Stobbs Terms & Conditions
Stobbs is a different kind of brand and trade mark consultancy. We aim to be a centre of excellence for advice on brands. We believe in providing commercial, practical and pro-active advice as standard, and to budget. We feel it is essential to develop strong long term relationships with our clients and understand the commitment from us that is required to do this. We want to develop trusted relationships where you come to consider us a virtual in-house team. It is only by properly understanding your objectives and how you work that we can provide this level of service. We understand that this approach will necessarily involve a certain amount of time on our part for which we would not expect to charge. We believe this is all part of creating the right kind of long term relationship.
Set out below are our Standard Terms and Conditions which are of course important to protect both us and our clients within our business relationship. These terms and conditions are standard to our industry and we have an obligation to share these with you and ensure that they are clear and understood. However, in keeping with our philosophy, these terms are not set in stone, unless required by law or by our industry code, and we are open to discussion around any terms if necessary to accommodate particular client requirements.
All our client relationships start with an agreement which comprises a Letter of Engagement and the Standard Terms and Conditions. The Letter of Engagement will identify any variation of the Standard Terms and Conditions, as agreed between Stobbs and the client.
1. Stobbs (IP) Limited, trading as Stobbs.
Stobbs (IP) Limited is registered in England and Wales, Company number 08369121. Our Registered Office address is Salisbury House c/o Peters Elworthy & Moore Ltd, Station Road, Cambridge CB1 2LA. Our VAT Number is 15546701.
Stobbs (IP) Limited and its directors and employees who are registered UK trade mark attorneys are regulated by the Intellectual Property Regulation Board, IPReg. Details of the Professional code by which we are regulated can be found at www.ipreg.org.uk.
In these Terms and Conditions, “we”, “us”, “our”, and “Stobbs” are used as a reference to Stobbs (IP) Limited and “you”, “your”, “yourself” and “our client” are references to the person, legal or individual, with whom we contract under these Terms and Conditions. Any reference to “your client” is reference to a third party for whom our client may act.
Any reference to “Terms and Conditions” includes these Terms and Conditions as varied by any applicable Engagement Letter.
These Terms and Conditions shall apply to all matters in respect of which we accept instructions from you to perform professional services. By sending us instructions and/or by allowing us to start work you shall be deemed to request that we perform services for you on the basis of these Terms and Conditions. If we agree to perform any such services then there shall be a contract between us and the contract shall be governed by these Terms and Conditions. We shall not, however, be obliged to accept any instructions from you. Each matter in respect of which we perform services may at our option be treated as a separate contract between you and us.
3. Our Client.
Unless we are advised otherwise in writing, our client is the person, firm or company who first instructs us and you as our client shall be liable for payment of our bills and shall be bound in full by these Terms and Conditions, even if you represent a third party.
If you ask us to issue invoices to a third party or arrange for a third party to settle our invoices, you remain our client and these Terms and Conditions continue to apply to you in full.
Where we receive instructions from or on behalf of more than one person or entity, each such person or entity is our client and each is jointly and severally responsible for payment of our fees and expenses and each is bound by these Terms and Conditions.
4. Engagement Letter.
When you first instruct us, we will issue a Letter of Engagement that will outline your key contacts at Stobbs and other relevant specific information. We may also issue further Letters of Engagement from time to time which may include specific terms applicable to a specific instruction. These Terms and Conditions, together with the terms included in applicable Letter(s) of Engagement shall constitute the entire agreement between us. If there is any conflict between these Terms and Conditions and those in any applicable Letter(s) of Engagement, the terms in the Letter(s) of Engagement shall apply.
Instructions and Advice
If you are an organisation, any person within your organisation may instruct us on your behalf, unless they clearly do not have the appropriate authority or unless you instruct us otherwise. We can rely on any information and instructions provided by such persons.
We can take no responsibility for any failure to advise or comment on any matter that falls outside the limitations of our engagement. In addition, we accept no liability for any advice in draft form. We do not have any responsibility to update advice after it is issued.
Any advice we give will be based on the information you supply to us. We assume that all information supplied by you or on your behalf is true, accurate and not misleading to the best of your knowledge and belief. We shall not be responsible for any loss or damage arising from reliance on information supplied by you or on your behalf, or arising from any inaccuracy or other defect in any document or other information supplied by you or on your behalf.
