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TERMS OF BUSINESS

 

1. ENGAGEMENT

1.1 Agreement. The terms of the agreement (Agreement) upon which we will provide the Services (as defined below) and otherwise act for you in relation to each matter on which we are instructed by you comprise the letter of engagement relating to the Services and that matter (Letter of Engagement) and these terms of business (Terms of Business). In the event of any conflict or ambiguity between the terms set out in these Terms of Business and the terms set out in the Letter of Engagement, the terms of the Letter of Engagement shall prevail.

1.2 Parties. In this Agreement:

1.3 Definitions. In this Agreement:

(a) Advice means all advice, opinions, reports, and other work product in any form (including the Deliverables) provided by or on behalf of the Firm and/or its subcontractors as part of the Services;

(b) Affiliate means, in relation to the client, any company, partnership, or other legal entity (other than a natural person) which from time to time directly or indirectly controls, is controlled by, or is under common control with, the client (where control means the legal power to direct, or cause the direction of the general management of the company, partnership or other legal entity);

(c) Deliverables means the output(s) of the Services and any other documents or materials provided by the Firm to the client and any other documents and materials provided by or on behalf of the Firm and/or its subcontractors to the client in relation to the Services;

(d) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality); and

(e) Services means any and all services and work (including Advice) in the field of intellectual property which the Firm agrees to provide (or procure that its subcontractors provide) to the client, whether as a one-off engagement or on an ongoing basis.

2. OUR OBLIGATIONS

2.1 Services. We will:

(a) perform the Services with reasonable skill and care and in accordance with applicable laws, professional standards and practices customary in the field of intellectual property; and

(b) perform the Services in a timely and efficient manner and keep you informed of all material developments arising from or in connection with such performance.

2.2 Services exclusion. You acknowledge and agree that we do not warrant or guarantee the success, registration, validity, or enforceability of any intellectual property right or application made or pursued as part of the Services, such matter being subject to the discretion of the competent authority(ies) and factors outside of our control.

3. INSTRUCTIONS

3.1 Authority. Unless otherwise agreed, we will assume that any person within your organisation may instruct us on your behalf, unless they clearly do not have the appropriate authority. Having said that, it is often helpful if you can nominate a person within your organisation to act as a primary point of contact for us (Primary Contact) and keep us updated if the Primary Contact changes.

3.2 Timing and form of instructions. We will rely on you 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. Government agencies (including the UK Intellectual Property Office) often impose time limits and failure to meet these limits can be fatal to the rights concerned. Whilst we will endeavour to keep you informed of any relevant time limits, we cannot accept any responsibility if you fail to provide us with instructions that are clear, complete and early enough to allow us to act within such official time limits. We will endeavour to inform you of time limits and of actions or instructions that are required, but we do not undertake to give further reminders, 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.

3.3 Updating information. It is important that you inform us promptly of any change in relation to:

(a) the Primary Contact;

(b) your name, address, telephone number and e-mail address; and

(c) any change of ownership of your patent or other relevant rights. Many such changes have to be officially registered. Please remember that registration of patents, trademarks and design rights can take years and that there may be little activity for long periods followed by a situation which requires immediate action. We cannot accept responsibility for any loss of rights as a consequence of your failure to inform us of such changes.

3.4 Electronic Communications. We will normally communicate with you by e-mail or telephone. 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.

3.5 IT security. We shall be responsible for carrying out regular virus checks on our network but would advise you to carry out your own virus checks on any communications received by your network. To the extent that we have fulfilled our obligation above, we cannot accept responsibility (including in negligence) for any viruses that may enter your network by these or any other means. Furthermore, whilst we observe reasonable precautions, we regret that we cannot guarantee the security of our IT systems.

3.6 Searches. Any searches you request may be carried out by us, by the relevant patent office, or by an independent specialist searching firm engaged by us. Due to the limitations and occasional errors in classifications, indices, computer databases and official records, no search can be guaranteed as being complete, accurate and up-to-date. We will endeavour to point out any particular limitations when reporting search results and may recommend extending the search.

