1.1 Hepworth Browne is a trading name of Hepworth Browne Limited, a company registered in England, company number 050950196. We are registered for VAT with HM Customs & Excise. Our VAT registration number is GB 885 4397 68.
1.2 We understand that some of the sections in this document may not be immediately relevant to you. However, as our objective is to build a long term relationship with you and we consider it appropriate to provide you with full details of the terms on which we provide our services.
1.3 We may set out supplementary terms in a covering letter or in subsequent letters to you. 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 Business include reference to any such supplementary terms or terms otherwise agreed with you in writing. We reserve the right to amend these Terms of Business in the future, in particular to reflect any changes in law or commercial practice.
1.4 Our services are provided to you by Hepworth Browne Limited and the contract under which those services are provided is with Hepworth Browne Limited and not with any individual director, employee, or agent of Hepworth Browne Limited. When you accept the provision of our services to you, this shall be deemed to be acceptance of these Terms of Business.
2. OUR SERVICES
2.1 We aim to provide you with a professional service when carrying out your instructions in respect of the intellectual and industrial property rights in which you have an interest, including protecting and defending your rights in your inventions, patents, trade marks, designs or other intellectual property. We will require the necessary instructions from yourselves in a timely manner and we agree to share with you our experience, information and expertise to facilitate the decision making process and assist you in choosing the appropriate strategy.
2.2 We will safeguard your interests and will carry out your instructions in a professional manner, with due care and in accordance with professional practice and ethics.
2.3 Unless otherwise agreed we will assume that your employees or agents may instruct us and that we may 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 point of contact changes.
2.4 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 will confirm in writing the instructions we have received, as we understand them. Patent Offices 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 send 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.
2.5 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 any patent, trade mark or other relevant rights for which we have responsibility.
2.6 Many changes which affect the ownership of rights should be officially registered. The registration of patent, trade mark and design rights can take several years and there might be little activity for long periods followed by a situation which requires immediate action. We shall not be liable for any loss of rights as a consequence of your failure to inform us of any such changes.
2.7 We will act for you either to carry out specific instructions or on a retained basis in which we review and advise on your intellectual property affairs on an ongoing basis. In relation to ongoing matters such as prosecution of patent, trade mark and design applications oppositions and litigation, we will act on a retained basis unless we agree otherwise specifically in writing.
2.8 By instructing us you authorise us to complete and sign in your name such official forms and applications as are necessary or desirable to carry out your lawful instructions and you will indemnify us in respect of all costs, claims, demands and expenses that may result from exercise of the authority given by this paragraph.
2.9 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 we were to become a party to any proceedings. We may refuse to act for you if you are not able to provide the requested indemnity.
2.10 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 Business confers any right on any person pursuant to the Contracts (Rights of Third Parties) Act 1999, except as expressly stated in paragraphs 3 and 11 below.
3. EXCLUSION AND LIMITATIONS OF LIABILITY
3.1 We shall not be liable or considered to be in breach of any duties or obligations owed to you if we are prevented, delayed or hindered in complying with such duties and/or obligations by reason of any circumstances beyond our control. We shall not be liable to you for any indirect or consequential loss including (without limitation) any economic loss or other loss of turnover, profits, business, or goodwill, or the increase in costs and expenses, or the claims of third parties.
3.2 The extent to which any loss or damage will be recoverable by you from us will be limited so as to be in proportion to our contribution to the overall fault for such loss or damage, taking into account any contributory negligence by you, your other advisers and/or any other third party responsible to you and/or liable in respect of such loss.
3.3 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 non-performance of our engagement) against any of our directors, employees or agents even where our directors, employees or agents have been negligent. This restriction will not operate to exclude any liability which cannot be excluded at law or to exclude the liability of Hepworth Browne Limited for the acts or omissions of any of our directors, employees or agents. It is agreed that each of our directors, 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 Business without our having to seek the consent of our directors, employees and agents.
3.4 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 Hepworth Browne Limited. 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 directed against the third party. We shall of course, monitor such third parties on an ongoing basis to ensure that the required service is provided and that our standards are maintained.
3.5 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 means that no search can be guaranteed for comprehensiveness of accuracy. We shall not be liable to you for errors by searchers who we instruct on your behalf, or for the consequences of limitations in a reasonably drawn search strategy, or for errors in classifications, indices, computer databases and official records which are outside our control.
3.6 If anything should unfortunately go wrong, our liability for any loss suffered by you due to our negligence will be limited to the lesser of (i) your direct loss and (ii) £1 million.
3.7 Nothing of these Terms of Business 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 section 3 shall continue to apply, notwithstanding the termination of our engagement for any reason.
