General conditions of consultency

1 - PURPOSE AND SCOPE

Cabinet Marek, Industrial Property Consultancy, is a société par actions simplifiée [simplified joint stock company] with its registered office at 28 rue de la Loge, 13002 Marseille, registered with RCS Marseille under number 444 910 004.

Cabinet Marek offers services of consultancy, assistance and representation with a view to obtaining, maintaining, exploiting and/or defending industrial property rights and related rights, notably in the field of patents, trademarks, designs and models, software, domain names and copyright (hereinafter referred to as the “services”). These services include legal consultations and writing of private deeds.

Every service provided by Cabinet Marek in compliance with the instructions of a private individual or corporate entity which has given it mandate for this purpose (hereinafter referred to as the “Client”) is subject to these general conditions (hereinafter referred to as the “GC”). The GC notably form an integral part of the quotations, invoices and other correspondence of Cabinet Marek. Signing and/or acceptance of a quotation, or any missions conferred by the Client on Cabinet Marek, entails definitive acceptance of these GC by the Client. The Client in particular may not assert any contradictory document, and notably its own general conditions of purchase.

Cabinet Marek reserves the right to make any changes to the GC it deems necessary, at any time and without notice. The GC applicable to a service are those in force on the date of acceptance by the Client of the corresponding service proposal. The GC can be viewed notably on the website of Cabinet Marek (www.cabinetmarek.fr).

2 - CONDITIONS OF IMPLEMENTATION OF SERVICES

    • 2.1 - Quotation and order

The implementation of any service by Cabinet Marek is subject to the prior acceptance by the Client of a service proposal, accompanied by an estimate of the related costs, if applicable.

For any fully defined service, Cabinet Marek may provide a price estimate free of charge, on reasonable request. It is understood that the cost of the services requiring the intervention of external service providers or foreign currencies can only be given as a guideline.

The cost of taxes is that known at the time of drawing up the quotation.

Proposals, offers and quotations are only valid for the duration mentioned on the service proposal, or otherwise for two months after their date of establishment, and are covered by these GC.

The service proposal is deemed accepted when the Client has formalised his agreement in writing in hard copy or in electronic format enabling identification of the author.

Cabinet Marek cannot be held liable under any circumstances for any delay in execution of a service linked to the late receipt of an acceptance from the Client in proper and due form. As an exception, when the service proposal has not been expressly agreed by the Client, acceptance of the service proposal may result from its execution, when usual contractual relations existing between Cabinet Marek and the Client so justify, and notably when the service envisaged falls within a context of urgency with regard to the safeguarding of intellectual property rights.

The Client authorises Cabinet Marek to use subcontractors to execute all or part of the service, and notably foreign agents, lawyers, external consultants, private prior art search companies, investigators, and private companies specialised in trademark surveillance. Cabinet Marek undertakes to ensure that its subcontractors respect the confidentiality attached to the documents and information sent by the Client.

    • 2.2 - Cooperation

To be able to carry out its services to the best of its knowledge and capabilities, Cabinet Marek must be able to count on the complete and loyal cooperation of the Client, which undertakes to communicate exhaustive and accurate information concerning its activities, its contractual links to third parties or partners, its projects, its intentions, the state of the art and/or the competition, and more generally all information of any nature that may be necessary to the fair assessment then proper execution of the services. In this way, the Client undertakes to notify any change concerning the information provided, and more generally any event that may change the implementation of a current or future service. The Client alone shall be liable for any damages (including loss of rights) that may result from erroneous or incomplete information or absence of response to requests for instructions or information sought by Cabinet Marek.

    • 2.3 - Execution timeframes

Save where a deadline is expressly agreed with the Client, Cabinet Marek is only bound to execute the services within reasonable timeframes and according to its capabilities. As these timeframes are given for guideline purposes, any overrun may not be considered as a reason for termination of the contract or dispute over the amount due for the service.

In case of request for provision in compliance with Article 3.4 of these GC, any execution timeframe expressly agreed with the Client shall begin from payment of the said provision. Similarly, any execution timeframe expressly agreed with the Client shall begin upon provision by the Client of all information necessary to its implementation.

As some services are subject to an execution timeframe imposed by an administration and/or by the industrial property legislation in force, the Client is bound, on the request of Cabinet Marek, to give its instructions in good time so as to respect the deadlines imposed and enable Cabinet Marek to fulfil its mission with all necessary care. The Client shall alone be liable for the damages (including loss of right) that may result from instructions received after a deadline notified in writing by Cabinet Marek.