3.7 Indemnity for threat of infringement proceedings. Before we send any warning on your behalf to a third party, we will ask you 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 you if you are not able to provide the requested indemnity.

3.8 Legal privilege. It is possible that in the course of our engagement with you, or following termination of that engagement, a third party may request access to documents held by us or seek to interview our staff in connection with work we have done for you. The law may require us to comply or otherwise deal with such a request. We shall notify you, if possible, of any such approach. If, however, it is not practicable to notify you, we shall proceed on the basis that you are not prepared to waive confidentiality or privilege and that we should only comply with the request to the extent that we are bound by law to do so. You will be responsible for our proper charges in dealing with any such requests, including where necessary the costs of identifying, removing and/or scheduling privileged documents, attending interviews, or making or defending any application in connection with the validity of the request. These costs could also include any application in connection with the validity of the request. These costs could include counsel’s fees or the costs of third parties instructed by us in order to advise on issues connected with the request.

3.9 Conflicts of interest. We rely upon you to provide us with the name and details of any person with a significant interest in your matter or the work you ask us to undertake. We will undertake a conflict search on the names you provide to determine whether any conflict (legal or commercial) exists which may impact on our ability to act on your behalf or the basis upon which we may act. We also rely upon you to provide us with names and details of any other person who may have any such significant interest immediately upon your becoming aware of that interest. We will carry out conflict searches in relation to such further or additional parties as notified. You acknowledge that if a conflict of interest (legal or commercial) is discovered after we have begun work on your matter, we may be required to stop working on that matter, although of course we would discuss the position with you if such circumstances were to arise. If we are required to stop working because of such a conflict our professional fees and other costs incurred to that point will remain due and payable.

3.10 Client care and complaints. We value 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 staff member 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 senior member of our firm appointed to handle client complaints. John Hanna of the firm is regulated by the Intellectual Property Regulation Board (IPReg) which is an independent regulatory body for Patent and Trade Mark Attorneys and whose code of conduct is available from its website at www.ipreg.org.uk. If your complaint is not resolved via our internal complaints procedure, you may contact the IPReg with your complaint.

4. ENGAGING THIRD PARTIES ON YOUR BEHALF

4.1 Instructing third parties. Where requested by you or, with your approval, where recommended by us, we may instruct other professional service providers (such as, for example, trade mark or patent attorneys in other jurisdictions, specialist counsel, law firms, accountants, translators or expert witnesses) to provide you with their services alongside the Services, and we may terminate any such engagement to provide such services. We will generally incur their fees and expenses as an expense to us which we will recharge to you, although you may arrange for them to invoice you for their fees and expenses directly. For some expenses, you may be requested to put us in funds to pay for these in advance. We do not accept responsibility to you for the services provided by such persons and we will not be liable to you for the acts or omissions of such persons (except to the extent we have directly caused the act or omission).

4.2 Engaging third parties. Where we instruct others on your behalf as set out in clause 4.1, we will generally do so based on the relevant service provider’s terms of business. You authorise us to either accept those terms of business or to negotiate them on your behalf (either or both, at our discretion). We can provide you with a copy of such terms of business on request.

4.3 Ancillary services. We may from time to time use subcontractors for non-professional services (such as the use of document management solution providers, data centres and outsourced document production service providers) in the provision of our services to you.

4.4 Third party technology solutions. We may from time to time make available the use of technology solutions (including those of third parties) in connection with the provision of the Services. Additional terms and conditions may apply in relation to your use of these solutions, and we may charge you a fee for the use of such solutions, which will be explained to you in advance, either in the Letter of Engagement or by email. We do not accept responsibility to you for any failure or unavailability of such solutions, although we will take reasonable steps to work around such issues if/when they arise. You should undertake your own technical and other due diligence (including penetration testing where appropriate) before using these solutions. You and/or your users may be asked to enter into separate contracts with the providers of those products and services.

