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Terms of Business

 

COLMAN AND SMART LIMITED, trading as COLMAN+SMART, is a Chartered Trade Mark Attorney firm. The following are our standard terms of business upon which we will carry out all professional work on Your behalf. These provisions are designed to assist us in providing You with an efficient and effective service and will form the basis of our ongoing relationship. They are based on recommended terms provided by The Chartered Institute of Trade Mark Attorneys.

 

1. The basis of our business relationship with You

1.1 These terms shall apply to all matters in respect of which we accept instructions from You to perform professional Services (“the Services”). By sending us instructions and/or by sending us further instructions and/or by allowing us to start performing the Services You shall be deemed to request that we perform Services for You on the basis of these terms. If we agree to perform any such Services then there shall be a contract between us, and the contract will be governed by these terms. We shall not, however, be obliged to accept any such instructions. Each matter in respect of which we perform the Services may at our option be treated as a separate contract between You and us.

1.2 Any change to these terms which may be agreed between You and us must be confirmed in writing by us to You in order to be effective. Any decision by us not to enforce any of these terms shall not prejudice our rights under these terms at any time. Subject to these terms we will always proceed on the basis that our overriding duty to You is to do whatever we consider is necessary to properly protect and preserve Your rights.

1.3 Subject to any variation in accordance with these terms, every contract between us will be subject to these terms to the exclusion of all other terms and conditions (including any terms or conditions which You purport to apply under any purchase order, confirmation of order, specification or other document whatsoever and whenever).

1.4 In these terms, the “firm”, “we” and “us” means COLMAN AND SMART LIMITED or any other business which is owned in whole or in part by us and controlled by us, such business being identified in correspondence between the parties. “You” are our client, being the person, firm, body or company who instructs us and purchases Services from us.

 

2. Our obligations

2.1 All of the directors of COLMAN AND SMART LIMITED are members of the Chartered Institute of Trade Mark Attorneys. COLMAN AND SMART LIMITED is regulated by the Intellectual Property Regulation Board (IPReg) and all directors are Registered Trade Mark Attorneys. Details of the UK professional rules can be found on the IPReg website:

https://ipreg.org.uk/pro/rules-and-regulations/code-of-conduct/

2.2 It is our responsibility to: (a) practise competently, diligently and objectively, put Your interests foremost while observing the law and our duty to any court or tribunal; and (b) avoid conflicts of interest. You should note however that, due to the nature of our work, we may act for competitors.

2.3 Confidentiality

We shall keep information and documentation provided to us confidential, except where disclosure is required by law or regulation, or in other exceptional circumstances. In general, we recommend that You restrict the release and control of any information not already in the public domain connected with instructions we receive.

2.4 We will work with You to obtain a favourable outcome in any matters that we handle for You but success cannot be guaranteed.

 

3. Instructions

3.1 Identity of the client

(a) It is important that we can identify who is formally our client. We shall be entitled to presume, unless we agree otherwise in writing, that the person (including an individual, firm or company) providing us with the initial instructions in relation to a matter is our client (e.g. if we accept instructions from lawyers, trade mark attorneys or agents (whether in the UK or abroad) they, and not the persons for whom they act, will be our client and responsible for settlement of all our invoices and for reimbursement of all our costs and expenses incurred in carrying out their instructions).

(b) If the client wishes us to render invoices to and accept payment from another entity (for example, another company in the same group) then we are happy to consider this; however, responsibility for making such payment remains with our client.

(c) In the case of joint applicants or proprietors we will, in the absence of specific written instructions to the contrary, report to and accept instructions from the first named applicant or proprietor only. Nevertheless, all applicants/proprietors have joint and several responsibilities for payment of our charges and costs.

3.2 Anti-money laundering

(a) In order to comply with the United Kingdom's Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 and parallel legislation in many other countries, it is necessary for us to undertake certain investigations into new clients and to report to the relevant authorities any activities deemed suspicious. By instructing us, You agree that we are bound by this legislation and that You will make no claim against us and will hold us harmless for any loss or damage which results from our compliance with those regulations or any actions resulting therefrom.

