Standard Terms of Engagement & Client Care Policy
Standard Terms of Engagement
This document sets out our standard terms of engagement. They will apply except where we have otherwise agreed with you in writing. You accept and agree to these standard terms by continuing to instruct us.
In these terms of engagement, “we”, “us” and “our” means CreateIP. “You” means our client, as identified as such in an engagement letter or as otherwise agreed.
Where you are a company or other corporate or unincorporated entity, we act only for you. We do not act for your shareholders, directors or members unless we expressly agree otherwise.
Client Care Policy
This document also sets out details of our Client Care Policy as required by the New Zealand Law Society and the Code of Conduct for Trans-Tasman Patent and Trade Marks Attorneys 2018.
CreateIP is the trading name of two entities: a patent attorney partnership and an incorporated law firm. The owners of CreateIP are qualified as either registered Trans-Tasman patent attorneys or barristers and solicitors. The owners share income between the two entities.
The patent attorney partnership conducts the business of patent attorneys, including drafting and preparation of patent specifications and applying for, and obtaining patents and registered designs. The law firm specialises in intellectual property law, providing a full range of services within this speciality, including trademark prosecution, commercialisation and litigation. The staff of each entity may provide services to the clients of the other entity as appropriate to the matter and expertise required. Specific staff qualifications are described on our website www.createip.co.nz.
SCOPE OF WORK AND OUR ROLE
We will represent and provide advice to you on all intellectual property matters that properly fall within the scope of your instructions to us. We will either have sent you a letter, upon receiving your instructions, describing the services we have been asked to undertake for you or will have otherwise discussed and communicated the scope of those services with you. If you are expecting us, or would like us, to perform any services in addition to those we have recorded or described, it is important that you let us know.
We act for you
Our duties are only to you. Unless otherwise agreed in writing or required by law, those duties do not extend to others. If any other parties wish to retain us, they should do so by separate agreement.
Our advice is given for your benefit and in your interests. If anyone else wishes to rely on the advice we give you, they can only do so if both you and we agree in writing. Similarly, our name and opinions may not be used in connection with any prospectus, financial statement or other public document or representation without our written consent.
When your instructions on a matter are completed, our representation in relation to that matter will end.
CONFIDENTIALITY & PRIVACY
Client confidentiality is essential to us. We will not disclose any confidential information obtained as a result of acting for you unless you authorise us, or we are required by law, to do so or unless disclosure of that information is in accordance with the Law Society’s Rules of Conduct and Client Care for Lawyers or the Code of Conduct for Trans-Tasman Patent and Trade Marks Attorneys 2018 (together “Professional Obligations”).
Confidential information may only be disclosed where information we have acquired in the course of our professional relationship with you is widely known or is a matter of public record.
Under the Privacy Act 1993 you have the right of access to, and correction of, your personal information held by us, and to have this information corrected. Please contact us if you want access to this information.
FEES & BILLING
We will usually give you a fee estimate before undertaking any work for you. Estimates of the likely fees will be based on the information you provide to us and on our experience with similar engagements. Please note: estimates are given as a guide only and not as a fixed quotation. If we need to revise our estimate, we will advise you of the factors causing the revision. We can also inform you periodically of the level of fees incurred or inform you when fees reach a specified level.
How we calculate fees
It is important to us that you understand the basis upon which our fees are calculated, the times when fees and disbursements will be invoiced, and our expectations for payment.
Our fees will be fair and reasonable. Under our Professional Obligations, the following factors are to be taken into account in determining the reasonableness of a fee:
- The time and labour expended;
- The skill, specialised knowledge, and responsibility required to perform the services properly;
- The importance of the matter to you and the results achieved;
- The urgency and circumstances in which the matter is undertaken and any time limitations imposed, including those imposed by you;
- The degree of risk assumed by us in undertaking the services, including the amount of value of any property involved;
- The complexity of the matter and the difficulty or novelty of the questions involved;
- Our expertise, reputation, and ability;
- The possibility that the acceptance of the particular retainer will preclude our engagement by other clients;
- Whether the fee is fixed or conditional (whether in litigation or otherwise);
- Any quote or estimate of fees given by us;
- Any fee agreement (including a conditional fee agreement) entered into between us;
- The reasonable costs of running a practice;
- The fee customarily charged in the market and locality for similar legal services.
Disbursements and office services
We will charge you for disbursements incurred by us on your behalf. These disbursements will be charged to you at their cost to us. If we expect to incur costs on your behalf we will let you know in advance.
Disbursements may include Intellectual Property Office fees, court fees, air travel, accommodation, meals, fees for agents, experts and other professionals. We may ask for payment of major items before those costs are incurred.
We will not charge you for office services including routine photocopying and binding, information retrieval, routine online searches, faxes and toll charges.
Billing and Accounts
Regular billing gives both of us better control over the progress and cost of legal work. Accordingly, unless we agree otherwise with you, invoices will be issued on a monthly basis or upon completion of a stage in the intellectual property registration process (as appropriate), and on completion of a matter.
Goods and Services Tax (GST) or any similar taxes will, if applicable, be charged and payable in addition to the amount of any fee, quotation or estimate.
