Standard Terms & Conditions of Business
This document, which is based on the recommended terms provided by The Chartered Institute of Patent Agents, sets out our “terms and conditions”, i.e. the underlying basis of the relationship between Gallafents LLP (“we” or “us” below) and “you”, the client. Gallafents LLP is a limited liability partnership in accordance with the Limited Liability Partnerships Act 2000 (registration number OC333936) and has its registered office at 27 Britton Street, London EC1M 5UD, United Kingdom. This is Version 2 of this document, published on our web site on 2010-10-11.
The basis of our business relationship with you
These Terms shall apply to all matters in respect of which we accept instructions from you to perform professional services (“the Services”). By sending us instructions and/or by sending us further instructions and/or by allowing us to start performing the Services, you shall be deemed to request that we perform Services for you on the basis of these Terms. If we agree to perform any such Services, then there shall be a contract between us and the contract will be governed by these Terms. We shall not, however, be obliged to accept any such instructions. Each matter in respect of which we perform the Services may, at our option, be treated as a separate contract between you and us.
Any change to these Terms which may be agreed between you and us must be confirmed in writing by us to you in order to be effective. Any decision by us not to enforce any of these Terms shall not prejudice our rights under these Terms at any time. Subject to these Terms, we will always proceed on the basis that our overriding duty to you is to do whatever we consider is necessary to properly protect and preserve your rights.
Subject to any variation in accordance with these Terms, every contract between us will be subject to these Terms to the exclusion of all other terms and conditions (including any terms or conditions which you purport to apply under any purchase order, confirmation of order, specification or other document whatsoever and whenever).
As members of a limited liability partnership regulated by The Intellectual Property Regulation Board (IPReg) under the Legal Services Act 2007, and the Institute of Professional Representatives before the European Patent Office, we are obligated to comply with the respective codes of professional conduct issued by those bodies. We will accordingly at all times have the responsibility to practice competently, conscientiously and objectively, putting your interests foremost, while observing the law and our duty to any court or tribunal and avoiding conflicts of interest.
Identity of our client
- It is important that we are able to identify who is formally our client. We shall be entitled to assume, unless we agree otherwise in writing, that the person (including an individual, firm or company) providing us with the initial instructions in relation to a matter is our client (e.g. if we accept instructions from lawyers, patent attorneys or agents (whether in the UK or abroad), they and not the persons for whom they act, will be our client and responsible for settlement of all our invoices and for reimbursement of all our costs and expenses incurred in carrying out their instructions).
- If so requested, we will render invoices to and accept payment from another entity (for example, another company in the same group), but responsibility for paying us remains with you.
- In the case of joint applicants or proprietors, we require specific written instructions setting out who is our client, but, in such cases, all applicants/proprietors have joint and several responsibilities for payment of our charges and costs.
- If you wish to change whom we identify as the client in any matter, you will notify us in writing and we reserve the right to reject any such change and to continue to regard you as the client with responsibility for payment.
- To the extent required by law we will ask for evidence of identity of our client and any beneficiary of our services. We will comply with the laws associated with money laundering, such compliance may include activities about which we are prevented from informing you.
New clients and start-up companies
We welcome instructions from new clients and start-up companies. Nevertheless, for all new clients, we have a policy of seeking adequate funds on account in advance of carrying out any work. In addition, for newly-formed limited companies, we expect the directors to be personally responsible for our reasonable charges and costs incurred in accordance with instructions by the company. We may ask the directors to sign an undertaking to this effect.
Timing and form of instructions
- We rely on clients to give us timely, complete and accurate information and instructions. Misunderstandings can occur with oral instructions; although we will normally act on oral instructions in an emergency, we require all oral instructions to be confirmed in writing.
- Intellectual Property Offices often impose time limits and failure to meet these limits can be fatal to the rights concerned. We accept no liability if you do not provide instructions that are clear, complete and early enough to allow us to act within 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 provide reminders.
