Terms and conditions
These are the terms and conditions of the Brandvillage GmbH (called BV in the following) last updated on December 1, 2012.
The customer is explicitly asked to inspect, print and copy these terms and conditions. Furthermore there is the possibility to print out the terms and conditions with the general browser function (menu “file” - command “print”) or to copy it to your own hard disc or another storage medium (menu “file” - command “save”).
1. Terms and conditions
1.1. Definition within the meaning of these terms and conditions
Meanings within these terms and conditions:
- “User”: Person who only makes use of the services of BV,
- “Customer”: Person who opened a BV customer account,
- “Trademark”: Term substitutional for all kinds of trademarks (word mark, figurative mark, word/figurative mark, color mark, sound mark, 3D mark)
1.2. Conclusion of contract and scope of the terms and conditions
The conclusion of contract between the client and the BV occurs through creating a BV client account on one of the BV websites or on websites that are authorized for that.
A client account can only be created by a legal person, business partnerships and natural persons with unlimited capability to conduct business. Especially minors can not create a client account or make use of the BV services.
For the contract between client and BV only the terms and conditions and the supplemental conditions of the BV apply.
The following supplemental conditions are of high importance:
- Business conditions for vendors
- Business conditions for buyers
- Third party rights
- Code of conduct for indecent trademarks
The BV does not acknowledge divergent business conditions of the client neither do they have any validity, unless the BV confirmed their validity in written form.
1.3. Registration and client account
The client is obligated to indicate its personal data and information completely and veridical when creating a client account according to the standards of the registration form.
Neither post office boxes or addresses of office service providers nor the indication of premium rate service telephone numbers are permitted.
Client data is to be kept up-to-date by the clients.
Every client can only create one client account.
An inspection of the given registration data is only slightly operated by the BV as the identification of persons on the internet is only limitedly possible. Despite safety precautions it can therefore not be precluded that wrong contact information was saved for a client account.
Clients have to keep their password secret and protect the access to their client account carefully. Clients are obligated to inform the BV immediately if there are any signs for abuse of their client account by third parties.
Clients are generally liable for all activities that are performed under usage of their client account. If the client is not responsible for the abuse of its client account, because there does not occur a violation of obligations in connection with the registration data, the client is not liable.
1.4. Right of the Brandvillage to block the client account
The BV has the right to block the account of a client anytime without advance notice.
The BV will particularly block a client account if it becomes aware that the client disregards the terms and conditions and/or the supplemental conditions of the BV, violates an obligation from 1.3. or if the client is not available anymore.
1.5. Scope of services and fees
The registration of a client account is free of charge.
The BV charges fees for different services. The amount of the correspondent fee can be seen in the current price list of the BV which is permanently visible on our webpages. The chargeable services are named in the terms and conditions or will otherwise be told in time to the client before the conclusion of contract. Insofar as payments are to make, the BV accepts payments via bank transfer, Paypal, Mastercard or Visa credit cards. The indicated prices include value added tax.
The BV can change the fees at any time. Price changes will be advised to the client in time and before legal validity. Either within the client account or in other appropriate form.
1.6. Correction of system generated e-mails
The BV is authorized to correct defective system generated e-mails at any time. Clients can not refer to a system generated e-mail if has been corrected subsequently. System generated e-mails are e-mails that are generated and sent in an automatic procedure of the BV system without human intervention.
1.7. Limitation of liability
The BV is only liable for damages that are based on premeditated or grossly negligent violation of duty of the BV, its legal representatives or vicarious agents.
This does not apply to damages arising from injury to life, body and health.
1.8. Contractual language
Contracts, service contracts in particular, can be concluded with the BV in German, English, Spanish and French.
2. Data base service in the form of the allocation of a platform for the purchase and sale of trademarks
2.1. General information
2.1.1. Brandvillage platform / period of validity / fees
The BV runs a platform specialized on dealing with trademarks. Clients of the BV can register trademarks to the sale data base without charge and release them for sale.
If a contract is concluded between a client and the BV (see 1.2) the period of validity is one year. It extends for one further year if not terminated by the client or the BV at least three months before the expiry date. With the termination the client account and its data will be deleted completely. This does not apply if a trademark is object of a current sales negotiation (no. 2.3 ff. And 2.4 ff.) or a domain placing (no. 5 ff.)
This does not apply to the exceptional right of termination.
