Australia and New Zealand Intellectual Property
Patents, Trade Marks, Copyright, Designs, Litigation
Acacia Law: Intellectual Property experts in Australia and New Zealand
© 2003-2011 Acacia Law
Terms of Engagement - For Acacia Law’s Clients
1. We provide different types of services in our practice and we are bound by different professional rules
depending on the nature of the work we undertake. Our practice is divided into Acacia IP, which provides
patent attorney services and Acacia Legal, which provides Barrister and Solicitor services to you. oth of
these practices trade under the name Acacia Law.
2. If you are not our client but we deal with you, please refer to our Terms of Engagement with Non-
Clients.
3. Our Letter of Engagement will set out the nature and extent of the work that we will be doing for you. The work in the
Letter will identify the type of service we offer. If there is any doubt as to which of the following types of work apply to you,
please request a clarification from us.
4. In addition to the Standard Terms of Engagement listed below, there are specific Terms of Engagement relating to the
relevant type of service we provide.
a. Patent Attorney services in New Zealand through Acacia IP
b. Patent Attorney services in Australia through Acacia IP
c. Barrister and Solicitor (Lawyer/legal) services in New Zealand through Acacia Legal
5. Standard Terms of Engagement common to all of the above types of service
6. Operation of the relationship
a. 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
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
advisors.
b. 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.
c. We will only invoice 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.
d. 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, where appropriate. There may be instances where we need to disclose your
information. We will keep it confidential to the extent required by law.
e. We may also need to provide information to various government agencies or third party agencies (e.g. WIPO)
responsible for processing applications and other instruments associated with completing your instructions. Such agencies
may or may not keep such information confidential depending on their statutory and policy requirements. If divulging your
information to these agencies is problematic in your particular circumstances, we need you to inform us of this ahead of time.
f. We will, of course, not disclose to you confidential information which we have in relation to any other client.
g. 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, even if we subsequently rely on that information in actioning
your instructions. 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.
h. We hold professional indemnity insurance that meets or exceeds the minimum standards specified by the New
Zealand Law Society. We will provide you with particulars of the minimum standards upon request.
i. Both Acacia Law and you agree to the use of electronic technology as set out in section 16 of the Electronic
Transactions Act 2002 for the purposes of communications between us. This means that all relavant provisions of the
Electronic Transactions Act 2002 will apply. In particular, you consent to receiving documents signed by electronic signature
from us in terms of section 22.
j. You authorise us to record conversations with you (including telephone conversations), including where such recorded
conversations record personal information under the Privacy Act 1993. Not all of our conversations will necessarily be
recorded. We will hold any recordings taken on information systems within our control and on backups of these systems. We
generally use these recordings to make accurate diary notes of our conversations. The recordings and diary notes may be
used: to accurately record your instructions and information you pass to us; in actioning your instructions; as evidence in any
disputes about what was said; and for improving our customer service to you. Recordings take up a lot of storage space on
our information systems. To catalogue, store and back up recordings increases our operating costs. To keep our operating
costs down (savings which we pass onto you because we do not charge for storing these items), if a diary note of a
conversation has been sent to you and we do not hear back from you within a month disputing the contents of the diary note
you authorise us to destroy the recording and both you and we will rely solely on the diary note of our conversation as an
accurate record of our conversation. If we receive a communication from you stating that you dispute what was said in our
conversation as reflected in our diary note within a month of our conversation, we will send you a copy of our recording. If you
require us to keep copies of recordings despite diary notes having been sent to you on these recordings or require us to send
you a copy of recordings as a matter of course, we may charge additionally for these services and/or we may ask you to take
your business elsewhere. This is in the interests of keeping our operating costs down, for operational reasons and for reasons
of maintaining a good working relationship with our clients.
k. You authorise us (without further reference to you) to destroy all files, documents and data in your matter matter (other
than any documents that we hold in safe custody for you and have indicated that we hold in safe custody for you) 7 years
after our engagement ends, or earlier if we have converted those files and documents to an electronic format.