- If we receive late instructions from you, we may not be able to implement your instructions in time and we shall have no liability for any loss which may then arise. In the event of late instructions or late payments to us, urgency charges may be incurred by us which we shall pass on to you.
- You agree that if we act on the instructions of your authorised agent, solicitor or other adviser, then we are entitled to rely upon all the information and instructions given to us by that person until we receive your written signed instructions to the contrary.
Overriding instructions not to let rights lapse
We shall assume that our overriding instructions are not to let your rights lapse without specific instructions so to do There may be occasions when a third party instructed by us on your behalf has to take urgent action thought to be in your best interests without recourse to our firm or to you. Such action will be within the terms of the above overriding instructions. Failure to place us in funds if we have requested funds in advance, or failure to comply with the terms and conditions relating to our account (see 7 below) releases us from any obligation to prevent any of your rights from lapsing.
You will inform us promptly of any change in your name or other communications details and of any change of ownership of your Intellectual Property rights with which we are concerned. (This is important because sometimes such changes have to be officially registered, obtaining patents, trade marks and design rights can take many years and their lifespan may be many more years, and sometimes events occur to which a very fast response is required). No responsibility is accepted by us for any loss of rights in any case where you have failed to inform us of such changes.
- We will normally communicate with you by mail, fax; or e-mail. We remind you that e-mails sent over the Internet may lack security and jeopardise confidentiality, we accept no liability for non-receipt or late receipt by you of such communications, or for any corruption in the information communicated to you, or its disclosure to other parties as a result of the interception of such communication.
- Although we regularly carry out virus checks, we advise you to carry out your own virus checks on any communications (whether in the form of computer disc, e-mail, Internet or otherwise). We accept no liability (including negligence) for any viruses that may enter your system or data by these or any other means.
- All notices and forms of written communication between you and us shall either be on paper delivered by hand, sent by post or sent by electronic message transmission capable of producing hard copy, e.g. e-mail or facsimile transmission. All communications sent by electronic means shall be deemed to have been received at the time of receipt by us of the transmission if received before 16:00 hours UK time or otherwise at 10.00 am on the next working day following the day of transmission.
Instruction of Third Parties to act on your behalf
As part of carrying out your instructions, it may be necessary for us to instruct third parties (e.g. foreign lawyers or intellectual property agents or attorneys) to act on your behalf. We may either instruct such third parties directly on your behalf, or require you to sign a power of attorney or similar appointment to engage such third party directly.
Such third parties are not part of this firm. Whilst we endeavour to select third parties of satisfactory performance and expertise, we will not be liable for any losses, liabilities, costs or expenses arising as a result of any default or negligence on the part of any such third parties.
For such period as you instruct us to carry out work on your behalf, you hereby agree to give us express authority to complete and sign in your name such forms or other documents as are necessary or desirable to carry out your instructions. You agree to indemnify us in respect of all costs, claims, demands and expenses that may result from the exercise of that authority.
- 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 (but are not limited to) the size and complexity of the matter and the degree of urgency involved. We reserve the right to adjust our standard charges if highly specialised knowledge is required, or if the matter is complex and/or urgent. Fixed charges may be assigned to specific tasks (e.g. filing a patent application).
- All actions and attention by us in providing the Services are chargeable, including, for example, both incoming and outgoing telephone calls, travelling, the sending of reminders and reporting to you on communications which we may receive from our foreign associates and other specialist providers, as well as in acting for you generally.
Payment of Expenses
- You will be responsible for any expenses incurred by us on your behalf. These expenses may include (but are not limited to) Intellectual Property Office fees, Counsel’s fees, Court fees, the costs of any experts or other agents (including any foreign lawyers), photocopying costs, couriers, travel and meeting expenses and certain telephone and fax charges.
- Whilst our fixed charges and hourly rates are predictable, 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.
