Terms of Business
If you instruct our firm, we will provide you with confidential professional advice on intellectual property and related matters.
We will carry out all work for you under these standard terms of business, as revised by us from time to time. The latest version of these terms will be available on our website (www.dolleymores.com). We may also provide a letter setting out any further terms agreed between us.
Where you instruct our firm to act for you following receipt by you of these Terms of Business, you will be deemed to have accepted and agreed to them unless you notify us otherwise. The use of ‘You’ in this agreement means the person, company or organisation that is our client (including where applicable employees, officers, representatives, group companies and subsidiaries).
You are our client if we are the address for service of any right regardless of the nature of any current relationship.
Our advice is provided solely to you as our client for the purpose for which we have been instructed. It cannot be relied on for any other purpose, or by any other parties, without our explicit prior written agreement.
The nature of Intellectual Property means that much of the advice that we provide is subjective and is based on our professional opinion. We will take all due care and attention when providing
advice, however, the outcomes in relation to subjective matters cannot be guaranteed.
Our firm has direct rights of representation at the UK Intellectual Property Office (UKIPO), the EU Intellectual Property Office (EUIPO), the European Patent Office and the World Intellectual Property Organisation (WIPO), the office which processes international applications.
We do not have direct rights of representation elsewhere and therefore we have to engage attorney firms in other jurisdictions to act on your behalf. These attorney firms will act on our instructions on the understanding that we will be liable to pay their fees and disbursements which they incur on your behalf. In turn, you will be liable to pay the fees and disbursements which these attorney firms invoice to us. This is the extent of the relationship we have with these attorney firms.
We are also only able to advise you on English law and on EU laws as they apply in England. In relation to the law outside the UK, we advise you on the basis of advice we receive from foreign attorneys.
1. LIMITED LIABILITY PARTNERSHIP
Dolleymores is a trading style of Saunders & Dolleymore LLP, registration number OC343684. When you instruct us you instruct Saunders & Dolleymore LLP, which is an English Limited Liability Partnership. An LLP is owned by its members. The members are not personally liable for the debts of the LLP.
Any reference to a ‘partner’ is a reference to a member of the LLP or an employee with equivalent standing and qualification, but ‘partners’ are not engaged in a partnership under the Partnership Act 1890.
Any person acting on behalf of Saunders & Dolleymores LLP does so in their capacity as a member or employee of the LLP and not in any personal capacity. When we engage a consultant to work for the LLP, the consultant is treated as an employee for the purposes of these Terms of Business. By accepting these Terms of Business, you agree not to make any claims against individual members of the LLP or its employees.
We, the members of the LLP and the Attorneys employed by the LLP, are regulated by the Intellectual Property Regulation Board (IPReg) and are members of appropriate professional bodies, and will comply with their codes of conduct. These professional bodies include the Chartered Institute of Patent Attorneys, the Chartered Institute of Trade Mark Attorney and the Institute of Professional Representatives before the European Patent Office.
It is our responsibility to: (a) practise competently, conscientiously and objectively, putting the interests of our clients foremost while observing the law and our duty to any Court or Tribunal; and (b) avoid any conflict of interest.
Unless otherwise agreed, we will assume that any person within your organisation may instruct us on your behalf, unless they clearly do not have the appropriate authority. Having said that, it is often helpful if you can nominate an individual within your organisation to act as a primary point of contact for us and keep us updated if this changes.
The person or organisation instructing us will be regarded as our client and will be responsible for the payment of our costs. If another person or organisation is to be responsible for paying us, our client will remain liable to pay our costs if that other person or organisation fails to pay us.
Therefore, if you are instructing us on behalf of a third party, you are deemed to be the client for all purposes and are responsible for payment of our fees, irrespective of whether you receive payment from the third party.
2.2 Timing and form of instructions
We rely on our clients to give us timely, complete and accurate information and instructions. We prefer where possible to have oral instructions confirmed in writing in order to avoid any possible misunderstandings. If it is unavoidable for you to provide us with oral rather than written instructions, we may confirm in writing the instructions we have received, as we understand them. We do not accept liability for any misunderstanding of oral instructions.
Intellectual Property Offices, such as Patent Offices and Trade Mark Registries, often impose time limits and failure to meet these 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 early 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, to take other action in the absence of instructions to do so, or to incur costs on your behalf. In this situation, your rights may be lost irrevocably.
If we receive late or unclear instructions we may not be able to implement them in time, in which case your rights may again 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.
2.3 Overriding instructions not to let rights lapse
We are entitled to assume that our overriding instructions are not to let your rights lapse without specific instructions so to do but we are not obliged to keep cases alive in the absence of instructions and always subject to your account being in good order with us.
There may be occasions when a third party instructed by us on your behalf has to take urgent action thought to be in your best interests without recourse to our Firm or to you. Such action will be within the terms of the above overriding instructions.