5. PROFESSIONAL FEES

5.1 Our fees. Our fees 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 fees if specialised knowledge is required, or if the matter is complex and/or urgent. Fixed fees may apply in relation to specific tasks (for example, the actual filing of a patent application). Our hourly rates are primarily based on the seniority and experience of the professional staff involved. These rates are reviewed periodically. Our fees are calculated at the rates which are current when the work is carried out. Please ask us at any time if you would like to be sent details of those rates.

5.2 Payment of costs and expenses. You will be responsible for any costs and expenses we incur on your behalf. These expenses may include Patent Office fees, Counsel’s fees, Court fees, the costs of any experts or other agents (including any translators or foreign lawyers). They may also include such items as photocopying costs, couriers, travel and meeting expenses and telephone charges. Whilst fixed fees charges and hourly rates are predictable, you should appreciate that local representatives’ charges and official fees are outside of our control since they may be changed without notice and (in the case of foreign matters) vary with exchange rate fluctuations.

5.3 Deposit. Where a deposit against our fees and/or outlay is required as part of the Letter of Engagement, we will invoice you for the amount of the deposit for payment before we start any instructed work, so please allow time for this. Once paid, we will be entitled at any time to apply the deposit against our fees and any other costs or expenses incurred on your behalf (whether invoiced or not), following which any balance of the deposit will be refunded to you.

5.4 Estimates. If requested, we will try to give estimates of future fees in good faith based on our knowledge at the time. However, as fees 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. Only some classes of work are suited to a firm advance quotation. If you would like to set an upper limit on the fees which may be incurred without prior reference to you, then please let us know.

5.5 Invoicing. Unless expressly agreed otherwise, we will render interim bills at appropriate intervals.

5.6 Payment terms. Unless otherwise agreed in writing by us, payment of our invoices is due on 30 day payment terms.

5.7 Remedies for late payment. If an invoice rendered by us to you is not paid within the specified period, we reserve the right: to discontinue work on the matter; and/or to exercise a right of lien over papers under our control; and/or to charge interest on any overdue amount at the rate of 3% over the base rate of our bankers from time to time until we receive payment in full; and/or to decline to carry out any further work for you on any matter on which we might then be instructed by you; and/or to raise an invoice for the full amount of any work carried out up to that date (on both this matter and/or on any other matter on which we might then be instructed by you).

5.8 Recovery. Without prejudice to and of the rights or remedies set out in clause 5.7, if there is no satisfactory explanation for non-payment of your account, our accounts team will issue a letter requesting payment within 7 days. If you still do not pay, our accounts team may institute proceedings to recover the amount owed, interest and collection fees including our legal fees.

5.9 Application of monies. You irrevocably authorise us to apply, at any time, any moneys held for you by us, where such moneys are properly available to be applied, in or towards payment or (as the case may be) reimbursement of: outlays and disbursements paid by us on your behalf as properly required in the course of provision of the Services; and/or professional fees, outlays and value added tax thereon as set out in an invoice furnished by us to you relating to the provision of the Services; and/or any liability which we are properly required to discharge by reason of giving an undertaking to any third party on your authority in the course of provision by us of the Services; and/or any liability or assessment to taxation which we are properly required to discharge arising from or consequent upon the provision by us of the Services.

5.10 Payment by third party. Where we agree in advance to invoice and/or accept payment from a third party nominated by you (for example, another company in your group), responsibility for making such payment on time and in full will remain with you (as we will not have any recourse against such third party) and we will look to you for payment, even if payment to you is delayed or not received. Where we have agreed in advance to invoice a third party nominated by you, we reserve the right at any time to cancel that invoice and to re-issue the invoice addressed to you for payment in full.