Please let us know if you have any concerns about any invoice. We are always prepared to discuss the amount of any invoice with you.
Invoices are payable in full by the 20th of the month following the date of invoice. If an invoice is not paid by that date, we may either or both:
- Cease to do any further work, and keep your papers or files, until all accounts are paid in full; and/or
- Charge interest at the rate of 3% per annum above the New Zealand 90 day bank bill rate, compounded monthly.
We reserve the right, if necessary, to recover the costs of collection of any unpaid account.
If we agree with you that we will address an invoice to another person, you will be required to pay that invoice if the other person does not.
PERSONS RESPONSIBLE FOR YOUR WORK
The names and status of the person or persons who will have the general carriage of or overall responsibility for the services we provide for you are set out in our letter of engagement.
We may be asked to act for a client whose commercial and/or legal interests conflict.
We may accept instructions from other clients or potential clients operating in the same or competing markets and whose commercial interests conflict with your own, provided those instructions:
- Are not substantially related to any active matter on which we are acting for you; and
- Do not involve or would not be assisted by confidential information we have obtained from you.
If we cease to act for you or have not been instructed by you on a matter, we may act for other clients whose interests are adverse to your own, provided that:
- We do not hold confidential information belonging to you that is relevant to the matter;
- We have taken steps to maintain the confidentiality of your information; and
- We comply with our Professional Obligations.
If we are unable to act for you on a particular matter because of a conflict of interest, that will not prevent us from acting for you on other matters.
FILES ARE HELD ELECTRONICALLY
We like to think we are environmentally friendly, and so try to reduce paper records. We keep documents and files in an electronic format. Unless otherwise agreed with you, we will communicate with you and others by electronic means. These communications can be subject to interference or interception or contain viruses or other defects (corruption). We do not accept responsibility and will not be liable for any damage or loss (direct or indirect) caused in connection with the corruption of an electronic communication.
If you have any doubts about the authenticity of any communication or document purportedly sent by us, please contact us immediately.
You authorise us to erase or delete all electronic files for a matter seven years after our engagement on that matter ends. We may keep such records longer if requested or required to do so for any reason.
If you uplift your files or other documents at any time, we may make copies of them at your cost and require you to pay any outstanding invoices before they are uplifted.
EXTERNAL INFORMATION & PUBLIC RECORDS
In advising you we may rely on, or provide you with, information obtained from third parties (e.g. experts, witnesses, government agencies or registers). This information may not always be accurate and complete. We do not accept responsibility and will not be liable for any damage or loss (direct or indirect) caused by errors or omissions in information obtained from third parties.
TERMINATION & ASSIGNMENT
Either you or we may terminate our engagement at any time by giving written notice. You may only assign your rights under this agreement with our prior written consent.
If you terminate our engagement, you must pay us all fees due up to the date of termination and all disbursements incurred up to that date.
These terms of engagement and any other agreement we have with you are governed by New Zealand law and are subject to the non-exclusive jurisdiction of the New Zealand Courts.
CLIENT CARE & SERVICE
Below is the New Zealand Law Society client care and service information. Whatever legal services your lawyer is providing, he or she must:
- Act competently, in a timely way, and in accordance with instructions received and arrangements made;
- Protect and promote your interests and act for you free from compromising influences or loyalties;
- Discuss with you your objectives and how they should best be achieved;
- Provide you with information about the work to be done, who will do it and the way the services will be provided;
- Charge you a fee that is fair and reasonable and let you know how and when you will be billed;
- Give you clear information and advice;
- Protect your privacy and ensure appropriate confidentiality;
- Treat you fairly, respectfully and without discrimination;
- Keep you informed about the work being done and advise you when it is completed; and
- Let you know how to make a complaint and deal with any complaint promptly and fairly.
The obligations lawyers owe to clients are described in the Rules of Conduct and Client Care for Lawyers and Code of Conduct for Trans-Tasman Patent and Trade Marks Attorneys 2018. Those obligations are subject to other overriding duties, including duties to the courts and to the justice system.
LAWYERS’ FIDELITY FUND
The New Zealand Law Society’s Solicitors’ Fidelity Guarantee Fund gives clients of lawyers protection against theft by a lawyer. For more information on what the Fidelity Fund covers see www.lawyers.org.nz
Any limitations on the extent of our obligations to you or any limitation or exclusion of liability are set out in our letter of engagement.
OUR PROFESSIONAL INDEMNITY INSURANCE
We hold professional indemnity insurance that meets or exceeds the minimum standards specified under our Professional Obligations. We will provide you with particulars of the minimum standards upon request.
IF YOU HAVE A COMPLAINT
We hope you will never have to complain about our services. However, if you are unhappy with any aspect of our services, please talk in the first instance to the person handling your matter. If you are still not happy, or if you would prefer not to talk to that person, you may contact an owner. Contact details are shown at the bottom of this document.
If you are unhappy with the way we have responded to your complaint, you can make a formal complaint to the New Zealand Law Society or the Trans-Tasman Patent and Trade Marks Attorneys board.