Standard Terms of Business
Thank you for instructing Harrison Goddard Foote (‘HGF’) to act as your Patent Attorneys and/or Trade Mark Attorneys.
The following terms and conditions apply to all services
provided to our clients. Some may not be relevant to
you now but will apply should you instruct us to provide
other services. These terms and conditions, together
with those contained in our Engagement Letter and any
subsequent or further Engagement Letter contain all the
terms and conditions that we have agreed with you in
relation to our services and supersede any previous
letter of engagement that we have had with you. If there
is any conflict between these terms and those in any
accompanying or subsequent letter from us, those in the
Engagement Letter shall apply.
You are authorised to and hereby agree that any work carried out by us for any group company of yours shall also be on these terms and conditions.
The services provided to you and your contract to
provide such services is with HGF and not with any
individual, partner, employee or agent of HGF.
Commencement of our providing services to you shall
be deemed to be an acceptance of these terms and
conditions.
1 INSTRUCTIONS
1.1 Unless otherwise agreed, we will assume that any
person within your organisation may instruct us on
your behalf and that we may rely on any
information and instructions howsoever provided by
such persons, unless they clearly do not have the
appropriate authority.
We will carry out the services detailed in our
Engagement Letter. We shall have no responsibility
for any failure to advise or comment on any matter
that falls outside the limitations of our engagement
or for advice in draft form or to update advice after
it has been issued. Any advice given by us shall be
based on your having supplied us with all relevant
information which shall be true, accurate and not
misleading to the best of your knowledge,
information and belief (since we will only verify
such information if requested to do so by you).
Accordingly, we shall not be responsible for any
loss or damage arising from reliance on information
or for any inaccuracy or other defect in any
document supplied by you or on your behalf.
Our advice is given to you for your sole benefit and solely for the purpose of the instructions to which it relates. No other party may rely on or use such advice without our prior written permission.
For such period as we are instructed to carry out
work on your behalf, you give us express authority
to complete and sign in your name such forms and
other documents as are necessary or desirable to
carry out your instructions. In agreeing to these
terms and conditions you agree to indemnify us in
respect of all costs, claims, demands and
expenses that may result from the exercise of that
authority.
1.2 Timing and form of instructions
We rely on our clients to give us timely, complete
and accurate information and instructions.
Wherever possible, to avoid misunderstanding,
language and communication difficulties, or
problems arising from clients being based outside
the UK and/or in different time zones, all
instructions to us should be in writing or, if oral,
confirmed in writing as soon as possible. We will
accept no responsibility if you fail to confirm your
oral instructions or if we have misunderstood or
wrongly executed them. We are happy to accept
written instructions by post, fax or e-mail. However
you choose to instruct us, it is your responsibility to
ensure we have received your instructions or have
been given prior notice of them where they are or
are to be communicated outside our usual
business hours (Monday to Friday 9.00 am to 5.00
pm) or on UK bank and public holidays or if the
communication uses an uncommon or nonstandard
computer format and we accept no
responsibility for instructions not or incorrectly
executed as a result of your failure to comply with
this provision.
Patent and Trade Mark Offices often impose time
limits and failure to meet these limits can be fatal to
the rights concerned. Whilst it is our responsibility
to keep you informed of any relevant time limits, we
cannot accept any responsibility if you fail to
provide us with instructions that are clear, complete
and early enough to allow us to act within such
official time limits. We will endeavour to inform you
of time limits and of actions or instructions that are
required, but we do not undertake to give further
reminders, incur costs on your behalf, or take other
action in the absence of instructions to do so. In
this situation, your rights may be lost irrevocably.
If we receive late instructions we may not be able
to implement them in time, in which case your
rights may again be lost irrevocably. In the event
of late instructions or late payments to us, urgency
charges may be incurred which we shall have to
pass on to you.
1.3 Updating information
It is important that you inform us promptly of any
change in relation to: (a) any primary contact; (b)
your name, address, telephone/fax numbers and email
address; (c) any change of ownership or the
grant by or to you of licences of or under your or 3rd
party patent, trade mark or other relevant rights.
