1.1 Urquhart-Dykes & Lord LLP ("UDL") is a limited liability partnership in accordance with the Limited Liability Partnerships Act 2000 (with registration number OC307196 and having its registered office at Tower North Central, Merrion Way, Leeds GB-LS2 8PA). Where reference is made in any correspondence or in the context of providing services to a "partner" of UDL, the term "partner" indicates either a member of UDL or an employee with equivalent standing and qualifications. It shall not be construed as indicating that members of UDL are carrying on business in partnership for the purposes of the Partnership Act 1890.
1.2 UDL and its staff are regulated by the IP Regulation Board ("IPReg" - www.ipreg.org.uk) and bound by the Rules of Conduct for Patent Attorneys, Trade Mark Attorneys and other Regulated Persons. In respect of matters before the European Patent Office, we are bound by the Rules of Conduct of the Institute of Professional Representatives before the European Patent Office.
1.3 Certain of the sections in this document may not immediately be relevant to you. However, our objective is to build a long-term relationship with you and we consider that it is appropriate to provide you with complete details of the terms on which we provide our services.
1.4 We might set out supplementary terms in a covering letter or in subsequent letters. In the event of any conflict between the terms in this document and the terms in any such letter, the terms in the letter will prevail. References in this document to these Terms of Engagement include reference to any such supplementary terms or terms otherwise agreed with you in writing. We reserve the right to amend these Terms of Engagement in the future, in particular to reflect changes in law or commercial practice.
1.5 Our services are provided to you by UDL and the contract under which those services are provided is with UDL and not with any individual member, employee or agent of UDL. Acceptance of our commencement of the provision of services to you shall be deemed to be acceptance of these Terms of Engagement.
2.1 We will be entitled to act on the instructions of any of your apparently authorised employees or agents and to rely on any information provided to us by such employees and agents. We recommend that you nominate an individual within your organisation to act as a primary point of contact for us and keep us updated if this changes.
2.2 Notwithstanding the provisions of paragraph 3.2 below, we shall not be liable to you for any failure to secure rights which is due to your delay in the provision of information and instructions, or to information or instructions being unclear or incomplete.
2.3 It is important that you inform us promptly of any change in relation to: (a) any primary contact; (b) your name, address, telephone and fax numbers, and e-mail address; or (c) ownership of patent, trade mark or other relevant rights for which we have responsibility.
Many such changes which affect the owner of rights should be officially registered. The registration of patent, trade mark and design rights can take several years and there might be little activity for long periods followed by a situation which requires immediate action. We shall not be liable for any loss of rights as a consequence of your failure to inform us of any such changes.
2.4 We will act for you either to carry out specific instructions, or on a retained basis in which we review and advise on your intellectual property affairs on an ongoing basis. In relation to ongoing matters such as prosecution of patent, trade mark and design applications, oppositions and litigation, we will act on a retained basis unless we agree otherwise specifically in writing.
2.5 When you provide instructions, information or advice to us orally without confirmation in writing, then notwithstanding the provisions of paragraph 3.2 below, we shall not be liable to you for the consequences of any misunderstanding or misinterpretation whether on our part or yours.
2.6 You authorise us to complete and sign in your name such official forms and applications as are necessary or desirable to carry out your lawful instructions and you will indemnify us in respect of all costs, claims, demands and expenses that may result from exercise of the authority given by this paragraph.
2.7 Before we send any warning on your behalf to a third party, we may require you to indemnify us against the risks of our being sued for making an unjustified threat of infringement proceedings. The aim of this requirement would be to maintain our objectivity in contentious matters, which would diminish if our interest in any proceedings were to differ from yours. We may refuse to act for you if you are not able to provide the requested indemnity.
2.8 Our advice is provided for your benefit and solely for the purpose of the instructions to which it relates. It may not be used or relied on for any other purpose or by any person other than you without our prior written agreement. In particular, nothing in these Terms of Engagement confers any right on any person pursuant to the Contracts (Rights of Third Parties) Act 1999, except as expressly stated in paragraphs 3 and 11 below.
3 EXCLUSION AND LIMITATIONS OF LIABILITY
3.1 We will 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, acts of God, war, industrial disputes, protests, fire, flood, storm, tempest, explosion, acts of terrorism and national emergencies.
