Corsearch Brand Protection – Terms & Conditions
(“Corsearch”), by and through its related entities, is a service provider within the field of brand protection and provider of an advanced technical search platform – ZERO – with the ability to organize information on counterfeit goods and brand infringement.
The below are the General Terms and Conditions for the Corsearch Brand Protection Services, as fully set forth in the full License Agreement, Terms and Conditions and Data Protection Addendum, provided and agreed to by Customers of this Service.
Licenses, Intellectual Property Rights and ownership
License to ZERO
Corsearch grants to the Customer for the term of the License Agreement a non-exclusive, non-transferable, non-sublicensable and worldwide license to access and use ZERO for its own business purposes.
During the Term, the Customer may, without additional license, permit the Authorized Persons to have access to, and use ZERO for the Customer’s own business purposes in the manner contemplated by the Agreement.
Access to ZERO
The Customer will authorize new Authorized Persons to ZERO in accordance with the procedures established by Corsearch. Provided that the Customer complies with these procedural requirements, Corsearch acknowledges and agrees that it has no right or entitlement to restrict, prevent or refuse any Authorized Person by the Customer from accessing ZERO. Notwithstanding the foregoing, on reasonable notice to Customer, Corsearch may regulate and restrict access in accordance with its access and security procedures in effect from time to time, including requiring entry of a valid username and password for access and/or such other procedures as may be in place in the future.
Intellectual Property Rights and ownership of ZERO
All Intellectual Property Rights in and to ZERO (except in the Client Content), the Source Materials and the Enhancements shall remain vested in Corsearch and no Intellectual Property Rights are assigned or otherwise transferred to the Customer. All Intellectual Property Rights in and to all additions, developments, enhancements and improvements relating to any of the foregoing (except the Content) created, produced or carried out by the Customer shall be vested solely in Corsearch, and the Customer agrees that it shall execute all instruments, assignments and other documents reasonably requested by Corsearch in order to cause all such Intellectual Property Rights to be vested solely in Corsearch.
Corsearch warrants that it has the full legal right to license ZERO and that the use of ZERO by the Customer or Corsearch under the Agreement does not infringe on the Intellectual Property Rights of any third party.
Intellectual Property Rights and ownership of Content
All Intellectual Property Rights in or to Client Content contained within ZERO or supplied to Corsearch and/or a Hosting Sub-Contractor by Customer or Authorized Persons shall remain vested solely in the Customer. Insofar as Corsearch develops any software or related Source Materials in the course of the Agreement, not within the scope of the Services hereunder, all related Intellectual Property Rights belong to Corsearch solely. Corsearch shall ensure that none of the Hosting Sub-Contractors will obtain any rights to the Content as a result of performing any part of the Services. Corsearch shall promptly comply with any written request by the Customer to remove any Content from ZERO or to prevent any Person other than an Authorized Person from gaining access to ZERO.
The Customer warrants that no Content will violate any civil or criminal law or regulation, or infringe any Intellectual Property Rights of any third party, and that no Authorized Person will add any Content to ZERO in a manner that results in the violation of any civil or criminal law or regulation, or in infringement of any Intellectual Property Rights of a third party.
The Customer grants Corsearch a royalty-free and non-transferable license limited to the hosting of the Client Content on ZERO during the Term of the Agreement for the purpose of providing the Services. The Customer acknowledges that this license is limited to the Content, as defined, is that owned by and belonging to the Customer through the provision of the Services hereunder but that Corsearch is otherwise free to use ZERO and the Source Materials it owns to service other customers without limitation.
Standard Support Service
Corsearch shall provide Customer with the following support services (“Standard Support Services”) on an unlimited basis throughout the Term:
(a) Services of a qualified client manager designated by Corsearch (“Client Manager”) Monday through Friday, 8:00 a.m. to 5:00 p.m. Eastern Standard Time or Central European Time, as applicable;
(b) Access to ZERO twenty-four (24) hours a day, seven (7) days a week, excepting planned downtimes for upgrades and new releases of the ZERO platform;
(c) Monthly reports on the overall performance and usage of the ZERO program as used by Customer based upon metrics to be mutually determined by the Parties, and as prepared by the Client Manager
Financial and payment terms
The Customer shall pay the agreed fees for the Services as set out in the Agreement, as detailed in Addendum to the custom Client Agreement.
