Standard Terms of Business
Muritroyd & Company Limited (UK)
This document sets out the terms of business between you and Murgitroyd & Company Limited “Murgitroyd”. In this document, “we”, “our”, and “this firm” refer to Murgitroyd & Company Limited.
These provisions are designed to assist us in providing you with an efficient and effective service and will form the basis of the ongoing relationship. Following receipt of this document, we will assume that you are content to accept the terms set out, and any instructions given to us are accepted on that basis.
Murgitroyd and its UK patent and trade mark attorneys are regulated by the Intellectual Property Regulation Board (IPReg) and bound by the Rules of Conduct for Patent Attorneys, Trade Mark Attorneys and other Regulated Persons. These Rules of Conduct can be found on the IPReg website - www.ipreg.org.uk.
Murgitroyd’s European Patent Attorneys are also bound by the code of conduct of the Institute of Professional Representatives before the European Patent Office. This code of conduct can be found on the epi website – www.patentepi.org.
Identifying Our Client
Unless an alternative arrangement is agreed in advance, the body or person who provides us with instructions will be regarded as our client and, as such, will be responsible for paying us. If another body or person is to be responsible for paying us, our client will remain liable to pay our fees if the other body or person fails to do so.
Where more than one party is involved, for example, in the case of joint patent applicants, we may require confirmation from each party that we are to take instructions from one party on behalf of all the parties. That one party will be the only party from whom we will accept instructions, and we will look to that party in the first instance for payment, but each of the other parties will also be responsible for any charges incurred.
Where our client is a company, unless we are instructed to accept instructions from specified persons only, we may accept instructions from any person who appears to have the authority to give us instructions on behalf of the company.
To comply with the United Kingdom’s Money Laundering Regulations 2007 and parallel legislation in many other countries, we must undertake certain investigations into new clients and report to the relevant authorities any suspicious activities. By instructing Murgitroyd, you agree that this legislation binds us and that you will make no claim against us and hold usharmless for any loss or damage resulting from our compliance with those regulations or any actions resulting therefrom.
We rely on clients to provide timely and accurate instructions. We cannot be held responsible for any loss of rights or opportunity if you do not provide clear and complete instructions early enough for us to act within official time limits. Where we receive late instructions, we may charge an urgency surcharge of up to 50% of the usual cost of the work undertaken.
We will endeavour to advise you of time limits and actions that are required from you but do not undertake to give reminders.
We will act on oral instructions in an emergency. All oral instructions should subsequently be confirmed in writing. We do not accept liability for any misunderstanding or misinterpretation of oral instructions.
Please notify us promptly of any change of personnel, name, address, or ownership of rights. Official registration of such changes is often desirable. We will address correspondence to the last address notified to us, and this will fulfil any duty that we may have to communicate with you.
Whilst working for you, we shall assume that our overriding instructions are to maintain your rights without specific abandonment instructions. As such, we may take action to ensure your rights do not irrevocably lapse and pass the costs of completing this work on to you unless we have received specific instructions to abandon a right or rights.
We will typically communicate with you by email. Given that emails 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 due to the interception of such communications.
Although we regularly carry out virus checks, we advise you to carry out your virus checks on any communications (whether in the form of computer disc, email, Internet or otherwise). We accept no liability (including negligence) for viruses that may enter your system or data by these or any other means.
Working With Third Parties
As part of carrying out your instructions, it may be necessary for Murgitroyd to instruct third parties (e.g. foreign lawyers, patent attorneys or trade mark attorneys) to act on your behalf. Murgitroyd 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.
We select the third parties we work with for the quality and value of their work. We do not select any third party purely because they provide us with preferable terms, and no third party provides us with a financial reward to use them as a preferred supplier. Some of the third parties we work with provide us with favourable rates due to the volume of work we provide them; in such cases, these favourable rates are passed on to our clients.
If you would prefer to use a particular third party to assist us in servicing you or would like to change your third-party supplier at any point, please let us know, and this will be accommodated.
Whilst Murgitroyd shall endeavour to select third parties whose performance and expertise Murgitroyd regards as being of good quality, Murgitroyd will not (as far as permissible by law) 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.
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.
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.
Murgitroyd’s files remain our property at all times. Our files, both electronic and physical files, will be destroyed when they are no longer needed.
Where physical documents are provided to us, we scan these documents upon receipt before destroying the physical document. In some circumstances, we retain original documents. If you wish for a physical document to be returned to you, please inform us of this requirement before providing us with the physical document.
We reserve the right to retain any papers and materials until all payments due to us have been made.
If work is transferred to us from another firm (or vice versa) we reserve the right to charge for the work involved in the transfer.
Any searches you request may be carried out by us, 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.
Charges and Payment
Our charges are based partly on the time taken to do a particular job and partly on standard charges for particular tasks. Generally, the nature of the work is such that the time it will take often cannot be known before the work is begun, but we are happy to provide an estimate for a particular job on request. Any estimate will be given in good faith based on our knowledge at the time, but such an estimate is not binding as the time required and costs may be affected by matters beyond our control. If during the course of carrying out the work it becomes apparent that our actual charges are likely to significantly exceed an estimate, we will endeavour to seek your permission before exceeding the estimated charges.
All work that we do is chargeable. This includes telephone calls, faxes, reminders and reporting to you on communications which we may receive on your behalf. In most matters (such as patent, trade mark and design applications) after the initial filing, further charges will be incurred in reporting developments to you. Furthermore, overseas attorneys will make similar charges on foreign cases, which we will then have to pass on to you. Should you decide not to proceed with any case, it is in your interest promptly to give us clear written instructions that the case is to be abandoned, so that we can where possible prevent further costs being incurred against your wishes.