3.2 Our total liability to you in respect of our engagement for any loss, liability or damage howsoever caused, whether in contract (by way of indemnity or otherwise), tort (including negligence), misrepresentation, restitution or otherwise (in each case whether caused by negligence or not) and whether related to any act, omission, services provided to you or not provided to you or failure to act or delay in acting by UDL will be limited to an amount recorded in writing (the "Liability Cap"). The Liability Cap:
3.2.1 in respect of loss or damage to your tangible property arising due to our negligence is £10 million; and
3.2.2 in respect of all other loss or damage, is as set out in a separate letter. If there is no separate letter which addresses the Liability Cap (and we have not agreed otherwise with you in writing), the Liability Cap in respect of all other loss or damage is £5 million.
3.3 The extent to which any loss or damage will be recoverable by you from us will be limited so as to be in proportion to our contribution to the overall fault for such loss or damage, taking into account any contributory negligence by you, your other advisers and/or any other third party responsible to you and/or liable in respect of such loss.
3.4 You agree not to bring any claim in respect of loss or damage suffered by you arising out of or in connection with our engagement (including but not limited to delay or nonperformance of our engagement) against any of our members, employees or agents even where our members, employees or agents have been negligent. This restriction will not operate to exclude any liability which can not be excluded at law or to exclude the liability of UDL for the acts or omissions of any of our members, employees or agents. It is agreed that each of our members, employees and agents will have the right to enforce this paragraph pursuant to the Contracts (Rights of Third Parties) Act 1999. We reserve any right we may have to rescind or vary these Terms of Engagement without our having to seek the consent of our members, employees and agents.
3.5 During our work for you we may need to instruct third parties (for example, patent and trade mark attorneys in other countries, or searchers) to act on your behalf. We might instruct such third parties directly on your behalf. Alternatively you might need to sign a power of attorney or similar appointment to engage such third party. Any such party is not part of UDL. While we shall endeavour to select third parties of appropriate good standing, we shall not be responsible for any default or negligence by such third parties. In the case of negligence or a default, your cause of action will be direct against the third party.
3.6 Searches which you instruct us to carry out might be carried out by ourselves, by Patent Offices or by an independent specialist searching firm. The limitations and occasional errors in classifications, indices, computer databases and official records mean that no search can be guaranteed for comprehensiveness or accuracy. We shall not be liable to you for errors by searchers who we instruct on your behalf, or for the consequences of limitations in a reasonably drawn search strategy, or for errors in classifications, indices, computer databases and official records which are outside our control.
3.7 UDL has in place Professional Indemnity Insurance sufficient to cover a claim for damages subject to the
liability caps set out above in paragraph 3.2.
3.8 Nothing in these Terms of Engagement shall affect any liability which we may have to you in respect of any personal injury or death resulting from our negligence, any loss caused by our fraud, fraudulent misrepresentation or reckless disregard of our professional obligations or any other situation where the law prohibits us from excluding or limiting our liability to you.
3.9 The provisions of this paragraph 3 shall continue to apply, notwithstanding the termination of our engagement for any reason.
4.1 Our charges are based principally on the amount of our professional time spent on the matter, although other factors may also be taken into account, for example in a matter in which highly specialised knowledge is required, or if the matter is complex and/or urgent. We might apply tariff charges to specific tasks such as the filing of a patent or trade mark application.
4.2 Our hourly rates are determined with reference to the seniority and experience of the professional staff involved. These rates are reviewed periodically. Charges are calculated at hourly rates which apply when the work is carried out.
4.3 In appointing us to act on your behalf, you are also authorising us to incur such expenses as we consider necessary to carry out your instructions properly, and agreeing that you will reimburse us in respect of those expenses. Examples of such expenses are Patent Office fees, fees of Counsel and other experts, Court fees, and the costs of third parties (for example, patent attorneys in other countries, experts, searchers and translators) who we instruct on your behalf. They might also include such items as photocopying costs, courier charges, travel, accommodation and meeting expenses, telephone and fax charges. While our fixed charges and hourly rates are predictable, you should appreciate that many expenses are outside our control since they might be changed without notice and (in the case of foreign matters) vary with exchange rate fluctuations.
4.4.1 Expenses which are incurred in a currency other than pounds sterling will be recorded using the exchange rate which applies at the time the expenses are entered on to our accounts system. Such expenses will be invoiced inclusive of a surcharge to cover our costs in handling currencies other than pounds sterling and our exposure to exchange rate fluctuations between issue of the invoice and payment of the invoice.
4.4.2 Our fees and expenses which are invoiced in a currency other than pounds sterling will be converted using the exchange rate which applies at the time the invoice is generated and will include a surcharge to cover our costs in handling currencies other than pounds sterling and our exposure to exchange rate fluctuations between issue of the invoice and payment of the invoice.
