We will provide you with confidential professional advice on intellectual property and related matters.

We will carry out all work for you under these standard terms of business (hereinafter the “Terms of Business”).  We may also provide a letter setting out any further terms agreed between us, in which case that letter will take priority over these terms.

We would be grateful if you could sign and return a copy of this document confirming your acceptance of the Terms of Business.  You might also note, that whether or not we receive an executed copy of these terms, your continuing instructions in relation to any matter and any future instructions concerning a new matter shall constitute your acceptance of these Terms of Business.

Our Directors and other 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.

Our Directors and other 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.

1. Unless otherwise agreed, we will assume that any person within your company 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 an individual within your company to act as a primary point of contact for us and keep us updated if this changes.
2. Timing and form of instructions 

   We rely on our clients 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 misunderstanding.  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.We will agree with you at the outset the scope of work required on a matter. We are not responsible for matters that are outside the scope of work agreed.  We will carry out your instructions with reasonable skill and care and in a professional and timely manner.  The nature and content of any advice we provide will necessarily reflect the specific scope and limitations of our instructions, the amount and accuracy of information provided to us and the timescale within which the advice is required.

   Intellectual Property Offices often impose time limits and failure to meet these limits can be fatal to the rights concerned.  Whilst it is our responsibility 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. Updating 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 your patent, trade mark, or other relevant rights.  Many such changes have to be officially registered.  Please remember that 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 your failure to inform us of such changes.

4. Renewal of IP Rights 

   You acknowledge that if you do not inform us within a reasonable period prior to a renewal date of any changes to the information which is relevant to the renewal of your intellectual property rights, your intellectual property rights may not be renewed within the appropriate time periods and lead to an irretrievable loss of rights.  MacLachlan IP will not be responsible for (or have any liability in respect of any losses arising as a result of or in connection with) any loss of rights or any other losses you suffer because you have failed to notify us of any changes in your information in accordance with these Terms of Business.Unless otherwise specifically agreed by us in writing, our services will not include issuing you with reminders for and processing the renewals of any of your registered intellectual property rights.

5. Electronic Communications 

   We will normally communicate with you by e-mail.  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.We shall be responsible for carrying out regular virus checks; however, 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).  To the extent that we have fulfilled our obligation above, we cannot accept responsibility (including in negligence) for any viruses that may enter your system or data by these or any other means.  Furthermore, whilst we observe reasonable precautions, we regret that we cannot guarantee the security of our IT systems.

During our work for you we may need to instruct third parties (e.g., foreign attorneys) 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 third party.

1. Our chargesOur non-standard charges are 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 complexity of the matter and the degree of urgency involved.  We may adjust our standard charges if highly specialised knowledge is required, or if the matter is complex and/or urgent. Fixed charges apply in relation to specific tasks (e.g., the actual filing of an application to register a trade mark).Our hourly rates are primarily based on the seniority and experience of the professional staff involved.  These rates are reviewed periodically.  Our charges are calculated at the rates which are current when the work is carried out.  Our fee rates are calculated at the rates which are current when the services are provided.  Other factors may also be taken into account in calculating the fees for your matter including (but not limited to) the complexity of the issues and the urgency of the matter.  We reserve the right to adjust our standard charges if highly specialised knowledge is required, or if the matter is complex and/or urgent.

   Where possible for each case that we undertake we would provide up-front an estimation of the cost to be expected, which will be communicated to you before we commence any work on the case.

   Unless otherwise agreed by us in writing, you as our Client will be responsible and liable for the payment of all of our fees and disbursements in accordance with these terms.

2. Payment of expensesYou will be responsible for any expenses we incur on your behalf.  These expenses may include Intellectual Property 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.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.
3. Payment on accountWe 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.
4. EstimatesIf 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.  Only some classes of work are suited to a firm advance quotation.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.

   If you would like to set an upper limit on the charges which may be incurred without prior reference to you then please let us know.

5. Receipt of Payment of InvoicesOur invoices are due for payment on presentation of the bill.Payment of a bill should be made by cheque or bank transfer to the account details shown on the bill.  All bank charges should be included when setting up the bank transfer.  Obviously, in the event of non-payment, we must reserve the right to cease to act and to recover all sums then due to us.
6. Late PaymentsIf a requested payment on account is not made or if an invoice remains unpaid for two weeks after the payment period on the invoice, we reserve the right to suspend all work on your behalf.  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.Please note that if we suspend work, we will not take any steps in any matter (including the observance of or compliance with due dates) until such time as your account is settled.  This may result in the loss of rights.  Any query in respect of one of our invoices must be notified within fourteen days of its receipt.  Failure to do so will be deemed acceptance of our fees.

   We reserve and have the right to exercise a lien over all your papers, documents, monies or other property of any kind we hold for you where, and for so long as, payment of any invoice or request for money on account is outstanding.  This means we shall be entitled to retain these materials until payment has been made.

7. VATWe will apply VAT and other taxes as applicable on our fees and on those expenses and disbursements that are liable for VAT.

