Terms of Engagement
This statement sets out our standard terms of business for providing legal services and is in addition to any engagement letter that we may have sent to you. Unless otherwise agreed in writing, these terms represent our agreement with you. We ask that you review this statement carefully and contact us promptly should you have any questions.
Elkington and Fife LLP aims to provide a high quality and reliable service and complies with the requirements of our regulators, the Intellectual Property Regulation Board (“IPREG”).
Our Principal:
If we receive instructions from you, we will treat you as our principal and you will be responsible for the payment of all of our fees, even if you represent a third party. By agreement, we may accept instructions from another party, for example a related company, but unless we agree otherwise you will remain wholly responsible for our charges.
How we Charge:
We charge on the basis of standard service charges for specified actions combined with a time charge based upon the hourly rate of the fee earner handling the work. We will attempt to allocate work to an appropriate fee earner according to the complexity of the matter in question, but we reserve the right to have work conducted by another fee earner with a higher charging rate, dependent upon availability or absence of other fee earners from the office. Further information about our fees is set out in our Schedule of Fees, which is available upon request.
You are responsible for the payment of all costs incurred in pursuance of your instructions. These may include our charges (both charges for time taken by professional staff and standard charges), and disbursements such as Intellectual Property Office fees, foreign attorneys’ fees, search costs, translation costs, travel expenses, and courier charges. Where required, VAT will be added at the prevailing rate.
We are happy to invoice in Pounds Sterling, Euros or US Dollars. In order to meet our costs in processing foreign currency payments and to mitigate against fluctuations in exchange rates, we apply a 6% uplift to the exchange rate supplied by HM Revenue and Customs when converting our charges and disbursements from Pounds Sterling into Euros or US Dollars. This percentage is chosen such that the uplift should protect us from incurring losses when handling foreign exchange for you. However, the uplift may also generate an element of profit for us. We retain any profit or loss made when converting foreign currency and do not pass this on to you.
In relation to work conducted other than before the UK Intellectual Property Office, European Patent Office, or World Intellectual Property Office, we will instruct such work though foreign attorneys and you will be liable for their fees and any relevant national offices official fees in relation to such work. Invoices from foreign attorneys are likely to be in a currency other than Pounds Sterling. We apply the same 6% uplift as described above when converting these costs to Pounds Sterling for invoicing. If you choose to be invoiced in Euros or US Dollars, a further 6% uplift is applied when converting these costs from Pounds Sterling into Euros or US Dollars. Once again, these uplifts are intended to meet our costs in processing foreign currency payments and to mitigate against fluctuations in exchange rates, but may also generate an element of profit for us, which we retain.
Payments in Advance – Client Funds
You may be asked to deposit funds with us as an advance payment for work to be undertaken. In the event that it appears that our fees and other charges will exceed the balance of the amount deposited with us, then we may request an additional advance. Unused balances of any advance payments will be refunded to you when the relevant matter has been concluded.
Funds held by us on your account will be held in a separate client account. We will credit your account with any interest actually received by us where the interest in a calendar year exceeds £20 or where money is held on account for litigation matters. De minimis interest payments of less than £20 will not otherwise be credited.
Estimates:
On request, we may provide an estimate of likely costs. However, such estimates are for guidance only and final charges may be higher or lower than the estimates. We will inform you if we become aware that such estimates are likely to be inaccurate.
Instructions:
Please take careful note of any deadlines given in our correspondence. Failure to meet such deadlines may result in loss of rights or incur additional costs. If we do not receive written instructions in good time we shall take the absence of these instructions as an implicit instruction not to take action.
Instructions to us should be in writing. We may accept oral or emailed instructions, but clients should ensure that we have received and understood such instructions in good time before any due dates. If we receive oral instructions, we will send to you a written note confirming the instructions received or make a note of the instructions for our file to avoid any potential confusion for the future. We reserve the right to charge on a time basis for the preparation of such communications/notes.
We cannot accept responsibility for acting on instructions sent by e-mail or other means that fail to arrive. We shall have no liability for any misunderstanding or misinterpretation on either side resulting from oral instructions. Oral advice or views expressed by us by telephone should be regarded as being only a preliminary opinion. No action should be taken without obtaining a written opinion from us after a full consideration of the facts.