4.1 Our charges are based principally on the amount of our professional time spent on a 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 may apply tariff charges to specific tasks such as the filing of a patent or trade mark application.
4.2 Our hourly rates are determined with reference to the seniority and experience of the professional staff involved. These rates are reviewed periodically. Charges are calculated at hourly rates which apply when the work is carried out. Please ask us at any time if you would like to be send details of those rates. Hepworth Browne also offers a flat fee for certain types of work, such as filing a patent or trade mark application. In these cases the scope of the work carried out for the flat fee is made clear and any additional work associated with the matter is charged at the appropriate hourly rate.
4.3 In appointing us to act on your behalf, you are also authorising us to incur such expenses as we consider necessary to carry out your instructions properly, and agreeing that you will reimburse us in respect of those expenses. Examples of such expenses are Patent Office fees, fees of Counsel and other experts, Court fees, and the costs of third parties (for example, patent attorneys in other countries, experts, searchers and translators) who we instruct on your behalf. They might also include such items as photocopying costs, courier charges, travel, accommodation and meeting expenses, telephone and fax charges. While our fixed charges and hourly rates are predictable, you should appreciate that many expenses are outside our control since they might be changed without notice and (in the case of foreign matters) vary with exchange rate fluctuations.
4.4 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.
4.5 Any estimate or quotations given by us are net of VAT, which will be charged as applicable on our fees and those expenses that are liable for VAT.
4.6 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 may require payment on account, particularly in respect of large items such as charges and expenses to be incurred in foreign filing and actions. 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.
5. PAYMENT TERMS
5.1 We will issue invoices for our services and disbursements and third party disbursements regularly.
5.2 Our invoices are payable within 14 days after the date of the invoice.
5.3 If you fail to pay an amount invoiced to you, we may:
(a) choose not to carry out any further work for you until all monies owing by you to us are paid in full. You will be responsible for the consequences of the suspension of our work, which may include the irrevocable loss of, or failure to obtain, rights;
(b) retain custody of our papers, documents and files until all monies owing by you to us are paid in full; and
(c) charge interest on any amount outstanding for more than 14 days at our bank overdraft rate. Interest will accrue from the date of the invoice.
6.1 Our files remain our property at all times. In the event that you decide to transfer your work to other professional advisors, we will (a) copy such of the files relating to your work as you request (at your expense) and release the copy files, or (b) give your new advisors access to the files to take such copies as they require, when all our charges have been paid.
6.2 Files which are no longer current, including those containing details of or otherwise relating to matters which may still be in force but for which we no longer have responsibility, may, at our discretion retained by us or destroyed. Specific arrangements may be made with us for maintenance of files or records on a longer term basis. Such arrangements may include a charge for this service.
7. OFFICE HOURS
We do not guarantee to attend to mail, faxes and e-mail received outside normal office hours (other than by prior arrangement). Our offices are normally open on weekdays (excluding public holidays) between the hours of 09.00 and 17.00 (local time).
We will send all communications to the address you nominate. It is essential that you keep us informed of any changes to your address or other contact details. If we are unable to reach you because you have not properly informed us of your changed address or contact details, our obligation to act in the matter ceases.
8.2 Internet Communications
As emails that are 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.
We shall be responsible for carrying 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.
9. DATA PROTECTION
9.1 To enable us to carry out our obligations to you and for other related purposes including updating and enhancing client records, credit checking, analysis for management purposes, crime prevention and legal and regulatory compliance, we may obtain, use, process and disclose personal data about you. We will comply with the Data Protection Act 1998 and other relevant data protection legislation.
9.2 By instructing us you consent and agree to us obtaining, processing and using personal data concerning you and further consent to our disclosing personal information about you to third parties.
9.3 You have a right of access under data protection legislation to the personal data that we hold about you. You may contact us if you require further information in this respect.
10. CONFIDENTIALITY, PRIVILEGE AND CONFLICTS OF INTEREST
10.1 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, or in other exceptional circumstances. 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.
10.2 In general, communications between a UK Patent Attorney and/or a UK Trade Mark Attorney and his client are privileged under Section 280 of the Copyright, Designs and Patents Act 1988 and Section 87 of the Trade Marks Act 1994 respectively. 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 know 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.
10.3 An actual or potential conflict between your interests and the interests of another of our clients might arise during the course of an engagement. If this situation arises, we will discuss the position with you and determine the appropriate course of action. In such circumstances, we reserve the right to decline to act further, at least in relation to the area of conflict, for one of the clients in question. Because of obligations of confidentiality it will not generally be possible for us to identify the other client or the subject matter involved when we advise a client that we can no longer act for them.