1. Ownership of files 

   Our files remain our property at all times. If you would like to transfer your work to other professional advisors, we will copy such of the files relating to your work as you request (at your expense) and release the copy file(s) when all our charges have been paid.

2. Destruction of files 

   It is our normal practice to destroy our correspondence files, draft documents and other papers five years after the file has been closed. Unless you tell us otherwise, we will assume that you are content with this arrangement. Renewals are separate.

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 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.

Nothing in these Terms of Business will prevent you or this firm from disclosing confidential information: which is or becomes public knowledge, other than by a breach of an obligation of confidentiality; which is or becomes known from other sources without restriction on disclosure; which is required to be disclosed by law or under any professional or regulatory obligation; for the purpose of acting for you including, without limitation, disclosures to your other advisers or to third parties involved in the work we are undertaking for you; or to our auditors or other advisers or for the purposes of our professional indemnity insurance.

MacLachlan IP will comply with all relevant data protection legislation.  By instructing us you are consenting to our use of relevant personal data as appropriate in the course of our professional services, including any transfers of such data outside the European Economic Area and sending you information which we think might be of interest.

When you engage MacLachlan IP to provide services to you, you are giving us permission to hold information and personal data for our records.  This notice sets out the basis on which any personal data we collect from you, or that you provide to us, will be processed by us.  The following is a statement of our practices regarding your personal data and how we will treat it.  The applicable law is the General Data Protection Regulation (the GDPR) and the Data Protection Act 2018.

The categories of your personal data that we may collect includes but is not limited to the following: contact details (including names, postal addresses, email addresses and telephone numbers), financial and tax data, correspondence by phone and/or email.  We collect this information to provide you with our services.  You have provided consent for the processing for the purpose of representing you in relation to our engagement and retainer.  Processing is necessary for the performance of a contract which you have entered into with us or to take steps at your request prior to entering into a contract.  Processing is necessary in order to protect the vital interests of you and for the purposes of the legitimate interests which we pursue in providing you with our services.

If your case involves the processing of special categories of data such as medical or health data we will only process such personal data or special category of personal data for the purpose of this engagement.  We shall keep any personal data, information and documents relating to you or your business confidential, except where disclosure is required by law or regulation or in other exceptional circumstances.

We also use professional and other services including specialist IT service providers, which will involve some access to files including:

• Accountants
• Quality control companies
• IT maintenance contractor
• Cloud storage providers
• External file storage companies

We always try to make sure that the provider of the services is reputable and can provide sufficient guarantees to implement appropriate technical and organisational measures in such a way that your personal rights are protected.  We require them to sign letters of confidentiality and/or a written contract.  When we store files off site, whether electronic or hard copy, we will take all reasonable steps to make sure we keep your information confidential.

What are your rights with respect to the processing of personal data?

Please note that you have the following rights in respect of your personal data:

• The right to access the personal data we hold about you.
• The right to require us to rectify any inaccurate personal data about you without undue delay.
• The right to have us erase any personal data we hold about you in circumstances where the processing of data was not carried out in accordance with the GDPR.
• The right to object to us processing personal data about you such as processing for profiling or direct marketing.
• The right to data portability in certain circumstances such as where the processing is based on consent, processing is necessary for the performance of a contract and the processing is carried out by automated means.
• The right to request a restriction of the processing of your personal data.

Any searches you request may be carried out by ourselves, by Intellectual Property 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 imitations when reporting search results and may recommend extending the search.

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.

In general, communications between a Patent or Trade Mark Attorney and 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.

It is your responsibility to provide us with complete, accurate and timely information where we have requested this and to carry out any other obligations ascribed to you or to others under your control. Please take careful note of any deadlines given in our correspondence. Failure to meet such deadlines may result in loss of rights or increased costs.

We will not be responsible for any consequences which may arise from any delay or failure by you to do so (including but not limited to an irrevocable loss of rights) and we reserve the right to issue an invoice for any extra work which such delay or failure may necessitate. We are not responsible for sending you continuous reminders of deadlines given in our correspondence unless otherwise agreed. If we do not receive instructions in good time, we shall take the absence of those instructions as an implicit instruction not to take action. You remain responsible for your own commercial decisions and omissions.

You must keep us supplied with your up-to-date contact details at all times. It is important that you inform us promptly of any change of address, telephone, and fax numbers, email address and/or other contact details, and of any change of ownership of your patent, trade mark or other relevant intellectual property rights. Many such changes have to be officially registered. Please remember that the obtaining of patents, trademarks and design rights can take many years. We shall not be responsible for (or liable for any losses arising as a result of or in connection with) any loss of rights in any case where you have failed to inform us of such changes

We cannot act simultaneously for two clients whose interest in the matter on which we are advising conflict, unless (exceptionally) both clients consent to such an arrangement. When potentially taking on a new client, we try to identify conflicts of interest that may preclude us from acting. It is helpful if potential new clients identify to us any firms or companies for whom they believe we will be unable to act without a conflict of interest arising. Sometimes, conflicts arise later because, for example, our 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, generally the client with the shorter relationship with us. 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.

We value our good relationship 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 member of our professional staff 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’s complaints.

You may terminate our relationship 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 ourselves 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.

