These terms (hereinafter referred to as the „Terms of Use“) apply to the services performed according to any individual order placed by the Client for the Validation of one European Patent (hereinafter referred to as the “Order”) to Dennemeyer & Associates S.A., 55 rue des Bruyères, L-1274 Howald Luxembourg, R.C.S. Luxembourg B 53358 (hereinafter referred to as “Dennemeyer”).

Dennemeyer reserves the right to update these Terms of Use at any time without further notice.

The services (hereinafter referred to as the "Services") shall mean the act of Validating European Patents performed directly by Dennemeyer or indirectly by Local Agents in one or more specified countries or jurisdictions according to the Order of Client placed through Dennemeyer’s web application for European patent Validations (hereinafter referred to as the "EP Web App") and to Dennemeyer’s operational procedures.

Validation”, “Validating” or “Validate” shall mean the act or actions of attending to validation formalities before national Patent Offices including fulfilling the translation requirements after grant (Article 65 EPC), and / or registering an address of service before local Offices, including the payment of applicable fees.

2.1 Orders

2.1.1 For each Cost Estimate provided by Dennemeyer issued with regard to each European patent that shall be Validated, Client will place an Order through the EP Web App.  

2.1.2 Dennemeyer will send a written formal confirmation of acceptance of Client Order for each Order placed by Client, which will constitute acceptance of the Order. For the avoidance of doubt, Cost Estimates received from Dennemeyer shall not constitute an offer to provide Client with any Services.

2.1.4 Client shall place an Order not earlier than the day of publication of the mention of grant of the EP in the European Patent Bulletin to allow Dennemeyer to accurately docket the Validation term. If against Dennemeyer’s established practice Client choses to instruct Dennemeyer before the grant of the European Patent, e.g. with the issuance of the Rule 71(3) EPC communication, Client shall inform Dennemeyer about the publication of grant in due course. Dennemeyer doesn’t monitor the grant of the European Patent and cannot be held liable in this respect.

2.1.3 Client shall place an Order not later than four (4) weeks (except Norway: six (6) weeks) before the deadline to Validate the European Patent. Otherwise a surcharge will be applicable to reflect urgency and disruption of Dennemeyer’s standard processes.

2.1.3 Client agrees that Dennemeyer shall carry out the Services by using its network of affiliates, partner firms and Local Agents, and may delegate certain tasks, rights or duties under this Order to such cooperator. “Local Agents” shall mean individuals, associations or legal entities that are registered or entitled to practice with one or more patent offices on behalf of a party or its clients.

2.1.5 Dennemeyer may, at its sole discretion, reserve itself the right to either accept or refuse belated or urgent instructions and/or Orders from Client, and Client agrees that additional fees or late filing fees may apply in such cases. Such fees will be expressly added on the Dennemeyer’s invoices sent to the Client.

2.2 Communication

2.2.1 Dennemeyer and the Client communicate with each other by using electronic mail on the basis that both of them accept the risks (including but not limited to the security risks of interception) of, or unauthorized access to, such communications and the risks of viruses.

2.2.2 An email shall be considered as actually being received when the responsible contact person from Client instructing or from Dennemeyer assigned to the Services has explicitly confirmed receipt or has otherwise replied to the email. Automated replies or generic receipt confirmations, including out-of-office messages shall not constitute a confirmation of receipt.

2.2.3 Client accepts that English may be the only language in which Dennemeyer provides information and advice, and Client acknowledges that Client and the individual in charge of the matter at Client’s end has sufficient language skills to understand and communicate in English language relating to legal matters.

2.3 Translations

2.3.1 Necessary translations will be prepared by translation agencies utilizing skilled translators or by or under the supervision of patent attorneys, depending on the jurisdiction.

2.3.2 Dennemeyer will generally ensure that Local Agents or translation agencies sign a declaration confirming that (i) the translation of the relevant parts of the Validated European Patent has been prepared by skilled and experienced translators and that (ii) at least the independent claims have been proof-read by an attorney or by translators competent in the languages and technical fields covered in the independent claims. If Local Agents or translation agencies sign such a declaration, this declaration is made available to Client upon request.

2.4 Client’s obligations

2.4.1 Client must provide Dennemeyer with all requested information, document (e.g. power of attorney), or item requested by Dennemeyer, which is necessary for or supports Dennemeyer’s performance of the Services, within the deadlines indicated by Dennemeyer. This includes the information if Dennemeyer shall be responsible for payment of annuity fees falling due within the Validation term, if applicable, or falling due in the future.