10.4 Before taking on a new client, we will try to identify conflicts of interest that may preclude us from acting for them.
10.5 We will not be precluded for acting for a client in relation to a matter in which we have acted for another party when our services for the other party have not extended beyond translation, renewal and providing an address for correspondence.
11. RELATED COMPANIES
11.1 Notwithstanding the provisions of paragraph 2.10:
11.1.1 we may agree with you in a separate letter to you the identity of a third party or other beneficiary who may benefit from our professional services;
11.1.2 these Terms of Business shall apply to you and your related and associated companies which include all companies which you control or if you are a company forming part of group all companies in that group.
111.3 Where our professional services are to benefit any third party or other beneficiary you will remain responsible for our fees and other charges and for the acts and omissions of such third parties or beneficiaries.
12. MONEY LAUNDERING
To the extent required by law, we will ask for evidence of identity and will report to the National Criminal Intelligence Service any suspicion that you or some other party to a transaction is engaged in handling the proceeds of crime. We will not inform you of any such report if we are prevented from doing so by law.
13. CLIENT CARE AND COMPLAINTS
13.1 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 speak to a director of Hepworth Browne at the office you usually deal with. We undertake to look into any suggestions and other comments carefully and promptly and to do all we can to explain the position to you.
13.2 If you wish to make a formal complaint, please write to, The Directors, Hepworth Browne, 24 Berkeley Square, Bristol, BS8 1HP, United Kingdom. Your complaint will be reviewed by two of Hepworth Browne’s directors and we will reply to you within 7 days of receiving it.
13.3 If you are still not satisfied with our resolution or attempted resolution of your complaint, then you can contact the Legal Ombudsman for assistance. Guidance set by the Legal Ombudsman suggests that you should allow us 8 weeks to resolve your complaint before involving them. Contact details for the Legal Ombudsman are provided below:
PO Box 15870
Birmingham B30 9EB
Telephone: 0300 555 0333
13.4 We are also regulated by the Intellectual Property Regulation Board (IPReg), who will deal with any complaints you have about professional misconduct. The Chartered Institute of Patent Attorneys (CIPA) or the Institute of Trade Mark Attorneys (ITMA) may be able to help with complaints about the quality of service provided by Hepworth Browne. Contact details for these institutions are provided below.
Telephone: 020 7440 9371
Telephone: 020 7405 9450
Telephone: 020 8686 2052
14. WITHDRAWING REPRESENTATION
14.1 You may terminate your engagement of us at any time. The termination procedure outlined at clause 14.3 will be effected at the time that we receive clear written notification from you terminating our engagement.
14.2 We reserve the right to cease acting in a matter or to withdraw from representing you and terminate your engagement of us, if:
(1) you do not comply with a request for funds in advance within a nominated period;
(2) we are unable to obtain adequate instructions, or a reply to correspondence from you within a reasonable period;
(3) our invoices have not been paid as provided in these terms;
(4) we, in our discretion, conclude that the necessary mutual relationship of trust and confidence with you no longer exists (including being requested to act in a manner that does not accord with professional ethics)
Or, when ceasing to act for you or withdrawing from representation and terminating your engagement of us, we will notify you of this in writing and effect the termination procedure outlined in clause 14.3.
14.3 When we receive your written notification termination of your engagement of pursuant to clause 14.1 or we decide to withdraw from representation and terminate your engagement of us pursuant to clause 14.2, we will advise any overseas associates used for your matters of this fact. At that time we and the overseas associates will be entitled to charge you for any unbilled work in relation to the matter. Any work carried out on a matter before termination of your engagement by us can be actioned will be considered unbilled work.
If a dispute arises in connection with these terms or their breach or invalidity of any of them, or the termination of our engagement to act for you in a matter, you agree that you or your representative will meet promptly with our responsible director or representative to discuss the dispute and try in good faith to resolve it.
16. GOVERNING LAW AND JURISDICTION
16.1 These Terms of Business and any matters arising in connection with our provision of goods and services to you are governed by the law of England and Wales.
16.2 Save as set out below, the Courts of England and Wales shall have exclusive jurisdiction to settle any dispute between us (including claims for set-off and counterclaims). You and we irrevocably agree to submit to such jurisdiction and irrevocably waive any objection to any action or proceeding being brought in those Courts or any claim that any such action or proceeding has been brought in an inconvenient forum.
16.3 You agree that any judgement or order of any Court referred to in this paragraph 16 shall be conclusive and binding and may be enforced in the courts of any other jurisdiction.
Should a portion or portions of this agreement be found to be inconsistent with any applicable law, only that portion or those portions shall be considered null and void and the remainder of the agreement shall remain in force.