Terms of Engagement

• Because we are committed to continually improving our service;
• Because it is important that your expectations of us are clear before we perform any service for you; and
• In order to meet the requirements of the Consumer Guarantees Act and, if appropriate, the Rules of Conduct and Client Care for Lawyers.

The first time we perform work for you, you will receive a Confirmation of Instructions letter, an Account Application form and a copy of these Terms of Engagement.  Thereafter, for every new job we do you will receive a new Confirmation of Instructions. Together the Confirmation of Instructions, Account Application and Terms of Engagement form a contract between us.  Unless you advise otherwise, we will proceed with your instructions as described in the Confirmation of Instructions on the understanding that you have accepted these Terms of Engagement.

We are committed to serving you professionally and ethically. We make the following undertakings to you:

• We will treat any information you disclose to us as confidential and (subject to certain qualifications set out in section 6 of this document) will not disclose this information without your approval;
• We will conduct your work conscientiously. In turn we will need your full and timely co-operation;
• We will work with you to develop an understanding of your expectations and to establish goals and deadlines that meet your needs;
• We will communicate with you and keep you informed about the status of your work, We will also send you copies of significant correspondence and other documents.

B.         Specific Terms

1.         Basis of Retainer 

1.1        We accept your instructions to carry out, on your behalf, the work detailed in each Confirmation of Instructions letter sent by us, or written letter of instructions sent by you. 

2.         Costs 

2.1        Estimates: The costs you should expect are approximately those stated in our Confirmation of Instructions. As our costs are usually time dependant, they are estimates only and do not constitute a “quote”. 

2.2        Our Advice: We will not usually charge for general advice.  We do this to encourage free-flowing communication between you and us. We will decide which advice is general and which is specific. 

2.3        Specific Advice and On-Going Work:  Examples of specific advice that we would charge you for is advice: 

• On particular cases or in relation to specific fact situations;
• Where we have to provide you with a written report (including providing detailed written cost estimates); or 
• In situations where we are liable for providing the advice, particularly when the outcome is of considerable value to you. This may include advice not to do things which results in a saving of time and/or money for you. 

Time spent by us on your behalf for which we will charge will include: 

• Personal and telephone attendances with you;
• Email and written correspondence with you; 
• Considering the facts and law relating to your matter; 
• Reading and considering incoming letters, papers and documents; 
• Preparing papers and documents; 
• Corresponding with other solicitors / patent attorneys and third parties (such as the Intellectual Property Office and the Courts); 
• Instructing agents and experts; 
• Time spent travelling. 

In appropriate circumstances our charges will be influenced by other factors, including the degree of:     

• Skill and knowledge involved;
• Urgency;
• Difficulty and complexity;
• Responsibility; and
• Risk.

 2.4       Hourly rates: Where, due to the nature of the work, we cannot predict our costs with any accuracy our charges will be based on the time spent on the task calculated at our normal hourly rates, plus disbursements and GST (if applicable). Those hourly rates are currently as follows: 

• Partners $350-500 per hour
• Senior Associates / Senior Solicitors $250-450 per hour
• Associates / Solicitors $200-350 per hour
• Technical Advisers $150-325 per hour
• Law Clerks $100-200 per hour
• Research Clerks / Searchers $150-200 per hour 

The names and status of the person(s) who will be responsible for the work you have instructed us to do for you will be set out in our Confirmation of Instructions letter.  Further information regarding those people and their qualifications can be found on our website www.jaws.co.nz/people.

2.5        Disbursements: these include expenses such as Court and Intellectual Property Office filing fees, toll calls, faxes, photocopying, travel and accommodation expenses, couriers and the fees of agents we instruct to do things on your behalf (including overseas patent firms). You are responsible for reimbursing us for these disbursements. They may be included in your account or billed separately. We may require you to pay significant disbursements in advance.  

In addition to these disbursements we may also charge you a fee for maintaining, storing and handling your file while a matter remains current and for monitoring any deadlines applicable to that file. 