Our advice is given to you for your sole benefit or for the benefit of your client. Our advice is given solely for the purpose of the instructions to which it relates. We accept no liability in relation to any other party relying on our advice without our prior written permission for them to do so.
For as long as we are instructed by you, you give us authority to complete and sign in your name, or on behalf of your client, such forms and other documents as are necessary or desirable to carry out your instructions. In agreeing to these Terms and Conditions you agree to indemnify us in respect of all costs, claims, demands and expenses that may result from the exercise of that authority.
6. Timing and Form of Instructions.
We accept instructions by email, post, fax or orally. Where instructions are given orally, we will make a written note of the instructions on the file which will form evidence of the instruction. We rely on our clients to give us timely, clear, complete and accurate information and instructions. We accept no liability in respect of instructions which are late, unclear, incomplete or inaccurate.
Failure to meet time limits which are imposed by official Patent and Trade Mark Offices can be fatal to the rights concerned. “Late” instructions are those which do not give us reasonable time to act within such official time limits. Whilst we endeavour to meet time limits when instructed to do so, we do not accept liability for any loss through failure to meet such time limits when instructions are received by us late, and in any event less than five working days before the deadline. 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, incur costs on your behalf or take other action in the absence of your instructions to do so. In this case rights may be lost irrevocably.
Additional charges may be incurred in the event of late instructions or late payments to us, which we shall pass on to you.
7. Minimum Instruction.
In the absence of specific instructions, we shall assume we are instructed to take the minimum steps necessary to maintain rights. However, in the event that you become insolvent or enter liquidation or administration, or are in breach of any of these Terms and Conditions, and/or have not supplied advance payment on account if requested, we reserve the right not to incur expense in taking such minimum steps.
8. Updating Information.
It is important that you inform us promptly of any change in respect of:
– our primary contact
– your name and contact details
– any change of ownership or any other change affecting or potentially affecting
ownership of your Intellectual Property rights, such as the grant of licences relating
to trade marks
Often it is necessary to record any such changes on the official registers. We accept no liability in respect of any loss of rights as a consequence of your failure to inform us of such changes.
9. Electronic Communications.
We will normally communicate with you by email, post or fax. Given that emails sent over the Internet may lack security and jeopardise confidentiality, we cannot accept responsibility for any disclosure to other parties as a result of the interception of such communications. We cannot accept responsibility for corruption in the information communicated to or from you, or its non-receipt or late receipt by you or us of such communications. You should let us know if any documents or information should not be sent by email or over the Internet to you or on your behalf.
We advise you to carry out your own virus checks on any electronic communications. We cannot accept responsibility (including in negligence) for any viruses or other malware (or their consequences) that may enter your system or data by these or any other means.
10. Instructing Third Parties.
During the course of our work for you or your client, we may need to instruct third parties, such as overseas lawyers and agents, patent attorneys, translators, investigators etc, to perform the required work. You authorise us to instruct such third parties directly. You may be required to sign or obtain the signature of a power of attorney or similar document to engage such third party and if this is not done, rights may be lost.
Such third parties are not part of, or connected with or associated with Stobbs in any legal or commercial way. We choose these third parties with care, depending on the requirements of any given situation. We are not liable for any default or negligence by such third parties.
11. Our Charges.
We know our charges are extremely competitive in our industry. We take a more practical approach to cost than most. We charge based on professional time spent but we do not pass on any soft disbursements (such as photocopying charges), and we minimise the fixed fees that most patent and trade mark attorney firms charge. We do have some fixed fees for filing applications and the like but we do not charge fixed fees for monitoring deadlines, booking files, etc. unlike most firms in our profession. In addition, we have flexibility in relation to cost and are more than willing to discuss different charging models either for the running of your portfolio, or for when you have big projects on. For example, we offer retainer arrangements for some of our larger clients.
We of course pass on any hard disbursements (such as third party expenses, courier charges etc) incurred on your behalf.
