Terms of Business

Terms of business of Lincoln IP Limited (“The Firm”)

This document sets out the Terms of Business under which Lincoln IP Limited (referred to herein as “the Firm” or “us”, with references to “we” and “our” construed accordingly) is engaged to provide Intellectual Property services to our Client (as identified in the preceding Letter of Engagement and referred to herein as “you” with references to “your” construed accordingly).

1. Obligations of the Firm

Our qualified staff are members of appropriate professional bodies, and will comply with their codes of conduct.

It is our responsibility to: (a) practise competently, conscientiously and objectively, putting the interests of our clients foremost while observing the law and our duty to any Court or Tribunal; and (b) avoid any conflict of interest.

We will perform the engagement with reasonable skill and care and acknowledge that we will be liable to you for losses, damages, costs or expenses caused by our negligence or wilful default.

2. Identity of Client and Authority

We have a policy of establishing the identity of clients in accordance with European Anti-Money Laundering Regulations.  To assist us with this we may ask for formal identification of those people who have authority to give instructions on your behalf.  Any advice or service that we provide is for the benefit of you as our Client only and may not be relied upon by any other party. 

Unless otherwise agreed, we will assume that any person within your organisation may instruct us on its behalf, unless they clearly do not have the appropriate authority.  

3. Instructions

We rely on you to give us timely, complete and accurate information and instructions to enable us to advise you properly.  We require instructions to be given in writing or immediately confirmed in writing and we accept no liability for any loss incurred by you because of failure to do so. 

Patent Offices and Intellectual Property Authorities often impose time limits and failure to meet these limits can be fatal to your rights.  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 be lost irrevocably.  In the event of late instructions or late payments to us, urgency charges may be incurred which we will pass on to you.

4. Changes to client information

It is important that you inform us promptly of any change in relation to: (a) any primary contact; (b) your name, address, telephone/fax numbers and e-mail address; or (c) any change of ownership of intellectual property or other relevant rights.  Many such changes have to be officially registered.  Registration of patents, trade marks 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 failure by you to inform us of such changes

5. Communications

We will normally communicate with you by mail or e-mail; we do so on the basis that you accept the risks inherent to those forms of communication.  We cannot accept responsibility for interception of, unauthorised access to, or delays in or non-receipt of these communications, except in a case of disregard of our professional obligations.  We will carry out reasonable virus-checking procedures and you agree to do the same, but we cannot accept responsibility for any loss or damage sustained due to any viruses entering your computer systems or data. 

6. Instruction of third parties

During our work we may need to instruct third parties such as foreign attorneys, searching agents, solicitors or counsel to act on your behalf.  We may instruct such third parties directly on your behalf, or alternatively you may need to sign a power of attorney or similar appointment to engage such a third party.  

Such third parties are not part of the Firm.  Whilst we shall endeavour to select third parties we regard as being appropriate, we will not be liable for any default or negligence by such third parties.  We shall monitor such third parties on an ongoing basis to ensure that the required service is provided and that our performance standards are maintained.  

7. Searches

If you instruct a search it may be carried out by us, by a Patent Office, or by an independent specialist search firm.  Official records and databases are subject to limitations and occasional errors, and as a consequence no search results can be guaranteed to be exhaustive or fully accurate.  When reporting a search we will endeavour to point out any particular limitations and may recommend conducting additional searching.

8. Professional Fees

We charge on the basis of a combination of hourly rates for professional work according to the seniority and experience of staff, and service fees.  We may adjust our standard charges if highly specialised knowledge is required, or if the matter is complex and/ or urgent.  Fixed charges may apply in relation to specific tasks.  Details of fees and expenses will be provided on request. 

You will be responsible for any 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, telephone and fax charges.

A standard markup is applied to disbursements incurred with suppliers on your behalf to cover our handling costs and banking charges.  This markup is calculated at 12.5% plus 20 GBP on disbursements in GBP, or 12.5% plus 45 GBP on disbursements in other currencies.  This excludes official fees payable to IP authorities, which are passed on at cost. 

Whilst our fixed 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.  

We may require payment on account, particularly in respect of large items such as charges and expenses to be incurred in foreign filings and actions.  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, so good time should be allowed for payment.  

If requested, we will try to give estimates of future charges in good faith based on our knowledge at the time.  However, as charges 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.  If during the course of carrying out the work it becomes apparent to us that our actual charges are likely significantly to exceed our estimate, we will try to obtain your permission before exceeding our estimate.

9. Invoicing

We will invoice on a regular basis and payment on those invoices is due on demand.  We reserve the right to charge interest for late payment at the statutory rate and to suspend further work if the outstanding charges are not paid.  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 rights.

We can only accept payment from another party where that party assumes all of your obligations under these Terms of Business. 

