STANDARD TERMS OF BUSINESS
The following are our standard terms of business, on the understanding of which you (the “Client”) engage us (“Thompson Gray LLP”) to carry out work on your behalf. They are designed to assist us in providing you with an efficient and effective service and to help avoid any misunderstandings.
1 DOCUMENTS FORMING OUR AGREEMENT
These standard terms of business may be accompanied by an engagement letter or email setting out some further terms governing the engagement. Where there is any conflict between the terms set out in the engagement letter or email and the standard terms of business, the terms set out in the engagement letter or email will prevail.
The terms will apply until varied or replaced with alternative terms agreed in writing. Please note that no change to the terms will be valid unless agreed in writing by a partner of Thompson Gray LLP.
2 OBLIGATIONS OF THE FIRM
All partners of Thompson Gray LLP are members of The Chartered Institute of Patent Agents (CIPA) and the Institute of Professional Representatives before the European Patent Office (EPI). As such, they must comply with the professional codes of conduct issued by the Intellectual Property Regulation Board (IPReg) and the EPI.
Thompson Gray LLP will perform all work under the engagement with due skill, care and diligence and with proper regard for expected technical standards.
3.1 Identity of the client
We have a policy of compliance with European Anti Money Laundering Regulations. It is therefore important that we are able formally to identify the Client, and we require the Client to assist us in our compliance with the European Anti Money Laundering Regulations.
We shall be entitled to assume, unless otherwise instructed in writing, that the person (including an individual or organisation) providing us with the initial instructions in relation to a matter is the Client.
Unless informed otherwise, we shall be entitled to assume that any individual representing an organisation is entitled to instruct us on behalf of that organisation.
If the Client wishes us to issue invoices to and accept payment from another entity (for example, another company in the same group) then we shall be pleased to do this. However, responsibility for paying our charges and reimbursing us for our costs and expenses incurred in carrying out the Client’s instructions remains with the Client.
Where a case names joint applicants or proprietors we shall (in the absence of specific written instructions to the contrary) report to and accept instructions from the first named applicant or proprietor only. Nevertheless, all applicants or proprietors have joint and severable responsibility for paying our charges and reimbursing us for our costs and expenses incurred in carrying out the instructions of any one of the joint applicants or proprietors in relation to the case.
3.2 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 such 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 give reminders.
If we receive late instructions, we may not be able to implement them in time. 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.
3.3 Overriding instructions not to let rights lapse
We shall assume that our over-riding 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, although rare, will be within the terms of the above over-riding instructions. As such, you will be liable for all costs and charges arising from such action.
3.4 Updating information
It is important that you inform us promptly of any change of address, telephone and fax numbers and of any change of ownership of your patent or other relevant IP rights. Many such changes have to be officially registered. Please remember that the obtaining of patents, trade marks and design rights can take many years. No responsibility can be accepted for any loss of rights in any case where you have failed to inform us of such changes.
3.5 Electronic Communications
You may send correspondence to us by email. However, given that emails sent over the Internet may lack security and may jeopardise confidentiality, we recommend that you encrypt confidential information and seek confirmation of receipt of your emails. If you send correspondence to us by email, we assume that we have your permission likewise to send correspondence to you by email and we shall as far as possible reciprocate any encryption or confirmation of receipt procedures you put in place.
Nonetheless, we can accept no liability for non-receipt or late receipt of email communications or for any corruption of information communicated by email 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 in negligence) for any viruses that may enter your system or data by these or any other means.
4 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. lawyers or foreign patent agents) 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 shall endeavour to select third parties whose performance and expertise we regard as being of good quality, 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.
6 PROFESSIONAL FEES
6.1 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. Fixed charges are also made for specific administrative tasks (e.g. filing a patent application).
We reserve the right to adjust our charges if highly specialised knowledge is required, or if the matter is complex and/or urgent.
Our hourly rates and fixed charges are reviewed periodically. Our invoices are calculated according to the hourly rates and fixed charges which are current when work is carried out. Details of our hourly rates and fixed charges are available on request.