- If we instruct specialist providers on your behalf in connection with the Services, you agree we shall be entitled to make an additional charge to cover our related administration costs and any ancillary professional input by us. Details of such charges will be provided upon request.
- Where we incur charges in foreign currencies (i.e. not pounds sterling), or where we agree to bill you in a foreign currency, we will apply an exchange conversion rate which is based on the spot rate at the time of billing, but which includes a margin to cover our conversion costs and currency risk.
Value Added Tax
Value Added Tax (VAT) may be payable, both on our fees and on most of the expenses which we are likely to incur on your behalf. If you are liable to pay VAT. We may require you to provide us with your VAT registration details and advise us promptly of any changes to your VAT registration position.
- If requested and where possible we will give estimates of future charges. They will be given in good faith based on our knowledge existing at the time, but they are not binding unless we expressly agree otherwise as charges may be affected by matters beyond our control and the amount of work involved often cannot be accurately forecast.
- If, during the course of carrying out the work, it becomes apparent to us that our actual charges are likely significantly to exceed a previously rendered estimate, we will endeavour to seek instructions before providing further.
We shall not be obliged to grant you any credit and we may require you to make regular payments in advance and on account of our fees and anticipated disbursements for the provision of the Services. If we do grant you credit facilities, then you agree that we shall be entitled to do so upon such reasonable terms as we deem appropriate, and we reserve the right to terminate with immediate effect any credit facilities at any time and without prior notice.
We shall be entitled to send you invoices for fees and disbursements (whether incurred or to be incurred) and for any VAT or other tax payable thereon at regular and appropriate intervals as we deem fit and on an interim basis. You agree to pay such invoices by no later than thirty days after they are issued (“the due date”) and free from any deductions, set-offs, withholding, discount or abatement.
If any sum due from you to us is not paid on or before the due date for payment, then all sums then owing by you to us shall become due and payable immediately and, without prejudice to any other right or remedy available to us, we shall be entitled to:
- cancel or suspend our performance of the Services until arrangements as to payment or credit have been established which are satisfactory to us;
- charge you:
- interest calculated on a daily basis on all overdue amounts (both before and after judgment) until actual payment at the rate of eight per cent (8%) per annum above the base lending rate of Lloyds TSB Bank Plc prevailing from time to time until payment is made in full; and
- the cost of obtaining judgment or payment to include all reasonable professional costs (including legal fees) and other costs of issuing proceedings or otherwise pursuing a debt recovery procedure.
- In respect of all invoiced fees and disbursements which remain unpaid, as well as work done and disbursements incurred but not yet invoiced, we shall have a first and paramount lien on all materials, inventions and documents in our possession, power or custody relating to any matter touching or concerning the contract for the Services.
Checking files transferred to us
When files are transferred to us from other firms or organisations, they are usually accompanied by records of key data. We recommend that we check such information against the contents of the files and/or from public records. We will levy a reasonable charge for such checking. If you do not wish to instruct us to carry out such checks, we will have no liability for any errors contained in the files as they were received, or for any losses incurred as a result of the errors contained in the files.
Ownership of Files
Our files remain our property at all times in accordance with recommended practice. However, if you want to transfer your work to other professional advisors, we will usually release the files once all outstanding charges have been paid and, on receiving an undertaking that is satisfactory to us that we will be given free access to the files, if required. If no such undertaking is received, we will copy the file at your expense and release the copy file when all our charges have been paid.
Original papers and other materials
If you send us papers, samples or other materials, please tell us at the same time if you require them to be returned. Otherwise, we will incorporate them into our files.
Destruction of Files
We may destroy our correspondence files, draft documents and other papers which are more than 6 years old. In the absence of contrary instructions, we will assume that you are content with this arrangement.
While acting for you, we shall gather information and documents which relate to you. We shall keep such information and documentation confidential, except where disclosure is required by law or regulation, or in other exceptional circumstances.
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.