Our offices are open from 9am to 5pm Monday to Friday, excluding public holidays. Mail, faxes and e-mail received after these hours will not, without prior arrangement, receive attention until the next working day.
Instruction of Third Parties to act on your Behalf:
In carrying out your instructions, it may be necessary for us to instruct third parties (e.g. foreign attorneys, solicitors, search firms, renewal services) to act on your behalf. You are entitled to select such third parties or you may allow us to select them. In either case, you accept that such third parties are not part of this firm and that we are not liable for any losses or costs arising as a result of any default or negligence on the part of such third parties.
Patent, Design and Trade Mark Renewal Services:
Patent, design and trade mark registrations incur renewal fees. If you do not advise us that you have made your own arrangements for such fees to be paid, we will instruct Clarivate plc (“Clarivate”) to handle any renewals of patents, design or trade mark registrations on your behalf. Clarivate is the largest intellectual property renewals service in the world and further information about the renewal of such rights through Clarivate is set out on Clarivate’s website at clarivate.com. Clarivate will pay us a client management fee for our work maintaining the necessary records and assisting in the overall operation of the service. The client management fee is a variable percentage of the client fees payable by you to Clarivate (excluding official fees paid to Intellectual Property Offices and third party costs incurred by Clarivate). It is currently 39% and cannot exceed 45%. As with our charges when you instruct us directly, the client management fee is intended to include an element of profit for us. Please note that we are not liable for any action conducted by Clarivate on your behalf. By accepting these Terms of Business, you agree that no legal, common law, equitable or fiduciary duty will exist between us (to the extent any such duty may be claimed otherwise to arise or have arisen) in relation to the referral to Clarivate for renewals services.
Confidentiality:
Any information given to us that might reasonably be expected to be of a confidential nature, or that you inform us is confidential, will be treated as such except where disclosure is required and permitted by law or by you. Information and materials given to us will be kept under conditions of normal office security.
Terms of Payment:
Payment of our invoices is due within thirty days of the date of the invoice, unless otherwise agreed in writing. We reserve the right to charge interest on any amount not settled within thirty days (at a rate no higher than that set by the Late Payment of Commercial Debts (Interest) Act of 1998, as amended or superseded). We may agree a credit limit with you. In the event of you having an overdue account, or an account which exceeds the credit limit, we have the right to cease any further work for you even if this results in the loss of your rights.
Termination:
Our services may be terminated either by you or by us by sending notice in writing, such termination to become operative from the date of receipt of that notice. A fee note will be rendered for any outstanding charges. In the event of termination, we reserve the right to cease sending third party communications to you as a former client upon written reasonable notice.
Disputes:
We expect our business relationship with you to run smoothly but if any problems arise which cannot be resolved between you and your usual contact at Elkington and Fife LLP we have a written complaints procedure which we can forward to you upon request. If after this you remain dissatisfied, our firm is subject to the rules of conduct of IPREG which can be accessed from that organisation’s website at www.ipreg.org.uk. A complaint can be made to IPREG. There is also a right to make a complaint to the Legal Ombudsman, whose website is at www.legalombudsman.org.uk, if you are (1) an individual or, in certain circumstances, the personal representative or residual beneficiary of the estate of an individual or (2) an enterprise with fewer than 10 staff and a turnover or balance sheet value not exceeding €2 million or (3) a Charity, club, association or society whose annual income is less than £1 million or a trust whose net asset value is less than £1 million. A complaint to the Legal Ombudsman needs to be made within one year of the act or omission or the date when you reasonably would have become aware of this.
Retention of Information:
Our files both in paper and electronic form and their contents will remain our property at all times. Copies may be provided, but we reserve the right to make a charge for copying and to withhold any documents that we regard as being confidential. Following the closure of a file, it may be destroyed after an appropriate period. Our written file retention/destruction policy can be forwarded to you upon request. We retain copyright and other rights in documentation prepared by us.
Exclusion of Liability:
The performance of its obligations to you is the responsibility of Elkington and Fife LLP alone and you agree that no liability whatsoever shall attach to the members of the firm, its employees or its consultants.
This clause sets out our entire financial liability (including any liability for the acts or omissions of Elkington and Fife LLP, its members, employees, agents, experts (including barristers), contributors, consultants, locums and sub-contractors) to you in respect of:
- any breach of these Terms and Conditions or any of our obligations to you;
- any use made by you of our services or advice or any part of them; and
- any representation, statement or tortious act or omission (whether negligent or otherwise) arising under or in connection with these Terms of Business.
