1.1. An industrial property consulting firm, Cabinet ROMAN (registered under No. 810 437 038 in the Company and Trade Registry of Marseilles) offers Services of consulting, assistance and representation for the purposes of obtaining, maintaining, using and/or defending intellectual property rights and related rights, in particular in the field of patents, trademarks, drawings and models. These Services include the legal consultation and the drafting of private contracts.
1.2. Any Service performed by Cabinet ROMAN in accordance with the instructions of an individual or entity which has given it a mandate for this purpose (hereinafter referred to as the “Customer”) and for which the Cabinet ROMAN can avail itself in the quality of an agent with regards to third parties (hereinafter referred to as “Service”) is subjected to these General Terms and Conditions of Services.
1.3. These General Terms and Conditions of Services are an integral part of the Estimates submitted by Cabinet ROMAN to the Customer and shall apply all throughout the execution of the Service. The signing and/or acceptance of an Estimate implies final acceptance by the customer of these General Terms and Conditions of Services.
1.4. These General Terms and Conditions of Services can be specified, modified or replaced without special provisions mentioned in the Estimates signed by the Customer and/or within the framework of all types of written documents exchanged between the parties all throughout the execution of the Service characterizing a voluntary agreement between the parties.
1.5. Any exception or derogation to these General Terms and Conditions of Services desired by the Customer requires a prior agreement in writing from Cabinet ROMAN.
II. CONDITIONS FOR EXECUTING SERVICES
2.1.1. The execution of a Service by Cabinet ROMAN is conditioned by acceptance beforehand by the Customer of a corresponding Estimate according to the cases of an estimate of the related execution costs and timeframes (hereinafter referred to as the “Estimate”). The Estimate constitutes the special conditions that modify and/or supplement these General Terms and Conditions. In the event of a conflict between the provisions of these General Terms and Conditions and those of any Estimate, the provisions of the Estimate shall prevail in the determining of the respective rights and obligations of the Customer and of Cabinet ROMAN in this context.
2.1.2. Any individual or entity to whom an Estimate is addressed is informed that Cabinet ROMAN has these General Terms and Conditions available for them.
2.1.3. The establishing of an Estimate requires a specific preliminary study or working meetings with Cabinet ROMAN and for which the requesting individual or entity does not follow through, can be invoiced.
2.1.4. In principle, accepting an Estimate must be clearly formalized in writing, in paper or electronic format that makes it possible to identify the author of it. Cabinet ROMAN cannot in any circumstances be held liable for any delay taken in the execution of a Service linked to the late reception of an acceptance in good and due form from the Customer.
2.2 Obligation of the Customer
2.2.1. For the proper execution of the Service by Cabinet ROMAN, the Customer undertakes to communicate true and complete information concerning his activities, projects, intentions, the state of the art and/or of the competition and more generally any useful information (technical notes, plans, documents, etc.) that are necessary for the proper estimation and proper execution of the Services. As such, the Customer undertakes to inform of any change concerning the information supplied and more generally any event that can modify the execution of a Service. The Customer will be solely responsible for the consequences (including loss of rights) that could result from incorrect or incomplete information or the absence of a response to requests for instructions or information submitted by Cabinet ROMAN.
2.2.2. The Customer is bound to check the material and technical accuracy of any document that is remitted to him by Cabinet ROMAN for the needs of executing a Service. His agreement is deemed as being given with regards to the content of these documents in the absence of any formal response solicited by Cabinet ROMAN when they are transmitted.
2.2.3. The Customer abstains from any act that affects the independence and the ethics of Cabinet ROMAN.
2.3.1. The Service is conducted by those intervening designated by Cabinet ROMAN, according to the rules of the art, standards and ethics in the profession, and, in particular, in accordance with the Estimate accepted by the Customer and/or in accordance with all other types of written documents or oral information exchanged between the parties all throughout the execution of the Service which characterizes a voluntary agreement between the parties.
2.3.2. French and English are the languages in which Cabinet ROMAN is able to carry out the Service with the due diligence required in the framework of the Estimate signed by the Customer. In case of need to process documents, information, or to draft in a language other than the latter two, Cabinet ROMAN will inform the Customer who will decide recourse, at his expense and under his responsibility, to a partial or full translation. For the case where the Customer would entrust Cabinet ROMAN with the task of having a translation done, the Customer will cover the costs relating to it.