We are required to comply with the Data Protection Act 1998 wherever we obtain or use any personal data (as defined in the 1998 Act) from clients (including names, addresses and any personal details). We will use your personal data to provide the Services to you and to advise you about our services, but otherwise we will not use your personal data for any purpose other than that set out in this condition 10 without your consent unless we are entitled or required to do so by law, or under a court or regulatory authority order.
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.
We value our good relationship with our clients. However, we accept that, from time to time, difficulties and misunderstandings do arise. If you have any problems, you will let us know of them in writing so they can be addressed. If that fails to resolve the matter, you may refer the matter to the Legal Ombudsman (http://www.legalombudsman.org.uk/) which will consider your complaint and act as explained in this publication (http://www.legalombudsman.org.uk/downloads/documents/publications/whattodo_final_single_v0.1.pdf).
We will continue to work for you until any of the following events occur:
- we finish the work you have instructed us to do;
- your invoice remains unpaid for a protracted period;
- we consider that it is not in our mutual best interests for us to continue to work for you;
- you decide not to use us any longer;
- you (if an individual or a partnership) offer to make any arrangements with or for the benefit of your creditors, or a petition of bankruptcy is presented in relation to you or any of your partners; or
- you (if a limited company) are deemed to be unable to pay your debts (within the meaning of Section 123 of the Insolvency Act 1986), or you call a meeting to pass a resolution to wind up the company, or such a resolution is passed, or an administrator or receiver is appointed to all or any part of your business or property;
- you become involved in similar processes to those in (e) and (f) under non-UK legislation.
Irrespective of any termination or suspension of the Services in accordance with these Terms, you shall pay us at the contract rate for all Services provided up to and including the date of suspension or termination and the termination of the contract or any contract for whatever reason shall not affect the rights or remedies of either party in respect of any antecedent breach, or in respect of any sum owing, or to become owing, to the other.
You will accept responsibility for making alternative arrangements for compliance with all due dates of action, payment of official fees and the taking of any official steps necessary to preserve your rights in relation to the matters which we have handled for you prior to such termination.
Force Majeure and Exclusion of our Liability
You agree that we shall have no liability, nor shall we be deemed to be in breach of any duties or obligations owed to you, if at any time we are prevented, delayed or hindered in complying with such duties and/or obligations by reason of any circumstances beyond our reasonable control.
Nothing in these Terms excludes or limits the liability of us for death or personal injury caused by our negligence, or for fraudulent misrepresentation.
We shall not be liable to you for any indirect or consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever (howsoever caused), or loss or damage (contractual, tortuous, breach of statutory duty or otherwise) which arises out of or in connection with the contract (including loss of profit or other economic loss), or for any liability incurred by us to any other person for any economic loss, claim for damages or awards howsoever arising from the Services or otherwise.
We maintain professional insurance cover appropriate to a firm of our size and standing.
Nothing in the contract shall create, or be deemed to create, a partnership or joint venture or relationship of employer and employee or principal and agent between the parties.
If at any time one or more of the conditions of the contract (or any sub-condition or paragraph or any part of one or more of these Terms) is held to be or becomes void or otherwise unenforceable for any reason under any applicable law, the same shall be deemed omitted from the contract and the validity and/or enforceability of the remaining provisions of the contract shall not in any way be affected or impaired as a result of that omission.
The Contracts (rights of Third Parties) Act 1999 shall not apply to the contract with the exception of any other business which is owned wholly or in part by us and a person who is not a party to the contract (including any employee, officer, agent, representative or sub-contractor of either party) shall not have the right (whether under the Contracts (Rights of Third Parties) Act or otherwise)) to enforce any term of the contract which expressly, or by implication, confers a benefit on that person without the express prior agreement in writing of the parties, which agreement must refer to this condition.
Governing Law and Jurisdiction
English law shall apply to the construction and interpretation of our contract with you and the English courts shall have exclusive jurisdiction to resolve any disputes arising under it.