TERMS OF SERVICE

27 August 2019

 1. Acceptance

1.1. These Terms of Service form the agreement between The Patent Searcher Pty Ltd ABN 14 633 851 591 (referred to as “The Patent Searcher”, “we” or “us”) and you or the legal entity you represent (referred to as “you”).

1.2. When instructing us to carry out our service you acknowledge that you have read, understood, and accepted this agreement and you have the authority to act on behalf of any person or entity for whom you use our services.

2. What you can expect from us

2.1. We will use due care and skill when acting in accordance with your instructions.

2.2. We will ensure that the individuals providing the services will possess the expertise to carry out the work.

2.3. We will provide clear and transparent details of fees and costs and ensure these are acceptable to you before incurring them. 

2.4. The services will be delivered in a timely, courteous and professional manner.

2.5. We will operate with the highest standard of integrity and ethical behaviour. In addition, to the extent permissible by law, we will act in your best interests.

2.6. We are committed to protecting your privacy and confidential information. 

3. Your responsibilities and obligations

3.1. Review all reports and material we send you as part of the services and bring to our attention any discrepancies in facts, assertions or assumptions made.

3.2. When we are carrying out services at your premises you acknowledge that you will provide a safe and healthy working environment as required under relevant work health and safety legislation. You indemnify and hold us harmless for any injury for which work is a contributing factor.

4. Your rights

4.1. You have the right to terminate an engagement with us at any time by giving us prior written notice. In that event, we reserve the right to invoice you for work carried out to date that you requested and authorised. 

4.2. You have the right to retain a copy of any information shared as per the services, including confidential information.

4.3. In the case where you are instructing us on behalf of a third party, you may provide them with a copy of any reports or material we issue to you in relation to the matter for which they have engaged you. 

5. Our Charging and Billing Procedures

5.1. Any unforeseen services that you may require to be undertaken by us that is out of the scope of the assignment will be the subject of an additional engagement.

5.2. Our invoice will be issued by the end of each month or on completion of the work.

5.3. Our accounts are due and payable within 14 days unless paid in advance. We reserve the right to charge interest on any account that has been outstanding for more than thirty days from the due date.

6. Limitation of Liabilities and Indemnities

6.1. You agree that our maximum aggregate liability for all claims connected directly or indirectly with our Services (including any and all injuries, damages, claims, losses, expenses, or claim expenses), from any cause or causes (such causes include, but are not limited to, our negligence, errors, omissions, strict liability, breach of contract, or breach of warranty) is limited to an amount equal to 3 times the fees payable for the service, without limiting the preceding, up to an overall maximum of $10 million dollars per claim.

6.2.  You agree to indemnify and hold us harmless against any and all losses, claims, costs, expenses, actions, demands, damages, liabilities or any other proceedings, whatsoever incurred by us in respect of any claim by a third party arising from or connected to any breach by you of your obligations under this Agreement or any other claim by a third party against us to the extent it would result in the cap on our liability in clause 6.1 being exceeded.  

6.3. You agree to indemnify and release us from any claims arising from any misstatement or omissions in any material, information or representation supplied or approved by you.

6.4. You agree to not hold us liable for any losses, claims, expenses, actions, demands for damages, liabilities or any other proceedings arising out of reliance on any information provided by you, which is false, misleading or incomplete. 

6.5. As part of our client service we may communicate with you, and with others on your behalf, by email. Email sent without encryption can be intercepted and may be read by a third party. There is also a risk that email may not be delivered or, if delivered, not read by the addressee in good time. To the extent permitted under the law, we shall not be responsible to you nor liable to any person for any loss or damage, including special or consequential damage, whether arising in contract or in negligence, which may arise from, or in relation to, the use of email, including without limitation, any unintended receipt or interception of an email message. Subject to the limitations imposed upon companies by the law, you also agree to indemnify and hold harmless us and our successors and assigns from and against any and all liabilities, damages, losses, costs and expenses (including reasonable legal fees) which may arise from the use of email in our communication with you or the communication we undertake in the course of carrying out your instructions.

6.6. Any verbal advice we give cannot be relied upon unless that verbal advice has been confirmed in writing.

7. Limitations and disclaimers with regard to searching third party sources databases

7.1. As part of carrying out our services we use third party sources and databases to obtain information and data. When we do so we will inform you of these sources. 

7.2. We do not accept responsibility where our findings and results are incomplete or inaccurate due to inherent errors, omissions, inaccuracies and incomplete indexing within third party sources and databases that we have utilised and relied on.

