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Standard Terms of Business

Thank you for instructing HGF Law to act as your Solicitors.

The following terms and conditions apply to all services provided to our clients.  Some may not be relevant to you now but will apply should you instruct us to provide other services.  These terms and conditions, together with those contained in our Engagement Letter and any subsequent or further Engagement Letter contain all the terms and conditions that we have agreed with you in relation to our services and supersede any previous letter of engagement that we have had with you. If there is any conflict between these terms and those in any accompanying or subsequent letter from us, those in the Engagement Letter shall apply.

You are authorised to and hereby agree that any work carried out by us for any group company of yours shall also be on these terms and conditions.

The services provided to you and your contract to provide such services is with HGF Law and not with any individual, partner, employee or agent of HGF Law. Commencement of our providing services to you shall be deemed to be an acceptance of these terms and conditions.

1      INSTRUCTIONS

1.1 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. 

The law requires solicitors to obtain evidence of identity of their clients.  If you do not supply the following within a reasonable time, we may have to terminate our contract with you:

Individuals

  • photocard driving licence including current address, or
  • passport plus utility bill/tax demand/bank statement with current address.

 

Unlisted Companies

  • certificate of incorporation, and
  • proof of registered office address, and
  • most recent filed accounts.

 

Where such information is available for download, you agree that we may charge you the cost of securing the necessary materials.

We will carry out the services detailed in our Engagement Letter and any supplement to it. We shall have no responsibility for any failure to advise or comment on any matter that falls outside the limitations of our engagement or for advice in draft form or to update advice after it has been issued. Any advice given by us shall be based on your 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 without our prior written permission.

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 and conditions you agree to indemnify us in respect of all costs, claims, demands and expenses that may result from the exercise of that authority.

1.2 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) or on UK bank and public holidays and we accept no responsibility for instructions not or incorrectly executed as a result of your failure to comply with this provision. 

Courts often impose time limits and failure to meet these limits can be fatal to your case.  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 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 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.

1.3 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/fax numbers and e-mail address. Many such changes have to be officially registered.  Please remember that litigation can take years and that there may be little activity for long periods followed by a situation that requires immediate action.  We cannot accept responsibility for any loss or adverse consequences as a result of your failure to inform us of such changes.

1.4 Electronic Communications

We will normally communicate with you by email, 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 disc, e-mail, Internet or otherwise).  We cannot accept responsibility (including in negligence) for any viruses that may enter your system or data by these or any other means. 

1.5 Conflicts of Interest

Due to the nature of our business, HGF Law, Solicitors and its sister firm, Harrison Goddard Foote, Patent & Trade Mark Attorneys may act for parties engaged in a similar business to you.  When we are acting for you, we may be approached to advise another party who is either in dispute with you or has interests opposed to yours and to which our professional services for you relate.  You agree that from time to time, HGF Law may act for such parties provided that we shall only act in circumstances where conflicts exist with your consent and the consent of the other party involved.

HGF Law and its sister firm, Harrison Goddard Foote have and shall continue to have arrangements in place designed to protect the interests of both their individual clients and their clients-in-common.  Such safeguards include e.g. separate advisers, geographical separation, operational independence, separate computer servers, restricted computer access, and separate email systems, both within and between the two firms.  You agree that because such safeguards exist to protect your interests and your confidential information, HGF Law may accept instructions from another party even though such confidential information may be relevant to that other party.

2     INSTRUCTION OF THIRD PARTIES TO ACT ON YOUR BEHALF

2.1   During our work for you, we may need to instruct third parties where we do not have relevant expertise e.g. other professional advisers such as counsel, experts, foreign lawyers, or patent/trade mark attorneys including Harrison Goddard Foote – see 2.2 below) 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 HGF Law.  We will not be liable for any default or negligence by such third parties.  Your cause of action will be direct against such third parties.

2.2 As a firm of solicitors, HGF Law is authorised and regulated by the Solicitors Regulation Authority and our clients benefit from various statutory protections.  Should HGF Law refer you to our sister firm, Harrison Goddard Foote, you should note that (a) as a firm of patent and trade mark attorneys, Harrison Goddard Foote is regulated by the Chartered Institute of Patent Attorneys and the Institute of Trade Mark Attorneys rather than the Solicitors Regulation Authority; (b) the statutory protections afforded to clients of patent and trade mark firms are different to those afforded to clients of solicitors.

2.3 Where you instruct HGF Law and Harrison Goddard Foote, both firms will endeavour to make clear what work each is doing for you.  If you are in any doubt, please seek clarification from the person you have instructed.

2     PROFESSIONAL FEES

3.1 Our charges

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.  Costs can increase when instructions from clients are received only shortly before a deadline or are incomplete.

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 that are current when the work is carried out. 

Unless we hear otherwise from you, we shall act for you on a continuing basis. On rare occasions it may be necessary for 3rd 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 you advise us as soon as possible of changes in your instructions.

3.2 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 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.

You should appreciate that third party fees and official fees are outside our control and may be changed without notice and (in the case of foreign matters) vary with exchange rate fluctuations.

Where we render an account in GB Pounds Sterling, which is our usual practice, but payment is made by a non-UK person or entity who converts the amount due from local currency, any adverse fluctuations at all times remain your responsibility and you agree that we may recover the same from you at any time.

3.3 Payment on account

We may require payment on account, particularly in respect of large items such as charges and expenses to be incurred with third parties.  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.   

3.4 Estimates

We will aim to supply you with estimates of future charges in good faith in a timely manner 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 actual charges 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 charges which may be incurred without prior reference to you then please let us know.

3.5 Invoicing

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 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.

Unless otherwise agreed, our invoices are payable by return. However we are usually happy to receive payment within 30 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.