Our hourly rates are based on the seniority and experience of the professional staff concerned. Our charges are calculated at the rates that are current when the work is carried out. We reserve the right to review and adjust our pricing structure from time to time.
We will take the minimum steps necessary to maintain rights. We are entitled to charge you accordingly. In addition third parties contact us regarding our clients’ rights. We need to report these to you and we will make appropriate charges for such reports, including disbursements incurred. It may be necessary in some cases for third parties to take action without first notifying us. It is important, therefore, if an application or a granted right is no longer of interest and further expense is not to be incurred in relation to it, that you instruct us accordingly. In the absence of such instructions, we reserve the right to charge for expenses so incurred.
12. Out of pocket expenses.
You authorise us to incur such expenses and disbursements as we consider reasonably necessary to provide the service instructed. These expenses may include patent and trade mark office fees, as well as those of third parties. You will be responsible for reimbursement of such expenses. We do not charge, however, for soft disbursements such as photocopying charges.
Local representatives’ charges and official fees are outside our control since they may be changed without notice and vary with exchange rate fluctuations. Any adverse fluctuations at all times remain your responsibility and you agree that we may recover the same from you at any time.
Any estimates or quotations given by us will exclude VAT which will be charged to clients based within the European Union on our fees and on those expenses and disbursements that are liable for VAT. If VAT is not to be charged to entities outside the UK, you will provide us with your VAT number for us to include in any relevant invoice.
14. Payment on Account.
We may require you or your client to make payments on account, particularly in respect of large items. 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.
If requested, we will give estimates of future charges. We will do so in good faith, based on our knowledge at the time, to assist you in budgeting your expenditure. Such estimates should not be viewed as fixed price quotations or binding upon us, unless we agree with you to the contrary.
If, during the course of carrying out work, it becomes apparent to us that our charges are likely to significantly exceed our estimate, we will try to obtain your permission before exceeding our estimate. If you would like to set an upper limit on the charges that may be incurred without prior reference to you then please let us know.
16. Invoices and Payment Terms.
We reserve the right to submit invoices to you on a regular basis (usually monthly or at appropriate stages in the conduct of a matter).
Unless otherwise agreed, our invoices are payable within 30 days. Where you are instructing us on behalf of your own client, you agree that you will pay us within such term even if your client does not pay your corresponding charges to them within the term.
17. Exchange Rates.
When we issue an invoice in Euros or US dollars we convert our fees into the relevant currency using the prevailing buy/sell exchange rates posted at ukforex.co.uk at the time of billing. We do not charge any additional costs for operating in US dollars or Euros.
When we pay a disbursement on your behalf, the cost passed on to you is the disbursement cost converted into GBP at the time the disbursement is incurred. We do not apply an uplift for paying foreign currency fees but we do charge an administration fee to cover dealing with the payment and bank charges.
18. Late Payments.
If a requested payment on account is not made or if an invoice remains unpaid after the payment period on the invoice, we reserve the right to suspend all work on your behalf. We are entitled to charge interest at the HSBC Bank base rate plus 4% on any overdue account. This is without prejudice to our right to invoice for work undertaken before such suspension and to take legal action for the payment of our costs. You will be responsible for the consequences of the suspension of work, which may include the irrevocable loss of, or failure to obtain, rights.
19. Reviews of Charges.
On occasions special arrangements may be agreed on our charging where particular circumstances justify it. However, unless such arrangements include specific terms relating to reviews, we reserve the right to review such arrangements on a bi-annual basis from their start date.
20. Client Monies on Account.
Occasionally, we may be required to hold money on account for you. In the normal course of events, any funds held by us on your account will be held in a current account which will not pay interest. However, in the event that any interest is paid, we are not liable for payment of such interest to you.
We do not hold paper files. Our files are electronic. We hope to build and develop long term relationships with our clients and would hope that you never wish to move your work elsewhere. However, if you would like to transfer your work to another firm, we will co-operate to send electronically any relevant files to the new firm at no cost, assuming your account with us is up to date or that you have committed to an agreed payment plan for clearing your account.
We will keep the electronic files for as long as we judge reasonable or as required by UK law. If you subsequently require hard copies we will make them at your cost. Unless you tell us otherwise, we will assume that you are content with this arrangement.
