PLEASE READ THIS LEGAL DISCLAIMER AND TERMS OF SERVICE CAREFULLY BEFORE ACCESSING OUR WEBSITE OR USING OUR SERVICES
Limited Scope Representation Agreement
This Limited Scope Representation Agreement ("Agreement") is between Incfile.com, LLC ("Incfile.com" or "incfile.com" or "Incfile" or "incfile") and the individual purchasing a Trademark Registration service ("Service"), ("you," or "your") (together, the "Parties") on the incfile.com website. A limited scope representation means that the amount of work the law firms and their attorneys (collectively the “Firm(s)”) perform for you is limited to certain tasks. Limited scope representation is a means to provide access to legal services while making legal help affordable. Please note that the Service does not guarantee that the U.S. Patent and Trademark Office (“USPTO”) will grant a Trademark Registration nor does it include any additional work beyond the initial filing of the trademark application. The remainder of tasks required outside the scope of this Agreement, if any, will be your sole responsibility and may be provided by the Firms separately from the Service.
This Agreement is effective as of the date of purchase of the Service. By completing your purchase, you agree to the terms of this Agreement as follows:
Incfile.com may use certain service providers for the services under this Agreement. Any funds required for covered Service are included in your original payment and require no additional payment by you to Incfile.
Incfile.com has the right to subcontract Services under this Agreement to Firms located in the United States. Services performed by Firms in the United States are governed by the compliance rules in the state of the licensed attorney.
1. Included Limited Services
This Agreement is for a limited scope of legal services. You retain incfile.com to provide the following limited services ("Limited Services"):
a. A knockout trademark search, which is a search at the USPTO database for exact matches of registered marks to your mark, it is not a comprehensive clearance search and does not necessarily indicate trademark availability;
b. If appropriate as determined by the Firm, preparation and filing of your trademark application will be prepared and filed with the USPTO, where the Firm will sign the trademark application attesting to the veracity of the content and the use of the mark in commerce, or a bona fide intent to do so, as alleged by you. In such case, you shall defend, indemnify, and hold harmless the Firm, and its attorneys, from any harm resulting from any statements made by the Firm upon direction from you in the trademark application which are false.
2. Excluded Services
This Agreement specifically excludes the following services:
a. Work required to proceed with an application where the Firm believes there is a conflict, including without limitation, the existence of third parties currently using the same or substantially similar mark regardless of third party registration status;
b. Work on any Office Action issued by the USPTO or any other action or request made by the USPTO following the filing of your application, including all Office Action responses;
c. Work on any amendment(s) to the application including without limitation address changes;
d. Work on appeals or notices of suspension subsequent to the filing of your trademark application;
e. Notification of deadlines for payment of any USPTO maintenance or trademark renewal fees, and/or filings relating to the same;
f. Responses to third-party objections of any kind, including without limitation trademark opposition proceedings;
g. Intellectual property litigation, preparing or responding to cease & desist demands, claims of infringement, including if the Firm is called upon to perform additional services such as the subject of a deposition regarding the trademark applied for under this agreement;
h. The filing of any trademark application where a credit card or other payment is declined or the funds are not actually received by incfile.com or a chargeback is requested;
i. The filing of any trademark application where the required specimen or other material or information is not timely received by the Firm;
j. If you are not using the trademark in commerce yet, the Firm will need to file under an intent-to-use basis. If the application is successful, a specimen will need to be filed later, which will require additional government and processing fees. If you are not using the mark in commerce within six months of receiving a Notice of Allowance from the USPTO, the Firm can file up to five six-month extensions of time for you provided you meet certain criteria (such as marketing your products/services), which will require additional government and processing fees;
k. Monitoring of any applications and/or marks, including post-registration monitoring of your mark; and
l. Any other service not expressly included as a Limited Service under this Agreement.
3. Trademark Submitted Material
You are required to timely submit to incfile.com and to the Firm materials needed for the application process as determined by the Firm, including without limitation, specimens, drawings, and/or copies of your mark(s), evidence of use of your mark(s) and/or work in order for the Firm to complete your order and submit your document(s) to the USPTO.
Once your application is (1) approved by the USPTO, (2) rejected by the USPTO and you do not retain the Firm as counsel for additional services, or (3) objected to by a third party and you do not retain the Firm as counsel, the Firm will no longer serve as the attorney of record on your trademark unless they are specifically retained by you to monitor or continue as the attorney of record for your pending application or subsequently registered trademark.
