Jenkins | Trade Mark and Patent Attorneys

Terms of Business

1	Interpretation
	In this Agreement:-
1.1	“Agreement”
	means these terms and conditions;
1.2	“we, us, our”
	means RGC Jenkins & Co, a partnership whose principal place of business is 26 Caxton Street, London SW1H 0RJ;
1.3	“Client”
	means the person, firm, company or organisation to whom we have agreed to provide any Services.
1.4	“Intellectual Property Rights”
	means the portfolio of trade marks, patents, designs & domain names subject of the instructions;
1.5	“Services”
	means the services to be performed by us in respect of the Intellectual Property Rights.
2	The Agreement
2.1	By requesting any Services from us, the Client will be deemed to have accepted the terms and conditions of this Agreement, which will govern the provision of our Services to the exclusion of any other terms and conditions.
3	Obligations of the Firm
3.1	Our Partners and qualified staff are members of The Chartered Institute of Patent Agents and/or the Institute of Trade Mark Attorneys and must comply with the respective codes of professional conduct issued by those bodies.
3.2	It is the Firm’s responsibility to: (a) practise competently, conscientiously and objectively, putting the interests of clients foremost while observing the law and the Firm’s duty to any Court or Tribunal; and (b) avoid any conflict of interest.
4	Our Liability
4.1	In the unlikely event that something should go wrong, we protect you through professional indemnity insurance cover. To the extent permitted by law, our liability for all claims directly or indirectly connected with any matter, whether in negligence or otherwise to you, is limited to £ 5,000,000. Furthermore, to the extent permitted by law, if we are liable to pay damages to you and if you or any other person (including advisors to you) has contributed to the loss you have suffered, the damages payable by us will be reduced proportionately.
5	Instructions
5.1	It is important that we are able to identify who is formally our client. We shall be entitled to assume, unless otherwise instructed in writing, that the person (including an individual, firm or company) providing us with the initial instructions in relation to a matter is our client (e.g. if we accept instructions from lawyers, patent attorneys or agents (whether in the UK or abroad) they, and not the persons for whom they act, will be our client and responsible for settlement of all our invoices and for reimbursement of all our costs and expenses incurred in carrying out their instructions).
5.2	If the client wishes us to render invoices to and accept payment from another entity (for example, another company in the same group) then we may be willing to do this; however, responsibility for making such payment remains with our client.
5.3	We shall assume that our over-riding instructions are not to let your rights lapse without specific instructions to do so. 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, although rare, will be within the terms of the above over-riding instructions.
5.4	We welcome instructions from new clients and start up companies. Nevertheless, for all new clients we have a policy of seeking adequate funds on account in advance of carrying out any work. In addition, for newly formed limited companies, we expect the directors to be personally responsible for our reasonable charges and costs incurred in accordance with instructions made on behalf of the company. We may ask directors to sign an undertaking to this effect.
5.5	We reserve the right to request that individuals or corporate bodies based overseas direct their instructions to us through a professional representative such as, a registered patent or trade mark attorney, based in their country.
5.6	We rely on Clients to give us timely written instructions. Patent and Trade Mark offices often impose time limits. We accept no liability if the Client does not provide clear and complete instructions early enough for us to act within those time limits. We will normally advise Clients of time limits, and of actions or instructions that are required, but we do not undertake to give reminders. If we receive late instructions, we may not be able to implement them in time. In the event of late instructions or late payment to us, urgency charges may be incurred which will be passed on to you.
5.7	All oral instructions must be confirmed in writing. We accept no liability for any misunderstandings or misinterpretation of oral instructions, whether on our part or that of the Client, arising as a result of the Client’s failure to comply with this Clause 5.7.