4.4.3 The surcharges of 4.4.1 and 4.4.2 are applied once and not cumulatively.
4.5 Any estimate of likely costs which we provide, whether in response to your request or otherwise, is given as a guide only to assist you in budgeting and should not be regarded as a firm quotation or a fixed or capped fee unless otherwise agreed in writing. We reserve the right to vary an estimate or quotation to take account of variations in exchange rates between the date of the estimate or quotation and the date of the applicable invoice.
4.6 Any estimates or quotations given by us are net of VAT, which will be charged as applicable on our fees and those expenses that are liable for VAT.
4.7 We reserve the right to submit invoices to you at regular (usually monthly) intervals, or at appropriate stages in the conduct of the matter. We reserve the right to request payments in advance on account of our fees and expenses incurred.
5 PAYMENT TERMS
5.1 Payment of all invoices is due within 30 days from the end of the month in which the invoice is raised. We may charge interest at the rate of 3% above the base rate from time to time of the Royal Bank of Scotland plc accruing on a daily basis from the due date.
5.2 We may require payment from you on account of payments to third parties or our professional fees or both. We may suspend and refrain from taking any action in relation to your affairs without any liability to you (even in the case of the loss of any rights) if we have specified that we will not take any action unless a payment on account is made and such payment has not been made in full, or if any invoice rendered to you has not been paid in full by the stipulated due date. Any such suspension of work or any cancellation by you of instructions given to us shall be without prejudice to our right to invoice and be paid for work undertaken and advice provided prior to the date of suspension or cancellation.
5.3 In default of the payment terms defined in these Terms of Engagement, our fees in respect of all services performed on your instructions together with all expenses incurred shall become immediately due and payable.
6.1 Our files remain our property at all times. In the event that you decide to transfer your work to other professional advisors, we will (a) copy such of the files relating to your work as you request (at your expense) and release the copy files, or (b) give your new advisors access to the files to take such copies as they require, when all our charges have been paid.
6.2 Files which are no longer current, including those containing details of or otherwise relating to matters which may still be in force but for which we no longer have responsibility, may, at our discretion be retained by us or destroyed in line with our file retention policy. A copy of the policy is available on request. Specific arrangements may be made with us for maintenance of files or records on a longer term basis. Such arrangements may include a charge for this service.
6.3 We retain copyright and all other rights in all documentation prepared by us and provided to you. Your use of such documentation is restricted to the purpose for which it was prepared.
7 OFFICE HOURS
We do not guarantee to attend to mail, faxes and e-mail received outside normal office hours (other than by prior arrangement). Our offices are normally open on weekdays (excluding public holidays) between the hours of 09:00 and 17:00.
8 E-MAIL COMMUNICATIONS
We will sometimes use e-mail for communication with you unless you tell us not to. You should be aware that:
(a) Communications over the Internet are not secure. We do not therefore guarantee that information which is communicated to you in this way will not be corrupted or intercepted.
(b) E-mails sent over the Internet do not always reach the intended recipient. We do not therefore guarantee that every e-mail, sent and received, will reach the intended recipient.
(c) Viruses or other harmful devices can be spread over the Internet. While we take reasonable precautions to prevent these problems, we do not guarantee that our e-mail correspondence will be free from viruses. If we are to communicate by e-mail, it is on the basis that you will also take reasonable precautions to prevent such viruses or other harmful devices.
(d) We monitor e-mail to investigate or detect unauthorised use of our e-mail system, or for any other purpose permitted by law.
9 DATA PROTECTION
9.1 To enable us to carry out our obligations to you and for other related purposes including updating and enhancing client records, credit checking, analysis for management purposes, crime prevention, and legal and regulatory compliance, we may obtain, use, process and disclose personal data about you. We will comply with the Data Protection Act 1998 and other relevant data protection legislation.
9.2 By instructing us you consent and agree to us obtaining, processing and using personal data concerning you and further consent to our disclosing personal information about you to third parties.
9.3 You have a right of access under data protection legislation to the personal data that we hold about you. You may contact our data controller if you require further information in this respect.
10 CONFIDENTIALITY AND CONFLICTS OF INTEREST
10.1 We will keep confidential all information regarding your business and affairs unless you instruct us to disclose it or we are compelled to disclose it by law.
10.2 An actual or potential conflict between your interests and the interests of another of our clients might arise during the course of an engagement. If this situation arises, we will discuss the position with you and determine the appropriate course of action. 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. Because of obligations of confidentiality it will not generally be 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.
10.3 Before taking on a new client, we will try to identify conflicts of interest that may preclude us from acting for it. We recommend that 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.
10.4 We will not be precluded for acting for a client in relation to a matter in which we have acted for another party when our services for the other party have not extended beyond translation, renewal, and providing an address for correspondence.