Beginning on the first anniversary of the Commencement Date of the Agreement and every anniversary thereafter, Corsearch may increase the charges for the fees stated in the Agreement. In the event of any such proposed increase, Corsearch shall provide the Customer with written notice at least thirty (30) days in advance of each anniversary of the Commencement Date.
Pricing may otherwise be adjusted based on the authorized change of the scope of Services by the Customer. Such change(s) must be authorized in writing by the Customer and Corsearch.
Customer shall be invoiced for all costs that are related to goods that are purchased by Corsearch for the purpose of investigating an infringement within the scope of its Services and as instructed by the Customer. The purchased items will be Customer’s property from the moment of purchase. At Customer’s request, Corsearch will either deliver the purchased items to Customer or will have them destroyed. In the event Customer has not requested the delivery of the purchased items by the time the contract is terminated, Corsearch will destroy the respective goods.
Invoicing and payment
All fees shall be payable annually in advance against the invoice issued by Corsearch. The due date for each amount payable to Corsearch shall be thirty (30) days from the date the invoice was issued, unless otherwise agreed otherwise between the Parties.
All payments under the Agreement shall be made in U.S. Dollars or Euros, as applicable, unless agreed otherwise between the Parties.
If the Customer has any issue regarding an invoice it must report the issue to Corsearch in writing within seven (7) days. Invoice disputes do not suspend the obligation to pay invoices.
In the event of any late payment of the fees due under the Agreement, and Corsearch has requested the Customer in writing to pay the amount due, Corsearch may, thirty (30) days after written request to the Customer, suspend the access of the Customer and any Authorized Persons to ZERO until such time full payment has been made.
In the event of any late payment of the fees due under the Agreement, the Customer shall be liable to pay interest on the outstanding amount from the due date to the date of receipt of payment by Corsearch, at an annual rate equal to the lower of: (a) LIBOR plus three per cent (3%) or (b) the maximum rate permitted under applicable law.
Payment and collection of applicable taxes
All fees set forth in the Agreement are exclusive of applicable taxes and duties, including any taxes or VAT and/or applicable sales or use tax. The Customer will provide Corsearch with any information Corsearch may reasonably request in order to determine whether Corsearch is obligated to collect VAT, sales or use tax from the Customer, including the Customer’s VAT or taxpayer identification number, as well as tax exemption certificate or comparable documents, if applicable.
If Corsearch is required by law to collect any taxes, Corsearch, by and through Corsearch, will invoice the Customer therefore and the Customer will pay Corsearch any additional amounts necessary to ensure that the net amount that Corsearch receives, after payment of any taxes, equals the amount Corsearch would have received if no tax had been required.
Customer acknowledges that Corsearch acts under the authorization and instructions of the Customer in the creation, production and action taken on behalf of the Customer in relation to its brand enforcement and by and through the Services provided under this Agreement. If Corsearch is instructed to provide investigative services hereunder including but not limited to sending take down notices and/or purchasing products on Customer’s behalf, Customer will provide the required POA (Power of Attorney or related documents) during the Onboarding process.
Corsearch is not responsible for third party claims resulting from or related to the instructed actions or Services provided.
Corsearch’s liability for errors or faults in or in relation to ZERO does further not include faults or errors caused by circumstances beyond Corsearch’s reasonable control.
No Party shall be liable for any loss of profits, loss of business, depletion of goodwill or similar losses, or pure economic loss for any special, indirect or consequential loss, costs, damages, charges or expenses, howsoever arising.
Term and termination
The term of the Agreement, renewal term and notice period shall be specified in the Agreement. Unless the Parties agree otherwise, the initial term of the Agreement shall be one (1) year from the Commencement Date (“Initial Term”). Thereafter, unless either of the Parties gives written notice of non-renewal at least ninety (90) days, prior to the last day of the Initial Term (or the then-current Renewal Term), the Agreement shall automatically renew for successive one (1) year periods (each, a “Renewal Term”). The Initial Term, and the Renewal Terms are collectively referred to herein as the “Term”.
The Parties termination for breach
Either Party shall be entitled to terminate the Agreement immediately upon written notice if the other Party commits any material breach of its obligations under the Agreement that by its nature is not capable of cure or is capable of cure but is not cured within thirty (30) days after prior notice in writing from the terminating Party specifying the breach and requiring that it be cured within such thirty (30) day period.
