INTRODUCTION
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.
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”.
SCOPE OF OUR SERVICES
We will provide to you as our client, a comprehensive range of professional services relating to all aspects of patents, trademarks, copyright and designs to assist you in identifying, protecting and exploiting what could be your greatest assets, in the UK and world-wide. If we believe that a particular matter is outside our expertise, we will inform you
YOUR ATTORNEY
We will arrange for an attorney with the relevant expertise and seniority to deal with your affairs. This may not always be a partner as your client partner may wish to draw on the skills of other attorneys who have the necessary technical or specialist expertise. We place great importance on ensuring continuity. However, we will endeavour to keep you fully informed of any change in the people dealing with your affairs.
TRAINING
All our staff are trained in areas relevant to your needs. Our attorneys are kept up to date with recent changes in the law and our support staff are trained to make dealing with us as effortless and smooth a process as possible.
EQUALITY AND DIVERSITY
We are committed to eliminating discrimination and promoting equality and diversity. We do not discriminate on grounds of race, gender, sexual orientation, religion, age or disability in the provision of any of our services, when instructing counsel or other experts, or when deciding whether or not we are able to accept a client’s instructions.
INITIAL ADVICE
We may agree to meet with you on a “no obligation” basis if you are unsure about whether or not we will be able to help and would like to have an informal meeting before instructing us. This will need to be agreed in advance and is usually a 45 mins/60 mins consultation meeting [YC1] in our offices in Sevenoaks. Follow on meetings, telephone calls and correspondence will be subject to our normal charges.
Oral Advice
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.
USE OF OTHER PROFESSIONALS
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. We will often choose third parties based on having worked with them previously. We do not have any arrangements where we receive a payment for choosing a particular third-party; although we will endeavour to choose firms, we feel offer value for money.
INSTRUCTIONS
When you instruct us in relation to a new matter, transaction or case, we will send you an engagement letter, if this is the first time you have instructed us or it has been a long time since you last instructed us. We will normally confirm as any new instructions, and if you do not receive such confirmation from us, please contact us, e.g. by phone to make sure that your instructions have been received.
The terms of any engagement letter, supplemental letter or email and these Terms of Business will together form the contract between us in relation to that matter, transaction or case. If you are arranging for any other person to pay our fees and expenses, you must ensure that they are aware of all the terms of the contract between us.
We will act on the instructions of you, the client, who will be responsible for the payment of all charges. 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.
PREFERRED WAYS OF COMMUNCATION AND WHEN
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 of the transmission by us 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.
HOURS OF WORK
The formal opening and switchboard hours are from 9am to 5.00pm Monday to Friday. Conscious of the needs of our clients, however, we are flexible and it may be possible for us to help you or for our support staff to be available at other times if necessary.
CHANGE OF ADDRESS
It is important that you inform us promptly of any change of address, telephone and email address 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, trademarks 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.
CRITICAL DATES
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, 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.
USE AND RETENTION OF DOCUMENTATION
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 agree to this arrangement.[YC2]
CONFIDENTIALITY
Confidentiality is taken seriously by our Practice and is carried out to the requirements set out in 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 General Data Protection Regulation (GDPR) 2018. Wherever we obtain or use any personal data, as defined by GDPR, from clients (including names, addresses and any personal details), we will use your personal data to provide Services to you. In the course of instructing foreign attorneys, it will be necessary to pass your personal details 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 Trademark Attorney and his client are privileged under Section 87 of the Trademarks 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.
For information on disclosure to third parties in relation to your personal data please see our Privacy Policy, which can be found on our website.
CONFLICTS OF INTEREST
In your interest, and to avoid a potential conflict of interests, you should ensure that the Attorney responsible for your matter is advised of your full and correct name and address and, in the case of corporate clients, the registered office and registered number of the company and, in the case of partnerships, the names of the partners or members and the business address. All material information in relation to a matter should be given at the earliest opportunity to the Attorney responsible, so that we can check that we are not prevented from acting for you because of earlier instructions from an interested party. An actual or perceived conflict of interest between your interests and the interests of another client or person associated within the firm may arise or come to light during the course of our work. If this happens, we will discuss the position with you (to the extent that we are able to do so without breaching any other person’s confidence) and determine the appropriate course of action. In certain circumstances, we may have to cease acting for you.