We may require payment on account before undertaking work, particularly where large items such as fees and expenses are to be incurred or where a client is relatively new to us. Otherwise, our invoices are to be paid directly to us in full within 30 days of the date of the invoice.
When we pay a disbursement or fee on behalf of you, we may apply a service charge of up to 20% of the disbursement or fee cost.
Additionally, to provide a level of security against exchange rate fluctuations, where disbursements and fees are in a different currency than that invoiced to you, we may apply an exchange rate margin of up to 15%.
VAT is payable by clients in the UK both on Murgitroyd’s fees and on most of the expenses that Murgitroyd is likely to incur on your behalf.
If any sum due from you to us is not paid on or before the due date for payment 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 it, Murgitroyd shall be entitled to:
a) decline to undertake any further work until arrangements as to payment or credit have been established which are satisfactory to it;
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 eight percent (8%) per annum above the base lending rate of The Santander Bank plc prevailing from time to time 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.
Any money belonging to our clients we hold on their behalf will be held in trust in specifically designated client accounts. These accounts will not be interest bearing.
In these Terms, “Data Protection Legislation” means the General Data Protection Regulation (EU) 2016/679 and any national implementing legislation. Murgitroyd is required to comply with Data Protection Legislation wherever we obtain or use any personal data (as defined in the Data Protection Legislation) relating to you, your employees or third parties (“Personal Data”). For further information about how we use your personal information please see our privacy notice.
Murgitroyd will retain and process your Personal Data to provide services to you, to keep our files and records up to date and to meet our legal and regulatory requirements.
Murgitroyd may be required to share your Personal Data with third parties (such as foreign attorneys, payroll bureaus, pension providers and statutory and/or legal bodies where it will be necessary to pass details of you to assist and process actions on your behalf), and we will only do so where necessary.
Murgitroyd shall handle your Personal Data in accordance with our obligations as a data controller and in accordance with the provisions and requirements of the Data Protection Legislation and our data protection policy, a copy of which is available on request.
You have the right to request a copy of the Personal Data that we hold on you at any time. Please email your request to our Chief Compliance Officer. You may also request that we update, correct or delete your Personal Data. In the event that you are unhappy with Murgitroyd’s response, you have the right to complain to the Information Commission’s Office. See their website on how to do this https://ico.org.uk/.
You may receive requests from a third party under the GDPR (and under any other legislation) for information which Murgitroyd holds on your behalf. If you request Murgitroyd’s assistance in responding to any such information request, Murgitroyd’s fees for providing this service, and any advice in connection with such information request, will be charged on the same basis as all other services Murgitroyd offers to you.
In general, communications between a UK Patent Attorney and his client are privileged under Section 280 of the Copyright, Designs and Patents Act 1988; and communications between a UK Trade Mark Attorney and his client are privileged under Section 87 of the Trade Marks Act 1994. 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 Murgitroyd 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.
Conflicts of Interest
Because of the nature of Murgitroyd’s profession and Murgitroyd’s professional business, it is not uncommon for patent and trade mark attorneys to be acting at any one time for two or more clients who are commercial competitors. Murgitroyd 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 Murgitroyd will not be prevented from acting for any of your competitors merely because they are competitors.
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 Murgitroyd will not make use of any information confidential to you to the advantage of any third party.
We value 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 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, you should contact our Chief Compliance Officer.
If we cannot resolve the matter, you may refer the matter to the Legal Ombudsman (if the matter relates to a complaint regarding our quality of service) or to the Intellectual Property Regulation Board (IPReg) (if the matter relates to a complaint relating to a breach of the professional code of conduct for registered patent attorneys and trade mark attorneys). Full contact details for the Legal Ombudsman and for IPReg may be found at www.legalombudsman.org.uk and www.ipreg.org.uk respectively.
A written copy of our complaints procedure is available on request.
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 best interests to continue to work for you;
d) you notify us that you have decided to cease using our services;
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;
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; or
g) you become involved in similar processes to those in (e) and (f) under non-UK legislation.
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.
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 Murgitroyd have handled for you prior to such termination.
Force Majeure and Exclusion of Murgitroyd’s Liability
Your relationship is with Murgitroyd, who 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 employee or agent of Murgitroyd will have any personal liability for those Services. You also agree that an employee or agent of Murgitroyd signing in their 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 the Company. Except for acts of fraud you agree that any claim brought in respect of any matter on which Murgitroyd were instructed will be made against Murgitroyd and not against any individual employee or agent of the Company.
You agree that Murgitroyd 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.
Nothing in these Terms excludes or limits the liability of Murgitroyd for death or personal injury caused by Murgitroyd’s negligence, or for fraudulent misrepresentation.
Murgitroyd 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) or 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.
Murgitroyd maintains professional insurance cover appropriate to a firm of our size and standing.
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.
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.
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 it, 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. Wholly owned subsidiaries of the Company shall have the right to enforce any term of the contract without such agreement.
Murgitroyd is committed to carrying out business fairly, honestly and openly. As such, Murgitroyd has a zero-tolerance policy towards bribery. In accordance with the UK Bribery Act, Murgitroyd has in place bribery prevention procedures, controls and sanctions and undertakes regular reviews of persons who perform or will perform services for or on behalf of the Company in order to mitigate the risk of bribery.
Governing Law and Jurisdiction
Scottish Law shall apply to the construction and interpretation of Murgitroyd’s contract with you, and the Scottish courts shall have exclusive jurisdiction to resolve any disputes arising under it.