Our terms of business with you
COLMAN AND SMART LIMITED, trading as COLMAN+SMART, is a paralegal law firm. The following are our standard terms of business upon which we will carry out all professional work on your behalf. These provisions are designed to assist us in providing you with an efficient and effective service and will form the basis of our ongoing relationship.
1. The basis of our business relationship with you
1.1 These terms shall apply to all matters in respect of which we accept instructions from you to perform professional services ('the services'). By sending us instructions and/or by sending us further instructions and/or by allowing us to start performing the services you shall be deemed to request that we perform services for you on the basis of these terms. If we agree to perform any such services then there shall be a contract between us, and the contract will be governed by these terms. We shall not, however, be obliged to accept any such instructions. Each matter in respect of which we perform the services may at our option be treated as a separate contract between you and us.
1.2 Any change to these terms which may be agreed between you and us must be confirmed in writing by us to you in order to be effective. Any decision by us not to enforce any of these terms shall not prejudice our rights under these terms at any time. Subject to these terms we will always proceed on the basis that our overriding duty to you is to do whatever we consider is necessary to properly protect and preserve your rights.
1.3 Subject to any variation in accordance with these terms, every contract between us will be subject to these terms to the exclusion of all other terms and conditions (including any terms or conditions which you purport to apply under any purchase order, confirmation of order, specification or other document whatsoever and whenever).
1.4 In these terms, the firm, we and us means COLMAN AND SMART LIMITED or any other business which is owned in whole or in part by us and controlled by us, such business being identified in correspondence between the parties. 'You' are our client, being the person, firm, body or company who instructs us and purchases services from us.
1.5 The services refers to paralegal services and intellectual property consultancy from time-to-time provided by us to you in respect of a case.
1.6. 'Paralegal' refers to a legal specialist who is not a barrister, solicitor or other regulated lawyer.
1.7. We are not a regulated law firm.
2. Our obligations
2.1 All of the directors of COLMAN AND SMART LIMITED are Qualified Members of the Institute of Paralegals. The Institute is recognised by the British Government although there is no regulatory body that governs paralegal work. We have a commitment to recognising the Institute, its code of conduct and its disciplinary procedures as if it was an official regulator. In the unlikely event that anything should go wrong, and this cannot be satisfactorily addressed by us, clients have the right to complain to the Secretariat of the Institute of Paralegals who can impose disciplinary procedures on us should we have failed in our obligations to a client.
2.2 It is our responsibility to: (a) practise competently, conscientiously and objectively, put your interests foremost while observing the law and our duty to any court or tribunal; and (b) avoid conflicts of interest. You should note however that, due to the nature of our work, we may act for competitors.
3.1 Identity of the client
(a) It is important that we are able to identify who is formally our client. We shall be entitled to assume, unless we agree otherwise 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, trade mark 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).
(b) 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 shall be pleased to do this; however, responsibility for making such payment remains with our client.
(c) In the case of joint applicants or proprietors we will (in the absence of specific written instructions to the contrary) report to and accept instructions from the first named applicant or proprietor only. Nevertheless, all applicants/proprietors have joint and several responsibilities for payment of our charges and costs.
3.2 (a) New clients and start-up companies
We welcome the opportunity to work with new clients and start-up companies. For new clients, our policy is to seek 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 the directors to sign an undertaking to this effect.
(b) Money Laundering
In order to comply with the United Kingdom's Money Laundering Regulations 2007 and parallel legislation in many other countries, it is necessary for us to undertake certain investigations into new clients and to report to the relevant authorities any activities deemed suspicious.
By instructing us, you agree that we are bound by this legislation and that you will make no claim against us and will hold us harmless for any loss or damage which results from our compliance with those regulations or any actions resulting therefrom.
3.3 Timing and form of instructions
(a) We rely on clients to give us timely, complete and accurate information and instructions. Oral instructions can be accepted but in the absence of written confirmation from you we may, at our sole discretion confirm in writing our understanding of your oral instructions and proceed on that basis or seek written confirmation from you before proceeding.
(b) Intellectual Property Offices often impose time limits and failure to meet these limits can be fatal to the rights concerned. We accept no liability if you do not provide instructions that are clear, complete and early enough to allow us to act within 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 reminders.