11 RELATED COMPANIES
11.1 Notwithstanding the provisions of paragraph 2.8:
11.1.1 we may agree with you in a separate letter to you the identity of a third party or other beneficiary who may benefit from our professional services;
11.1.2 these Terms of Engagement shall apply to you and your related and associated companies which include all companies which you control or if you are a company forming part of a group all companies in that group.
11.2 Where our professional services are to benefit any third party or other beneficiary you will remain responsible for our fees and other charges and for the acts and omissions of such third parties or beneficiaries.
12 MONEY LAUNDERING
12.1 To the extent required by law, we will ask for evidence of identity, and will report to the National Crime Agency our suspicion that you or some other party to a transaction is engaged in handling the proceeds of crime. We will not inform you of any such report if we are prevented from doing so by law.
12.2 Where required by law, we reserve the right to make a refund of fees (including disbursements) only to the party from whom payment in respect of those fees was received.
13 FUNDS HELD BY THE FIRM FOR CLIENTS
13.1 We may, from time to time, hold money on your behalf. We would hold any such money in trust in a client bank account which is segregated from the firm's own funds. The account would be operated, and all funds dealt with, in accordance with the Intellectual Property Regulation Board.
13.2 If we hold sums on your behalf which exceed £10,000 and which are unlikely to be to be reduced below that amount within sixty days of receipt, we will place them in a separate interest-bearing designated deposit account in your name. Save in the circumstances described above, monies held on your behalf would usually be held in our general clients' bank account, for which no interest would be accountable to you. However, where appropriate, or where you specifically instruct us to do so, we may transfer such monies to a designated deposit account, to which all of the interest received would be credited.
13.3 We will return monies held on your behalf promptly as soon as there is no longer any reason to retain them. If, following reasonable attempts that we have made to contact their owner, any such funds are unclaimed and either (i) their owner has remained untraced for five years or (ii) we as a firm cease to practise, we may pay them to a registered charity.
14 RENEWAL FEE PAYMENT ARRANGEMENTS
14.1 Clients should satisfy themselves that the arrangements they have for payment of renewal fees are appropriate to their circumstances. We ask clients to inform us if they require advice on appropriate renewal arrangements for their circumstances.
14.2 We recommend that our clients consider using CPA Global Limited (""CPA"") to handle payment of renewal fees for them as renewal fees become due and on their instructions.
14.3 We receive client management fees from CPA for renewal cases of our clients that are referred by us to CPA. This reflects the services provided by UDL to CPA in respect of those renewal cases, including maintaining and transferring relevant client and case data, together with client renewal liaison services. UDL holds no shares or other form of ownership in CPA.
15 CLIENT CARE AND COMPLAINTS
15.1 If you have any comments or concerns about services that we provide or if you wish to discuss any aspect of the way in which your instructions are being handled and you do not wish to raise these with the individual involved, please speak to the Manager of the office with which you are dealing, or a Managing Partner of UDL care of our Leeds office.
15.2 A copy of our Complaints Procedure is available on request. In line with the procedure, we undertake to look into any comments, suggestions or complaints carefully and promptly, and to respond fully to them. If we are unable to deal satisfactorily with the issue you have raised, you may raise it with IPReg (www.ipreg.org.uk). If they are not able to resolve the issue, you may be able to raise it with the Legal Ombudsman (www.legalombudsman.org.uk).
16 TERMINATION OF RELATIONSHIP
16.1 You may withdraw your instructions at any time by written notice to us.
16.2 We may decline to act further by giving you written notice where we have good reasons to do so (including failure by you to settle invoices in full on the due date or to make payments in advance when so requested).
16.3 If our engagement is terminated, whether by you or by us, we shall be entitled to payment of our fees, including expenses and applicable VAT, to the date of termination.
17 GOVERNING LAW AND JURISDICTION
17.1 These Terms of Engagement and any matters arising in connection with our provision of goods and services to you are governed by the law of England and Wales.
17.2 Save as set out below, the courts of England and Wales shall have exclusive jurisdiction to settle any dispute between us (including claims for set-off and counterclaims). You and we irrevocably agree to submit to such jurisdiction and irrevocably waive any objection to any action or proceeding being brought in those courts or any claim that any such action or proceeding has been brought in an inconvenient forum.
17.3 You agree that any judgment or order of any court referred to in this paragraph 16 shall be conclusive and binding and may be enforced in the courts of any other jurisdiction.
If any part of these Terms of Engagement is found by any court or authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision shall, to the extent required, be severed and shall be ineffective but without affecting any other provisions of these Terms of Engagement which shall remain in full force and effect.
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