The following terms and conditions apply to all services provided to our clients. Commencement of our providing services to you shall be deemed to be an acceptance of these terms and conditions.
Standard Terms of Business of Lawrie IP Limited
Lawrie IP Limited (“Lawrie IP”) is a limited liability company incorporated in Scotland under registration number SC370895. Our registered office address is The Hub, Pacific Quay, Glasgow, G51 1EA.
In these Terms of Business (“Terms”), unless otherwise stated, “we”, “us”, “our” and “Lawrie IP” are references to Lawrie IP Limited. References to “you”, “your”, “yourself”, “client” and “clients” are references to the person, firm, company or other body with whom we contract under these Terms.
These Terms constitute the contractual basis by which we shall perform professional services (“Services”) for you. By sending us instructions and/or by sending us further instructions and/or by allowing us to start performing Services you shall be deemed to request that we perform Services for you on the basis of these Terms. If we perform any Services then there shall be a contract between us, and that contract shall be governed by these Terms. We shall not however be obliged to accept any such instructions. Each matter in respect of which we perform Services may at our option be treated as a separate contract between you and us.
2. Our Team
Our Directors and professional staff are members of the Chartered Institute of Patent Attorneys (CIPA) and/or the Institute of Trade Mark Attorneys (ITMA) and/or the European Institute of Professional Representatives (“epi”) and must comply with the respective codes of professional conduct issued by those bodies.
As UK Patent and Trade Mark Attorneys, we are regulated by the Intellectual Property Regulation Board (“IPReg”). Details of the UK professional rules can be found on the IPReg website at www.ipreg.co.uk
As European Patent Attorneys, we are regulated by the Institute of Professional Representatives before the European Patent Office (“epi”). Details of their professional rules can be found at www.patentepi.com
3. Instructions and Anti-Money Laundering
We have a policy of compliance with European Anti-Money Laundering Regulations. As part of this, it is necessary for us to undertake certain investigations into new clients and report any activities deemed suspicious to the relevant authorities. By instructing us, you agree that we are bound by this legislation and that you will make no claim against us and will hold us harmless for any loss or damage which results from our compliance with these regulations and any actions resulting therefrom.
We need to be able to formally identify the person who is our client and who has authority to give instructions on our client’s behalf. Unless we otherwise agree in writing, we will assume that the person (whether corporate, individual or other), who first contacted us with the initial instructions will be our client and they will have obligations regarding charges in paragraph 11. If we accept instructions from legal representatives or other agents, they will considered to be our client, unless we are told otherwise, and they will be responsible for settlement of our invoices and for reimbursement of all our costs and expenses incurred in carrying out their instructions.
If our client wishes us to render invoices to and accept payment from another entity (for example another company in the same group), then we shall be pleased to do this providing the request is made in writing; however our client shall remain responsible for settlement of our fees and charges.
4. New Clients
For new clients, our policy is to seek 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 any 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.
5. Client Monies
In accordance with our professional regulations, all client monies shall be held in our client account which is segregated from our company’s funds. No interest shall be payable on any client monies held in our client account. Any unclaimed monies will be paid to a registered charity. We will only do this if we have been unable to contact you for at least five years and we have taken reasonable steps to trace you and return the monies.
6. Client Instructions
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]. Any advice given by us shall be based on you 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. 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 of business you agree to indemnify us in respect of all costs, claims, demands and expenses that may result from the exercise of that authority.
7. 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 UK time) or on UK bank and public holidays or if the communication uses an uncommon or non-standard computer format. 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 and Patent and Trade Mark Legislation often impose time limits and failure to meet these time 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 prompt 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 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.
In the absence of specific instructions, we will assume that we are instructed to take the minimum steps necessary to maintain rights pending. However, in the event that you become insolvent or enter into liquidation and/or have not supplied advance payment on account if requested, we reserve the right not to incur expense in taking such minimum steps.
8. Electronic Communications
We will normally communicate with you by e-mail, 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.