Original documents such as agreements, assignments, licences and registration certificates will not knowingly be destroyed.
22. Confidential Information.
In the course of our work for you we are likely to receive information that relates to you or your client. We will keep such information confidential, except where disclosure is required by law or regulation, or in other exceptional circumstances, such as by our professional indemnity insurers or by our auditors or any other professional advisers appointed by us from time to time.
Only information known to those individuals having conduct of or working on matters to which these terms relate shall be taken into account in determining the scope of our responsibilities to you. We have no obligation to disclose to you information outside the scope of our engagement with you. We are under no obligation to disclose to you (or your client), or to use on behalf of you (or your client) any information in respect of which we owe a duty of confidentiality to a third party.
Unless you notify us to the contrary in writing, you authorise us to use your name in our advertising of our services (for example on our website, in tenders, in legal directories such as Legal 500), and in circular letters and emails about our services to prospective clients, but only to the extent that we act for you in connection with intellectual property matters and provided that this fact is already publicly available through the official register of a patent or trade mark office. You agree that this consent fulfils our obligations in relation to securing client consent under any and all relevant provisions of the IPREG Code of Conduct in relation to securing necessary client consent. This permission does not include any right to indicate or suggest any endorsement of our services by you or your client.
Any searches you request may be carried out by us, by patent and trade mark offices or by independent specialist searching firms. Due to the inherently uncertain nature of searching, as well as 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. However, you accept that failure to identify a particular document or item in a search does not itself justify a cause of action against Stobbs.
25. Indemnity for threat of infringement proceedings.
When we send any warning communication on behalf of you or your client to a third party, you agree, on your own behalf or on behalf of your client, to indemnify us against the risks of our being sued for making an unjustified threat of infringement proceedings. Your agreement to this means that we can maintain our objectivity in contentious matters, which may not be the case if we were to become a party to any proceedings.
26. Client Privilege.
In general, communications between a UK Trade Mark Attorney and his/her client (this includes your client when you are instructing us on behalf of your client) are privileged. This means that other people, including the courts, are not entitled to discover the content of such communications where they concern professional advice. However, you should note that there are circumstances in which the privileged status of a letter or other document can be lost. Please let us know if you would like further information in this regard.
27. Conflicts of Interest.
Our professional rules do not allow us to act for two clients who may have conflicting interests in a particular matter. Our Code of Conduct says the following on this issue:
“A regulated person must not act where his interests conflict with those of a client or of a former client, or where he knows or has reasonable grounds for suspecting that the interests of any partner or regulated person or staff of his firm, conflict with those of a client or of a former client.”
The Code of Conduct does allow us to act for two or more clients, or former clients, on any given case where there may be conflict but only if all of the parties have given their informed consent in writing. However, we feel that in any conflict or potential conflict situation, the right thing to do is for us to decline to act for either client (or former client) and to recommend alternative representation for both.
We are committed to fostering strong client relationships and are happy to discuss with you at any time what you or your client would consider to be a conflict for your or your client’s business.
28. Conflict Check.
When a potential new client comes to us, we will undertake a “conflict check”. This will include as a minimum a check with all relevant persons that acceptance of a named client is not likely to compromise the interests of a client already on our books.
We aim to build good, strong and trusted relationships with our clients. However, we appreciate that from time to time, difficulties and misunderstandings can arise. If you have any issues, we would encourage you to discuss your concerns with the member of our professional staff dealing with your work. If this does not satisfy your concerns, we have a Complaints Policy which is published on our website. A hard copy of the Complaints Policy is available on request.
30. Your Satisfaction.
If Stobbs is unable to deal with your complaint to your satisfaction, then you may be able to refer the matter to the Legal Services Ombudsman. The website of the Legal Ombudsman is: www.legalombudsman.org.uk. He may be contacted between the hours of 8.30am to 5.30pm Monday to Friday on UK T: 0300 555 0333 and in writing at PO Box 6806, Wolverhampton, United Kingdom WV1 9WJ.
