by TCh Operators; and Customer’s use of the Services will not violate any applicable law or infringe the rights (including intellectual property rights) of any person. Without limiting the generality of the foregoing, Customer will not use the Services to make a dishonest or fraudulent claim regarding a domain name.
   3. Authorized Representatives: Customer represents and warrants to WSI that each Authorized Representative is authorized by Customer to provide instructions on behalf of Customer to WSI. Customer is fully responsible and liable for all acts and omissions by each Authorized Representative. WSI is not obligated to verify the authority of an Authorized Representative or any instructions given by an Authorized Representative. Customer may change its Authorized Representatives from time to time upon notice to WSI.
   4. Cooperation: Customer will cooperate with and reasonably assist WSI to provide the Services and perform WSI’s obligations under this Agreement and the agreements that govern the Trademark Clearinghouse. Customer will promptly respond to all communications from WSI, provide information requested by WSI, and execute and deliver all documents reasonably requested by WSI to facilitate WSI’s performance of the Services and its obligations under this Agreement and the agreements that govern the Trademark Clearinghouse.
   5. Information: Customer represents and warrants that all information provided by or on behalf of Customer to WSI in connection with the Services or this Agreement is true, accurate, current and complete, and Customer will keep that information up to date. Customer acknowledges that WSI and other persons (including TCh Operators) will rely on the information provided by or on behalf of Customer. Customer is solely responsible and liable for all loss and damage (including additional costs) that Customer, WSI or any other person may incur as a result of Customer’s breach of this section 4(e). WSI is not under any obligation to verify the truth, accuracy, currency, or completeness of any information provided by or on behalf of Customer.
   6. Indemnity: Customer will defend, indemnify and save and hold harmless WSI and its affiliates (including Webnames.ca Inc.) and their respective directors, officers, employees, agents, subcontractors, service providers and representatives (collectively, the “WSI Group”) from and against any and all third party claims, demands, liabilities, obligations, actions, suits and proceedings (including claims by or on behalf of a TCh Operator) directly or indirectly arising from, connected with or relating to any of the following: (i) Customer’s use of the Services; (ii) any breach by Customer of this Agreement; (iii) any claim or allegation that a Trademark infringes or misappropriates the intellectual property rights of any person; or (iv) any negligence or misconduct by Customer or any person for whom Customer is responsible under this Agreement or at law.
   7. Personal Information Privacy: WSI collects, uses and discloses personal information in accordance with the Webnames Privacy Policy, which is available at www.webnames.ca. WSI may change the privacy policy from time to time effective immediately by posting an amended privacy policy at www.webnames.ca. By accepting this Agreement, and each time Customer accesses or uses the Services, Customer consents to the collection, use and disclosure of personal information in accordance with the Webnames Privacy Policy as it then reads.
   8. Feedback: If Customer or its personnel gives feedback about the Services (including ideas or suggestions for improvements) to WSI, then WSI and its successors, assigns and licensees may use and commercialize the feedback without compensation to Customer or any other person.
5. Disclaimers
   1. Services: To the maximum extent permitted by applicable law, the Services are provided on an “as is” and “as available” basis and without any representations, warranties, conditions or guarantees of any nature or kind whatsoever, whether express, implied or statutory, or arising from custom or trade usage or by any course of dealing or course of performance; and WSI disclaims any and all representations, warranties, conditions and guaranties regarding the Services to the fullest extent permitted by applicable law. Without limiting the generality of the foregoing, WSI makes no representation, warranty, condition or guarantee that the Services will be available without interruption or will be free of errors or that any errors will be corrected, or that the Services will meet Customer’s requirements. The Services may be affected by numerous factors beyond WSI’s control and responsibility (including the systems used to operate the Trademark Clearinghouse), and may not be continuous or uninterrupted or secure.
   2. Other: Without limiting the generality of section 5(a), WSI is not responsible or liable to Customer or any other person for any of the following: (i) the operation or the Trademark Clearinghouse or any acts or omissions by or on behalf of any TCh Operator; (ii) the non-delivery, mis-delivery or delayed delivery of any correspondence or communication; and (iii) any unauthorized or wrongful conduct (including the provision of instructions to WSI) by an Authorized Representative.
6. Liability Exclusions/Limitations
   1. Exclusions/Limitations: Notwithstanding any other provision of this Agreement, and to the maximum extent permitted by applicable law: (i) in no event and under no circumstances will the WSI Group or any of them ever be liable to Customer or any other person for any loss or damage (including direct, indirect, incidental, consequential, special, punitive, or exemplary loss or damage, or any loss of business, information, data, markets, savings, income, profits, use, production, or goodwill, anticipated or otherwise) arising from, connected with, or relating to this Agreement, the Services, or any related matter; and (ii) if, notwithstanding the foregoing, the WSI Group or any of them is liable to Customer or any other person for any loss or damage arising from, connected with, or relating to this Agreement, the Services, or any related matter, then in no event and under no circumstances will the total aggregate liability of the WSI Group ever exceed the lesser of: (1) the fees paid by Customer to WSI pursuant to this Agreement for the Services in connection with which the liability arose; and (2) CDN $100.