2.3.3. Unless explicitly instructed by the Customer, Cabinet ROMAN is not in any case bound to perform prior art searches before the filing of a patent, trademark, drawing and model.
2.3.4. In case of acceptation of an Estimate, Cabinet ROMAN is bound to observe the rules of caution and diligence required to safeguard the interests that are entrusted to it by the Customer. As such, Cabinet ROMAN is in particular bound to: comply with the object of the Estimate that it has been entrusted with by the Customer; keep the Customer informed of the progress made in the Services; solicit instructions from the customer each time that a decision has to be made in a situation that is likely to result in a loss of rights.
2.4 Execution timeframes
2.4.1. Unless a timeframe is explicitly agreed upon with the Customer, Cabinet ROMAN is solely required to execute the Services within a reasonable amount of time. As these timeframes are given for the purposes of information in the Estimates, any exceeding of these cannot be considered as a reason for terminating the contract or disputing the price of the Service.
2.4.2. In any case, any deadline for execution agreed upon explicitly with the Customer is from the payment of all or a portion of the price of the Service and starting from the supply by the latter of all of the information required to carry it out.
2.4.3. When the instructions from the Customer reach Cabinet ROMAN late or after the expiration of an official timeframe, Cabinet ROMAN is released from any liability concerning the execution in the allotted timeframe of the Service.
2.4.4. Unless explicit instructions are received from the Customer, Cabinet ROMAN is not in any case bound to take exceptional measures aiming to extend a deadline or to restore a right relating to a missed deadline.
2.4.5. The Customer shall be solely responsible for the consequences (including loss of rights) that could result from instructions received after a deadline notified in writing by Cabinet ROMAN.
2.5.1. The Customer explicitly authorizes Cabinet ROMAN to call upon subcontractors for the execution of all or a portion of the Service and, in particular, upon foreign correspondents, lawyers, translators, companies specializing in the payment of royalties, companies specializing in the execution of drawings.
2.5.2. Cabinet ROMAN undertakes that these subcontractors comply with the confidentiality attached to the documents provided by the Customer.
III. FINANCIAL CONDITIONS
3.1. Cabinet ROMAN does all that it possible so that the Services defined in the Estimates give rise to a lump-sum including the fees of Cabinet ROMAN, as well as the external fees, disbursements and associated administrative fees, in the case where the carrying out of a portion of the Services need to be entrusted to external service providers and/or foreign correspondents. Revisions may arise at any time, in particular to take into account revisions in fees and administrative taxes, fluctuations in exchange rates and/or modification in regulations and laws that may apply and which can be passed on in the amount of the Services.
3.2. For the drafting of a patent application, additional fees will be invoiced to the Customer in the case where, at the request of the latter, it would be necessary to include in the text of the description and/or in the claims, new technical and or varying element(s) that were not communicated at the time the Estimate was drawn up corresponding to this Service.
3.3. Certain Services, in particular in terms of dispute, can give rise to hourly rates. Generally, the fees of Cabinet ROMAN are determined according to the nature of the Services and/or the time required to execute them and/or the complexity of the diligences and/or of the experience and skills required of those intervening.
3.4. Certain Services require the intervention of foreign correspondents for foreign procedures for granting patents and trademarks in particular. These Services involve taking care of formalities, transmissions and translations of official documents such as notifications from the industrial property Offices of the countries involved and processing and analysis fees. Lacking explicit instructions from the Customer prior to these transmissions, Cabinet ROMAN will pass these fees on to the Customer (plus bank charges and foreign exchange charges) that the Customer cannot refuse to settle even if he decides subsequent to the reception of said transmissions to not continue with the granting procedure.
3.5. In accordance with the internal regulations of the CNCPI (French Patent & Trademark Attorneys Institute: http://www.cncpi.fr), Cabinet ROMAN is prohibited from covering the financial risks or the fees of an operation or of an intervention for a third party as well as for setting its remuneration exclusively according to the expected results of such an operation or intervention.