3 - FINANCIAL CONDITIONS

    • 3.1 - Fees

The services provided give rise, in principle, to fees invoiced on the basis of a flat rate, or otherwise pursuant to an hourly rate.

The billing method used is fixed by mutual agreement between the parties. It is mentioned on the quotation drawn up by Cabinet Marek and duly accepted by the Client.

The fees invoiced are determined according to the capacity of the members of Cabinet Marek responsible for executing the services, the difficulty of the mission, the urgency imposed by the Client, and the nature of the services accomplished.

In addition to remuneration for the services carried out, the parties may agree on an additional fee according to the result obtained or service delivered.

With regard to services that are easily identifiable or executable only according to their duration, counted in hours or days, Cabinet Marek shall provide the Client with a scale of fees. With regard to procedural services before the offices in France or in Europe (EPO, EUIPO, WIPO), Cabinet Marek shall provide the Client with a pricing grid.

    • 3.2 - Official fees, costs of external services and miscellaneous costs

The fees of Cabinet Marek do not include the costs, taxes and external fees it incurs for the purposes of implementing the services.

The costs, taxes and external fees shall be billed to the Client in addition to the fees of Cabinet Marek. The costs of administrative, accounting and bank processing of the invoices covering these costs, taxes and external fees shall also be added.

In compliance with the Rules of Procedure of the Compagnie Nationale des Conseils en Propriété Industrielle (CNCPI), Cabinet Marek states that it is prohibited from covering or offering to cover the financial risks or the costs of an operation or an intervention for others, and from fixing its fee exclusively according to the expected result of such operation or intervention.

The rates mentioned in any service proposal are exclusive of VAT.

Value added tax (VAT), at the rate in force on the date of the act generating the VAT, shall be applied in addition, when this is applicable pursuant to the French and European laws.

    • 3.3 - Provision

In compliance with professional customs in force, the implementation of any service is subject in principle to the prior payment by the Client of a provision equal to at least fifty per cent (50%) of the tax-inclusive amount of the service. The amount of the provision requested may be raised to the total tax-inclusive cost of the service at the discretion of Cabinet Marek, notably in the case of new Client or Client owing Cabinet Marek for one or more prior services.

Where applicable, execution of the service may only begin after payment of the provision requested, regardless of the consequences of this for the Client, notably in terms of missing deadlines.

    • 3.4 - Invoices

All services provided by Cabinet Marek requested by the Client will be invoiced to it.

In the event where the fees of the intellectual property bodies and the fees of the service providers are not invoiced by them directly, the invoices of Cabinet Marek shall show the various fees separately, on the request of the Client.

The invoices shall furthermore indicate the sums received previously in provision or payment.

    • 3.5 - Conditions of payment

Invoices are payable 30 days end of month of their date of issue, net and without discount, in compliance with Article L. 441-6 of the French Commercial Code.

If payment of an invoice is not received within this period, late payment penalties shall be calculated at the rate of 3 times the legal interest rate in force on the total tax-inclusive amount of the price of the service(s) presented on the invoice, and shall be payable to Cabinet Marek on its simple request without the need for a reminder.

The costs inherent to any proceeding initiated with a view to the contentious recovery of the sums due are payable by the Client.

An amount of €40.00 shall additionally be invoiced as fixed penalty for recovery costs, in compliance with Articles L. 441-6 French Commercial Code and D. 441-5 French Code of Civil Procedure.

Failure to pay any payment instalment on its due date shall entail the automatic withdrawal of the mission, without prior formal notice.

In other words, in the event of failure by the Client to pay fees, costs and/or taxes invoiced by Cabinet Marek, and after the Client has been duly notified thereof, Cabinet Marek may relinquish the mandate and all services for which it had been mandated by the Client.

4 - LIABILITY

In compliance with the Rules of Procedure of the CNCPI, for its own reasons, notably ethical, Cabinet Marek is free to refuse any new mandate or to suspend any mandate underway, subject to notifying the Client without delay thereof and ensuring that all measures are taken, if applicable, to ensure that the legitimate interests of the Client are protected.

In case of acceptance of a mandate, Cabinet Marek is bound to observe the rules of prudence and diligence imposed for the protection of the interests conferred on it by the Client. In this way, Cabinet Marek is notably bound to:

  • respect the purpose of the mandate conferred on it by the Client,
  • keep the Client informed of state of progress of the services,
  • seek the instructions of the Client each time a decision needs to be made in a situation that may entail a loss of rights,
  • refrain in a same case from advising, assisting or representing Clients having opposing interests, save to intervene as mediator. In this way, and save with the express instructions of the Client, Cabinet Marek shall remain attentive to avoiding any possible conflict of interest with another of its Clients, but shall not be bound to verify whether such conflict exists
  • observe professional secrecy in all circumstances.

