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These terms of engagement (which we call the "Small Print") apply to the delivery of services by EMW Law LLP (“us” or “we”) to the client (“you”). Services are provided in accordance with a letter (“the engagement letter”) or confirmation of instructions (“COI”), enclosing or referring to the Small Print, which may subsequently be varied by agreement in writing between you and us. If there is any conflict between the Small Print and the engagement letter or COI, the engagement letter or COI will prevail.
An engagement letter or COI is open for acceptance for 14 days from the date of issue, unless otherwise indicated.
No instructions are deemed to be accepted by us until we receive a written acceptance of our engagement letter or COI and the Small Print from you, or (if earlier) we deliver any of the required advice and assistance.
The Small Print together with the engagement letter or COI form the only terms of the contract (the “Contract”) between you and us notwithstanding anything to the contrary stated in your terms and conditions of business, unless we agree otherwise in writing.
2 VERIFYING YOUR IDENTITY
To comply with the law on money laundering we need to verify your identity before we carry out any work. By signing our engagement letter and accepting the Small Print you agree that we may disclose or use the personal information provided by you for client identification purposes, together with all information we have in relation to your matter to third parties (such as credit reference agencies) as appropriate and to their agents and advisers. When such agencies receive a search from us, an identity footprint will appear on your credit file that may be seen by other organisations. This footprint has no affect on your credit rating.
3 EXCLUSION OF LIABILITY FOR MEMBERS AND EMPLOYEES
The Contract is made between you and us. No member or employee of EMW Law LLP will be personally liable to you in the event of a breach of this Contract.
No member or employee of EMW Law LLP accepts and/or assumes personal responsibility to you or to any third party for carrying out any work under the Contract.
No member or employee of EMW Law LLP will be personally liable to you or any third party for any loss or damage suffered by you or by any third party arising from any negligence or breach of fiduciary duty.
4 LIMITATION OF LIABILTY
Nothing in the Contract seeks to limit or exclude the liability of EMW Law LLP to you for death or personal injury caused by our negligence, for our fraud or for work carried out under a contentious business agreement as defined by Section 59(1) of the Solicitors Act 1974.
Subject to the paragraph above, EMW Law LLP will not be liable to you for any: indirect, consequential, special or punitive loss, damage, costs and expenses; loss of profit; loss of business; loss of reputation; depletion of goodwill; or loss of, damage to or corruption of data.
Subject to the first paragraph in this clause 4, EMW Law LLP’s total liability under or connected with the Contract whether arising out of any action for a breach of this Contract, our negligence, breach of fiduciary duty or otherwise, shall not exceed £50 million. All claims which are to be treated as a single claim for the purposes of our indemnity insurance are to be aggregated in applying that limit, apportioning the capped liability between the aggregated claims in a just and equitable manner.
You hereby agree to indemnify us and our members and employees against any claims by your connected persons or other third parties to whom we owe or are alleged to owe a duty or obligation arising from the Contract or our services to you, or for any claims for contribution to or indemnity against a claim brought by you or your connected persons, in each case to the extent that liability for such claims if brought by you under the Contract would be excluded by or would exceed any limitation on our liability in the Contract.
5 THIRD PARTY RIGHTS
A person who is not a party to the Contract shall have no rights under The Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract. This does not affect any right or remedy available to a third party apart from under that Act.
6 YOUR INSTRUCTIONS TO US
We may rely upon instructions given either orally or in writing by any person in your organisation that we reasonably believe to be authorised by you to communicate with us. We will send to you an engagement letter or COI confirming our understanding of the services to be provided and you should contact us as soon as possible if there is any change in those instructions.
If we are acting for more than one person we will be entitled to assume that instructions given by one of you, apparently on behalf of all of you, have the authority of all of you and that information or advice provided to one of you will be shared with all.
7 EMAIL COMMUNICATION
We may communicate with you and other parties by electronic mail. Information sent over the internet is not entirely secure or reliable. While we will always seek to contact you by other means or at another e-mail address if we receive a notification that e-mail has failed to reach you, we will otherwise presume that e-mails have reached you. If you do not wish us to communicate with you by e-mail please let us know.
8 PROVISION OF SERVICES
Your work will be allocated to a person with the appropriate expertise and experience to ensure that you receive the most cost-effective service.
The engagement letter or COI will identify the principal responsible for supervising each piece of work and the name and status of the person handling it.
We will provide services for your benefit and information only and on the basis that advice given (in any format) may not be disclosed to any third party without our prior consent. You may disclose any advice given by us to your other professional advisers for the purposes of seeking their advice in relation to your affairs. We accept no liability to such third parties in connection with our services.
Any statements on our part concerning the outcome of any matter are expressions of our professional opinion and are not guarantees. These opinions are necessarily limited by our knowledge of the relevant facts and are based on the state of the law at the time they are expressed.
Our advice relates principally to English law and to European law. We also have multi-jurisdictionally qualified lawyers with the ability to assist in relation to other jurisdictions including Spain, South Africa and Germany, in certain specialist fields. We will not be responsible for the work of foreign lawyers or other professionals engaged on your matters.
