Terms of Engagement
TERMS OF ENGAGEMENT
1. WHO WE ARE AND OUR SERVICES
1.1 Davies Collison Cave Pty Ltd (ACN 613 954 386 / NZBN 9429047460591) (DCC or us) is an incorporated patent and trade mark attorney operating in Australia and New Zealand. DCC is a private company incorporated in Australia, is registered on the New Zealand Overseas Companies Register, and is a wholly owned subsidiary of QANTM Intellectual Property Limited (ACN 612 441 326) (QANTM), a public company listed on the Australian Securities Exchange (ASX code: QIP). DCC is a member of an “ownership group” as defined in the Code of Conduct for Trans-Tasman Patent and Trade Marks Attorneys 2018 (the Code) with the other members of the ownership group (together, the QANTM ownership group) being:
a. Davies Collison Cave Law Pty Ltd (ACN 613 954 420), an incorporated legal practice operating in Australia;
b. Davies Collison Cave Asia Pte Ltd (Singapore Company Number: 201620043E), an incorporated patent and trade mark attorney business operating in Singapore;
c. FPA Patent Attorneys Pty Ltd (ACN 613 950 342), an incorporated patent attorney business operating in Australia and New Zealand;
d. FPA Patent Attorneys Asia Pte Ltd (Singapore Company Number: 201831157W), an incorporated patent and trade mark attorney business operating in Singapore; and
e. Advanz Fidelis IP Sdn Bhd (Malaysia Company Number: 1242306-U), an incorporated intellectual property prosecution and advisory practice operating in Malaysia.
1.2 We will provide you with a professional service in relation to the intellectual and industrial property rights in which you have an interest, including protecting and defending your rights in your inventions and patents, trade marks, designs or other intellectual property (Intellectual Property Rights).
1.3 We will, with all due care, safeguard your interests and we will carry out your instructions in a professional manner and in accordance with our professional and ethical obligations.
1.4 In general, the quality of the professional services that we provide to you will be enhanced by your close co-operation with us.
1.5 Given the nature of the work undertaken by the QANTM ownership group, a situation may arise where we or another member of the QANTM ownership group may act for your competitor. If such a situation arises:
a. we will seek your informed consent when required;
b. we will ensure that appropriate arrangements are put in place to protect your confidential information; and
c. we will continue to discharge our services in the manner described at clause 1.3 above.
2. PROFESSIONAL FEES AND DISBURSEMENTS
2.1 Professional fees
a. Our cost estimates and our professional fees are based on the following:
i. set charges for specific tasks, such as those associated with filing applications; and
ii. hourly rates for the time we spend on your matter. These rates are subject to change and are available from us on request.
b. Unless we expressly state otherwise, our rates and any estimates of cost do not include any amount in respect of the goods and services tax or similar taxes or imposts (GST). These rates and estimates should be read as “plus any applicable GST” and are subject to change to take account of any GST imposed on supplies we make.
c. We may also discuss with you charging a premium for time spent where the circumstances reasonably justify it; for example, if your matter requires particularly urgent attention, involves sustained periods of work outside normal business hours, or poses particularly challenging or specialised problems. We will discuss this with you before commencing the relevant work and you will have an opportunity to instruct us that you do not wish to incur this premium. However, if you so instruct us, you acknowledge that we may not be able to provide our services to the best of our ability and you agree that we will not be liable to you or any third party for any claim, action or loss which may arise as a result.
d. In certain circumstances, we may ask you for payment of our anticipated fees and disbursements, and third party disbursements, prior to commencing work. In this instance, this payment will be a genuine pre-estimate of the likely fees and disbursements applicable to your matter. If our fees and disbursements vary from the pre-estimated amount, this payment will be adjusted accordingly.
a. We will charge for disbursements that we incur in acting for you (for example, government fees and courier charges; in practice, we do not generally charge for standard postage and photocopying).
b. We will charge for all third party disbursements that we incur on your behalf or as your agent, such as official patent office fees, charges and disbursements of overseas associates, barristers’ fees and travelling and accommodation expenses (together with applicable GST or similar taxes).
c. Where we need to use the services of overseas associates, we will do so as your agent. We will make additional charges to cover currency exchange fluctuations, administration costs and any related professional services.