2.4 Updating information
It is important that you inform us promptly of any change in relation to: (a) any primary contact; or (b) your name, address, telephone number and e-mail address. We will contact you using the latest details you have provided to us and this will fulfil any duty that we may have to communicate with you.
Please remember that registration of patents, trade marks and designs can take years and that there may be little activity for long periods followed by a situation which requires immediate action. We cannot accept responsibility for any loss of rights as a consequence of your failure to inform us of such changes.
It is also important that you inform us promptly of: (a) any change of ownership of your patent, trade mark, design or other relevant rights; or (b) any licences granted under these rights. Many such changes or licences should be officially registered.
2.5 Electronic Communications
We will normally communicate with you by mail or email. Given that emails 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 not assume we have received an email from you unless it has been acknowledged by us. If the person you have emailed is absent, please forward your email to the general email address email@example.com. Also, any urgent instructions should be copied to this general email address. If you do not wish us to communicate with you by email you must inform us.
We carry out regular virus checks; however, we advise you to carry out your own virus checks on any communications (whether in the form of computer disc, email, Internet or otherwise). To the extent that we have fulfilled our obligation above, we cannot accept responsibility (including in negligence) for any viruses that may enter your system or data by these or any other means. Furthermore, whilst we observe reasonable precautions, we regret that we cannot guarantee the security of our IT systems.
2.6. Instruction of Third Parties to act on your behalf
During our work for you we may need to instruct third parties (eg foreign attorneys) to act on your behalf. We sometimes refer to foreign attorneys as ‘associates’ but they are not part of this Firm. We will not seek comparative quotes from foreign attorneys unless you request us to do so.
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 this Firm. Whilst we shall endeavour to select third parties we regard as being of good quality, we will not be liable for any default or negligence by such third parties. We shall, of course, monitor such third parties on an ongoing basis to ensure that the required service is provided and that our performance standards are maintained.
3. PROFESSIONAL FEES
We will aim to notify you of any fees that arise, or may arise, in our acting for you.
Whilst we will aim to set out the fees that we believe are likely to be incurred in acting for you there is a possibility that further fees will arise that have been unforeseen at the outset. We will aim to notify you of these fees prior to conducting the relevant work.
To obtain protection outside of the UK we will have to instruct an attorney firm in the relevant country. The costs will include our fees, official fees and the foreign attorney’s fees. If there are any official or third-party objections to the application, there will be additional costs.
As you will appreciate, where we incur official fees and other disbursements in foreign currencies, exchange rate fluctuations may make these higher or lower than initially estimated.
3.1 Our charges
Our costs include our charges which are partly based on the amount of our professional time spent on the matter and partly based on standard charges for particular matters, 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.
For some specific tasks we may apply fixed charges (eg the actual filing of a trade mark, patent or design application). These fixed charges may include expenses such as official fees. If you instruct us to act for you in a fixed charge task which you then decide not to proceed with, we retain the right to invoice you for the work that we have undertaken up to the time you instruct us to cease work on the matter. In these circumstances you agree to pay our invoice for this work.
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. Please ask us at any time if you would like to be sent details of those rates.
All the work we do for you is chargeable, including attendance at meetings (whether in person or in a conference call or the like), email communications, telephone calls and reminders. Our chargeable work also includes handling communications in respect of non-active matters where we are the responsible attorney firm.
Our fee schedules are available on request. Please note that VAT is chargeable to our UK clients on our fees and also on some disbursements.
3.2 Payment of expenses
Our costs also include expenses (‘disbursements’). You will be responsible for any expenses we incur on your behalf.
These expenses may include fees charged by Intellectual Property Offices (ie official fees), foreign attorneys’ fees, Counsel’s fees, Court fees, and the costs of any experts or other agents (including translators and searchers).
Additional expenses may include costs for items such as photocopying, couriers, travel, accommodation, subsistence, meetings, and telephone calls. We apply a service charge for obtaining third party services on your behalf, for example instructing translations, formal drawings or searches.
Where expenses are incurred in a foreign currency, or where we agree to bill you in a foreign currency, we will apply an exchange conversion rate which is based on a relevant spot rate around the time of billing and includes a margin (generally a 10% margin) to cover our costs in processing the foreign currency payment and to provide a level of security against exchange rate fluctuations.
Whilst our standard charges and our professional time hourly rates are predictable, you should appreciate that foreign attorneys’ fees 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.
3.3 Payment on account
We may require payment on account, particularly when large costs such as charges and expenses are to be incurred or if the party that we have been instructed to bill is located outside of the UK or if the client is new to us. 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 good time should be allowed.
We accept no liability for additional costs being incurred or rights being lost in the event of any delay in making a requested payment on account.