5.8	The Client undertakes promptly to provide us with all information, assistance and materials that we may request from time to time to facilitate our proper and timely performance of the Services. The Client warrants that all information provided to us will be complete and accurate and that it is entitled to provide the same to us for use in providing the Services without recourse to any third party. The Client also authorises us to complete and sign in the name of the Client such documentation as is necessary or desirable to carry out the lawful instructions of the Client, and will on request, provide in a timely manner, any requisite signed form(s) of authorisation. Furthermore, the Client will indemnify us in respect of all costs, claims, demands and expenses that may result from exercise of the authority given by this clause.
5.9	It is important that you inform us promptly of any change of address, telephone and fax numbers and of any change in ownership of your patent or other relevant IP rights. Many such changes have to be officially registered. Please remember that the obtaining of patents, trade marks and design rights can take many years. No responsibility can be accepted for any loss of rights in any case where you have failed to inform us of such changes.
5.10	We will normally communicate with you by mail or fax; however, we may communicate with you by e-mail either in response to electronic communication from you or with your prior agreement. We are aware that e-mails sent over the Internet may lack security and jeopardise confidentiality. We can accept no liability for non-receipt or late receipt by you, of such communications, or for any corruption in the information communicated to you, or its disclosure to other parties, as a result of the interception of such communication.
5.11	Although we regularly carry out virus checks, 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 accept no liability (including in negligence) for any viruses that may enter your system or data by these or any other means.
5.12	Any searches that you request may be carried out by ourselves, 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.
6	Charges
6.1	It is not usually possible to estimate our fees for a matter in advance. If we do provide an estimate of our fees for any matter, the estimate is provided only as a guide and is not binding on us.
6.2	All actions and attention provided by us are chargeable. These include (without limitation) telephone calls and correspondence from and to you, reminders, reporting on communications which we receive on your behalf, whether or not we have requested the same, including but not limited to letters from patent offices and/or threats of opposition from third parties.
6.3	Our fees for the Services will be based not only on the time we spend working on the Services but also on scale fees for standard tasks. A Fee schedule showing these scale fees for standard tasks is available on request. The time element of our fees will be determined by all the circumstances of the case, including not merely time spent, but also the complexity, difficulty and urgency of the matter and the skill and responsibility involved. Our hourly rates are primarily based on the seniority and experience of the professional staff involved.
6.4	Whilst our fixed charges and hourly rates are predictable, you should appreciate that local representatives’ charges and official fees are outside our control since they may be changed without notice and in the case of foreign matters vary with exchange fluctuations.
6.5	Expenses and disbursements such as postage and packaging, courier costs, telephone call charges, faxes, photocopying and the charges (if any) paid or to be paid by us to third parties on your behalf (such as registration or renewal fees to be paid to the trade mark or patent offices, or the charges of overseas patent or trade mark agents) will be invoiced in addition to the fees and will be subject to a handling charge.
6.6	Except for minor items we shall normally discuss expenses and disbursements with the Client as they arise.
6.7	If for any reason we do not complete a matter, we will nonetheless charge the Client fees, expenses and disbursements in respect of the Services that have already been carried out.
6.8	If at any stage the Client is concerned about the level of our fees, the Client should speak to the partner who has overall supervision of the matter.
6.9	We reserve the right to increase our time fees and scale fees at any time.
6.10	All sums referred to in this Agreement will be payable in full without deduction, withholding or set-off, unless specifically agreed in writing, and are exclusive of VAT and any other duty or tax, which will (if and to the extent applicable) be payable by the Client.
6.11	If the Client cancels or amends any instructions after we have started work the Client will reimburse us for all costs, expenses, charges and losses incurred by us as a result of such cancellation or amendment, including without limitation any costs, expenses or charges arising from the cancellation or amendment of any contracts we have entered into and/or instructions we have given to third parties for the purpose of performing our Services for the Client.
7	Invoicing and Payment
7.1	We reserve the right to request a reasonable sum by way of payment on account before we commence our Services, or at any time during the provision of the Services. When we make such a request, in general we will not carry out any instructed work until the requested payment has cleared into our bank account.
