GRAHAM WATT & CO LLP
TERMS OF ENGAGEMENT
These are the standard terms of engagement for services provided by Graham Watt & Co LLP which will apply to all work undertaken by us unless otherwise agreed in writing. We would ask you to please review the terms carefully and let us know if you have any questions on them.
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).
In these Terms, the “Firm”, “we” and “us” means Graham Watt & Co LLP or any other business which is owned in whole or in part by us and controlled by us, such business being identified in correspondence between the parties. “You” are our client, being the person, firm, body or company who instructs us and purchases Services from us. In these terms of business and during the conduct of our general business we will refer to the “members” of the limited liability partnership as “partners”.
We will act on the instructions of you, the client, who will be responsible for the payment of all charges. We undertake to practise competently, conscientiously and objectively, put your interests foremost while observing the law and our duty to any court or tribunal. We shall use the contact details provided by you hereinafter unless these details are varied by you in writing. We may also, if instructed by you, accept instructions from a third party but you will be responsible for all charges resulting from such third party instructions.
As part of carrying out your instructions, it may be necessary for us to instruct third parties (e.g. foreign lawyers or patent agents) to act on your behalf. 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.
Except as may be required by the Proceeds of Crime Act, or equivalent legislation, any information given to us that might reasonably be expected to be of a confidential nature, or that you inform us is confidential, will normally be treated as such. Information and materials given to us will be kept under conditions of normal office security. Please note that many of the services we undertake on your behalf will result in eventual publication of information as a normal consequence of our action, e.g. filing a patent application.
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. We may also use your personal data to send you information about our products and services, which may include sending updates and seminar invitations and to contact you from time to time with newsletters and other information about intellectual property matters. If you do not wish us to use your personal data in this way, please notify us in writing. In the course of instructing foreign attorneys it will be necessary to pass details of you to enable them to prosecute applications, and take other actions on your behalf.
In general, communications between a UK Patent Attorney and his client are privileged under Section 280 of the Copyright, Designs and Patents Act 1988; and communications between a UK Trade Mark Attorney and his client are privileged under Section 87 of the Trade Marks Act 1994. 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.
We are happy, on request, to provide estimates of likely costs. However, such estimates are for guidance only and final charges may be higher or lower than the estimates. We will inform you if we become aware that any estimate is likely to be inaccurate.
Our charges are principally based on the amount of our professional time spent on the matter. 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 an application). (b) All actions and attention by us in providing the Services are chargeable, including (for example) 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. (c) 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 which are current when the work is carried out. Details of those rates are available on request.
Payment of Expenses (a) You will be responsible for any expenses incurred by us on your behalf. These expenses may include (but are not limited by) Official 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 telephone and fax charges. (b) Whilst our fixed charges and hourly rates are predictable, 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. (c) 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.
Please take careful note of any deadlines given in our correspondence and be aware that failure to meet such deadlines may result in loss of rights or incur additional costs. If we do not receive written instructions in good time we shall take the absence of those instruction as an implicit instruction not to take action. You shall remain liable for all charges incurred up to that time.
We are entitled to assume that our overriding instructions are not to let your rights lapse without specific instructions so to do but we are not obliged to keep cases alive in the absence of instructions and always subject to your account being in good order with us. 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.
Instructions to us should be in writing. We can accept oral or e-mailed instructions, but clients should ensure that we have received and understood such instructions in good time before any deadlines. For example, you could contact our offices by telephone to ensure late-sent instructions have been received. We cannot accept responsibility for failing to act on instructions sent by e-mail or other means that fail to arrive in time to be acted upon. We shall not have any liability for any misunderstanding or misinterpretation on either side resulting from oral instructions.
If notices and communications are sent by electronic means, then they shall be deemed to have been received at the time of receipt by us of the transmission if transmitted during our normal business hours (9.00am – 5.00pm UK time) but if they are not transmitted during those hours, then at 10.00am on the next working day following the day of transmission, and in the event of a difference between the time of dispatch and the time of receipt recorded on our receiving equipment, the time specified by our receiving equipment will be deemed the time of transmission.
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 Intellectual Property 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.
Oral advice given or views expressed should be regarded as being only a preliminary opinion. No reliance should be placed on them without first obtaining a written opinion given by us after a full consideration of the facts of the relevant issue.
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.
Retention of Information
Documents, samples and other items provided by you on your behalf to us will remain your property and will be returned to you upon request. Such documents and samples will be retained by us for an appropriate period, being not less than six months, from the latest action on the file to which they relate and may thereafter be destroyed. We may destroy our correspondence files, draft documents and other papers which are more than a year old. In the absence of contrary instructions, we will assume that you are content with this arrangement.
Terms of Payment
Payment of our invoices is due within thirty days of the date of the invoice, unless otherwise agreed in writing. Please note that we do not accept credit or debit cards.
We may agree a credit limit with you. In the case of you having an overdue account which exceeds the credit limit, we have the right to cease any further work for you even if this results in the loss of your rights.
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: (a) cancel or suspend our performance of the Services until arrangements as to payment or credit have been established which are satisfactory to us; (b) charge you: (i) interest calculated on a daily basis on all overdue amounts (both before and after judgment) until actual payment (as required by the Late Payments of Commercial Debts Regulations 2013) at the rate of eight per cent (8%) per annum above the Bank of England base lending rate prevailing from time to time until payment is made in full; and (ii) 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. (c) in respect of all invoiced fees and disbursements which remain unpaid as well as work done and disbursements incurred but not yet invoiced, 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
Payments in Advance
You will normally be asked to deposit funds with us as an advance payment prior to work being undertaken. In the event that it appears that our fees and other charges will exceed the balance of the amount deposited with us, then we may request an additional advance. Unused balances of any advance payments will be refunded to the client when the relevant matter has been concluded.
For newly formed limited companies, we expect the directors to be personally responsible for our reasonable charges and costs incurred in accordance with instructions made on behalf of the company. We may ask the directors to sign an undertaking to this effect.
Transfer of Work
Should the client at any time instruct that responsibility for any activity to which a file relates be transferred to another person or persons, we may retain the file but shall, on your instruction make copies of any documents contained therein and forward such copies as instructed, but always provided no invoices are outstanding. We may instead send the original documents. We shall be entitled to make a reasonable charge for this service.
We expect our business relationship with you to run smoothly but if any problems arise which cannot be resolved between you and your usual contact at Graham Watt & Co LLP then you may refer the matter to a Partner who has not been involved with your work. If after this you remain dissatisfied and the complaint relates to alleged poor service or to our charges, you should contact the Legal Ombudsman, or if the complaint relates to alleged professional misconduct you should contact the Intellectual Property Regulation Board. Contact details for these bodies are available on request.
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.
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
We will continue to work for you until any of the following events occur: (a) we finish the work you have instructed us to do; (b) your invoice remains unpaid for a protracted period; (c) we consider that it is not in our mutual best interests for us to continue to work for you; (d) you notify us that you have decided not to use us any longer; (e) 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 (f) 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. (g) you become involved in similar processes to those in (e) and (f) under non-UK legislation. 17.2 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.