2.3 Invoices and payments
a. We will issue invoices for our services and disbursements on a regular basis.
b. Our invoices are payable within 30 days after the date of the invoice.
c. If you fail to pay an amount invoiced to you, we may:
i. subject to our professional and ethical obligations, choose not to carry out any further work for you until all monies owing by you to us are paid in full; and/or
ii. retain custody of our papers, documents and files until all monies owing by you to us are paid in full; and/or
iii. charge interest on any amount outstanding for more than 30 days at our then applicable bank overdraft rate. In this case, interest will accrue daily and from the due date for payment of the invoice.
2.4 Ongoing Costs
Obtaining and maintaining your Intellectual Property Rights may involve you incurring ongoing costs over a long period. We will be happy to provide you with further information about these costs on request, so that you are fully informed and can budget for them.
3. SERVICES PROVIDED BY OVERSEAS ASSOCIATES, OTHER PROFESSIONAL SERVICE PROVIDERS AND SUB-CONTRACTORS
3.1 Where we use the services of overseas associates, other professional service providers or sub-contractors on your behalf, we will not be liable for any loss which arises or results from their failure to competently provide their services when required, except to the extent we have caused or contributed to any liability by our wrongful act or breach of these terms.
3.2 We do not provide renewal services and will not issue reminder notices or process renewals for any of your Intellectual Property Rights, unless otherwise agreed to by us in writing. Should you wish to receive any such renewal services, we will refer you to CPA Global Limited (CPA), who are specialist renewal agents. CPA is not part of the QANTM group of companies. Unless otherwise instructed by you in writing, we will notify CPA of matters being dealt with on your behalf that require renewal services. You are not under any obligation to accept the services of CPA. DCC receives a financial benefit from CPA where clients referred by us choose to use CPA’s services.
4. CASE MANAGEMENT
When we prepare documents in respect of your matter and submit them to you, you should check that they are accurate and contact us promptly to correct or clarify anything or raise any questions, as required.
5. PROGRESS OF YOUR MATTER
We will keep you informed of the progress of your matter. You must, at our request, promptly provide us with any information or instructions we need to progress your matter.
6. YOUR INSTRUCTIONS TO US
6.1 To enable us to deliver our services to you, it is essential that you provide us with full, frank and detailed information, including information about similar earlier matters and previously filed applications and publications known to you that relate to the same or a similar subject.
6.2 If we seek your instructions, we will generally not proceed until we receive those instructions from you. We will advise you if your instructions are required before a deadline but we are not assuming responsibility to send you reminders. If, however, we form a reasonable view that action is necessary to protect your rights or interests in particular matters, we may, in our discretion, act without referring to you or waiting for your instructions. In these circumstances, we will charge for our services and disbursements as outlined in clause 2 above, and you agree to pay those charges.
6.3 Whilst it is usually desirable to conduct a background search or a search into infringement, prior rights or prior art in new matters, we will not do this unless you specifically instruct us to do so. If we receive instructions to undertake these searches, fees will apply.
7. PRIOR ART DISCLOSURE
In the course of drafting a patent specification for you, background searches might be conducted or reference made to standard texts or the Internet for the purpose of better understanding the relevant subject matter and describing the invention. As a result of conducting the searches or otherwise, we may become aware of prior art relevant to the invention which might lead to an obligation to disclose the prior art to a Patent Office after a complete patent application is filed. Any background searches conducted do not constitute a formal prior art novelty search or patent infringement search.