2.6        Costs of Applications Overseas:  When instructing overseas Associates, we may incur significant charges on your behalf.  It can be difficult for us to estimate these charges.  We will however do our best to estimate our Associate's costs prior to instructing them. Our invoiced costs will, unless otherwise stated, include a component for bank charges and other costs incurred by us in meeting our Associates’ invoices and a margin to protect us against foreign exchange fluctuations. 

2.7        Your Liability for Costs:  If we are unable to give you an accurate estimate of the costs, or if the work is ongoing, we will report to you regularly and invoice you monthly so that you are kept informed of the costs involved as the job progresses.  At any time you can tell us in writing to stop.  If you do, you will be liable for the fees, disbursements and expenses we (and any overseas Associate) have incurred up to that point.  Unless you tell us to stop, we will continue to work on the matter and you will continue to be liable for the ongoing costs. 

2.8        Account Queries:  If you have any query about an invoice, please raise it in the first instance with the attorney handling your file.   If necessary, you can also speak to the supervising partner, our practice manager or our accounts department. 

3.         Payment on Account of Costs 

3.1        Deposits:  In our Confirmation of Instructions, we may have asked that you pay a deposit towards anticipated costs and disbursements.  Any such deposits will be held in our James & Wells Lawyers Trust Account and used on account of any fees / disbursements / costs you incur with us. Payment of the deposit will be noted in your next Statement.  Statements are issued monthly at the end of each month. If you require a receipt for a deposit before your Statement issues, please let us know. We may require further deposits as the matter progresses and any earlier deposits have been used. Any unused portion of a deposit will be refunded to you (along with any interest earned (if applicable)) on completion or termination of our services. 

4.         Terms Regarding Payment of Accounts 

4.1        Payment of Account: Accounts must be paid on the terms set out on the invoice (generally upon receipt) or as otherwise arranged with us.  We accept cash, cheque, direct credit, telegraphic transfer, and most major credit cards.  If you have any concerns about your account, please let us know as soon as you receive the invoice.

4.2        Payment of Disbursements: We may need to pay significant disbursements on your behalf.  Often where we can anticipate disbursements we will send you an account in advance.  Otherwise these disbursements will be included in a subsequent invoice. 

4.3        Statements:  Statements will be issued monthly.  If payment of the account is not received within 20 days of the Statement date, our accounts department will contact you. 

4.4        Financial Difficulties:  If you have difficulty paying an account, please discuss this with us.  If necessary we can set up a reasonable payment programme. 

4.5        Overdue Accounts:   

a.       We reserve the right to charge interest (calculated at the overdraft rate our bankers charge us, plus 2.5%) on all invoices remaining unpaid from the previous Statement; 

b.       Where any overdue amount includes a disbursement for foreign Associate’s fees, we reserve the right to charge you an additional amount. This is to cover any exchange rate fluctuation in the event the New Zealand dollar depreciates after the due date for the unpaid amount. 

4.6        Debt Recovery: If there is no satisfactory explanation for non-payment of your account, our accounts department will issue a letter requesting payment within seven days.  If you still do not pay our accounts department we may institute proceedings to recover  

a.    The amount owed;

b.    Interest (as per clause 4.5a);

c.    An exchange rate adjustment (as per clause 4.5b); and

d.    Collection fees (including our solicitor's fees). 

4.7        Withholding Services on Overdue Accounts:  After a seven day letter issues (as per clause 4.6) the accounts department will instruct the attorney responsible for your work to cease working on your files.  Please note, this may result in the lapsing of your rights.  We do not accept responsibility for the lapsing of any rights while accounts remain overdue.