Many such changes have to be officially registered.
We cannot accept responsibility for any loss of
rights as a consequence of your failure to inform us
of such changes. Please remember that
registration of patents, trade marks and design
rights can take years and that there may be little
activity for long periods followed by a situation that
requires immediate action by you.
1.4 Electronic Communications
We will normally communicate with you by email,
post or fax. Given that e-mails sent over the
Internet may lack security and jeopardise
confidentiality, we cannot accept responsibility for
any corruption in the information communicated to
you or its disclosure to other parties as a result of
the interception of such communication. Due to the
very nature of the Internet, we cannot accept
responsibility for non-receipt or late receipt by you
of such communications. You should advise us as
to what should not be sent over the Internet to you
or on your behalf.
We advise you to carry out your own virus checks on any communications whether in the form of computer disk, e-mail, Internet or otherwise. We cannot accept responsibility (including in negligence) for any viruses (or their consequences) that may enter your system or data by these or any other means.
2 INSTRUCTION OF THIRD PARTIES TO ACT ON
YOUR BEHALF
During our work for you we may need to instruct
third parties (e.g. foreign lawyers, patent attorneys,
consultants) to act on your behalf. We may instruct
such third parties directly on your behalf, or
alternatively you may need to sign a power of
attorney or similar appointment to engage such
third party. Such third parties are not part of this
Firm. We will not be liable for any default or
negligence by such third parties. Your cause of
action will be directly against such third parties.
Please note that failure by you to return necessary
signed authorisations may result in loss of rights or
require local negotiation with relevant authorities to
secure extensions of time, which cannot be
guaranteed. HGF cannot accept any liability in
such circumstances.
3 PROFESSIONAL FEES
3.1 Our charges
Our charges are principally based on the amount of
our professional time spent on the matter, although
other factors may also be taken into account. Such
factors may include the size and complexity of the
matter and the degree of urgency involved. We
may adjust our standard charges if highly
specialised knowledge is required, or if the matter
is complex and/or urgent. Fixed charges may
apply in relation to specific tasks (e.g. the formal
filing of a patent application). Costs can increase
when instructions from clients are received only
shortly before a deadline or are incomplete.
Our hourly rates are primarily based on the seniority and experience of the professional staff involved. These rates are reviewed periodically. Our charges are calculated at the rates that are current when the work is carried out.
Unless we hear otherwise from you, we shall act for you on a continuing basis. Pending patent, design and trade mark applications can give rise to events triggered by the relevant Patent Office. In addition third parties may contact us regarding any registered rights. Both of these eventualities need to be reported to you and we will make appropriate charges for such reports. On rare occasions it may be necessary for 3rd parties whom we instruct on your behalf to take urgent action which is in your best interests, without first notifying either us or you. Such action, although unusual, will be within the scope of our over-riding instructions from you. It is important, therefore, that if you have lost interest in an application or a granted right and do not wish to incur any further expenses in relation to it that you contact us as soon as possible.
3.2 Payment of expenses
In appointing us to act for you, you are authorising
us to incur such expenses and disbursements as
we consider reasonably necessary. You will be
responsible for any expenses we incur on your
behalf. These expenses may include Patent Office
fees, Counsel’s fees, Court fees, and the costs of
any experts or other agents including any
translators or foreign lawyers. They may also
include such items as photocopying costs, couriers,
reasonable travel costs, meeting expenses, and
telephone and fax charges.
Any estimates or quotations given by us are net of VAT which will be charged as applicable on our fees and on those expenses and disbursements that are liable for VAT.
You should appreciate that local representatives’
charges and official fees are outside our control
since they may be changed without notice and (in
the case of foreign matters) vary with exchange
rate fluctuations. Any adverse fluctuations at all
times remain your responsibility and you agree that
we may recover the same from you at any time.
3.3 Payment on account
We may require payment on account, particularly in
respect of large items such as charges and
expenses to be incurred in foreign filings and
actions. When we make such a request, we will
usually not carry out any instructed work until the
requested payment has cleared into our bank
account so you should allow sufficient time for such
clearance.