3.6 Late Payments

If a requested payment on account is not made or if an invoice remains unpaid for 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 at the National Westminster Bank base rate plus 6% on any overdue account.  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 or remedies.

3.7  Alternative Funding Arrangements

We will discuss with you the range of options that may be available to fund the work we undertake for you. In this regard you may have, or may wish to purchase (if available and appropriate), insurance in respect of the charges and expenses you are likely to incur and/or your potential liability for costs you may have to pay to an opponent or third party.

3.8 Cash & Credit Cards

Please note that we do not normally accept payment in cash.  Even where we do so agree, we may only do so up to a limit of £500 in any 28 day period.  We are happy to receive payment by credit card.

4       FILING

4.1 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 file(s) when all our charges have been paid.

4.2 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.

5       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 happy to advise on the desirability of releasing confidential information to the public in specific cases.

You agree that only information known to those individuals having conduct of or working on the matter to which these terms relate shall be taken into account in determining the scope of our responsibilities to you. You also agree that we have no obligation to disclose to you information outside the scope of our retainer with you. You agree that we are under no obligation to disclose to you or to use on your behalf any information in respect of which we owe a duty of confidentiality to a 3rd party.

We have arrangements in operation designed to facilitate the protection of each of our client’s interests through the use of one or more of the following safeguards: separate advisory teams, geographical separation, operational independence, separate computer servers, password protected systems and separate email systems.  You agree that such arrangements are maintained to restrict the flow of information within HGF Law.  You agree that because these arrangements exist to protect both your interests and any confidential information learned by our staff in the course of acting for you, we may accept instructions from other parties notwithstanding that such confidential information may be relevant to such other parties.

6       DATA PROTECTION

HGF Law has notified under the Data Protection Act 1998. 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 and/or members of your organisation information about our services that may be of interest to you. This may include seminar, 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.

7         SEARCHES

Any searches you request may be carried out by us, by Patent Offices or by an independent specialist searching 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 the search.

8       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 risks of our being sued for making an unjustified threat of infringement proceedings.  This provision allows us to maintain our objectivity in contentious matters, which would diminish if we were to become a party to any proceedings.

9       CLIENT’S PRIVILEGE

In general, communications between a Solicitor and his client are privileged. 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.  Please let us know if you would like us to give you further information on this area.

10       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. Because of 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 one party to the conflict.

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 Managing Partner, Paul Sanderson, who is responsible for handling client complaints.  We have a procedure in place which details how we handle complaints which is available on request.

If you are not satisfied with our handling of your complaint you can ask the Legal Ombudsman (address PO Box 15870, Birmingham, B30 9EB, website www.legalombudsman.org.uk, telephone 0300 555 0333) to consider the complaint. Details as to whether you are eligible to refer the matter to the Legal Ombudsman can be found on the Legal Ombudsman’s website. Normally, you will need to bring a complaint to the Legal Ombudsman within six months of receiving a final written response from us about your complaint.

12       TERMINATION OF RELATIONSHIP

You may terminate our relationship on 28 days notice at any time by writing to us.  We may terminate our relationship with you where we have good reason to do so, including:

 

  • non-payment by you of our invoices or failing to provide payment in advance where so requested) by giving you reasonable notice;
  • you are in breach of any of the provisions of the retainer;
  • we fail to reach agreement in relation to whether you should reasonably accept or reject, as appropriate, any payment into Court or any written or oral offer of settlement;
  • where you are the Claimant, you elect to discontinue the Claim;
  • you fail to provide adequate and reasonable instructions.

 

On receipt of your giving notice in writing, or upon our service of notice in writing terminating the retainer, we shall be entitled:

 

  • to be paid any outstanding and unpaid invoices;
  • to render a final invoice, to be paid on receipt, for all work undertaken to the date of the termination of the retainer, including work occasioned by and undertaken as a consequence of the termination of the retainer, such invoice to be on the basis of our agreed method of charging;
  • to keep any of your papers and documents in our possession until all of our invoices have been paid in full.

 

13    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 HGF Law, its partners, 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. As at January 2008, our cover limit is £5 million.

 

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 13 shall continue to apply notwithstanding the termination of our engagement for any reason.

 

14    LITIGATION

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:

14.1 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 14 days of the date of the order.

14.2 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 hem. 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.

14.3 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.

14.4 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.

14.5 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 your Costs.

14.6 During the course of litigation you will be required to disclose to the other party or parties any document (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.

14.7 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.

14.8 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.

14A INVESTMENT BUSINESS

HGF Law is not authorised under the Financial Services and Markets Act 2000 but we are able in certain circumstances, to offer a limited range of investment services because we are authorised and regulated by the Solicitors Regulation-Authority.  

These investment services must be incidental to the other professional services being supplied e.g. corporate/IP transactions. If you need advice on investments outside this limited scope, we may have to refer you to someone who is authorised by the Financial Services Authority, as HGF Law is not.  We are included on the register maintained by the Financial Services Authority so that we can carry on insurance mediation activity, which is broadly the advising on, selling and administration of insurance contracts. The register can be accessed via the Financial Services Authority website at www.fsa.gov.uk/register.

The Law Society is a designated professional body for the purposes of the Financial Services and Markets Act 2000 but responsibility for regulation and complaints or redress if something goes wrong for this part of our business lie with the Solicitors Regulation Authority and the Legal Complaints Service respectively, each of which is independent of the Law Society.  Contact details can be found at paragraph 11 above.

15    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. 

16    GOVERNING LAW AND JURISDICTION

You irrevocably agree that English law shall apply to the construction and interpretation of our relationship and that the English courts shall have exclusive jurisdiction to resolve any disputes arising in relation to it.

The above terms will apply until varied or replaced with alternative terms agreed with you in writing.  Please note that no change to the terms of our agreement will be valid unless agreed in writing by a Partner of HGF Law.