(b) We may need to carry out periodic checks on the identity of individuals, companies or the owners of companies. For individuals, the identity check may involve inspecting photographic proof of identity such as a photocard driving licence or passport.

3.3 Timing and form of instructions

(a) We rely on clients to give us timely, complete and accurate information and instructions. Oral instructions can be accepted but in the absence of written confirmation from You we may confirm in writing our understanding of your oral instructions and proceed on that basis or seek written confirmation from You before proceeding.

(b) Intellectual Property Offices often impose deadlines and failure to meet these deadlines can be fatal to the rights concerned. We accept no liability if You do not provide instructions that are clear, complete and early enough to allow us to act within official deadlines. We will endeavour to inform You of time limits and of actions or instructions that are required, but we do not undertake to give reminders.

(c) If we receive late instructions from You, we may not be able to implement Your instructions in time and we shall have no liability for any loss which may then arise. In the event of late instructions or late payments to us, urgency charges may be incurred by us which we shall pass on to You.

(d) You agree that if we act on the instructions of Your authorised agent, solicitor or other adviser, then we are entitled to rely upon all the information and instructions given to us by that person until we receive Your written signed instructions to the contrary.

3.4 (a) We shall assume that our overriding instructions are not to let your rights become abandoned without specific instructions to do so. There may be occasions when a third party instructed by us on your behalf has to take urgent action thought to be in Your best interests without recourse to our firm or to You. Such action will be within the terms of the above overriding instructions.

(b) As renewal and maintenance of IP rights is often outsourced, and in order to avoid You being burdened with unnecessary correspondence, we do not undertake to send renewal/maintenance reminders or to attend to the payment of renewal or maintenance fees without explicit instructions.

3.5 Updating information

It is important that You inform us promptly of any change of address, telephone and fax numbers and e-mail addresses and of any change of ownership of Your trade mark or other relevant Intellectual Property rights. Many such changes have to be officially registered. Please note that the obtaining of trade marks and other IP rights can take many years. No responsibility can be accepted for any loss of rights in any case where You have failed to inform us of such changes.

3.6 (a) We will normally communicate with You by e-mail, although original documents for Your retention, such as registration certificates, will be sent to You by mail, unless You instruct us to send these by courier or special post. As e-mails may lack security and jeopardise confidentiality, we can accept no liability for non-receipt or late receipt by You of e-mail communications or for any corruption in the information communicated to You or its disclosure to other parties as a result of the interception of such communication. If You would prefer us to communicate by ordinary mail or fax, we ask that You instruct us in writing to that effect with the related costs to be borne by You.

(b) We advise You to carry out your own virus checks on any communications (whether in the form of computer disc, e-mail, Internet or otherwise). We accept no liability (including negligence) for any viruses that may enter your system or data by these or any other means.

 

4. Instructions to third parties to act on Your behalf

4.1 As part of carrying out your instructions, it may be necessary for us to instruct third parties (e.g. foreign agents) to act on your behalf. We may either instruct such third parties directly on your behalf, or require You to sign a Power of Attorney or similar authorisation to engage such third party.

4.2 We frequently refer to foreign attorneys or agents as “associates” although we have no financial interest in them and are typically not tied to only one associate per country.

4.3 Such third parties are not part of this firm. We shall endeavour to select third parties whose performance and expertise we regard as being of good quality, but we shall not be liable for any losses, liabilities, costs or expenses arising because of any default or negligence on the part of any such third parties.

4.4 In some jurisdictions, we are able to work directly with the local Intellectual Property Office. We shall not be liable for any losses, liabilities, costs or expenses arising as a result of any refusal to engage with us or delay on the part of any such Intellectual Property Offices, some of which are in very remote parts of the world and can be difficult to get in touch with.