3.4 Estimates
If requested, we will give estimates of future
charges in good faith based on our knowledge at
the time as an aid to assist you in budgeting your
expenditure. Under no circumstances should such
estimates be viewed as fixed price quotations as
charges may be affected by matters beyond our
control and the amount of work involved often
cannot be accurately forecast. Such estimates will
not be binding.
If during the course of carrying out the work it becomes apparent to us that our charges are likely significantly to exceed our estimate, we will try to obtain your permission before exceeding our estimate.
If you would like to set an upper limit on the charges that may be incurred without prior reference to you then please let us know.
3.5 Invoicing
We reserve the right to submit invoices to you on a
regular basis (usually monthly or at appropriate
stages in the conduct of the matter). We would be
happy to render invoices to and accept payment
from another party nominated by you (for example,
another company in the same group). However,
please note that ultimate responsibility for making
such payment will remain with you.
Unless otherwise agreed, our invoices are payable within 30 days.
Where we receive instructions from or on behalf of
more than one person or company to deal with a
matter, each such person or company for whom we
are acting is separately responsible for payment of
the full amount of our fees, expenses and
disbursements regardless of the source of the
instructions.
3.6 Late Payments
If a requested payment on account is not made or if
an invoice remains unpaid after the payment period
on the invoice, we reserve the right to suspend all
work on your behalf and we are entitled to charge
interest at the National Westminster Bank base
rate plus 6% on any overdue account. This is
without prejudice to our right to invoice for work
undertaken before such suspension and to take
legal action for the payment of our costs. You will
be responsible for the consequences of the
suspension of work, which may include the
irrevocable loss of, or failure to obtain, rights.
4 FILING
4.1 Ownership of files
Our files remain our property at all times. If you
would like to transfer your work to other
professional advisors, we will copy such of the files
relating to your work as you request (at your
expense) and release the copy file(s) when all our
charges have been paid.
4.2 Destruction of files
It is our normal practice to destroy our
correspondence files, draft documents and other
papers after the work has been completed, but to
retain a copy of them on CD for such time as we
judge reasonable or as required by UK law. If you
subsequently require hard copies we will make
them from our CD at your cost. Unless you tell us
otherwise, we will assume that you are content with
this arrangement. Original documents such as
assignments, licences and grant certificates will not
be destroyed.
5 CONFIDENTIAL INFORMATION
While acting for you, we are likely to receive
information that relates to you as our client. We
will keep such information confidential, except
where disclosure is required by law or regulation,
or in other exceptional circumstances, by our
professional indemnity insurers or by our auditors
or any other professional advisers appointed by us
from time to time.
In general, we recommend that you restrict the
release of, and maintain strict control over, any
information not already in the public domain
connected with instructions we receive. We would
be happy to advise on the desirability of releasing
confidential information to the public in specific
cases.
You agree that only information known to those individuals having conduct of or working on the matter to which these terms relate shall be taken into account in determining the scope of our responsibilities to you. You also agree that we have no obligation to disclose to you information outside the scope of our retainer with you. You agree that we are under no obligation to disclose to you or to use on your behalf any information in respect of which we owe a duty of confidentiality to a 3rd party.
We have arrangements in operation designed to
facilitate the protection of each of our client’s
interests through the use of one or more of the
following safeguards: separate advisory teams,
geographical separation, operational
independence, separate computer servers,
password protected systems and separate email
systems. You agree that such arrangements are
maintained to restrict the flow of information within
HGF. You agree that because these arrangements
exist to protect both your interests and any
confidential information learned by our staff in the
course of acting for you, we may accept
instructions from other parties notwithstanding that
such confidential information may be relevant to
such other parties.
6 DATA PROTECTION
This Firm has notified under the Data Protection
Act 1998. By instructing us you are consenting to
our use of relevant personal data as appropriate in
the course of our professional services, including
any transfers of such data outside the European
Economic Area and sending you and/or members
of your organisation information about our services
that may be of interest to you. This may include
seminars, hospitality events and legal updates. If
at any time you or any member of your
organisation does not wish to receive such
information from us, please let us know.