We may set a credit limit for you and, if that limit is exceeded, we may advise you that we will require payment of account from you before we carry out further work on your behalf.
In the event we receive money from you, other than by way of payment of fees or disbursements incurred, including money on account (for fees or disbursements) paid up front, such money shall be held on trust in an account which is not interest bearing and is entirely separate from our firm’s professional business accounts.
Any payment on account made will be offset against the final amount of our cost for the relevant matter.
If requested, we will try to give estimates of future costs in good faith based on our knowledge at the time. However, the amount of work involved often cannot be accurately forecast and costs may be affected by matters beyond our control, including being instructed to do additional work by you. An estimate is not an agreed cost and is not binding.
If during the course of carrying out the work it becomes apparent to us that our actual costs are likely significantly to 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 costs which may be incurred without prior reference to you then please let us know.
Some classes of work are suited to a firm advance quotation or to be carried out at a fixed charge. However we reserve the right to vary our firm quote or fixed charge in the event of a material change in circumstances.
Any estimate, firm quote or fixed charge is exclusive of VAT (unless stated to the contrary) and is subject to fluctuations in currency exchange rates and to changes in official fees, our charges and third party expenses.
We would be happy to render invoices to and accept payment from another person 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. Please note in particular that you are responsible for paying our fees and that we will conduct work on your behalf on the basis that, even if you are instructed by another party to instruct us to conduct such work, you will be responsible for settlement of our fees in a timely manner regardless of when or if you receive payment from the other party.
3.6 Payments to us
We accept payment by cheque, electronic transfer, telegraphic transfer, BACS or wire, or another manner agreed between us. Payments will be made in Pounds Sterling, or in any other currency we agree with you.
3.7 Late Payments
The period we allow for you to pay our invoices will generally be set on the invoices themselves, and any discounts or payment arrangements that we have agreed with you will be set out in an e-mail or letter from us. Any discounts or payment arrangements will be subject to your compliance with the terms that we have set. If you do not comply with these terms we reserve the right to cancel any discounts and payment arrangements and require you to pay the outstanding amounts immediately.
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. This is without prejudice to our right to invoice for work undertaken before such suspension and to take legal action to recover the payment of our costs. You will be responsible for our costs in seeking to recover payment from you, including the charges of any agents or representatives we instruct to recover the debt, and any Court fees we incur.
You will also be responsible for the consequences of the suspension of work, which may include the irrevocable loss of, or failure to obtain, rights, for which we shall have no liability, irrespective of whether we have specifically notified you of the loss of rights in question. Moreover, in circumstances where we have suspended work as a result of non-payment, we shall have no continuing responsibility to carry out any further work for you, or to deal with, or to forward to you, correspondence received by us.
Regardless of any suspension of work on your behalf, we still require payment of our costs. We reserve the right to charge you interest at a rate of up to 8% per annum above the Bank of England’s base rate on any outstanding sums due from you to us from the due date for payment to the actual date of payment.
In the event that you decide to abandon any case, please provide us promptly with clear written instructions that the case is to be abandoned. We shall then try, where possible, to prevent further costs from being incurred.
4.1 Ownership of files
Our files remain our property at all times and we will exercise a lien over client papers and other material belonging to a client. Access to the contents of our files is therefore conditional on payment of our costs.
If you would like to transfer your work to other professional advisors, we will co-operate with you and any new professional advisor to ensure your interests are protected. We shall endeavour to advise you and any new professional advisor of any imminent due dates that are not available readily from other sources but we cannot accept responsibility if you do not meet any due dates.
At your request and at your expense, we will, if possible, copy the files relating to your work, to correspond with you or your new professional advisors, to provide schedules and status information and to release the copy file(s) when all our costs have been paid.
In the event of a transfer of work to us from another firm, we may charge you for the work involved in the transfer.
Unless agreed otherwise we retain the copyright in all documents, and all parts of documents, we prepare for you. As such, you may only use these documents for the purpose for which they were prepared for you.
4.2 Destruction of files
It is our normal practice to keep our physical correspondence files, draft documents and other papers for two years after the file is closed. They may be destroyed after that date.
It is our normal practice to keep our electronic correspondence files, draft documents and other papers for six years after the file is closed. They may be destroyed after that date.
Unless you tell us otherwise, we will assume that you are content with this arrangement.
Please inform us as soon as possible if you require us to return any documents or other items you have supplied to us.
5. CONFIDENTIAL INFORMATION
While acting for you, we are likely to receive information which relates to you as our client. We will keep such information confidential, except where disclosure is required by law or regulation, where it is necessary to undertake our responsibilities in acting for you, or in other exceptional circumstances.
Where we take on a client where there is already a client on the books in the same area of business or technology, but where the matters for which they have been engaged are not related, we shall ensure that the confidential information associated with one is not allowed to be made available to the other.