 

5. Authority

For such period as You instruct us to carry out work on Your behalf, You hereby agree to give us express authority to complete and sign in Your name such forms or other documents as are necessary or desirable to carry out Your instructions. You agree to indemnify us in respect of all costs, claims, demands and expenses that may result from the exercise of that authority.

 

6. Professional fees

6.1 Our charges

(a) Most of our work is performed on a fixed charge basis (e.g. filing of a trade mark application or renewing of a trade mark registration) and estimates can be provided to You.

(b) Where a fixed charge is not practical, charges are principally based on the amount of our professional time spent on the matter, although other factors may also be taken into account. These others factors may include (but are not limited to) the size and complexity of the matter and the degree of urgency involved.

(c) All actions and attention by us in providing the Services are chargeable including, for example, both incoming and outgoing telephone calls, travelling, the sending of reminders and reporting to You on communications which we may receive from our foreign associates and other specialist providers, as well as in acting for You generally. We endeavour to incorporate these actions into our fixed charges.

6.2 Payment of expenses

(a) You will be responsible for any expenses incurred by us on Your behalf. These expenses may include (but are not limited by) Intellectual Property Office fees, Counsel's fees, Court fees, the costs of any experts or other agents, foreign associates, photocopying costs, couriers, post, travel and meeting expenses and telephone and fax charges.

(b) Whilst our fixed charges and hourly rates are predictable, You should appreciate that local associates' and other suppliers’ 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.

6.3 Value Added Tax ("VAT")

VAT is payable to clients in the UK both on our fees and on most of the expenses which we are likely to incur on your behalf.

6.4 Estimates

(a) If requested, where possible we shall give estimates of future charges. They will be given in good faith based on knowledge existing at the time, but they are not binding unless we expressly agree otherwise, as charges may be affected by matters beyond our control and the amount of work involved often cannot be accurately forecast.

(b) If, during the course of carrying out the work, it becomes apparent to us that our actual charges are likely to significantly exceed our estimate, we shall endeavour to seek Your permission before exceeding our estimated charges.

 

7. Payment

7.1 We shall not be obliged to grant You any credit.

7.2 We shall be entitled to send You invoices for fees and disbursements and for any value added tax or other tax payable thereon at regular and appropriate intervals as we deem fit and on an interim basis. You agree to pay such invoices within on receipt and at least within 30 days and free from any deductions, set-offs, withholding, discount or abatement. Time for payment of our invoices is of the essence.

7.3 If any sum due from You to us is not paid in time then all sums then owing by You to us shall become due and payable immediately and, without prejudice to any other right or remedy available to us, we shall be entitled to:

(a) cancel or suspend our performance of the Services until arrangements as to payment have been established which are satisfactory to us;

(b) charge You:

(i) interest calculated on a daily basis on all overdue amounts (both before and after judgment) until actual payment at the rate of 1.25% per month until payment is made in full; and

(ii) the cost of obtaining judgment or payment to include all reasonable professional costs (including legal fees) and other costs of issuing proceedings or otherwise pursuing a debt recovery procedure.

(c) in respect of all invoiced fees and disbursements which remain unpaid as well as work done and disbursements incurred but not yet invoiced, have a first and paramount lien on all materials and documents in our possession, power or custody relating to any matter touching or concerning the contract for the Services.

7.4 We may need to receive from You payment in advance on account of fixed fees or disbursements to be incurred. To reduce our administrative burden and costs we do not operate a client account for such payments to be made into and request that they are made into our office account. We will inform You that we wish to treat your advance payment as office money, and confirm that You consent to this (i.e. You give “informed consent”). To the extent that professional work paid for in advance is not carried out, fees or disbursements advanced by You are to be returned.

 

8. Filing

8.1. Paperless office

COLMAN AND SMART LIMITED operate a paperless office. We do not maintain physical files.

8.2 Original papers and other materials

If You send us papers, samples or other materials - and assuming they are not being filed with Intellectual Property authorities or passed to foreign associates - we will return them to You after they have been scanned and incorporated into our files.