The BV charges a sales commission for trademarks that have been sold via the Brandvillage platform or when the conclusion of the contract has been enabled by using the Brandvillage platform. This can also apply after deleting the client account. The sales commission is also due in that case. The payment obligations are transferred to the vendor.
The sales commission is calculated on the basis of the purchase price. The sales commission amounts 15% and will be charged by the BV to the vendor when concluding the contract of purchase between vendor and purchaser.
Any other fees and services with cost you can find here.
Clients and users have the possibility to search for offers by typing in search terms into the BV data base. Potential buyers and users can make bids and accept offers for trademarks that have been registered to the Brandvillage data base.
The relation of the registered client (vendor of trademarks) to the BV as well as the relation of the potential buyer to the BV determine after these terms and conditions.
The contract negotiations, the conclusion of contract and the settlement between the registered client and the potential buyer are also determined after there terms and conditions.
2.1.2. Disclaimer of liability
The BV excludes in relation to the customer any liability for damages that are caused by incorrect data entries, faulty data transfer, loss of data or defective reproduction of a data base entry. This does however only apply for damages that are not based on premeditated or grossly negligent actions of the BV, its legal representatives or vicarious agents.
2.2 Legal relationship between registered client and Brandvillage
2.2.1. The registered client is beneficiary of the trademark
The registered client (trademark vendor) assures explicitly to be authorized to sell the registered trademark and have unrestricted use of it. The client assures in particular that the trademark has not been pawned or deposited as security.
The registered client indemnifies the BV to the full extent from any claim for compensation of third parties towards the BV that are based on a unauthorized registration.
2.2.2. No rights violation from third parties
The registered client (trademark vendor) assures explicitly that the registered trademark and its use does not infringe any company, name or trademark rights of third parties. An examination referring to this belongs to the clients' duty.
The registered client obligates itself to replace any damages to the BV based on infringement of this duty.
2.2.3. No violation of applicable law
The registered client (trademark vendor) assures explicitly that the registered trademark does not violate the applicable law. An examination referring to this belongs to the clients' duty.
The registered client obligates itself to replace any damages to the BV based on infrigement of this duty.
2.2.4. Data administration and duty of removal basded on a violation of rights by third parties
The registered client (trademark vendor) obligates itself to keep its personal data -particularly its e-mail address- as well as the registered offers in the BV data base updated.
The registered client obligates itself to delete a registered trademark from the BV data base if the client is not authorized anymore to sell this trademark, in particular after conclusion of a vending or if the registration of the respective trademark has expired (end of property right).
The registered client obligates itself to delete its registered trademark from the BV data base immediately after receipt of a warning or after becoming aware of the possibility of a violation of rights by third parties.
The registered client obligates itself to replace any damages to the BV based on infrigement of this duty.
2.2.5. Conclusion of a trademark purchase with the aid of the safe purchase transaction
The registered client (trademark vendor) can chose the safe purchase transaction including the trademark transfer (point 5) when it comes to a purchase contract conclusion with a trademark registered on the BV platform. This service is liable to costs. The fees can be seen in the price list.
As far as regarding the trademark further data, domains websites or other items are to be transferred as well, this is not part of the service and has no influence on the authorization of the BV to pay out the purchase price.
The registered client (trademark vendor) takes notice when registering that as a vendor he has to bear the costs of the extension of the registration if necessary (point 5). That applies when the date of the end of property lies within the safe purchase transaction and trademark transfer.
2.2.6. No bids for own trademarks
The registered client obligates itself to not bid for a trademark that has been registered on the BV data base by the client itself. The client also does not instruct third parties to bid for its trademarks.
2.2.7. Right of the Brndvillage to refuse the registration on the Brandvillage platform or delete a registered trademark
The BV has the right to refuse a registration on the Brandvillge platform by the client.
The BV has the right to delete an entry to the Brandvillage platform without indication of reasons.
The BV will particularly delete an entry if the client infringes the standards of decency or the applicable law of the Federal Republic of Germany.
The BV will also instantly delete an entry if it gains knowledge that the registration of a trademark or the use of a registered trademark possibly infringes the rights of third parties. It remains deleted until judicial clarification takes place. Rights of third parties can be company, name and trademark rights.
2.3. Process of conclusion of contract
2.3.1. Registration of a trademark on the Brandvillage platform and specification, if there is a mandatory offer or just an invitation for the offer
A client can enter trademarks to the Brandvillage platform that the client wants to sell.