   2. Application: This Section 6 applies to losses, damages and liabilities under any theory (including contract, tort, strict liability, or any other theory of law), regardless of any negligence or other fault or wrongdoing (including fundamental breach or gross negligence) by the WSI Group or any of them or any person for whom any of them are responsible, and even if other remedies are not available or do not adequately compensate Customer or WSI knew or should have known of the possibility of the potential loss or damage being incurred.
   3. Acknowledgement: Customer acknowledges and agrees that it is reasonable for WSI to disclaim responsibility and exclude and limit its liability, this Agreement presents a fair allocation of risk and liability, and Sections 5 and 6 are an essential part of this Agreement, controlling factors in setting the fees for the Services, and an inducement to each of the Parties to enter into this Agreement. The laws in some jurisdictions prohibit or limit the disclaimer of certain warranties and conditions or the exclusion or limitation of certain liabilities, and so the disclaimers and liability exclusions and limitations in this Section 6 might not apply to Customer.
7. Term, Termination and Suspension
   1. Term: The term of this Agreement will commence on the Effective Date and will continue until terminated by either Party in accordance with this Agreement.
   2. Termination: Either Party may terminate this Agreement at any time for convenience upon delivery of written notice to the other Party if all Orders under this Agreement have previously expired or been cancelled or terminated. Either Party may terminate this Agreement for cause effective immediately upon delivery of notice of termination to the other Party if the other Party breaches this Agreement and has not remedied the breach within thirty (30) days after receipt of a default notice from the non-breaching Party identifying the breach and stating the non-breaching Party’s intention to terminate this Agreement if the breaching Party does not cure the breach within a thirty (30) day cure period, provided that the notice of termination is delivered no later than fifteen (15) days after the end of the cure period and while the breach is continuing, and provided that if the non-breaching Party does not give timely notice of termination to the breaching Party, and if the breach is continuing, the non-breaching Party may give a further default notice in respect of the breach, in which case the provisions of this section 7(b) will apply in respect of that further default notice.
   3. Consequences of Termination: Upon termination of this Agreement: (i) all outstanding Orders will automatically and immediately terminate; (ii) Customer will immediately pay all fees and charges accrued up to the date of termination and applicable taxes, without any right of deduction or set off; and (iii) each Party will remain responsible and liable for all obligations and liabilities arising prior to the termination of this Agreement.
   4. Suspension of Services: If Customer fails to make any payments when due under this Agreement, WSI may suspend the provision of Services until Customer makes the required payments.
   5. Survival: Notwithstanding any other provision of this Agreement, sections 2(d), 3, 4(f), 4(g), 4(h), 5, 6, 7(c), 7(e) and 8, and all other provisions necessary to their interpretation or enforcement, will survive indefinitely after the expiration or termination of this Agreement and will remain in full force and effect and be binding upon the Parties as applicable.
8. General
   1. Governing Law and Disputes: This Agreement and all related matters will be governed by, and construed in accordance with, the laws of British Columbia, Canada and the federal laws of Canada applicable in British Columbia, excluding any rules of private international law or the conflict of laws that would lead to the application of any other laws, and excluding laws that implement the United Nations Convention on Contracts for the International Sale of Goods. All disputes between WSI and Customer arising from, connected with, or relating to this Agreement, the Services, or any related matter will be determined by the Supreme Court of British Columbia sitting in the City of Vancouver, British Columbia, Canada, and each Party hereby irrevocably submits and attorns to the original and exclusive jurisdiction of that court for those purposes.
   2. Notices/Instructions: WSI may deliver notices under this Agreement to Customer by email, facsimile, or delivery to Customer’s address specified in this Agreement or an Order or by posting the notice at www.webnames.ca. Customer will give all notices under this Agreement to WSI in writing delivered by courier to WSI (Attention Legal Department) at WSI’s office address specified in this Agreement or an Order. For greater certainty, Orders and related instructions may be communicated between the Parties by email.
   3. Assignment: Customer will not assign this Agreement without WSI’s prior written consent (which consent may be withheld in WSI’s discretion). WSI may in its discretion assign this Agreement. This Agreement is binding upon and will enure to the benefit of the Parties and their respective successors and permitted assigns.