7.2	All sums payable hereunder will be invoiced and paid in pounds sterling unless alternative arrangements have been agreed. Invoices levied in any other currency will be converted at a premium to the prevailing Bank of England Exchange Rate. All invoices shall be paid by the Client on receipt.
7.3	If the Client is overdue with any payment hereunder, then without prejudice to our other rights or remedies:
7.3.1	the Client will be liable to pay interest on the overdue amount in accordance with the terms of the prevailing UK Legislation (currently The Late Payment of Commercial Debts (Interest) Act 1998). Where this Act does not apply, interest will be calculated at 8% above the Bank of England Base Rate. This charge will not be incurred if the invoice is settled in full, within 30 days of the invoice date (or 60 days in the case of a Client based outside the European Economic Area); and
7.3.2	we reserve the right to recover costs and fees (including legal fees on an indemnity basis) incurred through seeking to recover the same; and
7.3.3	we reserve the right to suspend or refrain from taking action on behalf of the Client, without incurring any liability to the Client, or any other party, even if this causes the Client, or any other party, to lose, or fail to obtain, any rights which would have been theirs had we acted.
7.4	Any suspension of the Services by us pursuant to Clause 7.3.3, or any cancellation or amendment by the Client of instructions previously given, does not prejudice our right to invoice, and be paid, for Services we have performed and expenses and disbursements we have incurred (or to which we have become committed) prior to the date of suspension, cancellation or amendment.
8	Files
8.1	When files are transferred to us from other firms or organisations, they are usually accompanied by records of key data. We recommend that we check such information against the contents of the files and/or from public records. We will levy a reasonable charge for such checking. If you do not wish to instruct us to carry out such checks, we can accept no liability for any errors contained in the files as they were received.
8.2	Our files and all papers relating to the Services we perform for you shall be, and will remain, both during and after the term of this Agreement, our property in accordance with the recommended practice of The Chartered Institute of Patent Agents. If the Client wishes any third party to have access to such Files at any time, we will provide such access subject to a fee for the work involved.
8.3	If you send us papers, samples or other materials, please tell us at the same time if you require them to be returned. Otherwise, we will incorporate them into our files.
8.4	We will retain our Files (in paper or microfiche or electronic format) for such period as we consider appropriate. Generally, this will be at least 5 and usually 10 years from commencement of the matter to which the File(s) relate. Thereafter we will be entitled to arrange for confidential destruction of all Files.
8.5	We reserve the right to make a charge for withdrawing from storage, at your request, a File in respect of a completed matter.
9	Indemnity for threat of infringement proceedings
9.1	Before we send any warning on behalf of a client to a third party, we ask the client to indemnify us against the risks of our being sued for making an unjustified threat of infringement proceedings. The aim of this request is 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 clients who do not provide the requested indemnity.
10	Termination
10.1	Either party may terminate this Agreement immediately upon written notice to the other in the event of:
10.1.1	any material breach of this Agreement by the other party, which breach is not remedied (if remediable) within 30 days after the receipt by the party in default of a written notice specifying the nature of the breach and requiring the same to be remedied;
10.1.2	the other party becoming insolvent, entering into liquidation, whether voluntary or compulsory, passing a resolution for its winding up, having a receiver or administrator appointed over the whole or any part of its assets, making any composition or arrangement with its creditors or taking or suffering any similar action in consequence of debt.
10.2	The termination of this Agreement will be without prejudice to the rights of either party in respect of any antecedent breach and in particular the Client will remain liable to us for all fees, expenses and disbursements due in respect of Services performed up to the effective date of termination.
11	Force Majeure
11.1	We will not be liable for any delay in performing or failure to perform our Services to the extent that such delay or failure results from any cause or circumstance beyond our reasonable control (an “event of force majeure”). If any event of force majeure occurs, the date(s) for performance of our Services will be postponed for as long as is made necessary by the event of force majeure. If any event of force majeure continues for a period of or exceeding 60 days either party may cancel the affected Services immediately on written notice to the other party.