4. Filing Fees
For new trademark applications, incfile.com charges a flat “Filing Fee” of $350 per class in addition to other fees. Government filing fees for filing a trademark application range from $250 (Teas Plus) to $350 (Teas Standard) per class. The $250 application type requires more precision, effort, and/or information than the $350 application type, so in situations where the Firm uses the $250 application type, the remaining $100 is used to cover the additional labor for the $250 application type. Because trademark office registration times and registration rates may be improved with Teas Plus, there will be a preference for using Teas Plus when applicable, although the Firm is not required to use TEAS Plus. Occasionally the trademark office will charge a $100 penalty fee if a $250 application does not meet all requirements for TEAS Plus, which may be covered by the flat Filing Fee. The cost of the service provided by incfile.com covers the filing of the trademark application only for one class of goods or services. The cost does not include any additional classes or other work associated with the trademark application, including, but not limited to, responses or communication with the USPTO. Filing in additional classes will require additional expenses as discussed with and determined between you and the Firm.
5. Responsibilities of Parties
a. incfile.com
i. incfile.com agrees to keep you informed of application filing and registration if any, and respond to your inquiries and communications in connection with your trademark application up until the end of the Limited Services.
b. You
i. You agree to cooperate and respond promptly to incfile.com and the Firm;
ii. You agree that all information you provide to the Firm is accurate and correct;
iii. You agree that no other third party has any rights in the mark you seek to register;
iv. You agree to update incfile.com and the Firm with any changes to your contact information, including changes to telephone numbers, address, and email address;
v. You agree to regularly check your email address provided to incfile.com and the Firm;
vi. You agree to provide the status of your trademark application and any other related information to incfile.com so that if you contact incfile.com regarding the status, incfile.com will have that information;
vii. You agree that you are solely responsible for the receipt of communications sent via email. If a communication has been sent to the provided e-mail address, the Firm is not responsible for any e-mail not received due to the applicant's security or anti-spam software, or any problems within the applicant's e-mail system; and
vii. You agree that the Firm is not liable for the refund of any monies paid by you to incfile.com and that your sole recourse for a refund of any monies paid is through incfile.com.
viii. You agree that the Firm has sole discretion on whether it will file an application and may decline to file any application for any reasons, including without limitation, that: (1) any forms
or information to be provided to the Firm by you are incomplete, lacking requisite attachments including specimen(s), or untimely provided; (2) the preparation and filing of an application would exceed and/or fall outside of the scope of this Agreement, including applications that claim priority to foreign trademark filings, or involve concurrent use and other conflicts; and (3) the preparation and filing of an application that would contravene any law or rule including but not limited to any trademark office or attorney compliance rules.
6. Electronic Communication
You agree to receive communications by email. The Firm is not obligated to send correspondence by U.S. or international postal mail. You understand that the USPTO TEAS filing system is an electronic filing system. You agree that the Firm may authorize the USPTO, on your behalf, to contact you at the email address you have provided in your order, and submit documents and communications electronically using the USPTO TEAS system. If you fail to comply with these requirements, the USPTO may charge you additional fees. The Firm is not liable for damages caused by your failure to update and/or check your email address of record.
7. Sharing Documents
You agree that incfile.com may share your order information and other information relating to your mark or application with the Firm and vice versa, and the Firm will perform work in connection with the Limited Service.
8. Attorney-Client Privilege
You understand that, by submitting your order information using the questionnaire on the incfile.com website, and other information that may be shared with Incfile as permitted in this agreement, that such information may not be protected by attorney-client privilege.
9. Termination
a. By You
i. You may terminate your order and discharge the Firm at any time by written notice, effective when received. Unless specifically agreed by the Firm and you, the Firm will provide no further services and advance no further costs on your behalf after receipt of the notice. If any work was already performed by the Firm prior to your written notice, you will be limited to only a partial refund. If your application was filed prior to your written notice, you will receive no refund. You agree to authorize and/or execute and return attorney withdrawal or substitution-of-attorney form(s) immediately upon receipt from the Firm.
Upon termination, all Limited Services will be deemed completed.
b. By incfile.com
i. incfile may terminate this Agreement or your order at its discretion for any reason and at any time, including by request of the Firm.
ii. Conflict of Interest. If, at any point, a conflict of interest is found between you and another party represented by the Firm, the Firm may either withdraw as counsel or obtain written consent from all parties to proceed. If a conflict of interest is found which requires the Firm to decline
representation, or if both parties do not consent, the Firm is not obligated to find alternative counsel.
iii. Automatic Termination after Provision of Services or 60 Days.
If you do not use your Limited Services by the 60th day after your purchase of the Service, your order will terminate, you will no longer be entitled to the Limited Services, and you will not be given a refund.
10. Withdrawal as Attorney of Record.
The Firm may terminate your order and withdraw as the Firm and/or attorney of record at any time as permitted under the ethical rules of conduct in the state of license of the Firm. Upon termination, all Limited Services will be deemed completed.
The Firm and its attorneys may also withdraw as attorney of record upon completion of the Limited Services or after your application is filed.