   4. Interpretation: In this Agreement: (i) a reference to “this Agreement” and other similar terms refers to this Agreement as a whole (including Schedule “A”), and not just to the particular provision in which those words appear; (ii) headings are for reference only and do not define, limit or enlarge the scope or meaning of this Agreement or any of its provisions; (iii) “person” includes an individual, corporation, partnership, joint venture, association, trust, unincorporated organization, society, and any or other legal entity; (iv) words importing the singular number only include the plural and vice versa; (v) “including” and “includes” means including or includes (as applicable) without limitation or restriction; (vi) “discretion” means a Party’s sole, absolute and unfettered discretion; (vii) reference to a day, month, or year, means a calendar day, month, or year, unless expressly stated otherwise; and (viii) reference to “laws” includes common law, equity, statutes, regulations, ordinances, and orders in council in force from time to time. Customer expressly requests and requires that this Agreement and all other related documents be drawn up in the English language, and any translations of this Agreement or related documents are for convenience only and are not binding on the Parties. Les Parties conviennent et exigent expressement que ce Contrat et tous les documents qui s’y rapportent soient rediges en Anglais.
   5. Miscellaneous: The Parties are independent contracting parties, and nothing in this Agreement or done pursuant to this Agreement will create or be construed to create a partnership, joint venture, or other similar relationship between the Parties. Notwithstanding any other provision of this Agreement, WSI will not be responsible or liable for any delay in performing or failure to perform any of its obligations under this Agreement to the extent performance is delayed or prevented due to any cause or causes that are beyond WSI’s reasonable control. WSI may in its discretion engage subcontractors or service providers to perform its obligations under this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable for any reason, then the provision will be deemed to be severed from this Agreement and the remaining provisions will continue in full force and effect without being impaired or invalidated in any way, unless as a result of the severance this Agreement would fail in its essential purpose. No consent or waiver by WSI to or of any breach by Customer of this Agreement will be effective unless in writing and signed by the Parties, or will be deemed or construed to be a consent to or waiver of a continuing breach or any other breach. Except as expressly set forth in this Agreement, the Parties’ respective rights and remedies under this Agreement are cumulative and not exclusive of any other rights or remedies to which the Parties may be lawfully entitled under this Agreement or at law or equity, and the Parties will be entitled to pursue any and all of their respective rights and remedies concurrently, consecutively and alternatively.
   6. Amendments: This Agreement may be modified only by a written instrument that expressly states that it is an amendment to this Agreement and is signed by both Parties or their successors or permitted assigns.
   7. Entire Agreement: This Agreement constitutes the complete agreement between the Parties with respect to the subject matter of this Agreement, and supersedes all previous communications, representations, negotiations, discussions, agreements, or understandings, whether oral or written, with respect to the subject matter of this Agreement.

Schedule “A”

- Authorization -

The undersigned Trademark Holder hereby acknowledges and agrees with Webnames Services Inc. (“WSI”) as follows:

1. The bolded capitalized terms set forth in this Schedule are defined in this Schedule or in the standard form Clearinghouse Validation Terms and Conditions for Trademark Agents that governs WSI’s submission of Trademark records to the Trademark Clearinghouse and related matters (the “Clearinghouse Terms and Conditions”), as amended from time to time, a current copy of which is available either online (at www.trademark-clearinghouse.com) or upon request from WSI. It is Trademark Holder’s responsibility to check for changes to the Clearinghouse Terms and Conditions from time to time and before Trademark Holder submits instructions to WSI.
2. Trademark Holder hereby authorizes WSI to be Trademark Holder’s Trademark Agent and to submit Trademark Records on behalf of Trademark Holder for inclusion in the Trademark Clearinghouse.
3. Trademark Holder acknowledges that, upon Activation, the Trademark Record may be transferred to the Database Operator in order to obtain NORNs.
4. If applicable, Trademark Holder hereby authorizes WSI to download and use Trademark Holder’s SMD Files.
5. Trademark Holder understands that WSI will be responsible for receiving from CHIP and distributing to Trademark Holder its NORNs and that WSI is responsible for any selections made in the Clearinghouse User Interface that could result in Trademark Holder not receiving a NORN (i.e. opting to not receive NORNs for a certain label for a Trademark Record).
6. Trademark Holder understands that Trademark Holder’s Trademark Record may not be transferred by WSI to another Trademark Agent or other third party.
7. Trademark Holder hereby authorizes WSI to grant on behalf of Trademark Holder the Mandatory Licenses (which relates to the use by CHIP and other persons of data submitted by WSI) and that the Mandatory Licenses will be binding on the Trademark Holder.
8. Trademark Holder hereby authorizes WSI to act on Trademark Holder’s behalf with respect to the Dispute Resolution Procedures.
9. Trademark Holder hereby authorizes WSI to perform any other obligation under the Clearinghouse Terms and Conditions.
10. Trademark Holder acknowledges and agrees to CHIP’s privacy practices as detailed in the privacy notice found on the Website.
11. Trademark Holder acknowledges and consents to the transfer of Personal Data provided by WSI to and among various persons (including CHIP) in various jurisdictions (including the United States) as set forth in the Clearinghouse Terms and Conditions.
12. Trademark Holder hereby authorizes WSI to engage subcontractors or service providers to assist WSI to perform its obligations as Trademark Holder’s Trademark Agent.