31. Termination of Our Relationship
You may terminate our relationship at any time by writing to us. We may terminate our relationship with you where we have good reason to do so (including non- or late payment by you of our invoices or failing to provide payment in advance where so requested) by giving you reasonable notice in writing. In either case, if the relationship is terminated we will require you to pay our charges and expenses up to and including the date of such termination by reference to the hourly rates applicable at the time of the work together with all further sums due to us or to any third party incurred on your behalf prior to the date of termination.
32. Exclusion of liability.
We shall not be liable to you or your client for any failure or delay or for the consequences of any failure or delay in performance of your instructions if it is due to any event beyond our reasonable control including, without limitation, war, acts of God, industrial disputes, protests, fire, storm, explosion, national emergencies, acts of terrorism and failure of third party telecommunications and computer systems.
We shall not be liable to you or your client in any circumstances for any loss damage cost or expense arising from any dishonest deliberate or reckless misstatement concealment or other conduct on the part of any other person.
We shall not be liable for loss of profits or savings or any indirect or consequential loss or damage suffered by you or your client arising from or in connection with our services.
33. Your Contract.
Your contract is with Stobbs (IP) Limited. The employees of Stobbs (IP) Limited have no individual liability to you.
34. Limit of liability.
The limit of our liability shall be the maximum level of professional liability insurance that we have in place to cover any claim made against us. The sum insured is currently GB £5 million, subject to limitations. We review the sum insured periodically for perceived adequacy given the size and nature of our business. The sum insured is the sole responsibility of Stobbs and Stobbs shall have no additional liability regarding its adequacy. A copy of our current certificate of insurance is available on request.
The limitation shall not apply to any liability on our part for death, personal injury or fraud, or where such limitation is prohibited by law. The provisions of this clause shall continue to apply notwithstanding the termination of our engagement for any reason.
If you or your client consider that there may be circumstances in which you or your client might suffer loss or damage arising from or in connection with our services which is irrecoverable or exceeds the amount recoverable under these Terms and Conditions, you or your client may wish to consider organising your own insurance accordingly.
If you or your client are involved in litigation (including arbitration) either as a claimant or defendant there are a number of issues of which you should be aware. The following is particularly relevant in proceedings in the UK, and may apply more widely. Please ask concerning other jurisdictions.
The courts have wide-ranging powers and discretion to decide which party or parties should bear the costs of litigation and in what proportion. You are responsible for paying our fees even if the court orders another party or other parties to contribute towards your or your client’s costs.
In all cases involving a dispute that may lead to court proceedings the need to comply with court rules places responsibilities on clients and lawyers. Under the UK Courts and Legal Services Act 1990, lawyers have a statutory duty to the court to act with independence in the interests of justice together with a duty to comply with relevant professional conduct rules. These duties override any obligation that the lawyer may have (otherwise than under the criminal law) if it is inconsistent with them.
36. Data Protection.
Stobbs has notified under the UK Data Protection Act 1998.
By instructing us you are consenting to our use as data processors of relevant personal data as appropriate in the course of our professional services, including any transfers of such data outside the European Union and sending to you and/or members of your organisation information about our services that may be of interest to you.
In the case of clients who are individuals you agree that we may process/disclose personal data in connection with (a) the carrying out of credit checks and the taking of credit references; (b) client identification procedures; (c) conflict of interest checks; and (d) the delivery of our services. You also agree that we may send you and/or members of your organisation information about our services that may be of interest to you. This may include seminar, hospitality events and legal updates. If at any time you or any member of your organisation does not wish to receive such information from us, please let us know.
37. Third Party Rights.
For the purposes of the UK Contracts (Rights of Third Parties) Act 1999 it is confirmed that our services are only provided for our named clients and our terms of engagement are only enforceable by you or us and not by any third party.
38. Governing Law and Jurisdiction.
You irrevocably agree that English law shall apply to the construction and interpretation of our relationship and that the English courts shall have exclusive jurisdiction to resolve any disputes arising in relation to it.
39. Alternative Terms.
The above terms will apply until varied or replaced with alternative terms agreed with you in writing.
40. Term of Contract.
Your countersigning a copy of these Terms and Conditions signifies your agreement with them. However, they shall come into effect in any event on our acceptance of your new or continuing instructions to act on your behalf and shall remain in force until terminated or superceded by replacement terms.