PROCEEDS OF CRIME ACT 2002
Under the provisions of this Act, we (and any other professional adviser involved in your case either on your behalf or on behalf of another party) have a duty to report to the National Crime Agency any circumstances that give rise to a suspicion that any form of criminal activity may be taking place. If circumstances arise in which a report has to be made, we will not be able to tell you this and we will have to stop active steps to progress your case until we are authorised to resume by the National Crime Agency.
MONEY LAUNDERING REGULATIONS
The Proceeds of Crime Act and Money Laundering Regulations extend to the legal profession, including patent and trademark attorneys.
A consequence of this is that in every case where we act for a new client, or an existing client in certain circumstances, we are required to establish and record the identity and the address of that client and the beneficial owner of services we carry out upon the client's instructions (the beneficial owner includes anyone who, instead of or in addition to the client, is intended to benefit from the service being requested from the firm). We must therefore ask for specific evidence of identity.
If our client is to be you as an individual, would you please arrange to call into these offices to bring an original document proving your identity. Acceptable documents are passports, national identity card with photograph or photographic driving licence.
If you cannot attend at our offices with your identification then you should arrange for a member of a professional organisation (e.g., solicitor, accountant, bank manager, GP etc.) to certify your identification with their company stamp and forward the certified copies to us. They must certify that they have met the person pictured, or have seen them via Skype / Facetime, etc.
If our client is to be a corporate client listed on a recognised exchange and we are to deal with a director, we will simply need a printout from that register confirming this (e.g., Companies House). If our instructions do not come from a director, we will require a letter of authorisation.
While normally we keep confidential all information supplied by a client, you should be aware that in certain circumstances we would have to make a report to the National Crime Agency (NCA) without telling you as this would constitute the crime of "tipping off'. In circumstances where we have to make a report to NCA which we cannot tell you about, our duty to report overrides our duty of care and confidentiality to you as our client.
All personal documents such as passport information and utility bills are kept in a safe on the premises with limited access to the safe. Those documents that are emailed to us are sent to a private email address with restricted access and are then deleted once documents printed off. Those documents which are highly sensitive will be kept in a safe whilst the signed forms will be kept in a lockable cabinet.
We cannot begin to work on your file until we have this identification.
We understand that some of our new clients may not reside in the UK and so some extra checks may need to be carried out in in compliance with IPREG (our professional regulator).
Like other means of communication, email carries with it the risk of inadvertent misdirection, or non-delivery of confidential material. The internet is not secure and there are risks if commercially sensitive information is sent either to or by you by email. Where you provide us with email addresses, we will assume (unless you tell us otherwise) that you consent to the use of email communications in connection with the matter in question, your arrangements are sufficiently secure and confidential to protect your interests, and you will carry out effective procedures to protect the integrity of data, in particular screening for viruses. While we will take reasonable steps to safeguard our systems against unauthorised access, viruses and other malware, we cannot guarantee that email transmission will be secure, virus-free or malware-free and, accordingly, accept no liability for any loss or damage which arises as a result of email transmission.
We advise you to carry out your own virus checks on any communications (whether in the form of 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.
FEES AND ESTIMATES
It is our philosophy to give you good value for money and to give you the best possible information about the likely cost of work, both at the outset and as the work progresses.
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 due to the parameters originally identified changing and costings can be higher or lower than expected. We will inform you if we become aware that any estimate is likely to be inaccurate or that the cost of any work, we have estimated on will likely incur higher costs.
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). All actions and attention by us in providing the Services are recorded and chargeable, including (for example) telephone calls, sending 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.
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.
We operate a system under which each hour is divided into units of six minutes and each activity is usually recorded separately, with a minimum of one unit per activity. If you are unhappy about our fees, please read the section below on Complaints.