8. ABANDONMENT OF MATTERS
8.1 It is essential that your instructions for maintaining or abandoning a matter are complete and clear. When we receive your instructions to abandon a matter, we will instruct any overseas associate used. At that time, we and the overseas associate will be entitled to charge you for any unbilled work in relation to the matter. Any work carried out on a matter before abandonment instructions can be actioned will constitute unbilled work and may be billed as outlined in clause 2 above.
8.2 If we do not receive your instructions or a requested payment in time in relation to any matter for which action needs to be taken, we will not take any such action and you agree that we will not be liable to you or any third party for any claim, action or loss which may arise as a result.
We will send all communications to the address you nominate. It is essential that you keep us informed of any changes to your address and other contact details. If we are unable to reach you because you have not properly informed us of your changed address or contact details, you agree that we will not be liable to you or any third party for any claim, action or loss which may arise as a result.
9.2 Internet Communications
a. We may communicate with you electronically. Electronically transmitted information cannot be guaranteed to be secure or error free. Critical instructions from you to us should be confirmed by other means of communication.
b. You agree that we will not liable to you in respect of any loss, damage, error or omission arising from or in connection with the use of electronic communication or the use of cloud based storage of your information, except to the extent we have caused or contributed to any liability by our wrongful act or breach of these terms.
9.3 Hours of Business
Our offices are open from 9.00am to 5.00pm (local time) Monday to Friday except for applicable public holidays. Communications received outside of those hours will not be dealt with until the next day on which the relevant office is open.
10. QUERIES OR DIFFICULTIES
10.1 If, at any time, you have concerns regarding any aspect of the conduct of a matter or our costs, please contact the principal primarily responsible for your matter or the managing principal.
10.2 If you are not satisfied with the way we handle any query or dispute, you may make a written complaint to:
a. the Institute of Patent and Trade Mark Attorneys of Australia; and/or
b. the Trans-Tasman IP Attorneys Board.
If you require further information, please contact us.
11. TERM AND TERMINATION
11.1 Either party may terminate our engagement, with respect to a particular matter or overall, by giving clear written notice to that effect at any time. Should this occur, you will continue to be responsible for our fees and disbursements relating to services provided prior to the date of termination.
11.2 Our reasons for terminating your engagement of us may include, but are not limited to:
a. failure to comply with a request for payment in advance within the period specified in the request;
b. if we are unable to obtain adequate instructions, or a reply to correspondence, from you within a reasonable period;
c. if our invoices are not paid when due;
d. if we, in our absolute discretion, conclude that the necessary relationship of trust and confidence with you no longer exists (including where we believe we are being requested to act in a manner that does not accord with our professional and/or ethical obligations); and
e. if we, in our absolute discretion, decide that a conflict of interest exists which cannot be resolved in a reasonable manner.
11.3 Where you have engaged us to provide a professional service with respect to applying for registration of an Intellectual Property Right, that professional services engagement will cease upon the successful registration of that right. For administrative convenience, we agree to remain as the address for service against that right, for a period which we determine at our discretion. In this regard, our obligation to take action after an Intellectual Property Right has been granted is limited to forwarding to you communications received by us in connection with that right.
11.4 Termination Procedure
On the termination of your engagement of us or us ceasing to act for you pursuant to either clause 11.1 or clause 11.2 (as applicable), we will advise any overseas associate used on your relevant matters of this fact. At that time, we and the overseas associate will be entitled to charge you for any unbilled work in relation to the relevant matter(s). Any work carried out on such matter(s) before termination of our engagement or us ceasing to act for you constitutes unbilled work and may be billed as outlined in clause 2 above.
If a dispute arises in connection with these terms, or the breach or invalidity of any of them, or in relation to the termination of our engagement, you agree that at our discretion, we may require you or your representative to meet promptly with our nominated principal prior to commencing litigation, to discuss the dispute and seek to reach a reasonable resolution.
13.1 You authorise us to make enquiries regarding your credit status and agree that we may obtain information (including personal information) from a credit reporting agency or other credit providers that may be used to assess this application or for any other purposes required or authorised by law.
a. used to contact you in the future, with your consent and by email and mail about other services or developments we think may be of interest to you; and/or
b. disclosed to other members of the QANTM Group or to third parties who form part of our service delivery. As stated in clause 3 above, some of these third parties may be located overseas, in countries relevant to the services we provide you; and/or
c. disclosed to CPA for the purpose of the provision of renewal services in respect of which you engage CPA, unless we are advised to the contrary pursuant to clause 3 above.
14. FILE CONTENTS
14.1 We use the information in our files maintained in respect of matters in which we are engaged by you to advance your interests. Subject to clause 15, we regard the file contents as ours. When instructed to transfer work to another representative, rather than providing the original file we may instead choose to make all relevant detail relating to your matter available by copies of documents. It will be up to the new representative to assess the materials and notify us if it believes it has not received sufficient documentation.
14.2 If you request us to make all relevant detail relating to your matter available to you or another representative, we may charge you for this service.
14.3 We may destroy files that are no longer current, including files relating to your rights which are no longer in force (for example, non renewed patents), at any time after the date the file ceases to be current. We give no undertaking:
a. to destroy files at that time; or
b. that we will not destroy any given file, unless you specifically ask us to retain it (in which case the terms of this retention will be agreed between the parties).
15. KEEPING SAMPLES AND DOCUMENTS
15.1 We keep material you give us in accordance with our normal office filing and storage conditions (which may vary from time to time). We will return any of this material to you if:
a. you ask for it; and
b. either the material is such that we ought reasonably to regard it as retainable and returnable or you requested us to return it at the time you provided the material to us.
15.2 You agree to pay our reasonable costs in returning such material to you.
16.1 To the extent that you acquire services from us as a consumer (as defined under the Australian Consumer Law), you may have certain rights and remedies (including, without limitation, consumer guarantee rights) that cannot be excluded, restricted or modified by agreement.
16.2 Nothing in this clause 16 operates to exclude, restrict or modify the application of any implied condition or warranty, provision, the exercise of any right or remedy, or the imposition of any liability, implied or conferred under the Australian Consumer Law or any other statute, the exclusion, restriction or modification of which would:
a. contravene that statute; or
b. cause any of these terms to be void,
(each, a Non-excludable Obligation).
16.3 Except in relation to Non-excludable Obligations, our liability to you arising directly or indirectly under or in connection with these terms or the performance or non-performance of these terms, regardless of how it arises, is limited as follows:
a. we will have no liability to you for any loss, harm, damage, cost or expense in the nature of special, indirect or consequential loss or damage (including, without limitation, any economic loss, loss of contract, loss of profit or revenue, loss of opportunity, loss of goodwill, any increase in costs and expenses, or any claims of third parties), except to the extent DCC directly caused or contributed to the loss or damage by its wrongful act or breach of these terms;
b. we will have no liability to you (or considered to be in breach of any duties or obligations owed to you) if we are prevented, delayed or hindered in complying with such duties and/or obligations by reason of any circumstances beyond our reasonable control; and
c. the aggregate of our liability to you is otherwise limited to an amount not exceeding three times the service fees charged for the particular matter.
16.4 In relation to Non-excludable Obligations, except for services of a kind ordinarily acquired for personal, domestic or household use or consumption (in respect of which our liability is not so limited under these terms), our liability to you for a failure to comply with any Non-excludable Obligation is limited to, in the case of services, supplying the services again or payment of the cost of having the services supplied again.
17. VARIATION OF TERMS
Any variation to these terms of engagement must be agreed in writing by the parties.
A portion or portions of these terms of engagement that is or are illegal or unenforceable may be severed from this agreement and the remainder of the agreement shall remain in force.
19. GOVERNING LAW
These terms of engagement and the respective rights, duties and obligations of the parties hereunder shall be governed by and construed in accordance with the law of Victoria, Australia and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Victoria, Australia.