7 SEARCHES
Any searches you request may be carried out by
us, by Patent Offices or by an independent
specialist searching firm. Due to the limitations and
occasional errors in classifications, indices,
computer databases and official records, no search
can be guaranteed for comprehensiveness or
accuracy. We will endeavour to point out any
particular limitations when reporting search results
and may recommend extending the search.
8 INDEMNITY FOR THREAT OF INFRINGEMENT
PROCEEDINGS
When we send any warning on your behalf to a 3rd
party, you agree to indemnify us against the risks
of our being sued for making an unjustified threat of
infringement proceedings. This provision allows us
to maintain our objectivity in contentious matters,
which may otherwise diminish if we were to
become a party to any proceedings.
9 CLIENT’S PRIVILEGE
In general, communications between a UK Patent
or Trade Mark Attorney and his client are privileged
under Section 280 of the Copyright, Designs and
Patents Act 1988. This means that other people,
including the Courts, are not entitled to discover the
content of such communications where they
concern professional advice. However, you should
note that there are circumstances in which the
privileged status of a letter or other document can
be lost. Please let us know if you would like further
information on this area.
10 CONFLICTS OF INTEREST
We cannot act simultaneously for two clients
whose interests in the matter on which we are
advising conflict, unless (exceptionally) both clients
consent to such an arrangement. When potentially
taking on a new client, we try to identify conflicts of
interest that may preclude us from acting. It is
helpful if potential new clients identify to us any
firms or companies for whom they believe we will be unable to act without a conflict of interest
arising.
Sometimes, conflicts arise later because, for
example, our clients acquire new companies or
diversify into new areas of business. In such
circumstances, we reserve the right to decline to
act further, at least in relation to the area of conflict,
for one of the clients in question. Because of
obligations of confidentiality it is often not possible
for us to identify the other client or the subject
matter involved when we advise a client that we
can no longer act for them. Even where a conflict
does arise, you agree that we may continue to act
for you and the other party where we can
reasonably demonstrate that appropriate measures
exist to protect your interests. Where this is not
possible you agree that we may at our sole
discretion choose to continue to act for one party to
the conflict.
11 CLIENT CARE AND COMPLAINTS
We value our good relationships with our clients.
However, we accept that from time to time,
difficulties and misunderstandings may arise. If you
have any problems, you should feel free to discuss
your concerns with the member of our professional
staff dealing with your work. If, after such
discussions, you feel that the matter has not been
adequately dealt with, please ask that person to
refer you to the senior member of our Firm
appointed to handle client complaints.
If we cannot resolve the matter, you should contact the Chartered Institute of Patent Attorneys or the Institute of Trade Mark Attorneys as appropriate, who will consider your complaint and seek to resolve the issue. If you are unhappy with their handling of the matter you should raise this with the Legal Services Ombudsman directly in order to resolve your concern.
12 TERMINATION OF RELATIONSHIP
You may terminate our relationship at any time by
writing to us. We may terminate our relationship
with you where we have good reason to do so
(including non- or late payment by you of our
invoices or failing to provide payment in advance
where so requested) by giving you reasonable
notice. In either case, if the relationship is
terminated we will require you to pay our charges
and expenses up to and including the date of such
termination by reference to the hourly rates
applicable at the time of the work. You agree that
we may retain all your files and not supply you with
copies of them until such time as all sums
outstanding are settled in full.
13 EXCLUSION AND LIMITATION OF LIABILITY
We shall not be liable to you for any failure or
delay or for the consequences of any failure or
delay in performance of your instructions if it is
due to any event beyond our reasonable
control including, without limitation, war, acts
of god, industrial disputes, protests, fire, storm,
explosion, national emergencies, acts of
terrorism and failure of third party
telecommunications and computer systems.
We shall not be liable to you in any
circumstances for any loss damage cost or
expense arising from any dishonest deliberate
or reckless misstatement concealment or other
conduct on the part of any other person.
We shall not be liable for loss of profits or savings or any indirect or consequential loss or damage suffered by you arising from or in connection with our services.