5.         Termination of services 

5.1        At any time you have the right to terminate our services upon giving us reasonable written notice to that effect. We may also terminate our services if there is good cause, such as you not providing us with instructions in a timely manner, or your inability or failure to pay our fee. If we terminate our services we will give you reasonable written notice so that you can arrange alternative representation and we will give you reasonable assistance to find another representative if you ask us. If our services are terminated you must pay all fees, disbursements and expenses incurred up to the date of notice. 

6          Information privacy 

6.1        Over the course of your involvement with us we may collect and hold personal information concerning you. Failure to provide information may preclude us from providing services to you or limit the quality of the service provided. 

6.2        Information concerning you will only be used by us to provide services to you, to obtain credit or other references, to undertake credit management and to inform you of issues and developments that may be of interest to you. You authorise us to obtain from any person, or release to any person, any information necessary for those purposes and you also authorise any person to release information to us that we require for those purposes. 

6.3        Subject to 6.2 we will treat all information you supply to us as private and confidential and will not disclose any information we hold on your behalf or about you unless we are required to do so by law or with your consent. 

6.4        Information concerning you will be held at our offices. Under the Privacy Act 1993 you have the right of access to, and correction of, your personal information held by us. 

7.         The Lawyers Fidelity Fund 

7.1        This Fund exists to provide compensation of up to $100,000 per claimant for clients of lawyers who suffer pecuniary loss in certain circumstances. These circumstances are the theft by a lawyer of money or other valuable property entrusted to that lawyer while they are providing legal services to the public or while they are acting as solicitor-trustee. This is only a brief summary of the Fund. Please contact us if you require further information. 

8          Professional Indemnity Insurance 

8.1        We hold current professional indemnity insurance providing cover for the services we provide to you. This exceeds the minimum standards currently prescribed by the New Zealand Law Society. As with all insurances this cover has limitations and is subject to certain exclusions, terms and conditions.    

 9.         General 

9.1        Attendance to Instructions:  We will always try to act promptly and efficiently on your instructions, and will endeavour to report our progress on or before the date specified in our Confirmation of Instructions.  We cannot be held liable for the loss of any rights arising through lack of, or lack of clear, instructions from you or anyone you have nominated to give instructions on your behalf, or because we are unable to act on your instructions because we are with-holding services pursuant to clause 4.7.  

9.2        Contact details: Our ability to contact you for instructions is important. If for any reason your contact details change, it is your responsibility to make sure that we are updated. We cannot be held liable for any loss of rights arising through our inability to contact you because of a change in your contact details which we have not been told about.  

9.3        Storing Files:  We reserve the right to store any file which is no longer current off premises or solely in electronic format.  If you require us to return any file which is stored off premises or in electronic format to you then we may charge you a fee for retrieving the file. 

9.4        Retaining Files:  We will endeavour to retain the physical file in relation to each matter for at least five years after the file ceases to be current.  After this, unless we hear from you to the contrary, we may destroy it. 

9.5        Transferring Files:  From time to time you may want us to transfer your files to another attorney/lawyer.  Should you wish to uplift your file, you may do so at any time, providing all outstanding costs are paid.  We reserve the right to retain a copy of the file for internal purposes and to charge you for making that copy. 

10         Complaints 

10.1      If you have a complaint please raise it with the partner responsible for your matter, or, if you would prefer, any other partner in our firm.  You can do this by letter, email or telephone. 

10.2      If the complaint cannot be resolved to your satisfaction we will appoint another partner who has not been involved with the matter to deal with it promptly and fairly. 

10.3      If you are still not happy with the outcome you have the right to take the matter up with either the New Zealand Law Society or the New Zealand Institute of Patent Attorneys which both run a complaint service. Please contact us for their respective addresses.

11         Client Care and Service 

 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.
• 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.  Those obligations are subject to other overriding duties, including duties to the courts and to the justice system.  If you have any questions, please visit www.lawsociety.org.nz or call 0800 261 801.

12         Limitations on extent of our Obligations or Liability

Any limitations on the extent of our obligations to you or any limitation or exclusion of liability will be set out in our Confirmation of Instructions letter.