Termination for Insolvency
Either Party may terminate the Agreement in the following circumstances: (a) the other Party applies for, or consents to, the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property, (b) upon the other Party ceasing to conduct business, becoming or being declared by a federal bankruptcy court (or any other court of competent jurisdiction) to be insolvent or bankrupt, or being the subject of any proceeding under the federal bankruptcy code or under any other law relating to relief from creditors generally that is not dismissed within sixty (60) days; (c) upon the appointment of, or application for, a receiver, custodian, trustee or liquidator of the other Party or all or any substantial portion of the other Party’s business or operations; (d) upon the assignment of all or substantially all the assets of the other Party for the benefit of creditors; or (e) the other Party’s liquidation, dissolution or winding-up.
Termination for Convenience
Unless the Parties agree otherwise, Customer may terminate for convenience after the initial (6) months in the Initial Term of the Agreement. Thereafter, termination for convenience must, as stated, be at least ninety (90) days prior to the last day of any Renewal Term.
Each Party shall keep any Confidential Information received from or belonging to the other Party confidential (using such measures as is necessary in accordance with good industry practice to protect commercially sensitive and confidential information) and not disclose such Confidential Information to anyone (except on a need-to-know basis for internal use only where necessary to perform its obligations under the Agreement to its employees or full time contractors bound (in the case of Corsearch) by express written confidentiality obligations) or use such Confidential Information other than to perform its obligations under the Agreement without the prior written consent of the relevant Disclosing Party.
Confidential Information shall in this context mean: (a) all information of a confidential nature concerning the trade secrets or business dealings, methods of business, customers, clients, suppliers, market information, transactions, plans or affairs of a Party, (b) any proprietary information developed by the Parties in the course of carrying out the Agreement, (c) any document or information marked “Confidential,” “Commercial in Confidence” or otherwise expressly designated as confidential, (d) in relation to the Customer directly, all Content stored, cached or otherwise contained within ZERO, and/or (e) any information which by its nature the Recipient ought reasonably to conclude was confidential information of the other Party in all cases whether encrypted or not and including all copies of the above on any media (including electronic media) whatsoever. Notwithstanding the foregoing, Confidential Information shall not include information (a) which is or becomes or is in public domain, without any fault of the Recipient, (b) which was rightfully in the Recipient’s possession at the time of disclosure by the Disclosing Party, (c) which is disclosed to the Recipient by a third party or third party source without any obligations of confidentiality after the time of disclosure by the Disclosing Party; or (d) which the Recipient can show, by documentary or competent evidence, to have been developed independently by the Recipient without using Confidential Information of the Disclosing Party.
Corsearch acknowledges and agrees that it does not require any access to or use of any Content in order to perform its obligations under the Agreement and that use of any Content by Corsearch or any Authorized Persons must be pre-approved in writing by the Customer. The foregoing duty shall not apply to any Confidential Information to the extent that disclosure is required to or by any court, tribunal or governmental authority with competent jurisdiction, or by any applicable law.
Data Protection Terms
The processing of Personal Data by each Party in relation to the Services will be governed by Corsearch’s Data Protection Terms, which form part of the Agreement, between the Parties.
Corsearch shall not be liable for any delay or failure to carry out its obligations under the Agreement caused by Force Majeure, provided that it promptly gives written notice of the occurrence of the Force Majeure relied on to the Customer and it uses all reasonable endeavours to remove or avoid such Force Majeure as promptly as practicable.
If due to Force Majeure Corsearch is unable to perform its contractual duties for a total of five (5) business days within the invoice period of one month, the fees for that month will be deducted from payment proportionally. If any Force Majeure event relied upon by either Party pursuant to Clause 13 shall have been continually relied upon for more than 60 successive calendar days by such Party, and is continuing, the Parties shall discuss the renegotiation of the Agreement or the other Party shall be entitled to terminate the Agreement with thirty (30) days written notice to the other Party.
Governing Law and Disputes
The Agreement shall be governed by and interpreted in accordance with the laws of the State of New York, U.S.A or the Netherlands, as set forth in the Customer Agreement. The Parties acknowledge that this Agreement evidences a transaction involving interstate commerce.
Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both Parties.
*These Terms & Conditions are effective as of 5/18/20. For Yellow Brand Protection or Pointer Brand Protection existing client(s), Terms & Conditions in place prior to 5/18/20 and as of the execution of an existing and presently valid agreement with said companies, will remain in force until the agreement expires or is otherwise terminated. As stated above, these are the General Terms and Conditions for Corsearch Brand Protection Services, which are provided in full by a Client Manager upon being onboarded as a Client of Corsearch Brand Protection Services.