7. Our Fees
a. We will invoice you monthly, on termination or conclusion of a matter, or at appropriate times in the process unless
there is an agreement to the contrary between us. One example of an appropriate time is when we incur a significant
disbursement.
b. Payment is due within 14 calendar days of invoicing unless otherwise agreed or stipulated on our invoice. 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.
c. 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 invoiced 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 divisible unless indicated as such by us 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.
d. In the case of set fees or package fees, you agree to permit us to invoice you for the full package/set fee at the time
indicated in our Letter of Engagement or quote. If our Letter of Engagement is silent on this point then you agree to let us
invoice you for the full package/set fee once the bulk of the official fees have been incurred. If there are no official fees, you
agree to let us invoice you for the full package/set fee once the bulk of the work has been done.
e. Work which falls outside a package or set fee will be charged on an hourly rate basis. We will advise you as soon as
reasonably practicable if it becomes necessary for us to provide services outside the agreed scope and, if requested, give you
an estimate of the likely amount of the further costs.
f. 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.
g. Hourly rates are recorded in 5 minute units, with time rounded up to the next unit of 5 minutes.
h. 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.
i. We will invoice the person who instructed us unless an agreement is in place to invoice a third party. It is your
responsibility to get the third party to agree in writing to be invoiced for work we do that you instruct us on and provide us with
a copy of the agreement. If no agreement is in place to invoice 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.
j. We do not invoice disbursements for small volumes of faxing, printing, photocopying and postage. However, we
reserve the right to invoice courier costs and other disbursements (including, but not limited to, faxing, printing, photocopying
and postage) where the total exceeds NZ$5.00.
k. We do not invoice separately for file opening, file maintenance or storage fees. We do, however, reserve the right to
invoice for storage fees for bulky exhibits and other bulky items.
8. Disbursements and tax
a. Unless we have quoted you beforehand and advised that our fee includes specific disbursements, our fees are
quoted as exclusive of disbursements. We invoice for disbursements separately from our own fees.
b. For New Zealand clients, our fees and disbursements are quoted as GST exclusive unless specifically otherwise
quoted. GST will be invoiced for work done in New Zealand for a New Zealand client. Otherwise, no GST will be levied unless
you advise us that GST should be levied. It is your responsibility to advise us if we have incorrectly charged or not charged
GST. If GST should have been charged, we reserve the right to invoice you for outstanding GST and any penalties incurred.
c. We undertake to only invoice disbursements that are directly associated with actioning your instructions.
d. Our systems are set up such that in quoting package fees including disbursements or in invoicing disbursements
incurred in currencies different from the invoice currency, it may not be practical to accurately invoice for the exact
disbursement amount. This sometimes results in a foreign exchange gain in our favour. We therefore agree that where you
notice such foreign exchange discrepancies that you have an opportunity within 7 days of the invoice being issued to you to
dispute the disbursement amount we have invoiced you. If you do raise such a a dispute, we will get an exact amount we
were charged for the disbursement from our bank and, where necesssary, issue you with an invoice with the exact
disbursement amount. Please note that in some cases, doing this may increase the disbursement amount we invoice you if
the originally invoiced disbursement was below what we actually paid for the disbursement. If you do not not dispute the
invoice in the 7 day time limit, you agree that the amount charged for the disbursement is correct, even if we make a gain or
take a loss on the transaction.
9. Unpaid accounts and frustration of instructions
a. 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 invoice the full amount for the instructed work even though your
instructions may not have been completed.
b. 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.
10. Credit Cards
a. 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. You authorise us to use
credit card details so-supplied to complete a payment or charge your card once we issue an invoice to you. 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.
b. 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 or at
appropriate times in the process unless there is an agreement to the contrary between us. You authorise us to use credit card
details so-supplied to complete a payment or charge your card once we issue an invoice to you. 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.
c. If a credit card transaction is declined for any reason, our usual terms concerning invoicing and payments apply (see
above). In such event, we reserve the right not to proceed with any matter until the situation is rectified.
d. 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.
11. General
a. These terms and any other agreements we have with you are governed by New Zealand law and are subject to the
non-exclusive jurisdiction of the New Zealand courts.
b. These Terms apply to any current engagement and also to any future engagement, whether or not we send you
another copy of them.
c. We are entitled to change these Terms from time to time, in which case we will send you amended Terms.
12. Termination
a. You may terminate our services and authority to act for you at any time in writing.
b. If our services or authority to act for you is terminated, you must pay us all fees due up to the date of termination and
all expenses incurred up to that date.
Effective from 26 April 2011