2.4.2 Client shall use its best efforts to continuously verify and ensure the accuracy and completeness of its patent-related information, and will review all reports, notifications and other information provided by Dennemeyer. Any discrepancies discovered by Client must be communicated to Dennemeyer without undue delay. Especially, any change of the status of a patent that is related to the Services hereunder (grant, refusal, change in ownership or address, etc.) must be timely reported to Dennemeyer.

3.1    Service fees and expenses
3.1.1    Dennemeyer generally charges a Service fee encompassing the receipt and handling of Client’s instructions, record keeping, provision and attendance to filing of Powers of Attorney, organizing and attendance to filing of necessary translations, instructing either patent offices or Local Agents as the case may be, registering a Dennemeyer entity as address of service where applicable, reporting and invoicing.
3.1.2    In addition to Dennemeyer’s Service fees, the following fees and expenses are charged separately to Client for reimbursement: 
•    “Official Fees”, meaning fees stipulated by law or demanded by Offices relating to intellectual property rights and needed to obtain or maintain in force said intellectual property rights by law, including but not limited to the publication of the translation, the filing of a Power of attorney, the recordal of any change, the annuity of a patent ; and
•    “Local Fees”, meaning charges payable by Client in addition to Service Fees for the performance of the Services in countries or jurisdictions where Dennemeyer uses Local Agents ; and
•    “Translation Fees”, meaning charges payable by Client in addition to Service Fees for translations; and 
•    eventual out-of-pocket-expenses of Local Agents in jurisdictions where Dennemeyer does not act directly on behalf of its clients, document duplication costs, printing and / or binding fees, and courier costs.
3.1.3    Dennemeyer undertakes to reduce copying to the absolutely necessary extent in order to comply with the legal archiving requirements foreseen by law. 
3.1.4    Belated transmission of information and documents as required in section 2.4.1 above may incur additional fees. 
3.2    Cost estimates 
3.2.1    The Service fees, Local Fees, Translation Fees, Official Fees, and eventual other fees and expenses are determined in a sample cost estimate, provided on a case-by-case basis via the EP Web App and/or upon request via e-mail and will be valid for 28 calendar days. Any such cost estimate must be approved by the Client in writing or via automated means. Cost estimates may vary from time to time.  
3.2.2    Client agrees that some aspects of the fees involved cannot be automatically calculated due to lack of information at the time of calculation such as the need consider sequence listings, the words in drawings and the number of pages in any translated patent specification and/or claims. Hence, some assumptions are applied while calculating the costs. Client may choose to change these inputs via the EP Web App and/or to contact Dennemeyer and Dennemeyer will provide Client with an accurate cost estimate which will include these special elements. 
3.2.3    Even after the Order was placed by Client and accepted by Dennemeyer according to section 2.1 above, Dennemeyer reserves the right to invoice all additional costs not included in the original Cost Estimates if (i) the Cost Estimate was based on any wrong input provided by Client,  (ii) due to fluctuations in foreign currency, (iii) the Cost Estimate was based on outdated input by the European Patent Office, (iv) additional Official Fees occur between the time the Order is placed and the time of providing the respective Service and/or (v) in case the Translation Fees increases due to a higher number of words than initially estimated.
3.3    Invoicing; Payment Terms
3.3.1    The Services are billed on a per-Order basis.
3.3.2    Payments shall be made in the currency indicated on the invoice issued by Dennemeyer. Value added tax (VAT) and any other relevant tax or duty, if any, will be applied where required.
3.3.3    Dennemeyer will issue billing statements (labelled “Debit Note”) to Client on a regular basis according to the status of the matter. Each such statement will include an itemization of Service fees and expenses. Dennemeyer will provide all invoices electronically in PDF format and send them to Client by email only. Sending of additional paper invoices by regular mail is charged with EUR 10 per invoice.
3.3.4    Client shall pay invoices without any deduction by bank transfer to Dennemeyer’s bank account as detailed in the relevant invoices within thirty (30) days from the invoice date (”Payment Target”), except if otherwise agreed in writing. Bank fees for such money transfers shall be borne by Client and will be charged to Client’s account. 
3.3.5    Withholding tax
If the laws of Client´s country of residence require the withholding of certain taxes, Client shall comply with the following requirements:
a.    Client shall deduct, under the applicable law, the tax at source on the Service Fees only. Withholding tax shall not apply on Local Fees, Translation Fees and Official Fees. Client agrees to inform Dennemeyer about the applicability of the withholding tax upon the execution of this Agreement or any coming into force of a new local law regarding the applicability of withholding taxes.
b.    In the event that documentation is necessary in order to secure an exemption from, or a reduction in, any withholding taxes, the Parties shall provide their best efforts to make such documentation available to the extent each party is entitled and able to do so.
c.    The Parties agree to cooperate in good faith to avoid double taxation. Client commits, immediately upon deduction of tax at source and remittance of the latter into the account of the tax administration of Client’s country, to promptly provide Dennemeyer with a proof of payment of such taxes (e.g. withholding tax certificate).
A finance fee will be assessed on any invoice amounts not received up to the Payment Target as provided by statutory law, but not less than 8 % (eight percent) per annum. A first payment reminder does not incur costs; however, each further monthly payment reminder is charged with EUR 20, and Client shall be liable for any and all costs incurred by Dennemeyer in collection of any overdue amounts and interest.
3.3.6    Client agrees that Dennemeyer shall have the right, but no obligation, to suspend any or all of the Services if and for so long as invoiced and due amounts are unsettled.
 