6. FILE

6.1 Ownership of file. Our file will remain our property at all times. If you would like to transfer your work to another service provider, we will provide a copy of our file (at your expense) and release that copy file when all our fees have been paid.

6.2 Destruction of file. It is our normal practice to store our file of correspondence, draft documents and other papers for at least 6 years from completion of the Services before the file is destroyed. Unless you tell us otherwise, we will assume that you are content with this arrangement.

7. CONFIDENTIALITY

7.1 Confidentiality. 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: to any of our employees, agents or subcontractors in the course of providing the Services; or required by law, regulation, judicial or administrative process, or 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.

7.2 When confidentiality does not apply. The obligation of confidentiality shall not apply to the extent that your confidential information: is or becomes publicly available (including any information filed with any governmental agency and available to the public) other than as the result of our default; or becomes available to us on a non-confidential basis from a source other than you who we reasonably believe is not prohibited from disclosing such confidential information to us by an obligation of confidentiality to you; or is known by us prior to our receipt from you without any obligation of confidentiality.

7.3 Freedom to act. Nothing in this Agreement will prevent or restrict us from providing services to other clients (including services which are the same or similar to the Services) or using or sharing for any purpose any techniques, ideas and know-how or similar residual knowledge gained during the provision of the Services to the extent that this does not involve a disclosure of any of your confidential information.

8. DATA PROTECTION

8.1 Personal data. From time to time in the course of our relationship with you, we may need to process personal data about you or your employees, agents or representatives or other persons involved in your matter (Client Personal Data). Such processing may be carried out for the purposes of providing you with the Services (including the provision of Advice), for administration and billing purposes and for other purposes which are reasonably incidental to the provision or receipt of the Services.

8.2 Data protection laws. All processing will be carried out in compliance with applicable law:

(a) in the United Kingdom relating to the protection of personal data where the company identified in the Letter of Engagement as being the party engaged to provide the Services is Quaylane Limited trading as Hanna IP (registered in Northern Ireland with company number NI073909) whose registered office is at 4th Floor, 58 Howard Street, Belfast BT1 6PJ, Northern Ireland, including the General Data Protection Regulation (EU 2016/679) and the Data Protection Act 2018; or

(b) in Ireland relating to the protection of personal data where the company identified in the Letter of Engagement as being the party engaged to provide the Services is Quaylane IP (Ireland) Limited trading as Hanna IP (registered in Ireland with company number 647258) whose registered office is at Unit 17, Bridgecourt Office Park, Walkinstown Avenue, Walkinstown, Dublin, D12VH61, Ireland, , including the General Data Protection Regulation (EU 2016/679) and the Data Protection Act 2018,

(in each case, the Data Protection Laws).

8.3 Data controller and/or processor. We will usually each be considered independent controllers of the Client Personal Data, but may also act as a data processor. Our Processing Notice is available on request and on our website (www.hannaip.com), and sets out how we use Client Personal Data, how we calculate Client Personal Data retention periods and what rights may be available to certain individuals, as well as other useful information. You agree that you will draw that notice to the attention of persons who may be identified by the Client Personal Data, where you are required to do so by the Data Protection Laws or any other applicable law.

8.4 Processing. Occasionally, we may process Client Personal Data on your behalf and, in doing so, would act as a processor of that data. Unless otherwise required by any law we are subject to, we would only process such data in accordance with your instructions, which we would gather as part of our usual engagement with you (along with information on what sorts of data are to be processed, for what purpose and for what duration). We apply the same standards of organisational and technical measures to protecting all Client Personal Data. If required, we will assist you with handling any relevant exercise of an individual’s rights over Client Personal Data and will comply with the relevant requirements in relation to any relevant personal data breach. You confirm that we may from time to time appoint other service providers to assist in the processing of Client Personal Data on your behalf (for example, third parties who provide time recording, back-up and communications services) and, where we do so, we would make sure our agreement with them would contain provisions generally equivalent to those included in this clause 8.