11. No Guarantee
Neither incfile.com nor the Firm can guarantee a particular result. There is no guarantee that any trademark application filed will by the Firm will result in the registration of the proposed mark, or that any search performed will increase the likelihood that the proposed mark will be registered, or that any search results will find all possibly conflicting marks. Although the Firm may offer an opinion about possible results regarding trademark registration, the Firm cannot guarantee any particular result. You acknowledge that the Firm has made no promises about the outcome and that any opinion offered by the Firm in the future will not constitute a guarantee. Trademark examiners at the USPTO each have subjective opinions and these may vary from examiner to examiner. Neither Incfile nor the Firm have any control over the timing of review of any application by the USPTO which is controlled solely by the USPTO. You are encouraged to visit the USPTO website to review current USPTO estimates for trademark application processing times.
12. Entire Agreement
This Agreement contains the entire agreement of the Parties. No other agreement, statement, or promise made on or before the effective date of this Agreement will be binding on the Parties.
13. Miscellaneous
All orders must be confirmed by telephone by speaking with the Firm or by email with the Firm of record. You assume all risks for technical difficulties in placing your order(s) or submitting information over the Internet.
In the event of a dispute between you and Incfile, please contact Incfile customer service for resolution. Any controversy or claim arising out of or relating to this Agreement shall be submitted for final and binding arbitration (or online dispute/arbitration resolution) to a single arbitrator, provided that: (1) the arbitrator has at least five (5) years of expertise in the field relevant to the nature of the dispute and; and (2) the arbitrator is not or has not been a contract agent or a former employee of either party. In the event, the parties are unable to agree on a single
The arbitrator who meets the qualifications set forth above, then an arbitrator shall be appointed by and/or under the rules of the American Arbitration Association (“AAA”) within ten (10) days of the date on which a party seeks assistance from the AAA in the selection of a neutral arbitrator. The arbitration shall be conducted in accordance with the Commercial Rules and procedures of the AAA and shall take place in Houston, Texas, or in a location otherwise mutually agreed upon by the parties or via an online forum pursuant to online dispute or arbitration resolution processes. The parties further agree that: (1) the arbitration shall not last more than three (3) days; (2) there shall be no discovery other than the exchange of information and materials provided to the arbitrator by each of the parties, for which there shall only be thirty (30) days to accomplish; (3) the arbitrator’s final decision shall be issued within ninety (90) days after the date of selection of the arbitrator or within such period as the parties may otherwise mutually agree; and (4) except as otherwise expressly stated in this Agreement, the arbitrator shall have the authority only to award equitable relief and direct, actual damages, and shall not have the authority to award punitive or consequential damages (including, but not limited to lost profits, special, indirect, incidental, or compensatory damages). Notwithstanding anything to the contrary in this Agreement, the arbitrator shall have the authority to award liquidated damages and legal fees and costs and any remedy provided in this Agreement in favor of Incfile and the Firm in situations where you have acted fraudulently or willfully (such as by registering a legal entity under a third party name without the third party’s consent), or where you request a chargeback without sufficient justification as determined by Incfile at Incfile’s sole discretion or after any of Incfile or the Firms have paid any third party or governmental entity any funds in connection with the order associated with the chargeback. Each party shall be responsible for an equal sharing of the fees, expenses, and costs incurred by the arbitrator, and each party shall be responsible for their own costs and any fees of counsel they incur unless stated otherwise in this Agreement. The decision of the arbitrator shall be final and binding and may not be appealed.
This Agreement and any action related thereto are governed by the law of the State of Texas, and the federal law of the United States of America, without regard to or application of any conflicts of laws provisions, or principles, and without regard of your location or nationality. Any dispute arising out of this Agreement shall be determined by one arbitrator in binding arbitration as specified above. The language of the arbitration shall be English. You agree that if you do not follow the dispute resolution procedure identified above, you shall indemnify and be liable to Incfile and any relevant service providers for all expenses, including legal fees, incurred by Incfile and any relevant service providers as a result thereof.
To accommodate parties and witnesses that may be distant from each other, each hearing shall be conducted and all testimony shall be entered by audio conference or video conference. The award of the arbitrator shall be final and binding on the parties and may be entered and enforced in any court or other tribunal of competent jurisdiction.
Should the arbitrator determine that the dispute is not arbitrable, you and Incfile consent to the exclusive jurisdiction and venue of the state and federal courts located in Houston, Texas, U.S.A.
Notwithstanding anything to the contrary in this Agreement, Incfile can, at its sole discretion, choose not to arbitrate a dispute and can choose to file suit in any state or federal court located in Houston, Texas. In such a case, you and Incfile consent to the exclusive jurisdiction and venue of the state and federal courts located in Houston, Texas.