(c) If we receive late instructions from you, we may not be able to implement your instructions in time and we shall have no liability for any loss which may then arise. In the event of late instructions or late payments to us, urgency charges may be incurred by us which we shall pass on to you.
(d) You agree that if we act on the instructions of your authorised agent, solicitor or other adviser, then we are entitled to rely upon all the information and instructions given to us by that person until we receive your written signed instructions to the contrary.
3.4 Overriding instructions not to let rights lapse
(a) We shall assume that our overriding 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 will be within the terms of the above overriding instructions.
(b) As renewal and maintenance of IP rights is often outsourced, and in order to avoid you being burdened with unnecessary correspondence, we do not undertake to send renewal/maintenance reminders or to attend to the payment of renewal or maintenance fees without explicit instructions.
3.5 Updating information
It is important that you inform us promptly of any change of address, telephone and fax numbers and of any change of ownership of your trade mark or other relevant Intellectual Property rights. Many such changes have to be officially registered.
Please remember that the obtaining of trade marks and other IP 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.
3.6 Electronic Communications
(a) We will normally communicate with you by e-mail, although original documents for your retention, such as registration certificates, will be sent to you by mail, unless you instruct us to send these by courier or special post. As e-mails may lack security and jeopardise confidentiality, we can accept no liability for non-receipt or late receipt by you of e-mail 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. If you would prefer us to communicate by ordinary mail or fax, we ask that you instruct us in writing by ordinary mail or fax to that effect.
(b) 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 negligence) for any viruses that may enter your system or data by these or any other means.
4. Instruction of third parties to act on your behalf
4.1 As part of carrying out your instructions, it may be necessary for us to instruct third parties (e.g. foreign lawyers or trade mark agents) to act on your behalf. We may either instruct such third parties directly on your behalf, or require you to sign a power of attorney or similar appointment to engage such third party directly.
4.2 Such third parties are not part of this firm. We shall endeavour to select third parties whose performance and expertise we regard as being of good quality, but we shall not be liable for any losses, liabilities, costs or expenses arising as a result of any default or negligence on the part of any such third parties.
For such period as you instruct us to carry out work on your behalf, you hereby agree to give us express authority to complete and sign in your name such forms or other documents as are necessary or desirable to carry out your instructions. You agree to indemnify us in respect of all costs, claims, demands and expenses that may result from the exercise of that authority.
6. Professional fees
6.1 Our charges
(a) We have a large number of standard charges which are set out in our Schedule of Charges, available on request.
(b) Our other 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 (but are not limited to) the size and complexity of the matter and the degree of urgency involved.
(c) All actions and attention by us in providing the services are chargeable, including (for example) both incoming and outgoing telephone calls, travelling, the sending of reminders and reporting to you on communications which we may receive from our foreign associates and other specialist providers, as well as in acting for you generally. Many of these actions are incorporated within our standard charges.
6.2 Payment of expenses
(a) You will be responsible for any expenses incurred by us on your behalf. These expenses may include (but are not limited by) Intellectual Property Office fees, Counsel's fees, Court fees, the costs of any experts or other agents (including any foreign lawyers), photocopying costs, couriers, travel and meeting expenses and, in some cases, certain telephone and fax charges.
(b) 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 rate fluctuations. However, please be assurred that we do monitor our overseas agents and their respective charges.
6.3 Value Added Tax ("VAT")
VAT is payable to clients in the UK both on our fees and on most of the expenses which we are likely to incur on your behalf.
(a) If requested, where possible we shall give estimates of future charges. They will be given in good faith based on knowledge existing at the time, but they are not binding unless we expressly agree otherwise, as charges may be affected by matters beyond our control and the amount of work involved often cannot be accurately forecast.
(b) If during the course of carrying out the work it becomes apparent to us that our actual charges are likely to significantly exceed our estimate, we shall endeavour to seek your permission before exceeding our estimated charges.
7.1 We shall not be obliged to grant you any credit and we may require you to make regular payments in advance and on account of our fees and anticipated disbursements for the provision of the services. If we do grant you credit facilities then you agree that we shall be entitled to do so upon such reasonable terms as we deem appropriate, and we reserve the right to terminate with immediate effect any credit facilities at any time and without prior notice.