6.2 Payment of expenses
You will be responsible for any expenses incurred by us on your behalf and these will be itemised separately when we bill you. These expenses may include Intellectual Property Office fees, Counsel’s fees, Court fees, the costs of any experts or other agents (including any foreign lawyers), travel and meeting expenses. We also pass on costs for photocopying, couriers, and certain telephone and fax charges and such like. Whilst our hourly rates and fixed charges are fairly 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.
6.3 Value Added Tax
VAT is payable by clients based in the United Kingdom both on our hourly rates and fixed charges and on most of the expenses which we are likely to incur on your behalf, although not currently on fees charged by the United Kingdom Patent Office, European Patent Office and International Bureau of the World Intellectual Property Office. Clients within the European Union who are unable to or do not provide us with a local VAT registration number are also required to pay VAT at United Kingdom rates.
If requested, where possible we will give estimates of future charges. They will be given in good faith based on 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 to significantly exceed our estimate, we will endeavour to seek your permission before exceeding our estimated time. If you would like to set an upper limit on the charges which may be incurred without prior reference to you then please let us know.
We shall invoice you in respect of all work carried out under the engagement at our standard hourly rates and fixed charges. Any variance from this principle must be agreed in advance of the work being carried out and in writing with a partner of Thompson Gray LLP.
We shall invoice, as appropriate, normally during or on completion of our work for you. Our invoices are payable within 30 days of the date of invoice.
Payments should be made in the currency in which our invoice is made out. All invoices are normally made out in Sterling. However, we are happy to make out invoices in Euros or US Dollars, subject to any local legal restrictions, provided this is requested in advance of the date of the invoice.
Please note that all transfers should be made free of bank charges. Only the total amount of cleared funds arriving after any bank charges have been paid will be set against our invoices.
We reserve the right to charge interest on any amount not settled within 30 days in accordance with the then current rate of interest under the Late Payment of Commercial Debts (Interest) Act 1998 as amended or superseded. We currently charge a rate of 8% per annum above the Bank of England base rate.
We also reserve the right to recover costs and fees (including legal fees on an indemnity basis) incurred through seeking to recover the same.
6.7 Right to suspend work on your behalf
If an invoice remains unpaid for more than the 30 day period allowed, we reserve the right to suspend all work on your behalf. This is without prejudice to our right to invoice for work undertaken before such suspension. You will be responsible for the consequences of the suspension of work, which may include the loss of, or the failure to obtain, rights.
6.8 Informed Consent
When you instruct us to carry out work on your behalf, you must accept that costs may be incurred immediately, or within a very short time frame after receiving your instructions (e.g. a few days). This means that you will normally become liable for all costs and charges for carrying out your instructions as soon as we receive your instructions. Moreover, barring very exceptional circumstances, you cannot expect money paid to us in respect of our invoices to be refunded to you, even when we issue an invoice in advance of carrying out the work. We consider payment of any invoice to amount to your informed consent that all the work to which the invoice relates and any payment to a third party that it includes, is to be completed.
In particular, it is our policy to issue invoices for payment of official fees, such as patent renewal fees, and to ask that these invoices are paid, before we pay the official fees to the relevant Intellectual Property Offices. Where you pay such an invoice, we consider the payment to amount to your informed consent to complete the payment to the appropriate Intellectual Property Office and all associated work by our firm. No refund of your payment can therefore be expected.
6.9 Client Money
We do not routinely hold money for our clients. However, in certain circumstances, such as when agreeing to carry out work for new clients or in advance of assuming liability for large disbursements, we may request that money is paid on account in advance of issuing an invoice. Such money may be treated as “client money” and held in our client account. Full details of how our client account is operated will be provided before any such money is received by us, or on request.
We cannot guarantee that any money received by us will be treated as client money unless the money is paid to our client account after receipt of a request for payment from us.
7.1 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 can accept no liability for any errors contained in the files as they were received.
7.2 Ownership of files
Our files remain our property at all times. 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.
7.3 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.
7.4 Destruction of files
We have a policy of retaining our files indefinitely in electronic form, but destroying our paper correspondence files, draft documents and other papers which are more than 6 years old. However, you should note that we do not make any undertaking to continue to retain our files in electronic form, and these may also be destroyed when more than 6 years old.
8 CONFIDENTIAL INFORMATION
While acting for you, we shall gather information and documents which relate to your company. 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.
