Engagement & Fee Agreement
The following terms are entered into in this agreement (“Agreement”) between you (“Client”), and Marks Matter, SP (“Attorney”).
1. Conditions. This Agreement shall not take effect, and Attorney shall have no obligation to provide legal services, until Client signs this Agreement and provides the required payment.
2. Scope and Duties. Client retains Attorney to represent it solely in the matter detailed in the form above and incorporated by reference, or as otherwise agreed to by Client and Attorney. In addition, Attorney is not obligated to perform any additional services to which it has not agreed (such as, but not limited to, responding to substantive office actions, or filing oppositions, or engaging in other litigation proceedings).This Agreement expressly does not include litigating opposition proceedings (either in response to opposing parties or filing). Client may separately retain Attorney at the hourly rate of $300 per hour (billed at 6-minute intervals) for such services. Clients who purchase Protect Yours GOLD or Protect Yours SILVER may receive ONE additional FREE registrability and conflict check for an ALTERNATIVE mark for the same goods or services IF their preferred initial mark receives a negative/high risk opinion from Attorney. Client agrees to remain available to Attorney on a reasonable basis for consultation, and to respond to Attorney’s correspondence. To that end, Client agrees to update Attorney as to Client’s contact information, especially Client’s email address. Attorney accepts employment based on the terms of this Agreement. Attorney may call upon other attorneys or staff, whether in its own office or outside its office—including associating or referring to outside counsel–when it considers such assistance necessary or beneficial.
3. Waiver of Conflict. Client understands and acknowledges that Attorney may currently represent, may have previously represented, or may represent in the future, Client’s competitor, or a party legally adverse to Client. Client consents to representation in any and/or all such situations. Examples of such conflicts include, but are not limited to, prosecuting an application for a competitor, including an application that may weaken or dilute the strength of Client’s trademark/service mark; making a legal argument that may strengthen a competitor’s legal position in current or future proceedings; among others. Regardless, Attorney will not represent one client such that representation would violate Attorney’s duties to any other current client, and will withdraw from representation in any matter where Attorney believes Attorney cannot, under the Rules of Professional Conduct, fully represent both clients.
4. Fees. The fee is as described in the form above and incorporated by reference. All fees are deposited into a client trust fund until earned. Client deems that Attorney’s performance of a trademark/service mark conflict check and provision to Client of an initial opinion on registrability of said mark with the USPTO fixes Attorney’s interest in the relevant fee of $295. At such time, Attorney will transfer said fee from the client trust fund to Attorney’s operating account. Ten percent (10%) of all funds accepted from Client will be stored in a non-interest-bearing reserve as a service charge for the use of electronic acceptance of funds through Attorney’s merchant service for accepting credit card payments; Client consents to this arrangement. Client further acknowledges that it is paying for more than just the action related to Client’s desired trademark/service mark and is also paying for Attorney’s availability and periodic communication. As such, Client deems Attorney’s interest in fees remaining in the client trust fund fixed after a period of six months, or upon the pro rata rendering of the hourly fee equivalent ($300 per hour) of services, or at such time as Client’s trademark/service mark is granted—whichever comes first. Attorney’s hourly fee is subject to periodic change, but will not unreasonably increase.
NOTICE: CLIENT UNDERSTANDS AND AGREES THAT ATTORNEY’S FEES ARE NOT CONTINGENT UPON COMPLETION OR SUCCESS OF THE SERVICES PROPOSED, OR ANY RELATED LEGAL ACTION. CLIENT FURTHER UNDERSTANDS THAT TRADEMARK/SERVICE MARK REGISTRATION IS AN APPLICATION PROCESS WITH A UNITED STATES GOVERNMENT AGENCY THAT COULD ULTIMATELY RESULT IN A DENIAL OF CLIENT’S TRADEMARK/SERVICE MARK APPLICATION FOR REASONS BEYOND ATTORNEY’S CONTROL.
5. Cost Reimbursements. Cost reimbursements are separate from Fees as described in Paragraph 4. Cost reimbursements include, but are not limited to, funds collected to pay USPTO filing fees, mailing fees, and service charges (such as bank and merchant service charges for payment processing). Cost reimbursements will be stored in Attorney’s client trust fund. Client agrees that cost reimbursements unutilized for a period of two years will be regarded as an “availability fee” as in Paragraph 4, deemed fixed in Attorney’s interest and transferred to Attorney’s operating account.
6. Intent to Use Applications. Under certain circumstances, such as, but not limited to, an inadequate specimen, Attorney may have to change the filing status for Client’s proposed mark from “Use In Commerce” to “Intent to Use” for tactical or procedural reasons. In such instances, if Attorney must file a specimen to complete Client’s application, Attorney will separately bill Client $120 to cover filing fees and service charges and incremental attorney time.
