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 Arena Point, 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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:
in respect of loss or damage to your tangible property arising due to our negligence is £10 million; and
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.
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.
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.
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.
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.
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.
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.
The provisions of this paragraph 3 shall continue to apply, notwithstanding the termination of our engagement for any reason.
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.
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.
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.
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.
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.
The surcharges of 4.4.1 and 4.4.2 are applied once and not cumulatively.
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.
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.
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.
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.
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.
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.