EXPENSES
We will be required in some instances to pay expenses on your behalf to third party bodies. These are called 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.
You will be responsible for any expenses incurred by us on your behalf.
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.
CONVERSION RATES AND UPLIFTS
All tariffs charged to the client where possible will be in the currency the client is based in. If the client requests that we invoice in a different currency or where our disbursements such as paying for official fees in advance and where we incur charges in foreign currencies (i.e. not pounds sterling), we will apply an exchange conversion rate and will include a margin to cover our conversion costs and currency risk.
Our conversion bank rate is based on the interbank buyers rate plus 5% but smoothed dependant on the volatility of the previous 5 months rate, uplift also includes the cost to the firm for handling, processing and paying for such disbursements.
EXTERNAL AGENCIES
To enable us to provide a high service to you we will need to, in some circumstances, work in partnership with external agencies to process applications or overseas lawyers and agents, to access foreign expertise and give our clients the best possible service. Where this is the case we do not have any reciprocal referral arrangements or volume based discounts. We work solely with external agents or lawyers that provide the best expertise and advice in the area of law and we review these relationships regularly. We have employed them in so that we ensure we are delivering the best service to you as our client. However, if you are not happy with our choice of lawyer or agent you may choose another one to work on your case.
TERMS OF PAYMENTS
Payment of our invoices are due within thirty days of the date of the invoice. We may agree a credit limit withyou.. 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.
NON-PAYMENT OF INVOICES
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:
a. 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
b. 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.
FEES ON ACCOUNT
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. Any monies received by the client will be put in a separate client account for no more that 48 hours before work commences.
VALUE ADDED TAX
VAT will be charged to our UK clients but not on UK official fees. Our VAT number is 210129524.
PROFESSIONAL LIABILITY
We hold insurance with an insurance company approved by our professional regulator.
In relation to any loss or damage you suffer as a result of a breach by us of our contractual obligations to you or as a result of our negligence, our total aggregate liability shall in no circumstance exceed £10m.
COMPLAINTS
If you are ever dissatisfied with the service provided or the fees that we have charged and feel that you need to speak to someone other than the Attorney who has been advising you, please telephone or write to the Managing Partner or alternatively the Office Manager. We will usually acknowledge your complaint within five working days and try to answer your complaint within 21 days unless further investigation is required. In which case we will tell you when this is likely to be completed but a letter and our final position on the matter will be sent 14 days after the request for review from the client.
Our detailed complaints procedure can be found on our website. If the complaint is not resolved to your satisfaction and you wish to involve an outside body, then you can contact the Legal Ombudsman service on:
0300 555 0333
enquiries@legalombudsman.org.uk
Legal Ombudsman PO Box 6167 Slough SL1 0EH
While individuals have the right to complain to the Legal Ombudsman, certain others do not. In normal circumstances, the Legal Ombudsman expects you to allow us eight weeks to try to resolve your complaint before contacting them, and complaints should be made within six months of the date of the conclusion of our own complaints’ procedure. You will need to bring a claim to the Legal Ombudsman no more than one year from the date of act or omission or no more than one year from when you should reasonably have known there was cause for complaint.
For more information on complaint procedures, you can visit the Legal Ombudsman’s website at www. legalombudsman.org.uk.
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, provided no invoices are outstanding. We shall be entitled to make a reasonable charge for this service.
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 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.
TERMINATION
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;
i. 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;
ii. 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; or
iii. 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.
JURISDICTION
Your contract with us is governed by English Law and shall be subject to the exclusive jurisdiction of the Courts of England and Wales.
TERMS OF BUSINESS
By instructing or continuing to instruct us, you are deemed to have accepted these Terms of Business. We reserve the right to amend these Terms of Business at any time provided we give you prior notice of the proposed change. Each Partner, employee and consultant of Graham Watt & Co LLP shall be entitled to the benefit of these Terms of Business under the Contracts (Rights of Third Parties) Act 1999, but the contract with you may be varied from time to time or terminated without the consent of any such person. These Terms of Business supersede any prior agreement whether written or oral.
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).