12	Assignment and Sub-Contracting
12.1	The Client may not assign, sub-license or sub-contract this Agreement or any of its rights or obligations hereunder without our prior written consent.
12.2	We may appoint third parties (such as foreign trade mark or patent agents, where appropriate) to perform any part(s) of the Services. Our contracts with those third parties may be made on the third party’s standard terms of business and, in such cases, we can offer the Client no better terms in relation to Services provided by such third parties than those offered to us by the relevant third parties.
12.3	Such third parties are not part of this firm. Whilst we shall endeavour to select third parties whose performance and expertise we regard as being of good quality, we will not be liable for any losses, liabilities, costs or expenses arising out of any default or negligence on the part of any such third parties.
13	Renewals
13.1	Unless otherwise specifically agreed by us, the Services will not extend to issuing reminders for and processing renewals of any of your registered rights. Our standard practice is to pass details of all cases we handle requiring such renewals to specialist renewal agents, namely Computer Patent Annuities Limited Partnership (CPA). CPA will endeavour to remind the registered proprietors concerned of due dates for payment of renewal fees and they will also invoice such proprietors for their services under their current terms of business. Several of the partners of R G C Jenkins & Co. are also partners of CPA.
14	Privilege
14.1	In general, communications between a UK Patent Attorney and his client are privileged under Section 280 of the Copyright, Designs and Patents Act 1988. This means that others, including the courts, are not entitled to discover the content of such communications where they concern professional advice. Please note that the privileged status of a letter or other document can be lost if it, or its contents, are disseminated to persons other than the addressee of the document. In rare circumstances the courts may rule that such privilege is lost or does not apply. In that event we accept no liability in respect of any loss whatsoever incurred by you or any other party as a direct or indirect consequence of the loss or absence of privilege.
15	Notices
15.1	All notices and other communications required or permitted to be served or given hereunder shall be in writing and delivered by hand or sent by first class registered post or courier to the intended recipient’s address.
16	General
16.1	The invalidity or unenforceability of any term or right arising pursuant to this Agreement will not adversely affect the validity or enforceability of the remaining terms and rights.
16.2	This Agreement constitutes the entire agreement and understanding between the parties with respect to its subject matter and supersedes any prior agreement, understanding or arrangement between the parties, whether oral or in writing, with respect to the same. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in communications between the parties prior to the date of this Agreement except as set out in this Agreement. Neither party will have any remedy in respect of any untrue statement made to it upon which it has relied in entering into this Agreement (unless such untrue statement was made fraudulently) and that party’s only remedies will be for breach of contract as provided in this Agreement.
16.3	A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
16.4	If a conflict of interest exists between the Client’s instructions and those of any other client for whom we are acting, or arises during the term of this Agreement, we reserve the right to ask the Client to seek advice elsewhere. Assistance in finding a suitable alternative representative is available on request.
16.5	The failure of either party to enforce or to exercise at any time or for any period of time any term of or any right pursuant to this Agreement does not constitute, and shall not be construed as, a waiver of such term or right and shall in no way affect that party’s right later to enforce or to exercise it.
17	Alterations
17.1	No amendment or variation to this Agreement will be valid unless agreed in writing by one of our partners.
18	Complaints
18.1	We value our good relationships with our clients. However, we accept that from time to time, difficulties and misunderstandings do arise. If you have any problems, you should feel free to discuss your concerns with the member of our professional staff responsible for handling your work. If, after such discussions, you feel that the matter has not been adequately dealt with, or any invoice is unreasonably high for the work involved, the matter will be considered by a partner unconnected with your IP portfolio. If we cannot resolve the situation, you may refer the matter to the Chartered Institute of Patent Agents, which will consider your complaint and seek to resolve the issue.
19	Proper Law and Jurisdiction
19.1	The construction, validity and performance of this Agreement will be governed by the laws of England and Wales and the parties submit to the exclusive jurisdiction of the courts of England and Wales to resolve any dispute arising between them.