9. 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 numbers, fax numbers and e-mail address; (c) any change of ownership or the grant by or to you of licences of or under your or third party patent, trade mark or other relevant rights or any agreement entered into in which you have an obligation to assign ownership or to grant licences to a third party. Many such changes have to be officially registered or may impact your entity status, official fees payable and/or the validity of such rights. 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.
10. 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, independent specialist searchers) 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 Lawrie IP. 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 timely 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. We cannot accept any liability in such circumstances.
Any searches you request may be carried out by us, by Patent or Trade Mark Offices or by an independent specialist search 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 any such searches.
11. Professional Fees and Disbursements
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. reporting publication of a patent or trade mark application). Our hourly 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 and Trade Mark Offices. In addition third parties may contact us regarding any registered rights. We are obliged to report these communications to you and we will make appropriate charges for such reports. On rare occasions it may be necessary for third 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.
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 and Trade Mark 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. 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. Where Lawrie IP incurs charges in foreign currencies or where we agree to invoice you in a foreign currency, Lawrie IP will apply an exchange rate which is based on the spot rate at or around the time of billing but which includes a margin to cover conversion costs, bank charges and currency risk.
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.
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 to significantly 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.
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 thirty 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.
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 on a daily basis at the Bank of Scotland base rate plus 6% per annum on any overdue invoice. 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.
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 files when all our charges have been paid.
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.
Checking of Files Transferred to Lawrie IP
When files are transferred to us from other firms, 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 this 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.
13. 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 pleased to advise on the desirability of releasing confidential information to the public in specific cases.
14. Data Protection
Lawrie IP are required to comply with the Data Protection Act 1998 whenever we obtain or use any personal data (as defined in the 1998 Act) from clients (including names, addresses and any personal details). By instructing us you are consenting to our use of relevant personal data as appropriate in the course of our 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.
In the case of clients who are individuals you also agree that we may process/disclose personal data in connection with: (a) the carrying out of credit checks and the taking of credit references; (b) client identification procedures; (c) conflict of interest checks; and (d) the delivery of our Services.
15. Indemnity for Threat of Infringement Proceedings
When we send any warning on your behalf to a third party, you agree to indemnify us against the risk of us being sued for making an unjustified threat of infringement. We may also request that any such warning communication be sent by you to the third party. The aim of this provision is to allow us to maintain our objectivity in contentious matters, which may otherwise diminish if we were to become a party to any proceedings.
16. Client Privilege
In general, communications between UK Patent or Trade Mark Attorneys and their clients 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 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. Please let us know if you would like further information on this.
17. 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. Due to 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 only one party to the conflict.
18. Client Care and Complaints
Whilst we endeavour to have good relationships with all of our clients, 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 professional staff dealing with your work. If that member of professional staff cannot resolve the matter, please ask to speak to a Director. We also have a complaints procedure in place that can be made available to you on request. If we cannot resolve the matter, you should contact IPReg 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.
19. 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 and charges 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.
20. 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 Lawrie IP, its 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 20 shall continue to apply notwithstanding the termination of our engagement for any reason.
Lawrie IP has professional indemnity insurance. Our regulator IPReg recommends cover of at least £1 million. As a matter of best practise we have cover in excess of that expectation and, provided cover is available and affordable in the insurance market, our level of cover will be not less than £5 million. Details of our insurers are available on request.
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:
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 fourteen days of the date of the order.
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.
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.
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.
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 our costs.
During the course of litigation you will be required to disclose to the other party or parties any documents (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.
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.
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.
22. 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.
We shall not be under any duty or responsibility to any third party following our advice that is not a client of Lawrie IP in relation to any matter (unless that party is also a client of Lawrie IP in relation to that matter). You agree to indemnify us against any costs or claims by third parties, which result from our advice being misrepresented by you or with your authority to any party, or if a third party has followed our advice provided to you.
Lawrie IP is committed to carrying out business fairly, honestly and openly and therefore has a zero tolerance policy towards bribery. In accordance with the UK Bribery Act, Lawrie IP has in place bribery prevention procedures, controls and sanctions.
24. Governing Law and Jurisdiction
Scottish Law shall apply to the construction and interpretation of our contract with you and the Scottish courts shall have exclusive jurisdiction to resolve any disputes arising under it.