 

In the execution of any consultancy service, Cabinet Marek is only bound to a best efforts obligation.

Cabinet Marek notably declines any liability owing to an error or omission in the search for prior arts, technological monitoring of patents or surveillance of trademarks, models or domain names, when all necessary care has been observed to execute this type of service. The exploitation of these services by the Client is undertaken at its sole risk and peril.

Save with the express instructions of the Client, Cabinet Marek is not under any circumstances bound to conduct searches for prior arts prior to filing a patent, a trademark or a model, or to submit a prior analysis of the patentable nature of an invention or the registerable nature of a trademark or a model. Acceptance by Cabinet Marek of a mission of filing for a patent, trademark or model shall not under any circumstances constitute assurance of the grant or validity of the title applied for.

Cabinet Marek does not accept any liability over the choice and exploitation by the Client of the services provided to it. In particular, the Client is solely responsible for the choice of industrial property title(s) it acquires through Cabinet Marek, and consequently undertakes not to exercise any remedy against it in this respect.

In case of filing of patent, trademark or model, Cabinet Marek cannot be held liable for the rejection of the application and/or the non-grant of the patent, trademark or model, notably in case of absence of novelty and/or inventive step of the invention, or in the case of absence of availability of the trademark or novelty of the model. If the Client decides to initiate a dispute against a third party on the basis of a title it has obtained through Cabinet Marek, Cabinet Marek cannot be held liable for the consequences of this dispute, and notably any decision pronouncing the annulment or forfeiture of the said title.

5 - PROFESSIONAL SECRECY

Throughout the duration of the contract and upon its expiry, Cabinet Marek undertakes to keep confidential all documents and information relating to the progress of the mission and not to disclose them, and to limit their distribution solely to the people needing to know them for the execution of the mission.

In this way, Cabinet Marek undertakes to consider all documents and information entrusted by each of its Clients as confidential, and not to communicate their content to any third party other than to any other consultants on whom the implementation of part of the service has been conferred.

In compliance with Article L. 422-11 of the French Intellectual Property Code (IPC) and the CNCPI Rules of Procedure, Cabinet Marek is bound to professional secrecy.

This secrecy extends to the consultations sent or intended for the Client, to the information and documents exchanged with the Client, a colleague or a lawyer, to the interview notes and correspondence, and more generally to all elements of any case opened for a service.

For all useful purposes, it is however stated that Cabinet Marek does not commit any disclosure infringing professional secrecy in the cases specified by the law, and notably including those set out in Articles 226-14 of the French Criminal Code, and for the strict requirements of its own defence.

6 - DATA PROTECTION

Cabinet Marek collects personal data from its clientele within the framework of its mission as Industrial Property Consultant. Cabinet Marek shall make every effort to comply with the General Data Protection Regulation 2016/679 (GDPR).

All personal data communicated to Cabinet Marek by the Client (notably surname, forename, address, telephone and/or fax number, internet address(es), accounts data, bank details, data on the professional organisation of the Client) are kept in an active database of Cabinet Marek for a defined duration, and at least for the duration for which Cabinet Marek is acting on behalf of the Client. They are saved in the database of Cabinet Marek situated on a secure server with access restricted to predefined persons. These data are used exclusively to enable Cabinet Marek to fulfil its role of representative. Cabinet Marek is prohibited from selling or providing the personal data of the Client to third parties.

7 - TERMINATION – END OF MANDATE

The Client has the option of releasing Cabinet Marek from any mandate and any service for which it has been mandated at its convenience and at any time. In this situation, the Client is not exempted from respecting its obligation to pay the sums due for the services provided up to the date of effective termination of the mandate.

At the same time, Cabinet Marek has the same option of terminating execution of any service on behalf of the Client and closing the corresponding mandate, in accordance with its ethical rules and provided it allows the Client reasonable time to confer its cases on another representative, if necessary, whose contact details it shall communicate to Cabinet Marek.

8 - DISPUTES AND JURISDICTION

These General Conditions and the services resulting therefrom are governed by French law and subject to the ethical rules of the profession of Industrial Property Consultant.

In the absence of amicable solution agreed within a period of one (1) month after sending a first written notification concerning the dispute by any of the parties to the other, the dispute shall be submitted to the exclusive jurisdiction of the courts of Paris, notwithstanding multiple defendants or introduction of third parties.