7.2 We shall be entitled to send you invoices for fees and disbursements (whether incurred or to be incurred) and for any value added tax or other tax payable thereon at regular and appropriate intervals as we deem fit and on an interim basis. You agree to pay such invoices on receipt and free from any deductions, set-offs, withholding, discount or abatement. Time for payment of our invoices is of the essence.
7.3 If any sum due from you to us is not paid in time then all sums then owing by you to us shall become due and payable immediately and, without prejudice to any other right or remedy available to us, we shall be entitled to:
(a) cancel or suspend our performance of the services until arrangements as to payment or credit have been established which are satisfactory to us;
(b) charge you:
(i) interest calculated on a daily basis on all overdue amounts (both before and after judgment) until actual payment at the rate of 1.25% per month until payment is made in full; and
(ii) the cost of obtaining judgment or payment to include all reasonable professional costs (including legal fees) and other
costs of issuing proceedings or otherwise pursuing a debt recovery procedure.
(c) in respect of all invoiced fees and disbursements which remain unpaid as well as work done and disbursements incurred but not yet invoiced, have a first and paramount lien on all materials, inventions and documents in our possession, power or custody relating to any matter touching or concerning the contract for the Services.
8.1. Paperless office
COLMAN AND SMART LIMITED operate a paperless office in that we do not maintain physical files.
8.2 Original papers and other materials
If you send us papers, samples or other materials - and assuming they are not being filed with Intellectual Property authorities - we will return them to you after they have been scanned and incorporated into our files.
8.3 Destruction of files
We may destroy our archived correspondence files which are more than six years old. In the absence of contrary instructions, we will assume that you are content with this arrangement.
9. Confidential information
9.1 While acting for you, we shall gather information and documents which relate to you. We shall keep such information and documentation confidential, except where disclosure is required by law or regulation, or in other exceptional circumstances.
9.2 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.
10. Data Protection
10.1 We are required to comply with the Data Protection Act 1998 wherever we obtain or use any personal data (as defined in the 1998 Act) from clients (including names, addresses and any personal details). We will use your personal data to provide the services to you. We may also use your personal data to send you information about our products and services which may include sending updates and seminar invitations and to contact you from time to time with newsletters and other information about intellectual property matters. If you do not wish us to use your personal data in this way, please notify us in writing. In the course of instructing foreign attorneys it will be necessary to pass on details of you to enable them to prosecute applications, and take other actions on your behalf.
10.2 We will not use your personal data for any purpose other than that set out in this condition 10 without your consent unless we are entitled or required to do so by law or under a court or regulatory authority order.
10.3 At our discretion we may give a client access by electronic means to the part of our IP database which relates to its intellectual property. There may be a charge for this.
Any searches you request may be carried out by us, by Intellectual Property Offices or by independent specialist searching firms. Due to the limitations and occasional errors in classifications, indices, computer databases and official records, no search can be guaranteed for comprehensiveness or accuracy. Our full searching disclaimer document is available on request.
12. Indemnity for threat of infringement proceedings In the event that you instruct us to send any warning concerning an intellectual property right on your behalf to a third party, you indemnify us against any costs or other liability arising from 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.
13. Notices and forms of written communication between you and us
All notices and forms of written communication between you and us during the subsistence of the contract for the services shall either be on paper delivered by hand, or sent by pre-paid first class post or sent by fax or e-mail. If such notices and forms of written communication are sent by electronic means, then they shall be deemed to have been received at the time of receipt by us of the transmission if transmitted during our normal business hours (9.30am - 5.00pm UK time) but if they are not transmitted during those hours, then at 10.00am on the next working day following the day of transmission, and in the event of a difference between the time of dispatch and the time of receipt recorded on our receiving equipment, the time specified by our receiving equipment will be deemed the time of transmission.
14. Conflicts of interest
14.1 Because of the nature of our work and our professional business, it is not uncommon to be acting at any one time for two or more clients who are commercial competitors. We will not knowingly act for or against another client in a matter involving an active dispute with you without your written approval and the written approval of the other client, but you agree that we shall not be prevented from acting for any of your competitors merely because they are competitors.
14.2 Appropriate procedures and arrangements exist to ensure that advice and opinions you receive are wholly independent of and do not make any use of knowledge or information confidential to any third party and we will not make use of any information confidential to you to the advantage of any third party.
