Terms of engagement

TERMS OF ENGAGEMENT

Effective from 1 August 2008

1. These terms of engagement set out the relationship between you (our client) and us (Cathryn Warburton [principal] trading as Acacia Law) in accepting and processing your instructions. These terms of engagement apply whenever you instruct us to undertake work for you, whether by way of our web site or by another method. Some of the information in these terms are provided as a result of requirements made by professional governing bodies that we belong to.
2. We will provide you with legal services or patent attorney services that you instruct us on and that we agree to. We are only obliged to proceed to do work for you once we receive clear and complete instructions from you.
3. We are obliged not to act for you if there is a conflict of interest. Our policy in this regard is first come first served. If you instruct us to do work where we would be in conflict with another client, we are obliged to refer you to other appropriate legal advisors. If a conflict of interest arises after we have undertaken work for you or if we discover a conflict of interest after doing work for you and the clients do not agree to us acting for both of them then we will refer both clients to other appropriate legal advisors.
4. We will exercise due care and reasonable skill and knowledge in any work we do for you in accordance with your instructions unless such instructions run contrary to our ethical and/or legal duties.
5. Our advice is provided to you. Any third parties who rely or act on advice given to you by us may only do so if we both agree to this.
6. We will only bill you for work that you have instructed us to do. If you require further work to be done on a matter after your original instructions have been actioned, we will only proceed to do further work once your clear instructions in this regard have been received.
7. We may require information from you to be able to action your instructions. Any information that you give us is treated as confidential and is used only in your matter. However, we may also need to disclose this information to contractor third parties in so far as they are providing services for us to complete your instructions. We will get an undertaking from contractor third parties to keep your information confidential. We may also need to provide information to various government agencies responsible for processing applications and other instruments associated with completing your instructions. Government agencies may or may not keep such information confidential depending on their statutory and policy requirements.
8. Our fees may be quoted as package fees, where appropriate. Any services that we provide that do not have a package fee associated with it will be billed at the relevant hourly rate of the professional assisting you. We may also offer a set fee for undertaking one or more tasks. Our set fees and package fees are not generally divisible unless indicated as such in writing. i.e. We do not reduce our fee if some of the services in the package or set fee are not used. The reason for this is that the package fee or set fee is generally set at a rate lower than our usual hourly rate on the understanding that the entire package will be taken.
9. You undertake not to frustrate the completion of your instructions by, for example, not acting timeously or not providing necessary information for us to complete your instructions. In the event that you unreasonably frustrate our efforts to complete your instructions, we reserve the right to bill the full amount for the instructed work even though your instructions may not have been completed.
10. Our rates and set fees may change from matter to matter depending on the complexity of the work being undertaken, the urgency of the work, the time taken in doing the work and the expertise involved in doing the work.
11. The time it takes us to complete work varies from case to case. If you request it, we will provide you with an estimate of the time it will take to complete your instructions. We will endeavour (but do not guarantee) to complete the work by an estimated deadline. However, it may not be possible to meet such a deadline, depending on the complexity or nature of the work involved. We are also not responsible for the time taken by third parties and government agencies to complete their parts of work done for you.
12. We will bill the person who instructed us unless an agreement is in place to bill a third party. It is your responsibility to get the third party to agree in writing to be billed for work we do that you instruct us on and provide us with the agreement. If no agreement is in place to bill a third party, you are responsible for paying for the services that you instructed us on, whether or not the work was done for the benefit of a third party or on behalf of a third party.
13. Unless we have quoted you beforehand and advised that our fee includes specific disbursements, our fees are quoted as exclusive of disbursements. We bill for disbursements separately from our own fees.
14. We do not bill disbursements for small volumes of faxing, printing, photocopying and postage. However, we reserve the right to bill courier costs and other disbursements (including, but not limited to, faxing, printing, photocopying and postage) where the total exceeds NZ$5.00.
15. We do not bill separately for file opening, file maintenance or storage fees. We do, however, reserve the right to bill for storage fees for bulky exhibits and other bulky items.
16. For New Zealand clients, our fees and disbursements are quoted as GST exclusive unless specifically otherwise quoted. GST will be billed for work done in New Zealand for a New Zealand client. Otherwise, no GST will be levied.
17. We undertake to only bill disbursements that are directly associated with actioning your instructions.
18. Payment is due within 14 calendar days of invoicing unless otherwise agreed. If you do not make payment by the due date, we reserve the right to charge you interest on any unpaid amount at the Westpac Bank Indicator Lending Rate.
19. If your account remains unpaid and there is no satisfactory explanation for non-payment, we reserve the right to retain your documentation and files as a lien until all accounts are paid, start proceedings for the recovery of the amount owed + interest + collection costs, and do no further work for you.
20. Where you instruct us to do work on a fixed, package or agreed amount for work we have done or will do for you, we may require you to pre-authorise an amount on your credit card before we undertake work for you. We undertake not to complete the payment or charge your card until your instructions have been completed unless there is an agreement to the contrary in place between us. However, we reserve the right to charge your credit card if you unreasonably frustrate our efforts to complete your instructions, even if your instructions have not been completed.
21. In the case of on-going, non-fixed fee or non-package instructions, we may require you to pre-authorise the use of your credit card for services we provide to you. Where such a pre-authorisation is in place, we will invoice you monthly unless there is an agreement to the contrary between us. You have seven (7) calendar days from the date of the invoice to dispute the invoice in writing. If no dispute is raised within that time, you agree to permit us to automatically charge the full amount of the invoice to your credit card without further reference to you. If the credit card transaction is declined for any reason, our usual terms concerning invoicing and payments apply (see above).
22. You undertake not to dispute a credit card transaction where invoiced funds have already been deducted from your credit card, irrespective of whether you dispute the quality of our work. We have a no refund policy on credit card transactions. Any refunds will be given by way of funds other than by a refund on the credit card unless agreed between us to the contrary.
23. Any disputes or issues concerning our fees and charges should be referred to the person dealing with your work in the first instance or, failing that, to the principal, Cathryn Warburton. Thereafter, if there is no acceptable resolution, any such disputes should be referred to the Wellington District Law Society. If fees and charges have already been deducted by way of credit card arising out of a pre-authorisation for payment, we agree to permit the Wellington District Law Society to conduct a bill revision even though payment has already been made.
24. The New Zealand Law Society operates the Lawyers Complaints Service for complaints regarding legal services provided and you are able to make a complaint to that service. To do so, phone 0800 261 801 in New Zealand and you will be connected to the nearest Complaints Service Office, which can provide information and advice about making a complaint.
25. The New Zealand Law Society client care and service information is set out below.
    Whatever legal services your lawyer is providing, he or she must:
    1. Act competently, in a timely way, and in accordance with instructions received and arrangements made.
    2. Protect and promote your interests and act for you free from compromising influences or loyalties.
    3. Discuss with you your objectives and how they should best be achieved.
    4. Provide you with information about the work to be done, who will do it and the way the services will be provided.
    5. Charge you a fee that is fair and reasonable and let you know how and when you will be billed.
    6. Give you clear information and advice.
    7. Protect your privacy and ensure appropriate confidentiality.
    8. Treat you fairly, respectfully and without discrimination.
    9. Keep you informed about the work being done and advise you when it is completed.
    10. Let you know how to make a complaint and deal with any complaint promptly and fairly.
    11. The obligations lawyers owe to clients are described in the Rules of Conduct and Client Care for Lawyers. Those obligations are subject to other overriding duties, including duties to the courts and to the justice system.
    12. If you have any questions, please visit www.lawsociety.org.nz or call 0800 261 801 in New Zealand.
26. All patent attorneys in Acacia Law are members of the NZIPA (New Zealand Institute of Patent Attorneys). If you have a complaint concerning the quality of patent attorney services you receive, a complaint can be lodged with them. Their web site is: www.nzipa.org.nz.
27. We do not accept responsibility and will not be liable for any direct, indirect or consequential damage or loss caused by errors or omissions in information provided by third parties. This extends to information provided by government agencies, such as IPONZ (The Intellectual Property Office of New Zealand), whose records have been known to be incorrect from time to time.
28. If you elect to stop instructing us on a matter, you must give us reasonable written notice. We will bill you for work done and for disbursements incurred up to the time that we stop doing work for you.
29. We hold professional indemnity insurance that meets or exceeds the minimum standards specified by the Law Society. We will provide you with particulars of the minimum standards upon request.
30. We do not operate a trust account and will not accept funds to be held in trust.
31. Lawyers' Fidelity Fund: The New Zealand Law Society maintains the Lawyers' Fidelity Fund for the purpose of providing clients of lawyers with protection against pecuniary loss arising from theft by lawyers. The maximum amount payable by the Fidelity Fund by way of compensation to an individual claimant is limited to $100,000. Except in certain circumstances specified in the Lawyers and Conveyancers Act 2006, the Fidelity Fund does not cover a client for any loss relating to money that a lawyer is instructed to invest on behalf of the client.
32. These terms and any other agreements we have with you are governed by New Zealand law and are subject to the exclusive jurisdiction of the New Zealand courts.