The aggregate liability of HGF, its partners, employees and agents in any circumstances whatsoever whether in contract tort statute or otherwise and howsoever caused (including negligence) for loss or damage arising from or in connection with our services shall be limited to the lesser of:
a sum representing a proportion of loss or damage which would be attributed to us by a Court allocating proportionate responsibility (having regard to any contribution to such loss or damage by any other person) in proceedings for contribution under the Civil Liability (Contribution) Act 1978; and
the limit of our professional indemnity insurance cover at the time the claim is notified to us.
The limitation shall not apply to any liability on our part for death, personal injury or fraud, or where such limitation is prohibited by law. The provisions of this paragraph 13 shall continue to apply notwithstanding the termination of our engagement for any reason.
14 LITIGATION
If you are involved in litigation (including arbitration)
either as a claimant or defendant there are a
number of issues that you should be aware of:
14.1 The Courts have wide-ranging powers and
discretion to decide which party or parties should
bear the Costs of litigation and in what proportion.“Costs” include legal fees (including any success
fee agreed), expenses, disbursements and VAT
where appropriate. The usual order is for the
unsuccessful party to pay a proportion of the
successful party’s legal cost but the Courts are
able to make other orders. During the course of
litigation the Court may order you to make an
immediate payment of Costs. Orders to pay Costs
usually need to be satisfied within 14 days of the
date of the order.
14.2 You are responsible for paying our fees even if the
Court orders another party or other parties to
contribute towards your Costs. You should be
aware that even where a Court awards you a
contribution towards your Costs there are
sometimes difficulties and/or delays in assessing
and recovering them. It is only in exceptional
cases that the Courts will order that the
unsuccessful party reimburse the entire costs of
the successful party. Therefore even if your action
is successful you should assume that there will be
a proportion of Costs which you will be unable to
recover from the unsuccessful party. In cases
where the other party or parties are funded by the
Legal Services Commission it is unlikely that you
will be able to recover any Costs.
14.3 If you are unsuccessful you will be liable to pay our Costs. In addition, the Court is also likely to order you to pay a proportion of the successful party’s Costs.
14.4 If you have legal expenses insurance insurers rarely indemnify before completion of an action. You will remain liable to pay our invoices when rendered during and at the end of the action even if you have not yet been indemnified by your insurers.
14.5 Once litigation has commenced, if you wish to withdraw from the action, the Court will order you to pay the costs of the other party/parties to the litigation. You will also remain liable to pay your Costs.
14.6 During the course of litigation you will be required
to disclose to the other party or parties any
document (which includes correspondence, notes,
memoranda, electronic information, video and
audio tapes) which are or have been in your control
and which relate in any way to the issues in the
case. Not only does this cover documents which
assist your case but also documents which may
harm your case. The duty is a continuing one,
therefore documents which are discovered or
created during the course of litigation will also need
to be disclosed. You will be required to sign a
document that confirms that you have carried out
your disclosure obligations. You may be liable for
severe penalties including fines and/or
imprisonment if you deliberately fail to disclose a
relevant document. It is important that you do not
destroy any documentation that relates in any way
to the action.
14.7 In all cases involving a dispute that may lead to Court proceedings the need to comply with Court rules places responsibilities on clients and lawyers.
14.8 Under the Courts and Legal Services Act 1990, lawyers have a statutory duty to the Court to act with independence in the interests of justice together with a duty to comply with relevant professional conduct rules. These duties override any obligation that the lawyer may have (otherwise than under the criminal law) if it is inconsistent with them.
15 THIRD PARTY RIGHTS
For the purposes of the Contracts (Rights of Third
Parties) Act 1999 it is confirmed that our services
are only provided for our named clients and our
terms of engagement are only enforceable by you
or us and not by any third party.
16 GOVERNING LAW AND JURISDICTION
You irrevocably agree that English law shall apply
to the construction and interpretation of our
relationship and that the English Courts shall have
exclusive jurisdiction to resolve any disputes
arising in relation to it.
The above terms will apply until varied or replaced with alternative terms agreed with you in writing. Please note that no change to the terms of our agreement will be valid unless agreed in writing by a Partner of this Firm.