8.5 Transfers. In certain circumstances, personal data may need to be transferred outside of the United Kingdom or European Economic Area (EU, Iceland, Norway and Liechtenstein) to countries which do not have the same level of data protection as the United Kingdom. Such transfer would only be carried out in accordance with your instructions (where we act as a data processor, and you are the data controller) and the Data Protection Laws and where necessary to provide you with the Services.

8.6 Contacting you. We may also process personal data for the purposes of sending you updates on topics which may be of interest to you and for the purposes of inviting you to seminars and other events. If you do not wish to receive such information or invitations, please e-mail [email protected] and advise accordingly.

9. LIMITATION OF LIABILITY

9.1 Liability cap. Excluding fraud or fraudulent misrepresentation on our part and/or that of our subcontractors and any other liability that cannot be excluded or limited by law, we shall not be liable to you for any claims, liabilities, losses, damages, costs or expenses arising under or in connection with this Agreement (Claims) for an aggregate amount in excess of:

(a) where the liability in question is covered by our professional indemnity insurance, then the amount recovered by us from the insurer; or

(b) in all other circumstances, an amount equal to the fees invoiced and received by us (net of VAT, outlay and expenses) in the preceding 12 months (or since the start of this Agreement, if shorter) for that part of the Services giving rise to the Claim.

9.2 Aggregate cap. The liability cap in clause 9.1 applies in aggregate to any and all Claims that from time to time arise under or in connection with this Agreement and the Services, whether such Claims are made at the same or different times or by you and/or any of your Affiliates.

9.3 Exclusion of liability. In no event shall we and/or our subcontractors be liable, whether in contract, tort, including negligence, or otherwise: (a) for any losses incurred as a result of loss of use, contracts, data, goodwill, revenues or profits (whether or not deemed to constitute direct Claims) or any consequential, special, indirect, incidental, punitive or exemplary loss, damage, or expense arising under or in connection with this Agreement; (b) any Claims arising out of the use of Services for a purpose other than the purpose for which they were provided by us; (c) to the extent any Claims arise from the acts or omissions of any person other than us and/or our subcontractors; or (d) for any Claims arising by reason of disclosure of any part of the Services to tax, regulatory or other government authority.

9.4 Exclusion of other warranties. We warrant that we will perform the Services with reasonable skill and care. To the fullest extent permitted by law, we disclaim all other warranties, whether express or implied.

9.5 Limitation period. No action, regardless of form, relating to this Agreement or the Services, may be brought by either party more than 2 years after the cause of action has accrued, save in the case of an action in respect of any claim for payment of our fees in respect of which the relevant statutory period applies.

10. TERMINATION

10.1 Termination without cause. This Agreement may be terminated by either party at any time, without cause, by giving 30 days’ prior written notice to the other party.

10.2 Termination with cause. Either party may terminate this Agreement with immediate effect by written notice to the other party on or at any time after the occurrence of any of the following events:

(a) a material breach by the other party of any of its obligations under this Agreement and, if the breach is capable of remedy, the defaulting party failing to remedy the breach within 30 days of receipt of notice of such breach; or

(b) the other party becomes insolvent or goes into liquidation; or

(c) the other party makes a resolution for its winding-up or an administration or winding-up order is made or an administrator or receiver is appointed (or notice of intention to so appoint is given) in relation to the other party; or

(d) the other party making an arrangement or composition with its creditors generally or making an application to a court of competent jurisdiction for protection from its creditors generally; or

(e) the other party suffering or undergoing any event analogous to those set out in clauses 10.2(b)-(d) (inclusive) in any jurisdiction.