The client that makes use of the possibility (trademark vendor) can indicate a fixed selling price and sell currency or leave open the selling price or determine a minimum negotiation price.
If the trademark vendor indicates a fixed selling price, the registration of the trademark is a mandatory offer to conclude a contract. This offer is mandatory until the entry in the Brandvillage platform is changed. The selling price is perceived as final price for the seller, value added tax included.
If the trademark vendor does not indicate a fixed selling price, the trademark registration is only an invitation to an offer (invitatio ad offerendum).
2.3.2 Organizing contact between prospective buyer and provider
Clients and prospective buyers have the possibility to search for offers on the Brandvillage platform by entering a search term into the data base.
Prospective buyers can accept mandatory offers.
Prospective buyers can make bids for other entries for trademarks. By placing a bid a bidding process is started. The placement of the first bid by the prospective buyer is assumed as request for the conclusion of the contract of the respective trademark.
The bid of the prospective buyer and the reaction from the trademark vendor are transmitted by the BV to the respective receiver.
If during the bidding process declarations of will are given, the BV will act as an authorized recipient for the offeree.
If the buyer agrees with the set selling price or if seller and buyer agree with a selling price during the bidding process, the purchase contract between the trademark supplier and the prospective client is considered to be concluded.
2.3.3. Restricted amount of bidding processes per client
Every client can only participate in a restricted amount of bidding processes at once.
2.3.4. Currency of the bidding process
Clients have the possibility to choose the currency for a trademark during a bidding process. As soon as both parties have used the same currency during offer and counter offer of the bidding process, the currency applies until the end of the bidding.
2.3.5. Binding to an application for conclusion of contract for 168 hours
If a client applies for the conclusion of a contract during a bidding process, he is bound to this application for 168 hours (equals seven days).
The application expires if the other client refuses the application, places a counter bid or if the period of commitment elapses. A delayed declaration of acceptance or a counter bid is regarded as new application.
The application of a vendor also expires if during another bidding process with another prospective buyer through the Brandvillage platform agreement regarding the respective trademark was achieved.
2.3.6. Indications of price include the legal value added tax
All indications of price that the clients use as bids during the bidding process are net prices.
2.3.7. Purchase price / potential currency conversion / rounding up
The purchase price for a trademark is the price agreed in due time. The purchase price in the agreed currency is the base for the conclusion of the contract between both buyer and seller and client and the BV.
If the agreed currency is not identical with the currency chosen by the client, there will be a conversion of the purchase price into the currency chosen by the client. The exchange rate of this conversion determines after the current exchange rate on the date of agreement given by the European Central Bank, rounded up to 5 decimals.
The result is rounded up to full US dollars (USD) or euros (EUR) or British pounds (GBP) depending on the currency chosen by the client. The result of the commercial rounding up shows the purchase price of the client in the respective currency chosen by the client.
2.3.8. Position of the Brandvillage during the conclusion of contract
The BV provides a platform for the making contact and contract negotiations regarding the trade with trademark rights. The BV does generally neither occur as buyer nor as seller.
The BV has the right to register own trademarks to the Brandvillage platform and offer them for sale. In particular cases it has also the right to occur as a buyer itself. If the BV occurs as vendor or perspective buyer for a trademark, it will indicate that to the contractual partner.
2.3.9. Consequences of a conclusion of contract for the seller
The seller is aware of that the buyer is able to urge the seller by legal action to fulfill the contract or pay indemnification when not cooperating after the conclusion of contract.
The seller is also aware of that in case of non-cooperation after the conclusion of contract the seller possibly has to bear the costs for the legal prosecution of the buyer (lawyers' fees, court fees).
2.3.10. Consequence of a conclusion of contract for the buyer
The buyer is aware of that the seller is able to urge the buyer by legal action to fulfill the contract or pay indemnification when not cooperating after the conclusion of contract.
The buyer is also aware of that in case of non-cooperation after the conclusion of contract the buyer possibly has to bear the costs for the legal prosecution of the seller (lawyers' fees, court fees).
2.3.11. Declaration of acceptance for fixed selling price
The prospective client is aware of that in case of a fixed price for a registered trademark the contract of purchase for the respective trademark and the indicated price and currency concludes in the moment its bid reaches the BV.
The prospective client later can neither plead towards the BV nor the seller that he was not aware of that the given declaration was a mandatory declaration of acceptance.