7.3. Patent applications are only published 18 months after they are first filed which means they will not appear in the sources and databases we searched within this 18 month period. Once published it may take additional time for a patent application to be indexed for searching within the sources and databases we utilise. 

7.4. In conducting our searches of third party sources and databases we utilise queries based on a set of criteria. This means that only records that match these criteria will be retrieved and conversely records that do not match these criteria will not be found even though they may be potentially relevant. 

7.5. When we report our findings to you, we clearly outline and describe these search query criteria. We do this so that you can review the search query criteria and inform us if you detect any omissions or errors or you would like to us to consider refining or expanding the search query criteria.

7.6. All search results we retrieve will inherently be limited to the search query criteria we use and consequently no search can be considered to be comprehensive. The completeness and accuracy of any search will be limited to the scope of the work and time and resources allocated to the task.

7.7. Where we have reviewed and analysed the records resulting from a search for potential relevance or to apply further categorisation, we will either do this using a subjective assessment or using further search criteria. Our subjective assessment of the records is dependent on the information we have at the time and our knowledge of the criteria that deems the record to be potentially relevant or not. In order to improve the confidence in the accuracy of the subjective assessment it is advisable to have further persons conduct the same subjective assessment of the records. 

7.8. Where the services you have requested involve searching the web using Google you accept the following:

7.8.1. Searches through Google will only find records and content that have been indexed by Google. Furthermore, we may only review the top ranked results as determined by Google’s ranking algorithms;

7.8.2. Google does collect data about what a user is searching but according to their privacy policy they do not sell or provide information that specifically identifies the user to any third party; and

7.8.3. When visiting websites, it is possible for a website owner to determine which IP addresses have visited their website and trace this to the owner of the IP address.

8. Confidentiality

8.1. Each party being The Patent Searcher and you agree to protect and keep confidential any Confidential Information (as defined below) that it receives from the other party. 

8.2. Confidential Information means and includes:

8.3. the terms of the agreement and the details of the services we provide to you;

8.3.1. any information or material which is proprietary to a party;

8.3.2. any information designated as confidential by a party or which can reasonably be considered to be confidential;

8.3.3. any information acquired by one party from the other party solely as a result of the services;

8.3.4. in your case, any intellectual property and methodologies and technologies that you use in your business, and to which we are exposed in the course of providing services and any work we provide to you; and

8.3.5. in our case, any intellectual property, methodologies, technologies and know-how that we use to provide services and products.

8.4. For clarity, Confidential Information does not include the following:

8.4.1. information which has entered the public domain; and

8.4.2. information which a party can prove it already knew before the information was disclosed to it by the other party.

8.5. Except as set out above or as required by law, Court or arbitration proceedings, regulations, including those made under the Corporations Act, 2001 (Cth), professional duty, or as is requested by regulatory authorities, or as is necessary to protect its own legitimate interests, we will not disclose to any other person (except its own advisors and insurers, as necessary) any of your Confidential Information. 

8.6. We will ensure that control over all Confidential Information is stored securely using standard practices and utilising cloud-based services. In this regard we use Office 365 and OneDrive to store all files and content associated with the services we provide. According to information provided by Microsoft, as an Australian tenant of their services our data is stored in two locations within Australia being New South Wales and Victoria. We use Reckon One for accounting purposes and project tracking. According to Reckon all data is held on AWS servers in Sydney Australia. 

8.7. We will return your Confidential Information to you at any time at your request. We may also destroy it if you ask us to. However, we are entitled to retain a copy of any Confidential Information you provide to us or which forms part of our work or our working papers, provided that we will continue to keep this Confidential Information confidential.

9. Ending our Engagement

9.1. We reserve the right to cease acting in a matter, or to withdraw from representing you, if:

9.1.1. we are unable to receive adequate instructions from you or a reply to our correspondence within a reasonable period;

9.1.2. accounts have not been paid in accordance with the terms of this Agreement; or

9.1.3. we, in our sole discretion, conclude that the necessary mutual relationship of trust and confidence between us no longer exists.

9.2. If we cease to act for you:

9.2.1. we will advise you of any steps which require any immediate action from you or on your behalf. That advice will be provided in writing sent to the last address of which you have informed us;

9.2.2. you will receive a final account from us for all outstanding costs and disbursements; and

9.2.3. we will retain all files relating to your matters until those costs and disbursements are paid and then forward those files to you or another firm as advised by you.

10. Privacy Statement

10.1. At all times, we are committed to protecting your privacy. We will not share any of your information with anyone unless we have your permission to do so or we are required by law.