10.3 Termination by us. We may terminate this Agreement, in whole or in part, with immediate effect upon written notice to you if we determine that:

(a) a conflict of interest has arisen; or

(b) a governmental, regulatory, or professional entity, or other entity having the force of law has introduced a new, or modified an existing, law, rule, regulation, interpretation, or decision, the result of which would render our performance of any part of this Agreement illegal or otherwise unlawful or in conflict with independence or professional rules; or

(c) circumstances change (including changes in ownership of you or your Affiliates) so that our performance of any part of this Agreement would be illegal or otherwise unlawful or in conflict with independence or professional rules.

10.4 Effect of termination.

(a) You will immediately pay to us all of our outstanding unpaid invoices and interest and, in respect of the Services provided but for which no invoice has been submitted, we may submit an invoice, which shall be payable immediately on receipt; and

(b) Termination of this Agreement will not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination.

10.5 Termination in part. Termination of this Agreement in part only shall not affect the remainder of this Agreement.

11. FORCE MAJEURE

Neither party shall be liable for any delays or non-performance of its obligations under this Agreement (excluding payment obligations) resulting from circumstances or causes beyond its reasonable control, including acts or omissions or the failure to cooperate by the other party (including, entities or individuals under its control, or any of its or their respective officers, directors, employees, other personnel and agents), fire, flood or other casualty, act of God, pandemic, epidemic, strike or labour dispute, war or other violence, or any law, order, or requirement of any governmental agency or authority.

12. SUBCONTRACTING & ASSIGNMENT

12.1 Subcontracting by us. We may subcontract any of our obligations under this Agreement.

12.2 Subcontracting & assignment. Subject to clause 12.1, neither party may, without the prior written consent of the other party, assign, subcontract or otherwise transfer or dispose of:

(a) any of its rights or obligations under this Agreement, except that we may assign any of our rights or obligations under this Agreement to any successor to our business; or

(b) any Claim against the other party arising out of or in connection with this Agreement.

13. GENERAL

13.1 Entire Agreement. Nothing discussed prior to execution of this Agreement has induced, nor forms part of, this Agreement except to the extent expressly set out in this Agreement, and this Agreement supersedes any previous agreement, understanding or communication, written or oral, relating to its subject matter.

13.2 Variation. No variation to this Agreement shall be effective unless it is documented in writing and signed by the authorised representative of each party, provided that the Services may be changed in nature or extent by agreement of the parties in writing, including by e-mail.

13.3 Notices. Any notices to be served on either party by the other party shall be sent by prepaid recorded delivery or registered post or by electronic mail and shall be deemed to have been received by the addressee within 72 hours of posting or 24 hours of transmission if sent by electronic mail to the correct electronic mail address.

13.4 Survival. Any provisions of this Agreement which either expressly or by their nature extend beyond the termination or expiry of this Agreement shall survive such termination or expiry.

13.5 Severance. If any provision of this Agreement is found by a court of competent jurisdiction or other competent authority to be unenforceable, in whole or in part, such provision or the affected part shall not affect the other provisions, but such unenforceable provision shall be deemed modified to the extent necessary to render it enforceable, preserving to the fullest extent permissible the intent of the parties.

13.6 Third Party Rights. The Services are provided by us for the benefit of you (and no other person) and we will only owe a duty of care to you (and not to your shareholders, officers or employees or to any other person). A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement and the rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this Agreement are not subject to the consent of any other person.

13.7 Signature. Each of the parties agrees and consents to the signing of this Agreement by electronic signature (whatever form the electronic signature takes) and that this method of signature is as conclusive of the intention of the parties to be bound by this Agreement as if signed by each party’s manuscript signature.

13.8 Counterparts. This Agreement may be signed in any number of counterparts (whether such counterparts are original or in the form of a pdf attachment to an email). Each signed counterpart shall be deemed to be an original thereof, but all the counterparts shall together constitute one and the same instrument.

14. LAW & JURISDICTION

14.1 Law. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with:

14.2 Jurisdiction. Each party irrevocably agrees that the following courts shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims) and waives any objection to the venue or jurisdiction of such courts on the grounds of inconvenient forum or otherwise: