Terms and Conditions
1 AIMS AND AGREEMENT
1.1 Silverman Sherliker LLP (“us”, “we” or “our”) is delighted to welcome you as client of the firm. We are pleased to provide you with trade mark registration services on the terms and conditions set out below which set out what is expected of us and you. By making payment to us, you confirm your agreement to these terms and conditions(“Terms”).
3 CANCELLATIONS AND RETURNS
4 TRADE MARK APPLICATIONS IN GENERAL
4.1 Upon receipt of cleared funds from you as shown on our invoice (“Invoice”) we will act on your instructions to prepare and file a trade mark application for the trade mark(s), in the number of classes and in the territory referred to in the Invoice (“Application”) with the appropriate trade mark registry ( “Trade Marks Registry”).
4.2 The Invoice covers all of the following work:
4.2.1 all preliminary searches, correspondence and any meetings with you prior to Application in respect of your trade mark strategy;
4.2.2 consideration and drafting of any Specifications;
4.2.3 the preparation and filing of the Application;
4.2.4 the Application fee payable to the Trade Marks Registry for the Application;
4.2.5 VAT (where applicable);
4.2.6 our legal advice to you connected with the Application process; and
4.2.7 all correspondence with the Trade Marks Registry necessary to obtain your trade mark registration and overcome any objections or queries raised by Trade Marks Registry, subject as below.
4.3 It is important that you provide us with prompt instructions when requested. Since all Trade Marks Registries impose deadline dates any delay in providing us with instructions will prejudice your legal position. If we are unable to obtain your instructions sufficiently in advance of any such deadline, your Application may lapse. We may at our option, if possible, seek to extend any critical date but we are not obliged to do so and we exclude any liability to you for not doing so. If we apply for such an extension or our work becomes urgent or time-critical because of your delay you will be responsible for the costs involved and we may ask for a payment on account of such costs. If your instructions are incomplete or delayed we may at our option and without notice or thereby incurring any liability to you cease to act and your Application and any priority date established by your Application will then lapse or be deemed abandoned.
4.4 We will file the Application within a reasonable period after receipt of cleared funds subject to us receiving full instructions from you in respect of the filing of the Application. We exclude liability for any costs, claims, damages or proceedings resulting from any prior application by any other person, firm or company notwithstanding that you may have notified us of the possibility of such prior application.
4.5 We do not guarantee or warrant the registrability of your trade mark or that the Application will be successful. Accordingly, we advise that you should not invest in your trade mark or incur any printing, marketing, advertising or other costs or make any commercial use of your Trade Mark at all until it is registered and we exclude any liability to you in respect of any such costs incurred by you, including any costs incurred in defending any proceedings brought against you in connection with your use of your trade mark. If you decide not to proceed with your Application at any time for any reason or if your Application is not successful for any reason or if we at our option cease to act in accordance with these Terms, neither the Trade Marks Registry nor we will refund any costs that you have paid.
4.6 Upon registration your legal protection will in most circumstances back-date to the date of the relevant Application. The process of trade mark registration normally takes about four to six months. However, Registry procedures are slow and it is common for this period to be exceeded by several months. Accordingly, it is likely that, once we have prepared and filed your Application, you will not hear anything from us for a reasonably lengthy period whilst the Registry procedure takes place. If we need to contact you we will do so but we will not contact you unless we have something specific to report to you. This should not cause you any concern but if you do wish to contact us at any time please do not hesitate to do so.
4.7 We will draft a suitable Specification for your Application based on our expertise and the instructions received from you as to how you are using, or proposing to use, the trade mark, By paying our Invoice you authorise us to file your Application based on this Specification and you agree that you will not seek to question or challenge the terms or extent of the Specification at a later date. We shall only provide the Specification to you in draft for approval if so requested by you in writing at the time of payment of the Invoice or if we deem it to be necessary. Unless instructed otherwise by you in writing, we shall apply for the trade mark in the name and at the address shown on our Invoice.
4.8 Preparation of our response to the Examination Report raised by the UK or European Trade Marks Registry in connection with your Application is included in the Invoice and in most cases will be sufficient to obtain a registration of your trade mark without further cost. In a small minority of cases, further action may be required in order to overcome further or sustained objection from the Registry on the basis of the points raised in the Examination Report or from third parties. We will, without charge, inform you of the position and the issues involved and take your further instructions. Such further action may include further telephone or written correspondence with the Trade Marks Registry, you or a third party, market research or investigation, preparation of witness statements, consideration and filing of evidence of use, or preparation for and conduct of a formal trade mark hearing.
4.9 Should you instruct us to proceed we will inform you of the cost involved and may require your written agreement to and/or a payment on account of such further costs as a condition of continuing to prosecute your Application.
4.10 Registry actions by overseas national Trade Marks Registries may require local agents in those countries and, should you wish to proceed, you will need to meet the costs of those agents, any necessary out-of-pocket expenses such as translation costs and our costs for dealing with them on a time basis.
4.11 When applying to register your trade mark in other foreign jurisdictions through the Madrid Protocol, Paris Convention or any other similar legislation, the costs of any additional work and disbursements that may be required in those particular territories, such as costs associated with responding to official actions, instructing national agents, and additional registry fees to national registries are not included in our Invoice and are payable in addition should you wish to pursue applications in those jurisdictions when such costs arise.
5 TRADE MARK SEARCHES
5.1 Trade mark searches are intended to provide a broad indication of whether your trade mark will be accepted for registration. They cannot be and are not definitive since the search results are only as up-to-date as the information available at the Trade Marks Registry when the search is made and, moreover, are conditional upon search criteria that are subjective and that cannot by their nature always deliver an accurate or complete result. By instructing us you accept these limitations and the consequences of any search parameters applied and the fact that the information at Trade Marks Register may not be complete or accurate. For instance, recently filed trade mark applications may not be identified. Registry delay in the updating of databases is beyond our control and we exclude liability therefor. Furthermore, applications can be filed in any jurisdiction before or after the date of any search that we carry out and these prior applications may carry effective protection from an earlier date due to the provisions of the Paris Convention or other trade mark laws and may take priority over a later Application filed by you. If that happens your application may be opposed and may not be successful. You instruct us on the basis that the searches we carry out cannot identify all of these eventualities.
5.2 The trade mark searches are performed in good faith at the Trade Marks Registry only with the object of identifying other registered trade mark rights that may hinder the success of the Application. It is possible that a third party may already enjoy unregistered rights in a trade mark the same as, similar to, or that otherwise conflict with, your proposed Application (“Third Party Mark”) and that could form the basis of an opposition to your Application resulting in your Application being unsuccessful or an action for infringement of that Third Party Mark. The rights of Third Party Mark owners (“Third Party Unregistered Rights”) are not recorded at the Trade Marks Registry. If you so instruct us we will carry out a Common Law Search of trade databases and other sources to establish whether any Third Party Unregistered Rights may exist but such searches are not exhaustive and do not form part of our normal search service. The onus is on you to request such a search. If you ask us we will be pleased to provide you with a quotation for this work. We accept no liability for any loss or damage caused by the existence of any such Third Party Unregistered Rights. Whilst we will provide you with advice on the likelihood of a third party or the Trade Marks Registry opposing your Application, we cannot predict the action of a third party. You accept that such advice is provided as a guideline only and you acknowledge that you instruct us to prepare and file your Application at your own risk. We provide no guarantee or warranty that the Application will proceed free of opposition or objection by any third party or the Trade Mark Registry or that the Application will be successful and a search result that indicates that your trade mark may be available for use and registration should not be taken as an indication that it will proceed without opposition from a third party or technical objection from any Trade Marks Registry.
5.3 Trade Mark search results and any advice provided in relation to a Community Trade Mark (“CTM”) Application are provided on the basis of a search of the OHIM trade mark database of CTMs only. We do not advise on the existence of trade marks registered in any national Registries of other foreign jurisdictions that may prevent registration of the CTM although we will be pleased to obtain quotes for such national searches to be carried out in those foreign jurisdictions should you so request. We shall not be liable to you for any loss or damage suffered or incurred as a result of any such conflicting national registered trade marks.
6 OPPOSITIONS, INVALIDATIONS AND RENEWALS
6.1 Should your Application be opposed by a third party or, if registered, become the subject of invalidation or revocation proceedings you will need to decide whether to take legal action to preserve your Application or your registered rights. If you take no action it is likely that your Trade Mark and all of your rights in it will lapse or be cancelled. The cost of this work is not included in the Invoice and, if you wish us to challenge the opposition or invalidation, we will advise you of the costs involved and may request funds on account prior to undertaking any further work. If you do not provide us with the fees requested or timely or complete instructions, we may cease to act and we shall not be liable for any consequent loss or damage. Neither shall we be liable for any opposition or invalidation proceedings filed against your Application or your registered trade mark or for the legal or commercial consequences of you deciding not to proceed on this basis.
6.2 A trade mark, once it is registered, is normally valid for ten years from the date of the Application. It is your responsibility to monitor the renewal date and to instruct us to renew your trade mark should you so wish. We may notify you at the most up-to-date contact details that we have for you of any renewal date of which we are advised by the Trade Marks Registry but we do not accept responsibility for so doing or any liability for not doing so. It is your responsibility to notify us of any change of your address during this period.
6.3 We can monitor the relevant Trade Marks Register(s) for any applications to register trade marks by others that conflict with your Trade Mark or have the effect of diluting your rights. However, we will not carry out such monitoring services unless you so request in writing. Upon such request we will quote you for this work and may require a payment on account for all or part of such costs as a condition of providing this service. We recommend that you pay the Registry opt-in fee where available and in such cases we will forward to you any information that we receive from the Registry in connection with such conflicting applications and seek your instructions as to whether you wish us to oppose such applications on your behalf. We will try to contact you at the most up-to-date contact details that we have for you. We cannot take responsibility for any acts or omissions of the Trade Marks Registry. It is your responsibility to notify us of any change of your address for this purpose.
6.4 When your trade mark is first registered you may have the benefit of a six month priority period. During this time you have an opportunity to extend your registered rights into other countries from the date of your first application. After this date you may still extend your rights but other applications for the same or similar trade marks may then take precedence and prevent you from obtaining registered rights. It is your responsibility to inform us during this period should you wish to obtain extend your registered rights in other jurisdictions.
7 FURTHER WORK
7.1 If you instruct us to do further work we will provide you with an estimate of any further fees. Such estimates are subject to review and actual costs incurred may be less than, or may exceed, any estimate given. We always try to resolve cases quickly and cost-effectively but issues can arise that can cause delay or increase costs. References to fees are exclusive of VAT and disbursements. Our professional fees are based mainly on the amount of time spent in dealing with your matter at the hourly rates applicable from time to time. The time spent on your behalf is recorded and is charged in units of six minutes. In addition the following factors are taken into account when calculating fees: the complexity, value, urgency and importance of the matter, the novelty of any legal points involved and the degree of success that we manage to achieve for you.
7.2 Our professional fees do not include disbursements, third party or out-of-pocket costs that it is necessary to incur on your behalf such as court fees, registration fees, overseas agents, copying charges, bank charges and other such expenses. You authorise us to incur such expenditure as we consider is reasonably necessary and you agree to indemnify us for such out-of-pocket expenditure. Where funds are sent to you by telegraphic or bank transfer an administration charge that includes the bank’s charge for making such payment will be deducted from the amount sent.
7.3 Like most professional service firms, we may ask for payments on account of our fees and disbursements before they are incurred. Any request for an initial or further payment on account is not a forecast of the total costs. The absence of a request for a payment on account is not an indication that we hold sufficient sums on account or that the costs incurred or to be incurred will not exceed any amount requested or held. If you decline or fail to make any requested payment you authorise us thereby to cease acting on your behalf and to take no further steps on your behalf until such payment is made and you agree that we will have no liability to you for the consequences of so doing. In the event that we nevertheless continue to act you will meet our fees for so doing. If payments which have been requested, whether of our invoices or of sums that we have requested on account. are not made, we reserve the right to decline to continue to act for you.