2.3.12. No warranty of the Brandvillage for ownership of the seller
The seller acknowledges that the BV does not warrant that the trademark vendor is the actual owner of the sold trademark or that the trademark vendor is legally able to provide the ownership of the sold trademark.
Furthermore the BV does not warrant that a transfer of the offered trademark to the buyer is technically possible and achievable.
Furthermore the BV does not warrant for characteristics of the respective trademark. This particularly applies for the brand value and the brand image.
The BV does not warrant that the registered trademark is free of any rights of third parties and can be used by the seller without infringing rights of third parties; a respective investigation falls to the buyer.
The buyer takes notice that he has to plead possible claims for resignation, diminution or damages regarding the purchased trademark immediately to his contractual partner, the seller.
3. Fast general rating service
The fast general rating service for trademarks offers the possibility to prospective buyers and sellers to have the value of a trademark calculated by the BV. The special conditions of the fast general rating service apply.
4. Trademark placement service
A client who wants to purchase or sell a registered trademark can make use of the trademark placement service or use the trademark merchandising service of the BV. The special conditions apply.
5. Safe purchase transaction and trademark transfer
5.1. Object of agreement
5.1.1. General information
The safe purchase transaction and the trademark transfer support offer the possibility to seller and buyer of a trademark to have the purchase transaction and the trademark transfer operated by the BV. Thereby the BV receives and fiduciary administrates the purchase price and pays it out to the seller less sales commission after the trademark transfer has occurred (trust service). The BV neither is buyer or seller nor representative of another party. Through the safe purchase transaction a preferably fluent and trustful transfer of the trademark and the purchase price for buyer and seller (the parties) is to be achieved. The BV takes over the trademark transfer from seller to buyer.
The BV only generates the trademark transfer for trademarks. As far as also domain names, websites, shell companies or other terms are to be transferred, for example within the scope of an internet project sale, this is not object of the service and has no influence on the authorization of the BV for payout of the purchase price. Buyer and seller alone are responsible for managing the transfer of these other parts of the contract.
Contract designs of the purchase contract or any legal advice on behalf of the BV are not object of the contract.
5.1.2. Fees and potential other costs for seller and buyer
As far as the trademark to be transferred via the Brandvillage platform has been sold, the following trademark transfer service is free of charge. It can be used by the parties.
The fees of a trademark transfer, when the transfer of a trademark not sold on the marketplace is to be operated, are based on the current published price list of the BV.
With a trademark transfer from seller to buyer more costs can arise, if the trademark for example does not completely occur but only for certain categories. These additional costs are to be paid by the buyer. The exact costs for a so-called partial transfer are to be seen in the scale of fees of the German Patent and Trademark Office (www.dpma.de).
The seller has to induce the extension of the registration and bear the costs for it, if the so-called date of end of protection of the trademark lies within the transfer.
5.1.3. Duty of the buyer for payment to account in trust
If the parties have decided to use the safe purchase transaction, the buyer receives the request to transfer the payable amount to the account in trust of the BV.
5.1.4. Control of the purchase price payment and initiation of the transfer process / obligations of the parties to cooperate
As soon as the credit note to the amount of the full value occurs on the account in trust, the transfer of the trademark from the former owner (seller) to the new owner (buyer) is initiated.
The BV instructs the seller and buyer of the trademark to the correct initiation of the transfer process. A transfer can only be operated if the contract parties strictly follow the instructions of the BV.
The parties are obligated to each other and towards the BV to a necessary participation.
5.1.5. Control of the successful transfer and payout of the purchase price to the seller
If the transfer has been confirmed by DPMA (German Patent and Trademark Office), the payout of the respective amount is induced.
5.1.6. Repayment of the purchase price to the buyer for transfer failure
In case of a transfer failure the credited sum of the account in trust will be repaid to the buyer.
An ultimate failure does not apply if a successful trademark transfer only fails because the buyer does not participate in the actions after payment of the respective sum.
5.2. Consequences of an infringement of duty trough both parties
The BV has the right to cancel the safe purchase transaction if one of the contractual parties do not follow their duty of participation after double demand (Failure of transfer).
The BV in that case has the right to claim the payment of the commission of the party that infringes its duty of participation. In addition claims for performance or damage claims can be performed against the one who infringes the duty of participation.
5.3. Argument of the parties during the trademark transfer
If the respective amount has been paid by the buyer to the account in trust and the trademark transfer has been initiated and the parties get into an argument about the value of the trademark, so that one party considers or demands the termination of the trademark transfer, the BV can set a deadline to the parties to seek agreement.