Except as expressly and specifically provided in these Terms and Conditions all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from these Terms and Conditions.
Nothing in these Terms and Conditions excludes our liability:
- for death or personal injury caused by our negligence; or
- for fraud or fraudulent misrepresentation.
Subject to the exemption in the previous sub-clause hereof:
- we shall not be liable for any loss of profits, loss of business, depletion of goodwill or similar losses or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising; and
- our total aggregate liability in contract, tort (including negligence or breach of common law, trust, statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these Terms and Conditions shall be limited to FIVE MILLION POUNDS STERLING (£5,000,000.00). You acknowledge that this limitation is reasonable.
Under these Terms and Conditions, "our liability" includes that of Elkington and Fife LLP, its members, employees, agents, experts including barristers), contributors, consultants, locums and sub-contractors, and references to "you" includes any other party claiming through you and "loss or damage" includes any losses, damages, costs or expenses whatsoever or howsoever arising in connection with the services we provide, whether under these Terms and Conditions or other agreement or in consequence of any breach of contract, misrepresentation, misstatement or tortious act or omission, including negligence.
We shall have no liability to you under these Terms and Conditions if we are prevented from or delayed in performing our obligations or from carrying on business by acts, events, omissions or accidents beyond our reasonable control, including without limitation default of sub-contractors, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or communications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood or storm or legal frustration.
Receipt of Consent Requests and Other Third Party Correspondence:
From time to time, we may receive unsolicited correspondence from third parties relating to any applications or registrations or other matters that we are handling on your behalf. Such correspondence may include for instance requests from third parties for the provision of consent to a later filed trade mark application where you have a prior conflicting trade mark application or registration. We will forward copies of this correspondence to you.
Where appropriate, we will forward the correspondence to you without charge. However, we may receive communications where, because of the urgency of the matter or otherwise, for example relating to oppositions against your own registered rights, we need to advise you and, unless we have agreed to the contrary, you will be responsible for all our fees and costs incurred in the forwarding of such correspondence and any advice given in relation to the same.
Searches:
Any searches that you request may be carried out by us, by national offices, or by an independent specialist searching firm. You will be liable for any disbursements incurred. Due to the limitations and occasional errors in classification, indices, computer databases and official records, no search can be guaranteed for comprehensiveness or accuracy. We shall endeavour to point out any particular limitation when reporting the search results and may recommend extending the search. An explanation of the limitations to our trade mark searches is provided on our website.
Assignment of Rights:
By accepting these Terms of Business, you agree that the actual or purported assignment or other transfer by you of any right (including any right of action or claim) arising out of or in connection with our services or the handling of any renewals of patents, design or trademark registrations for you through Clarivate, is prohibited.
Transfer of Work:
If instructed to transfer work to another firm, we are normally willing to make the contents of our files available to the new firm, but always provided that no payments are outstanding. We reserve the right to make a charge for copying the contents of files and to withhold any documents that we regard as being confidential.
Data Protection:
We may need to store and process your personal data in our database and/or written records. We may also store personal data concerning any other individual who is the owner or licensee of a proposed, pending or granted patent, design, trade mark or other intellectual property right which we are handling on your instructions, or concerning you or any other individual who is an inventor or designer designated in connection with such an intellectual property right.
In order to provide our services, we need to give this personal data to third parties, including public national offices, in particular the UK Intellectual Property Office, European Patent Office and World Intellectual Property Office, and also to foreign attorneys or solicitors, who in turn may give this data to public national offices.
The personal data we will provide typically includes the name, address, nationality and country of residence of the individual concerned, and information as to whether the individual is an employee of the owner of the intellectual property right concerned, and/or brief details of how rights were transferred from that individual to the owner. The relevant national offices may publish this data.
By accepting these Terms of Business, you are agreeing to your personal data being stored and processed by us and being supplied by us to public national offices or to foreign attorneys or solicitors, in connection with any intellectual property right that we are handling on your behalf. Absent any indication to the contrary, we shall also assume that you have obtained the necessary consent from other relevant individuals, including any owner, licensee inventor or designer to handle their personal data in this manner.