4.1    The terms of this Terms of Use are strictly confidential and shall not be disclosed by either Dennemeyer or the Client to any third party except its immediate authorized counsels, legal representatives, auditors or affiliates, but only if the recipient is bound by an equal non-disclosure obligation either by agreement or by law, or if the recipient is bound to disclose the same pursuant to a final binding order of a governmental agency or court of competent jurisdiction, or by law.
4.2    Confidential Information shall mean any data or information, oral or written, represented as confidential unless it (i) was already in the possession of the receiving party, (ii) enters into or has already entered into the public domain without breach of these Terms of Use or other wrongful act of either party; (iii) has been rightfully received by either party from a third party and without breach of any obligation of confidentiality of such third party to the other party; or (iv) has been approved for release by written authorization of the relevant party.
4.3    The parties acknowledge that in the course of the term of the performance of the Services they might be exposed to Confidential Information of the other party, which they agree to keep strictly confidential, except if it is required to disclose it pursuant to a final binding order of a governmental agency or court of competent jurisdiction, or by law.
4.4    Dennemeyer and the Client, and any person they respectively employ or engage, shall only use Confidential Information for the purposes of the performance of the Services.

5.1    Client agrees to provide all instructions to Dennemeyer in writing. Client agrees that Dennemeyer shall not be liable where Client’s instructions were not provided by the dates and terms prescribed by Dennemeyer or where Client’s instructions were incomplete or unclear. 
5.2    Dennemeyer shall not be liable for any direct and/or indirect damages resulting from e-mails lost, not communicated, destroyed, blocked, returned or in any manner obstructed by a SPAM FIREWALL or such device or software. 
5.3    Client agrees that Dennemeyer’s liability is excluded where damages suffered by Client are a result of Client’s non-compliance or an incorrect or belated compliance or a non-respect of its contractual obligations or arising from the use of any incorrect input or information provided by Client. 
5.4    Client agrees that the total aggregate liability of Dennemeyer to Client for any and all claims, losses, expenses, injuries, or damages arising out of or any way related to Services performed according to the Order by reason or any act or omission, including breach of contract or negligence is limited to three times the fees actually paid to Dennemeyer in respect of such Order.
5.5    Dennemeyer shall not be liable to the Client by reason of any Force Majeure. Force Majeure shall mean any acts of God and other reasons which make the performance of Services impossible, including but not limited to political sanctions and restrictions, embargoes, changing laws or regulations or other government actions or requirements as well as fire, explosion, contamination, flood, war, strike, lockout, interruption of utility service, including but not limited to electric power, communication services (e.g. postal mail, telephone, fax, email, internet), or any other cause or circumstances whatsoever beyond a party’s reasonable control. If Dennemeyer is prevented or delayed in the performance of any of its obligations because of Force Majeure, Dennemeyer shall use reasonable endeavors to mitigate the effects of the Force Majeure upon the performance of the Order and either bring the Force Majeure to an end or find a solution by which the Order may be performed despite the Force Majeure. If any delay in performance or non-performance, resulting from circumstances referred to in this section, prevails for a continuous period in excess of two months then either party may terminate the Order with immediate effect on giving written notice to the other party and neither party will be liable to the other for such termination.
 

Dennemeyer engagement for an Order will terminate upon the delivery of Dennemeyer’s final invoice, irrespective of any obligation to keep the files. 

Client may ask for Order cancellation by written notice to Dennemeyer. Dennemeyer may approve Client’s Order cancellation request unless (i) the Service has already been provided or (ii) in case Dennemeyer sent irrevocable instructions to the respective Local Agents or partners regarding the Order. 