8.3 Destruction of files

We may destroy our archived correspondence files which are more than six years old. In the absence of contrary instructions, we will assume that You are content with this arrangement.

 

9. Data Protection and Privacy

9.1 We will look after data and we will only collect and process what is necessary. We will not sell, rent, distribute or make public Your personal information.

9.2 Our business is designed to comply with the following national and international legislation with regards to data protection and user privacy: UK Data Protection Act 1988 (DPA), EU Data Protection Directive 1995 (DPD) and EU General Data Protection Regulation 2018 (GDPR). We will use Your personal data to provide the Services to You. We may also use Your personal data to send You information about legal developments in intellectual property matters if we feel they could be relevant and useful to You. Please let us know if You do not wish to receive such information. In the course of instructing foreign attorneys it will be necessary to pass on some details of You to enable them to prosecute applications and take other actions on Your behalf. If we wish to use Your personal data for a new purpose, other than for which it was originally supplied, we will ask You first.

9.3 We collect and store personal data for our clients, suppliers and business contacts for the purposes of correspondence, the filing of official documents, maintaining our legal and professional responsibilities and the monitoring and maintenance of cases. The personal data we collect includes names and contact details, such as, name, address, telephone numbers, email addresses, position and company name.

9.4 Personal data details may also be made available to Intellectual Property Offices in the UK and in other jurisdictions, who may publish such personal data and may make the personal data available to third parties who may in turn publish the personal data; our foreign associates and suppliers for the purpose of managing Your intellectual property rights.

9.5 We will not use Your personal data for any purpose other than that set out in this condition 9 without Your consent unless we are entitled or required to do so by law or under a court or regulatory authority order.

9.6 The personal information that we hold for correspondence and case management purposes is held on a password protected database.

9.7 We will report any unlawful data breach of the personal data held by us or our third-party data processors to all relevant persons and authorities within 72 hours of the breach if it is apparent that personal data stored in an identifiable manner has been stolen.

9.8 COLMAN AND SMART LIMITED is a Data Controller registered with the Information Commissioner’s Office.

9.9 At our discretion we may give a client access by electronic means to the part of our IP database which relates to its intellectual property rights. There may be a charge for this.

 

10. Searches

Any searches You request may be carried out by us, by Intellectual Property Offices, foreign associates or by independent specialist searching firms. Due to the limitations and occasional errors in classifications, indices, computer databases and official records, no search can be guaranteed for comprehensiveness or accuracy. We will endeavour to point out any particular limitations when

reporting search results.

 

11. Privilege

13.1 Under Section 87 of the Trade Marks Act 1994, communications between Registered Trade Mark Attorneys and their clients are privileged. 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.

13.2 In rare circumstances the courts may rule that such privilege is lost or does not apply. In that event we 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.

 

12. Conflicts of interest

12.1 Because of the nature of our work and our professional business, it is not uncommon to be acting at any one time for two or more clients who are commercial competitors. We will not knowingly act for or against another client in a matter involving an active dispute with You, but You agree that we shall not be prevented from acting for any of Your competitors merely because they are competitors.

12.2 Checks are made of our database when receiving new instructions to ensure we are not acting against the potential new client.

12.3 Appropriate procedures and arrangements exist to ensure that advice and opinions You receive are wholly independent of and do not make any use of knowledge or information confidential to any third party and we will not make use of any information confidential to You to the advantage of any third party.

12.4 We must refuse to act on behalf of conflicting or potentially conflicting parties in contentious matters, in circumstances where our actions would not be seen to be neutral or where accepting instructions from both parties would risk a breach of Rule 5 (Integrity) of our Rules of Conduct or if Rule 8 (Confidentiality and Disclosure) of our Rules of Conduct cannot be observed.