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 happy to advise you on the desirability of releasing confidential information to the public in specific cases.
6. DATA PROTECTION
We will comply with the requirements of the relevant data protection legislation being the EU General Data Protection Regulation (EU) 2016/679 and the Data Protection Acts 1998 and 2018 as amended and updated from time to time.
Please refer to our accompanying Privacy Notice.
By instructing us you are consenting to our use of relevant personal data as appropriate in the course of our professional services, including any transfers of such data outside the European Economic Area and sending you information which we think might be of interest, although we may also have other legal basis for the processing of your personal data as set out in our Privacy Notice.
It is your responsibility to obtain the necessary consents, permissions or authorisations when providing, or disclosing, any personal data to us. You also confirm that you will ensure that all personal information provided to us is accurate and limited to the minimum amount you believe we will require in order to perform our role as your representative and to carry out our services.
Any searches you request may be carried out by ourselves, by Intellectual Property Offices or by independent specialist searching firms. Due to the limitations and occasional errors in classifications, indices, computer databases and official records, no search can be guaranteed for comprehensiveness or accuracy. We will endeavour to point out any particular limitations when reporting search results and may recommend extending the search.
8. INTELLECTUAL PROPERTY (UNJUSTIFIED THREATS) ACT 2017
The provisions of the Intellectual Property (Unjustified Threats) Act 2017 set out what does and does not constitute an ‘unjustified threat’ when threatening infringement against another party.
You may require us to communicate with another party to issue a threat of infringement proceedings which may carry a risk of proceedings being brought against you for unjustified threats. We will take all due care and attention to minimise this risk, however, by instructing us to issue a threat you accept the risk entailed.
In order that we can minimise any risk of a claim of unjustified threats against you we require you to provide us with all relevant information that you are aware of in relation to the claimed infringement.
9. CLIENT’S PRIVILEGE
In general, communications between a UK Patent Attorney or UK Registered Trade Mark Attorney and his client are privileged under Section 280 and 284 of the Copyright, Designs and Patents Act 1988 and Section 87 of the Trade Marks Act 1994. 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 there are circumstances in which the privileged status of a letter or other document can be lost, for example this legal privilege may be lost if you disclose the content of our communications, or the advice provided, to a third party. If you are concerned about the possible loss of legal privilege we recommend you seek our advice before disclosing our communications or advice to a third party.
We accept no liability for any loss incurred by you or a third party as a direct or indirect result of a court ruling that privilege is lost or does not apply.
10. CONFLICTS OF INTEREST
We cannot act simultaneously for two clients in relation to the same or a related matter in a situation of conflict or possible conflict, unless both clients consent to such an arrangement and it is reasonable in all the circumstances to act for both clients.
If there is no conflict or significant risk of conflict, we may act for another client operating in the same or a similar field of business or technology.
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, generally the client with the shorter relationship with us. As a result of our 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.
11. CLIENT CARE AND COMPLAINTS
We value our good relationships with our clients. However, we accept that 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 our professional staff dealing with your work. If, after such discussions, you feel that the matter has not been adequately dealt with, please ask that person to refer you to the member of our firm appointed to handle client’s complaints. Our written complaints procedure is available on request.
If we cannot resolve the matter, you should contact the Intellectual Property Regulation Board (www.ipreg.org.uk) or the Legal Ombudsman (www.legalombudsman.org.uk).
If anything should unfortunately go wrong, our liability for any loss suffered by you due to our negligence or for breach of contract or otherwise shall be limited to the lesser of (1) your direct loss and (ii) £10 million.
You agree to bring any claim against us within six years of the act or omission alleged to have caused the claimed loss or damage.
In no circumstances shall we be liable to you for the negligent acts or advice or breach of contract of or by third party advisers or other third parties who may be instructed in relation to our work for you. Neither shall we be liable for any indirect or consequential loss or damage (included but not limited to any loss of profits, goodwill or anticipated savings or other benefits).
In no circumstances shall we be liable to you for the loss or damage caused by any actions we take, or advice we give, that are the result of information you provide or information you omit to provide; or the loss or damage which is the result of actions you take without obtaining, or contrary to, our advice, or any other contributory negligence or legal responsibility of yourself.
12. TERMINATION OF RELATIONSHIP
You may terminate our relationship at any time by writing to us. If there is a good reason which prevents us from continuing to act for you, we may terminate the relationship ourselves 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.
13. THIRD PARTY RIGHTS
It is not intended that any terms of our relationship shall be enforceable by a third party, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
14. GOVERNING LAW AND JURISDICTION
English law shall apply to the construction and interpretation of our relationship and the English courts shall have non-exclusive jurisdiction to resolve any disputes arising in relation to it.
Dolleymores, December 2018