8 LIMITATION OF LIABILITY
8.1 The following provisions set out our entire liability (including any liability for the acts and omissions of our employees, agents and sub contractors) to you in respect of any breach of any contractual obligations and any representation statement or tortious act or omission including negligence (“event of default”). Our liability to you for death or injury resulting from our negligence of that of or our employees, agents or sub contractors shall not be limited. Subject as aforesaid, our entire liability in respect of any event of default shall be limited to £500,000 or such lesser amount as our insurers shall accept. We shall not be liable to you for loss of profits, goodwill, special, indirect or consequential loss (including loss or damage suffered by you as a result of an action brought by a third party) even if such loss was reasonably foreseeable or we had been advised of the possibility of you incurring the same. If a number of events of default give rise substantially to the same loss then they shall be regarded as giving rise to only one claim.
8.2 We shall have no liability to you in respect of any event of default unless you give us notice of the same within 28 days of the date you became aware of the circumstances giving rise to the event of default or the date when you ought reasonably to have become so aware. We hereby exclude any and all liability for the errors and omissions of any third parties even though such third parties may have been instructed by us on your behalf. We exclude liability for any costs or loss you may suffer by reason of any delay or error on the part of any bank or other institution in particular but without limitation for any failure or delay in the transfer of funds or the notification of receipt of funds.
9 DISTANCE SELLING
9.1 By accepting these terms you give us permission to commence work in relation to your matter on your behalf and confirm acceptance of work already carried out on your behalf. By so doing you waive any rights of cancellation. The Distance Selling Regulations presume completion of work within thirty days of commencement of contract. This is not appropriate to work of a legal nature. You agree that the thirty-day presumption for completing work is waived and cancelled.
10 COMPLAINTS PROCEDURE
10.1 If any problem arises in relation to our work or any aspect of our conduct of your matter, whether of a financial nature or otherwise, it should be addressed in accordance with the following procedure.
10.2 You will be free to discuss the problem with the solicitor responsible for your matter, who is your main point of contact at the firm and whose initials will appear on the Invoice.
10.3 If you are unable to resolve the problem jointly with that solicitor, or if you are not comfortable with contacting that person in the first instance, you should refer your complaint to Christopher Sherliker, the partner who is your assigned Client Care Partner. You will receive an initial written response from us within 14 days of this referral.
10.4 Further details of our complaints handling procedure are available and will be provided to you if you so request within 7 days of that request being made.
11.1 The costs of non-UK Applications and overseas Registry fees are incurred and paid in the currency of the local Registry but are billed by us in Pounds Sterling at an exchange rate applied by us at our discretion when the Invoice is rendered.
11.2 If due to currency fluctuations or other factors any amount paid by you is insufficient to cover a cost incurred or payable in a foreign currency in connection with your Application we may ask you to pay any additional funds to cover the shortfall as a condition of your Application proceeding. In relation to non-UK Applications, upon registration of your trade mark, or refusal, abandonment or a withdrawal of your Application, you authorise us to retain and apply against our general administrative overhead including but not limited to the payment of telegraphic transfer fees, correspondence with Registries to validate timely receipt of bank transfers for registration fees and currency calculations, any remaining credit balance of £75 or less. We will periodically carry out an audit of such balances and credit balances in excess of this amount will be will be returned to you less an administration fee to cover the costs of such a return.
11.3 We accept payment of disbursements and costs by all major credit cards subject to a 3% handling fee that you authorise us to debit to your account at the time payment instructions are given. You authorise us to apply any credit balance to which you are entitled on any matter in satisfaction of any sum due from you to us that is unpaid.
11.4 If you delay in providing instructions, information or documents to us, this will result a delay in your matter being progressed as efficiently as we might wish and this may prejudice your position. We cannot be held responsible nor do we accept liability for the consequences if you do not, at all times, provide us with truthful, accurate and complete information in a timely manner.
11.5 We reserve the right to withdraw from acting on your behalf in relation to your Application in the event of a conflict of professional interest, for instance, an existing trade mark is identical, or confusingly similar, to your trade mark and we act or have acted for the owner of that existing trade mark.
11.6 Our relationship with you will be exclusively governed by and construed in accordance with English law and you submit to the exclusive jurisdiction of the English courts. You warrant and covenant to us that you will not commence proceedings against us in any other jurisdiction.
Silverman Sherliker LLP, Solicitors
7 Bath Place
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