 

13. Complaints

COLMAN AND SMART LIMITED is committed to high quality service and client care. In case You are unhappy about any aspect of the service You have received then please contact Daniel Smart, Director, with full details of the complaint. If You are not satisfied with our handling of your complaint You can then take this to one of the regulatory bodies:

Complaints to the Legal Ombudsman should be made within six months of your last contact with us regarding the complaint. The contact details are as follows:

 

Legal Ombudsman

P.O. Box 6806

Wolverhampton

WV1 9WJ

Telephone: 0300 555 0333

If you are calling from overseas, please call: +44 121 245 3050.

 

14. Termination

14.1 We will continue to work for You until any of the following events occur:

(a) we finish the work You have instructed us to do;

(b) your invoice remains unpaid for a protracted period;

(c) we consider that it is not in our mutual best interests for us to continue to work for You;

(d) You notify us that You have decided not to use us any longer;

(e) You (if an individual or a partnership) offer to make any arrangements with or for the benefit of Your creditors, or a petition of bankruptcy is presented in relation to You or any of Your partners; or

(f) You (if a limited company) are deemed to be unable to pay your debts (within the meaning of Section 123 of the Insolvency Act 1986) or You call a meeting to pass a resolution to wind up the company, or such a resolution is passed, or an administrator or receiver is appointed to all or any part of your business or property.

(g) You become involved in similar processes to those in (e) and (f) under non-UK legislation.

14.2 Irrespective of any termination or suspension of the Services in accordance with these terms, You shall pay us at the contract rate for all Services provided up to and including the date of suspension or termination and the termination of the contract or any contract for whatever reason shall not affect the rights or remedies of either party in respect of any antecedent breach or in respect of any sum owing or to become owing to the other.

14.3 You will accept responsibility for making alternative arrangements for compliance with all due dates of action, payment of official fees and the taking of any official steps necessary to preserve Your rights in relation to the matters which we have handled for You prior to such termination.

 

15. Force Majeure and exclusion of our liability

15.1 Your relationship is with COLMAN AND SMART LIMITED. We will have exclusive liability for carrying out the Services and for any negligent act or omission by us in the course of providing those Services. You agree that no individual director or employee of COLMAN AND SMART LIMITED will have any personal liability for those Services. You also agree that a director or employee of COLMAN AND SMART LIMITED signing in his own name any letter, email or other document in the course of providing the Services does not imply he is assuming any personal liability separate to that of COLMAN AND SMART LIMITED. Except for acts of fraud You agree that any claim brought in respect of any matter on which we were instructed will be made against COLMAN AND SMART LIMITED and not against any individual director or employee of COLMAN AND SMART LIMITED.

15.2 You agree that we shall have no liability nor shall we be deemed to be in breach of any duties or obligations owed to You if at any time we are prevented, delayed or hindered in complying with such duties and/or obligations by reason of any circumstances beyond our reasonable control.

15.3 Nothing in these terms excludes or limits the liability of us for death or personal injury caused by our negligence, or for fraudulent misrepresentation.

15.4 We shall not be liable to You for any indirect or consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) or loss or damage (contractual, tortious, breach of statutory duty or otherwise) which arises out of or in connection with the contract (including loss of profit or other economic loss) for any liability incurred by us to any other person for any economic loss, claim for damages or awards howsoever arising from the Services or otherwise.

15.5 We maintain professional insurance cover appropriate to a firm of our size and standing.

 

16. General

16.1 Nothing in the contract shall create, or be deemed to create, a partnership or joint venture or relationship of employer and employee or principal and agent between the parties.

16.2 If at any time any one or more of the conditions of the contract (or any sub-condition or paragraph or any part of one or more of these terms) is held to be or becomes void or otherwise unenforceable for any reason under any applicable law, the same shall be deemed omitted from the contract and the validity and/or enforceability of the remaining provisions of the contract shall not in any way be affected or impaired as a result of that omission.

16.3 The Contracts (Rights of Third Parties) Act 1999 shall not apply to the contract.

 

17. Governing law and jurisdiction

English law shall apply to the construction and interpretation of our contract with You and the English courts shall have exclusive jurisdiction to resolve any disputes arising under it.

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