10. Limit on liability

The aggregate liability of all employees, members or partners of the Firm in contract, tort or delict or under statute or otherwise, for any losses, damages, costs or expenses suffered or incurred by you  arising from or in connection with this engagement, however caused, including by our negligence (but not by our fraud, fraudulent misrepresentation or the reckless disregard of our professional obligations) shall be limited to the sum specified in our Letter of Engagement (preceding these Terms of Business), or, if no sum is specified, the sum of £5,000,000.  We, with your agreement, accept the benefit of the terms set out in these Terms of Business as agent and trustee for each member, employee or partner of the Firm. This term shall not operate to exclude any liability which may not be excluded by law.

11. Files

Our files remain our property at all times.  At your request and expense, we will copy such of the files relating to your work and release the copy files when all of our charges have been paid.  It is our normal practice to destroy our correspondence files, draft documents and other papers when the file has been closed for more than six years.  Unless you tell us otherwise, we will assume that it is content with this arrangement.  Renewals are handled separately.

12. Confidential information

We are under a professional duty to keep information and documentation concerning our clients confidential unless it is already in the public domain.  We may be required to disclose information by law or regulation and if so we will inform you where possible.  We will not use your confidential information for the advantage of any third party and will not use confidential information obtained from one client to the advantage of another.

13. Privacy

Lincoln IP is committed to safeguarding the privacy and data of its clients and contacts.  We will collect and process certain personal information in the provision of our services and to meet our contractual, legal, and regulatory obligations.  Our Privacy Notice is available on our website at https://www.lincoln-ip.com/privacy-policy/.

14. Privilege

In general, communications between a UK Patent Attorney or Trade Mark Attorney and his client are privileged under Section 280 of the Copyright, Designs and Patents Act 1988.  This means that other people, including the courts, are not entitled to discover the content of such communications where they concern professional advice.  Privileged status of a letter or other document can be lost if the document in question is circulated to a person other than the addressee.  

15. Conflicts of interest

We cannot act simultaneously for two clients whose interests in the matter on which we are advising conflict, unless both clients consent to such an arrangement.  Such agreement may be possible when the technology is sufficiently different or where the clients are serviced by two appropriately segregated teams of staff.  Where a conflict cannot be resolved we will have discretion to determine for which client we continue to act. 

When potentially taking on a new client, we try to identify conflicts of interest that may preclude us from acting.  Sometimes, conflicts arise later because, for example, clients acquire new companies or diversify into new areas of business.  In such circumstances, we reserve the right to decline to act further, at least in relation to the area of conflict, for one of the clients in question.  Because of obligations of confidentiality it is often not possible for us to identify the other client or the subject matter involved when we advise a client that we can no longer act for them.

16. Client care

We value our good relationships with our clients.  If any problems arise, we ask that in the first instance they be discussed with the member of our professional staff dealing with the work.  If after such discussions you feel that the matter has not been adequately dealt with, then the matter will be referred to the senior member of the Firm.  If we cannot resolve the matter, or if the outcome of the complaints procedure is not deemed to be satisfactory, then you may take the matter forward with the Legal Ombudsman (www.legalombudsman.org.uk).

17. Termination

You may terminate your relationship with us at any time by writing to us.  If there is a good reason which prevents us from continuing to act for you, we may terminate the relationship by giving you reasonable notice.  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.  

18. Third party rights

It is not intended that any terms of these Terms of Business or the relationship between you and the Firm shall be enforceable by a third party, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.

19. Governing law & jurisdiction

Scots law shall apply to the construction and interpretation of these Terms of Business and your relationship with the Firm. The Scottish courts shall have exclusive jurisdiction to determine any disputes or difference arising from or in relation to this engagement.

20. Directors liability for fees & expenses 

In accepting the terms of these Terms of Business and the preceding Letter of Engagement (whether by signing or otherwise) the director(s) or other authorised party of our Client so doing hereby jointly and severally undertake to unconditionally meet the obligations of our Client in respect of all fees and outlays of the Firm however so and whenever so incurred. The director(s) or other authorised party of our Client hereby irrevocably and unconditionally undertake to pay to us immediately on our written demand, all fees and outlays due by our Client to us.  The director(s) or other authorised party of our Client shall pay us any and all amounts demanded by us in full, without raising any defence, set-off, counterclaim or any restriction or condition, free and clear of any deduction or withholding on account of tax or otherwise. The director(s) or other authorised party of our Client agree that their obligations under this guarantee shall not be in any way discharged, diminished or otherwise affected by: (i) any variation or amendment (however fundamental) to the engagement letter between the Firm and our Client, (ii) any other act, event or omission of any nature whatsoever (including without prejudice to the foregoing generality the granting of any time or indulgence), which, but for this provision, might operate to impair or discharge our Client’s liability to the Firm hereunder. The director(s) or other authorised party of our Client hereby agree to meet our fees for our time expended in pursuing sums due under and in terms of this guarantee on an indemnity basis.  The director(s) or other authorised party of our Client agree to hold us harmless in respect of all costs and losses incurred by us in recovering our fees from him/her.  This provision will give rise to a personal obligation to pay our fees and outlays. Please take independent legal advice before signing these Terms of Business.