Dennemeyer will charge Client for any irrevocable costs incurred following Client’s cancellation notice. Client’s obligation to pay all invoices for Services performed shall survive any cancellation. 
 

Dennemeyer may forthwith terminate the Services by written notice to Client in the event that Client does not comply with any or all of its commitments and obligations, including but not limited to, fail to make payments according to the terms agreed upon and/or in the event that Client becomes insolvent or bankrupt and/or if Client does not respond to our communication. 

Client’s obligation to pay all invoices for Services performed and any irrevocable costs incurred shall survive any termination and Dennemeyer reserves the right to use any credit Client may have with Dennemeyer to cover any unpaid invoices or services taken on Client’s behalf. 
 

8.1    Protection of Personal Data

8.1.1    Dennemeyer shall process any Personal Data as agreed in this section. The terms used in this section shall have the same meaning as in the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data (hereinafter "GDPR”). 
8.1.2    “Processing Activities” are those required to execute the Services. Dennemeyer processes Personal Data of Data Subjects referred in intellectual property rights subject to the Services or otherwise provided by Client for the provision of the Services. This can be for example patent inventors, intellectual property rights owners, licensee. The type of Personal Data generally are name, family name, mailing address, business email address and telephone number. 
8.1.3    The Processing Activities shall terminate with the later of the following events (i) when the termination of the Order becomes effective (ii) when Services exceptionally to be performed after the termination of the contract are completed, or (iii) when any obligation or any right set forth in the Order that require the use of personal data is completed or fulfilled.
8.1.4    Client shall be solely responsible for the assessment of the lawfulness of its own processing activities and for ensuring the exercise of the rights of the Data Subjects set forth in Section 12-22 of the GDPR and shall provide Dennemeyer with all necessary instructions in writing. 
8.1.5    Dennemeyer shall:

• process Personal Data in accordance with these Terms of Use, with Client’s instructions and with any applicable laws
• inform Customer if, in its opinion, an instruction infringes the GDPR or other Union or Member State data protection provisions. 
• provide Client with the information necessary to demonstrate compliance with Section 28 of the General Data Protection Regulation (GDPR) upon written request and as far as reasonably possible.
• assist Client, insofar as this is possible, for the fulfilment of Client’ obligations to respond to Data Subjects’ requests for exercising their rights. Dennemeyer shall promptly inform Client of any such request directly received by the Data Subject
• contribute to Client’s audits to check Dennemeyer’s compliance with Section 28 of GDPR. Client shall give Dennemeyer fifteen days’ written notice of its intention to perform an audit. Any audit is performed at Client’s costs and in compliance with Dennemeyer’s IT security policies. Dennemeyer shall cooperate to the extent possible in compliance with Dennemeyer’s confidentiality and IT security obligations to third parties. Client may appoint third parties for the performance of the audit subject to the condition that it is bound by confidentiality obligations not less restrictive than those agreed herein. 
• limit access to the Personal Data only to authorized and properly trained personnel bound by confidentiality obligations in accordance with these terms and conditions or that is subject to appropriate statutory obligations of confidentiality; 
• give notice to Client of any Personal Data Breach pursuant to Section 33 GDPR affecting the Personal Data processed on behalf of Client without undue delay after becoming aware of it;
• return or delete all the Personal Data after the end of the Processing Activities except if Union or Member State law requires storage of the personal data.

8.1.6    Client acknowledges and herewith provides a general authorization of the use of the sub processors. Dennemeyer shall use only sub processors providing sufficient guarantees to implement appropriate technical and organizational measures and ensures that sub processors are bound by the same obligations set out in these terms and conditions. 
8.1.7    Dennemeyer shall implement and maintain during the term of the Services appropriate technical and organizational measures in such a manner that processing will meet the requirements of the GDPR.
8.1.8    Client acknowledges and consents that Dennemeyer may transfer Personal Data to sub processors located outside of the European Union if so required by the project. Dennemeyer ensures that such sub processors provide the same degree of safeguard of Personal Data provided in the European Union by entering into standard data protection clauses adopted by the Commission. Dennemeyer shall ensure their compliance with the GDPR and these terms and conditions.

8.2    Governing law and disputes
The contractual relationships between Dennemeyer and the Client shall be governed by, construed and enforced under the laws of Luxembourg without regard to conflict of law rules, and the Client irrevocably agrees that the courts of Luxembourg are to have exclusive jurisdiction to settle any disputes which may arise out of or relating to this Terms of Use and to the Services performed.