If a deadline passes without agreement of the parties, the BV can continue the trademark transfer after the rules of these terms and conditions.
5.4. Special duties of the seller and consequences for infringement of duty
5.4.1. Seller is owner of the trademark
The seller assures explicitly to have the right to sell the trademark and has the right of free disposal .
He indemnifies the BV completely from claims for compensation of third parties.
5.4.2. Seller guarantees inexistence of priority rights of third parties
The seller assures that the sold trademark does not infringe any rights of third parties. A respective investigation falls to the seller.
The seller indemnifies the BV completely from claims of compensation of third parties.
5.4.3. No infringement of applicable law trough the trademark
The seller obligates itself to not make use of the safe purchase transaction and the trademark transfer for trademarks whose name or content infringes the applicable law.
The seller is obligated to replace all damages based on an infringement of this duty to the BV.
5.5. Liability exclusion of the Brandvillage in case of failure of transfer process.
A liability of the BV for disadvantages or damages based on the failure of the transfer process is excluded, as far as there are no damages based on grossly negligent actions of the BV, their legal representatives or vicarious agents.
This particularly applies to cases in that one contractual party refuses the proper completion of the transaction documents, impedes the realization of the transfer or a person of the contractual parties can not be identified because of wrong and confusing data.
5.6. No warranty of the Brandvillage for non-existence of prior rights of third parties.
The BV only dedicates itself to the transfer of a trademark after there has been achieved agreement between buyer and seller. The BV does not check the sold trademark for non-existence of prior rights of third parties and therefore does not warrant that there are no rights of third parties for the trademark.
The BV indicates explicitly that an investigation regarding the existence of rights of third parties does not belong to the scope of work of the safe purchase transaction and the trademark transfer. The realization or neglect of it falls to the scope of risks of the parties. A liability of the BV towards the parties for disadvantages or damages based on the sale or purchase of trademarks with rights to third parties is excluded, as far as it is not about damages based on intentional and grossly negligent actions of the BV, their legal representatives or vicarious agents.
The client using the safe purchase transaction and trademark transfer is aware of that the trade with trademarks that infringes rights of third parties will be charged with legal movements by the owner of the respective right and as the circumstances require prevented with injunctive relief.
Possibly in those cases a purchase price that has already been payed can not be reclaimed. This possibility applies especially when the buyer has been informed by the seller about the risks before the conclusion of contract.
6. Transaction of the trademark transfer outside of the safe purchase transaction
If the agreement between buyer and seller in the scope of a fixed price offer or a bidding process of the BV has been achieved und the parties chose the non-safe purchase transaction, the BV holds ready the respective form for a trademark transfer of the DPMA for buyer and seller.
The seller and buyer information as well as the information of the trademark of the BV are registered to the respective form and presented both parties for signing. After the signing the BV sends the form to the DPMA. After trademark transfer the seller and buyer each receive a copy of the transfer note of the DPMA.
7. Publication right of the Brandvillage
The BV has the right to publish the sold trademark as well as the agreed purchase price for reference purposes on its website or other positions.
This does not apply if the buyer or seller contradicts the publication before the termination of the safe purchase transaction and trademark transfer in writing for the attention of the BV.
8. Final clauses
8.1. Applicable law, place of fulfillment and place of jurisdiction
If the client is a merchant, legal person of the public law or owns special property under public law or if he does not have a place of general jurisdiction in the inland, Frankfurt is the exclusive place of jurisdiction and place of fulfillment. The BV furthermore has the right to sue the client at his place of jurisdiction. For any legal relationship of the parties applies the right of the Federal Republic of Germany to the exclusion of the Universal Law of Purchase (CISG).
8.2. Changes of the terms and conditions
The BV has the right to change the content of these terms and conditions with the agreement of the client. The agreement for the change is given when the client does not contradict within four weeks after receipt of the notification of change. The BV obligates itself to advises the client to the consequences of a neglected contradiction. If the client contradicts within this period of time, the BV has the right to end the contractual relationship and block the client account.
8.3. Inefficient terms of the contract
If a term of the contract or a term in the terms and conditions is or becomes completely or partial inefficient, the validity of the contract and the terms and conditions are not touched.
The seller obligates itself to not make use of the safe purchase transaction and the trademark transfer for trademarks whose name or content infringes the applicable law.