Your relationship is solely with MacLachlan IP, and MacLachlan IP has sole legal liability for our advice and the work done for you and for any act or omission in the course of that advice or work. No partner, director, agent or employee of MacLachlan IP will have any personal legal liability for that advice or work, whether in contract, tort or negligence or otherwise. In particular, the fact that an individual partner, director, agent or employee signs in his or her own name any letter or other document in the course of giving advice or carrying out that work does not mean he or she is assuming any personal legal liability for that letter or document.

You agree that our total, aggregate liability to you for any neglect, error, breach of fiduciary duty, omission or breach of contract arising out of or in connection with this appointment shall be limited to the amount of the professional indemnity insurance cover from time to time required to be maintained by us under applicable law, including any liability for the acts or omissions of our partners, employees, agents, consultants and subcontractors.

We are only liable for the loss that we directly cause you. We will not be liable for loss of opportunity; loss of profits (whether a direct loss or an indirect loss); loss of business; loss of goodwill and/or similar losses; loss or corruption of data or information; or any special, indirect, consequential or pure economic loss, costs, damages, changes or expenses.

If others are also responsible for your loss, our liability is limited to that proportion of the loss or damage which is found to be fairly and reasonably due to our fault by a Court of competent jurisdiction. Loss and damage have the same meanings as provided in the Civil Liability (Contribution) Act 1978. This applies irrespective of whether you are able to recover the rest of your loss from any other parties. We shall not be liable to pay you the proportion which is due to the fault of another party.

We are not liable to the extent where our mistake results from something you do or fail to do (such as giving us the wrong information, not giving us information at the time we ask for it or not putting us in funds at the correct time). We shall not be liable for any loss arising from or connected with our compliance with any statutory obligation which we may have, or reasonably believe we may have, to report matters to the relevant authorities under the provisions of money laundering and related legislation.

We shall not have any liability arising from any failure to provide any advice or document, or take any action, which falls outside the scope of services we have agreed to provide. We shall not have any liability for any advice or opinion given to you by any third party (regardless of whether we recommended such third party to you). Unless specified in this Section 16, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from these Terms of Business.

We strongly advise you to insure against all such potential loss, damage, expense or liability. These limits apply to the extent they are permitted by law. Nothing in these Terms of Business shall limit or exclude our liability for: death or personal injury resulting from our negligence; any damage or liability incurred by you as a result of our fraud or fraudulent misrepresentation; or any other liability for which exclusion or restriction is prohibited by applicable law.

As our Client, you agree to indemnify and keep us, our agents and our employees fully and effectively indemnified against all or any claims, actions proceedings or judgements made, brought or established against us by a third party in any jurisdiction (whether or not successful, compromised, settled or reversed) and all or any liabilities, damages, costs, fees, losses or expenses which we may suffer or incur and which in any case arise directly or indirectly in connection with or out of or result from or are attributable to the performance by us of our obligations or services under or in connection with our appointment on your behalf and/or the neglect or default by you, other than arising as a result of our negligence.

Without prejudice to the foregoing, in particular (without limitation) you agree to indemnify us as aforesaid in respect of any liability or loss we may incur as a result of making threats of infringement of any intellectual property right on your instruction.

It is not intended that any terms of our relationship shall be enforceable by a third party, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.

Our advice and the work that we do for you is provided for the purpose of the instructions to which it relates, and is for you as the Client or additionally, where we act for an intermediary, their benefit.  Our advice may not be relied on by any other person.  We do not accept any responsibility for the use of our advice for any purpose other than that for which it was intended, or by any person other than you, unless otherwise agreed by us in writing.  If advice of general application is provided, its relevance in circumstances other than those for which it was intended will depend on the particular circumstances in which it is to be used by you (of which we might not be aware) and should be assessed accordingly.

These Terms of Business and any instructions agreed by us in writing, constitute the entire agreement between the parties and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms of Business, or any instructions agreed by us in writing.  Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Terms of Business.

We shall be entitled to update these Terms of Business periodically and shall notify you of any changes to the terms before they take effect.  Your continuing instructions shall signify your agreement to these changes.  You shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of your rights and obligations under these Terms of Business without our prior written consent.

You may request information about our professional indemnity insurance.  If you do submit such a request, we will provide the same within 5 working days of receipt of your request.

Neither MacLachlan IP nor you shall be liable in any way for failure to perform our respective obligations under this appointment if the failure is due to causes outside the reasonable control of the party which has failed to perform.

You may withdraw your instructions at any time by written notice to us.  Subject to our professional obligations we may terminate our appointment by giving you written notice. In the event of termination, fees and expenses incurred by us or our agents or other third parties to the date of termination are payable by you.

In the event that any of these Terms of Business is held to be invalid, the remainder of the terms will continue in full force and effect.

Irish law shall apply to the construction and interpretation of our relationship and the Irish courts shall have non-exclusive jurisdiction to resolve any disputes arising in relation to it.

The above Terms of Business will apply until varied or replaced with alternative terms agreed with you in writing.  Please note that no change to the terms of our agreement will be valid unless agreed in writing by a Director of MacLachlan IP.