9 DATA PROTECTION
Thompson Gray LLP will comply with all relevant data protection legislation. 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 EEA.
Any searches you request may be carried out by us, by Intellectual Property 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.
11 INDEMNITY FOR THREAT OF INFRINGEMENT PROCEEDINGS
Before we send any warning on behalf of a client to a third party, we ask the client to indemnify us against the risks of our being sued for making an unjustified threat of infringement proceedings. The aim of this request is to maintain our objectivity in contentious matters which would diminish if we were to become a party to any proceedings. We may refuse to act for clients who do not provide the requested indemnity.
In general, communications between a UK Patent Attorney and his client are privileged under Section 280 of the Copyright, Designs and Patents Act 1988. This means that others, including the courts, are not entitled to discover the content of such communications where they concern professional advice. Please note that the privileged status of a letter or other document can be lost if it, or its contents, are disseminated to persons other than the addressee of the document. In rare circumstances the courts may rule that such privilege is lost or does not apply. In that event we accept no liability in respect of any loss whatsoever incurred by you or any other party as a direct or indirect consequence of the loss or absence of privilege.
13 CONFLICTS OF INTEREST
We cannot act simultaneously for two clients whose interests in the matter on which we are advising conflict, unless 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, generally the client with the shorter relationship with us. 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.
14 LIMIT ON LIABILITY
The aggregate liability of Thompson Gray LLP, the partners of Thompson Gray LLP and the employees of Thompson Gray LLP, whether in contract or in tort, in respect of advice and services provided to the Client shall not exceed the highest of: 1) £1 million, 2) the sum recoverable from the insurance coverage of Thompson Gray LLP for a particular matter in respect of which the liability is incurred and 3) three times the charges of Thompson Gray LLP for a particular matter in respect of which the liability is incurred, provided that nothing in these terms shall attempt to limit our liability for fraud or reckless disregard for our professional obligations.
15 RELATIONSHIP WITH THOMPSON GRAY LLP
Thompson Gray LLP is the party contracting with the Client and Thompson Gray LLP alone will perform work for the Client. No personal duty of care to the client is assumed by any of the partners or employees of Thompson Gray LLP. The Client therefore agrees (to the extent to which such an agreement is enforceable) that it will not bring any claim whether in contract or in tort, under statute or otherwise, against any of the partners or employees of Thompson Gray LLP and the partners and employees of Thompson Gray LLP shall be entitled to rely on these terms insofar as they exclude or limit their liability.
We value our good relationships with our clients and are confident that we will provide highly satisfactory services at all times. However, we accept that difficulties and misunderstandings can arise. If you have any such problems, you should in the first instance discuss your concerns with the partner of Thompson Gray LLP responsible for handling your work. If, after such discussions, you feel that the matter has not been adequately dealt with, you may make a formal complaint. A written copy of our formal complaints procedure is available upon request.
If we are unable to resolve your formal complaint to your satisfaction, you make take your complaint to IPReg or the Legal Services Ombudsman.
You may make a complaint concerning our professional conduct to IPReg. Any such complaint should be raised within 12 months of the matter giving rise to the complaint.
IPReg can be contacted at: 5th Floor, The Outer Temple, 222-225 Strand, London, WC2R 1BA
You may also make a complaint concerning poor service directly to the Legal Services Ombudsman rather than IPReg. Any such complaint should be raised within six years of the problem happening or three years of you finding out about it, and within six months of our final response under our formal complaints procedure.
The Legal Services Ombudsman can be contacted at: PO Box 6806, Wolverhampton, WV1 9WJ
Tel: 0300 555 0333
17 TERMINATION OF RETAINER
You may terminate our retainer to act on your behalf at any time by giving us notice in writing. If there is a good reason which prevents us from continuing to act for you, we may terminate the retainer ourselves by giving you reasonable notice. In either case, if the retainer is terminated we will require you to pay our charges and expenses up to and including the date of such termination.
18 THIRD PARTY RIGHTS
It is not intended that any terms of our engagement with you shall be enforceable by a third party, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
If any provision of these terms is or becomes illegal, invalid or unenforceable in any jurisdiction that shall not affect the validity or enforcement in that jurisdiction of any other provision of the terms or the validity of enforceability in other jurisdictions of that or any other provision of the terms
20 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.