3.6. The amounts mentioned in the Estimates are net and do not include tax. A value-added tax (VAT) at the rate in effect on the day of invoicing, will be applied on top, when the latter applies in virtue of French and European laws. In application of the French General Tax Code, administrative taxes are exempt from VAT.
3.7. The carrying out of a Service can be subordinated to the payment beforehand by the Customer of a provision. In this case, the start of the Service does not occur until after collection of said provision and this regardless of the consequences for the Customer including the exceeding of a deadline that can result in the loss of a right.
3.8. The amount of the Service must be paid upfront, by check, bank transfer or in cash. The terms of payment for the amount of the Service are as follows:
– invoices are paid on their due date no later than thirty (30) days starting from the date of issue of the invoice; in the event of early payment, no discount is granted;
– in case of late payment, late fees are due the day following the payment date mentioned on the invoice;
– the interest rate on late fees is equal to the interest rate applied by the European Central Bank (ECB) to its most recent refinancing operation, plus ten (10)%;
– late fees are due without the need of a reminder or formal notice;
– in the event of late payment, a lump-sum indemnity for collection costs of forty (€40) exc. tax is also due by right.
3.9. Any dispute concerning an invoice issued by Cabinet ROMAN must be evoked no later than fifteen (15) days following the date mentioned on the invoice and must be justified; said dispute cannot justify not paying for other Services that are not disputed including those included in the same invoice.
3.10. Not paying the fees of Cabinet ROMAN can, after a reminder sent by registered mail with proof of receipt, result in suspension of the Service. Cabinet ROMAN can in particular abandon and have its foreign correspondent abandon the procedures initiated in the name of the Customer. Cabinet ROMAN cannot be held liable in such cases, with the Customer covering all of the consequences, and in particular those linked to non-compliance with a deadline.
IV. PLURALITY OF CUSTOMERS
4.1. In the event of a plurality of Customers in the framework of the same dossier, the latter undertake to designate a single one of them as the sole contact for the Cabinet ROMAN, for the transmitting of instructions or documents as well as for the settling of invoices. This single contact is called the “Principal”.
4.2. The invoices issued by Cabinet ROMAN will be sent exclusively to the Principal for the total amount of the Services. The breaking down of the amounts due between each of the Customers or the establishing of individual invoices on a prorata basis of their respective share, requires explicit prior approval from Cabinet ROMAN as to the principle of such an organization.
4.3. In case of failure of the Principal, the Customers remain jointly and severally responsible for the full payment of the invoices to Cabinet ROMAN.
4.4. In case of a plurality of Customers and in the absence of a Principal, the procedures initiated in the name of the Customers will not be undertaken or continued until all invoices are paid in full. Cabinet ROMAN cannot be held liable if an administrative formality or an official deadline was not complied with, due to the non-payment in full of the invoices, with the Customers covering jointly and severally all of the consequences.
V. LIABILITY – ETHICS
5.1. Mandate refusal
5.5.1. In accordance with the internal regulations of the CNCPI (http://www.cncpi.fr), Cabinet ROMAN is free to refuse any new mandate or interrupt any mandate in progress, subject to informing the Customer of this without delay and ensuring that all measures are taken, where applicable, so that the legitimate interests of the Customer are safeguarded.
5.5.2. Likewise, Cabinet ROMAN shall refrain, in the same dossier, from advising, assisting or representing Customers that have opposing interests, except when intervening as an ombudsman. As such, and unless explicitly instructed by the Customer, Cabinet ROMAN is not bound to verify if there is a possible conflict of interest with another of its Customers.
5.2. Best-efforts obligation
5.2.1. For the execution of any Service, Cabinet ROMAN is bound only to a best-efforts obligation.
5.2.2. In light of the unknowns that are inherent with this type of Services, Cabinet ROMAN declines all liability due to an error or omission in prior art searches, technology watch, monitoring of trademarks or domain names, when all of the necessary care has been observed in order to execute these Services with diligence. The Customer makes use of the results of these Services at his own risk.
5.2.3. Cabinet ROMAN cannot be held liable as to the choices and use, by the Customer, of the Services that have been provided to him. In particular, the Customer alone is responsible for the choices of the industrial property title or titles that he acquires through the intermediary of Cabinet ROMAN and consequently undertakes to not exercise any recourse therein against it.
5.2.4. In the case of filing for a patent, Cabinet ROMAN cannot be held liable for rejection of the application and/or for the non-granting of the patent in particular in the case of absence of novelty and/or of inventive step of the invention in question.
Cabinet ROMAN provides proof of insurance coverage for its civil and professional liability due to negligence and faults committed in the exercise of its functions, as well as a guarantee that is specifically allocated for the reimbursement of the funds received.
5.4. Professional secrecy
5.4.1. In accordance with Article L.442-11 of the Industrial Property Code and Article 12.3 of the internal regulations of the CNCPI (http://www.cncpi.fr), Cabinet ROMAN is bound by professional secrecy. This secrecy extends to all of the consultations sent to or intended for the Customer, to the information and documents exchanged with the Customer, a colleague, a foreign correspondent or lawyer, to the interview notes and, more generally, to all of the documents of a dossier linked to a Service.
5.4.2. Cabinet ROMAN undertakes to consider as confidential all of the documents and information entrusted by each one of its customers and to not communicate the content of it to any third parties other than possible subcontractors to whom would be entrusted the execution of a portion of the Services according to Article 2.5 of this document, until after obtaining explicit approval from the Customer.
5.4.3. Cabinet ROMAN however does not commit any disclosure that goes against professional secrecy in the cases provided for by law, and for the strict requirements concerning its own defense.
5.5. Dossier archival
5.5.1. Cabinet ROMAN takes all necessary measures to retain the documents of the dossiers and, generally, all of the documents produced and received for a retention period of twenty (20) years starting from the end of the Service. Documents of dossiers concerning patent projects for which the Customer has not followed up on are archived for ten (10) years. After this period, the documents of the dossier are destroyed.
5.5.2. Cabinet ROMAN also has a computerized archiving system that makes it possible to ensure the safeguarding and archiving of data and computerized processing in order to guarantee the retaining, inviolability and subsequent reading thereof.
5.5.3. Cabinet ROMAN will take all the measures required to ensure the protection of its computer archiving system. Cabinet ROMAN however cannot be held liable for the consequences of a failure in its computer archiving system.
6.1. The Customer has the faculty to divest Cabinet ROMAN at any time for any Service for which it has mandated it. In this situation, the customer is not relieved of his obligation to pay the amounts due in terms of the Services carried out up to the day of effective termination of the mandate.
6.2. Cabinet ROMAN in parallel has the same faculty to cease execution of any Service for the Customer with the condition of allowing the Customer a reasonable amount of time to entrust its dossiers to another agent of which the contact information will be communicated to Cabinet ROMAN.
6.3. Any decision concerning the divestiture of the Customer or of Cabinet ROMAN from the mandate must, otherwise leading to inopposability, be formulated in a registered letter with proof of receipt.
6.4. Regardless of the reason for divestiture, Cabinet ROMAN will remit to the Customer if requested in writing or to the new agent of the latter, all of the official documents that it is custodian of as well as all of the documents and information required to execute or complete the Services for which it was initially mandated. This transmission of information may be subject to additional invoicing according to the volume of the documents and information to be transmitted.
VII. DISPUTES AND ATTRIBUTION OF COMPETENCE
7.1. These General Terms and Conditions of Services and the entire mandate entrusted to Cabinet ROMAN are governed by French law and by the rules of the profession of Industrial Property Consulting.
7.2. Disputes that could possible arise between Cabinet ROMAN and its customer shall be brought, before any legal proceedings, before the President of the CNCPI (http://www.cncpi.fr).
7.3. If an out-of-court agreement cannot be reached, and in the case of legal proceedings, the parties agree that the District Court of Marseilles shall be explicitly competent, notwithstanding a plurality of defendants or a call in guarantee, including for emergency procedures or protective procedures.
VIII. ACCEPTANCE OF THE GENERAL
CONDITIONS FOR INTERVENTION
By accepting an Estimate, the Customer acknowledges that he has received, read and accepted these General Terms for Services.