7. Refunds. All advanced fees and cost reimbursements are fully refundable until services are rendered. Client is entitled to a refund for services not yet rendered. If Attorney has partially rendered services, Client shall be entitled to a reasonable partial refund.
8. Termination. Client may discharge Attorney at any time. Attorney may withdraw with Client’s consent, or on thirty day’s advance notice, or for good cause. Good cause includes, but is not limited to, Client’s breach of this Agreement, Client’s failure to timely pay fees or costs, Client’s failure to cooperate with Attorney or to follow Attorney’s advice on a material matter, Client’s failure to provide accurate or truthful information to Attorney, or any other fact or representation that would render Attorney’s continuing representation unlawful or unethical. Following termination, Client is entitled to a refund for pursuant to Paragraph 6.
9. Privacy. Many of the details provided by Client to Attorney, including name and mailing address of the individual or business entity that owns the trademark/service mark, will become part of the public record once an application is filed with the USPTO, and these details will remain available on a permanent basis in the publicly accessible USPTO trademark database. Note that any data Client enters into Attorney’s forms or that Client otherwise reveals to Attorney may be used for Attorney’s own internal analytics, or might be compiled anonymously into data reports. Attorney does not sell data or information provided by Client. Attorney makes use of Google Analytics and other data analytics software to track various data about visitors to its website. Further, Client provides Attorney permission to publicly acknowledge Client’s status as a client and to use Client’s name and branding on the law firm’s website and in promotional materials, for the purpose of demonstrating examples of “success stories.” Client gives Attorney permission to write about details of Client’s case or Client’s business on Attorney’s website, legal blog, and social media, and to quote emails from Client for testimonial purposes. Client may revoke either or both of these privileges at any time. Regardless, Attorney will not reveal any of Client’s information that Attorney deems to be sensitive or that would prejudice Client’s application before the USPTO, or as specifically requested by Client.
10. Disclaimer of Guarantee. Nothing in this Agreement and nothing in Attorney’s correspondence or verbal statements to Client shall be construed as–nor does Attorney make–a promise or guarantee as to the outcome of Attorney’s representation of Client’s interests in any legal matter. While Attorney employs best efforts to secure Client’s interests, any comments that Attorney makes about the outcome or likelihood of an outcome are expressions of opinion only.
11. Arbitration. Any controversy, claim or dispute arising out of or relating to this Agreement, or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration in Santa Clara County, California. The arbitration shall be administered by the American Arbitration Association, pursuant to its Comprehensive Arbitration Rules and Procedures. The arbitrator shall, in the Award, allocate all the costs of the arbitration, including the fees of the arbitrator and the reasonable attorney’s fees and expenses, against the party that did not prevail. The Award shall be in writing and shall specify the factual and legal basis for the Award. Judgment on the Award may be entered in any court having jurisdiction. NOTICE: BY SIGNING THIS AGREEMENT, CLIENT IS AGREEING TO HAVE ANY DISPUTE BETWEEN ATTORNEY AND CLIENT, INCLUDING ISSUES OF LEGAL MALPRACTICE, DECIDED BY NEUTRAL ARBITRATION AND CLIENT IS WAIVING THE RIGHT TO A TRIAL BY JUDGE AND/OR JURY.
12. Governing Law. The laws of the State of California shall govern this Agreement without regard to its conflict of law provisions.
13. Attorney Fees. The parties hereby agree that if legal action should be required to enforce the provisions of this Agreement, the prevailing party shall be entitled to reasonable attorney’s fees and costs to the extent permitted by law.
14. Effective Date. The effective date of this Agreement shall be the date on which Client has paid the required fees and costs, and by which both Attorney and Client have executed this Agreement. This Agreement is not binding until Attorney counter-signs the Agreement. Attorney may execute counter-signature by sending a Notice of Client Acceptance via email or US Mail. If Attorney declines to accept Client, Attorney shall refund Client any unearned fees or costs.
15. Form. This Agreement may be executed by the parties in electronic counterparts.
16. Severability and Integration. This Agreement contains the entire agreement between Client and Attorney relative thereto. This Agreement shall not be modified except by written agreement signed by both Client and Attorney. If any provisions of this Agreement are held in whole or in part to be unenforceable for any reason, the remainder of that provision and of the entire Agreement will be severable and remain in effect.
17. Competence. Client is either at least 18 years old or has express permission and guidance from a parent or guardian throughout this process. By signing this Agreement, Client further represents that it has actual authority to engage Attorney’s services.