COLMAN AND SMART LIMITED is committed to high quality service and client care. Our complaints procedure is available on request. If you are unhappy about any aspect of the service you have received or about our fees for the work done, please contact our Daniel Smart, Director. If you are not satisfied with our handling of your complaint you have the right to complain to the Secretariat of the Institute of Paralegals.
16.1 We will continue to work for you until any of the following events occur:
(a) we finish the work you have instructed us to do;
(b) your invoice remains unpaid for a protracted period;
(c) we consider that it is not in our mutual best interests for us to continue to work for you;
(d) you notify us that you have decided not to use us any longer;
(e) you (if an individual or a partnership) offer to make any arrangements with or for the benefit of your creditors, or a petition of bankruptcy is presented in relation to you or any of your partners; or
(f) you (if a limited company) are deemed to be unable to pay your debts (within the meaning of Section 123 of the Insolvency Act 1986) or you call a meeting to pass a resolution to wind up the company, or such a resolution is passed, or an administrator or receiver is appointed to all or any part of your business or property.
(g) you become involved in similar processes to those in (e) and (f) under non-UK legislation.
16.2 Irrespective of any termination or suspension of the services in accordance with these terms, you shall pay us at the contract rate for all services provided up to and including the date of suspension or termination and the termination of the contract or any contract for whatever reason shall not affect the rights or remedies of either party in respect of any antecedent breach or in respect of any sum owing or to become owing to the other.
16.3 You will accept responsibility for making alternative arrangements for compliance with all due dates of action, payment of official fees and the taking of any official steps necessary to preserve your rights in relation to the matters which we have handled for you prior to such termination.
17. Force Majeure and exclusion of our liability
17.1 Your relationship is with COLMAN AND SMART LIMITED. We will have exclusive liability for carrying out the services and for any negligent act or omission by us in the course of providing those services. You agree that no individual director or employee of COLMAN AND SMART LIMITED will have any personal liability for those services. You also agree that a director or employee of COLMAN AND SMART LIMITED signing in his own name any letter, email or other document in the course of providing services does not imply he is assuming any personal liability separate to that of COLMAN AND SMART LIMITED. Except for acts of fraud you agree that any claim brought in respect of any matter on which we were instructed will be made against COLMAN AND SMART LIMITED and not against any individual director or employee of COLMAN AND SMART LIMITED.
17.2 You agree that we shall have no liability nor shall we be deemed to be in breach of any duties or obligations owed to you if at any time we are prevented, delayed or hindered in complying with such duties and/or obligations by reason of any circumstances beyond our reasonable control.
17.3 Nothing in these terms excludes or limits the liability of us for death or personal injury caused by our negligence, or for fraudulent misrepresentation.
17.4 We shall not be liable to you for any indirect or consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) or loss or damage (contractual, tortious, breach of statutory duty or otherwise) which arises out of or in connection with the contract (including loss of profit or other economic loss) for any liability incurred by us to any other person for any economic loss, claim for damages or awards howsoever arising from the Services or otherwise.
17.5 We maintain professional insurance cover appropriate to a firm of our size and standing.
18.1 Nothing in the contract shall create, or be deemed to create a partnership or joint venture or relationship of employer and employee or principal and agent between the parties.
18.2 If at any time any one or more of the conditions of the contract (or any sub-condition or paragraph or any part of one or more of these terms) is held to be or becomes void or otherwise unenforceable for any reason under any applicable law, the same shall be deemed omitted from the contract and the validity and/or enforceability of the remaining provisions of the contract shall not in any way be affected or impaired as a result of that omission.
18.3 The Contracts (Rights of Third Parties) Act 1999 shall not apply to the contract with the exception of any other business which is owned wholly or in part by us, and a person who is not a party to the contract (including any employee, officer, agent, representative or sub contractor of either party) shall not have the right (whether under the Contracts (Rights of Third Parties) Act or otherwise) to enforce any term of the contract which expressly or by implication confers a benefit on that person without the express prior agreement in writing of the parties which agreement must refer to this condition.
18.4 All services provided by COLMAN AND SMART LIMITED may be provided by a successor in title.
19. Governing law and jurisdiction
English law shall apply to the construction and interpretation of our contract with you and the English courts shall have exclusive jurisdiction to resolve any disputes arising under it.