9 JOINT CLIENTS
If we are acting for more than one person as our clients, we will act for all of you jointly. As our joint clients you will be jointly and severally responsible for payment of our fees. That does not change if we issue invoices to one or more of you, and we may re-issue invoices. Should any of our proposed joint clients not join in instructing us, or if at any time we cease to act for any of our joint clients, our remaining joint clients will remain bound by the Contract.
Should any conflict of interest arise amongst you we will be unable to continue acting for all of you, at least on that issue. We are unable to keep information secret from other joint clients. You consent to our acting notwithstanding the potential conflicts of interest, on the grounds that your substantial common interest in the matter outweighs the potential for conflict, and that it is reasonable for us to act for all of you.
We will hold information about you and your affairs in the strictest confidence. We will only disclose such information to a third party if required to do so by law, to the extent necessary for our work for you or if you have given your actual or implied consent to disclosure.
As a Lexcel accredited firm, files may have audits or quality checks carried out on them by external organisations. These external organisations are required to maintain confidentiality of your files.
Although we have a duty of confidentiality to you, we are required by law to make a disclosure to the National Crime Agency where we know or suspect a transaction may involve money laundering or terrorist financing. If we make a disclosure we may not be able to tell you. We may also have to stop working on your matter for a period of time and not be able to tell you why.
We will not be liable in any way for making a disclosure, or for not informing you, or for suspending our work, if we reasonably believe that we are acting in accordance with these legal requirements.
11 OUR CHARGES
Our fees may take into account a number of factors including the time spent by our staff in providing services to you, the complexity of the matter, the specialist knowledge involved, the value of the transaction and the speed within which the services are to be performed.
Time spent by our staff in providing services to you is recorded and charged in units of 6 minutes.
Our hourly rates are reviewed annually on 1 April. If we are undertaking a matter on your behalf when our hourly rates increase, we will inform you at the time. Our range of hourly rates for the period beginning 1 April 2012 is:-
£200 – £450 per hour
£130 – £220 per hour
£200 - £450 per hour
£120 – £350 per hour
£100 – £110 per hour
£50 – £120 per hour
Unless expressly excluded by the engagement letter or COI, we may issue interim bills at any time for work done to date. Interim bills are on account of total fees for the matter and, at the end of your matter, we may make further charges for work included in the interim bill, to charge the total fees agreed in the engagement letter or COI.
We may ask you for payments on account of future fees and/or disbursements, either at the start of a matter or at any time during it. Your payment is held in our client account until used to pay bills we have issued to you or disbursements we have paid, and is returnable if for any reason we do not do work or incur disbursements to the value of the payment. A request for a payment on account should not be regarded as an estimate of our total fees.
If someone else agrees or is ordered to pay your legal costs, that is for your benefit and does not change your primary responsibility for our fees and disbursements if they fail or delay.
Invoices are payable within one month of their date except where we have agreed otherwise in writing. If any invoice that we issue to you becomes overdue then all invoices that we have issued to you immediately become due and payable and we may commence proceedings against you in respect of all unpaid invoices.
We do not accept cash as a means of payment.
If any of our invoices remain unpaid when due or if we reasonably believe that you are likely to be unable or unwilling to pay your fees, or if you do not pay money we have properly requested on account when due, we may suspend any further work on your behalf or on behalf of anyone connected with you until our invoices are settled in full. In any event, if any of our invoices remain unpaid for a period of 75 days we will suspend any further work on all matters on your behalf until our invoices are settled in full. If the outstanding balance remains unpaid when any of our invoices become 90 days old the matter will automatically be passed to our debt recovery team.
All fees and (where applicable) disbursements charged to you will be subject to VAT at the current rate. All fees and hourly rates are stated exclusive of VAT, which is payable in addition.
We will charge interest on overdue amounts at the rate specified in the Late Payment of Commercial Debts (Interest) Act 1998 from the date payment is due. Where the Late Payment of Commercial Debts (Interest) Act 1998 is not relevant we will charge interest at a rate of 1.5% over LIBOR from the date payment is due.
In addition to our fees you will have to pay for any expenses properly incurred by us on your behalf, including but not limited to: travel and subsistence costs, counsel’s fees, trade mark agents’ fees, court fees, courier charges, stamp duty, search fees and Land Registry fees, plus VAT where applicable.
For travel, our standard policy is first class rail and economy class air travel within the UK and business class or equivalent for overseas travel.
We will charge fixed fees for the services listed below, in addition to any other charges agreed with you. The fixed fees listed below incorporate both the time cost to us and the disbursement cost charged to us by our suppliers:-
Full company search £25
Company search (single document) £5
Telegraphic transfer £30
We will automatically submit interim disbursement only invoices, which are payable upon receipt, as disbursements are incurred. It is our normal policy to require money on account of disbursements will be required before we incur them.
If you solicit or entice any of our employees away from our employment to work for you or any third party (a “Leaver”) then you will pay to us, as and by way of liquidated damages, an amount equal to the actual costs we incur in recruiting a replacement member of staff at any time within 6 months of the date upon which the Leaver leaves our employment.
If at the conclusion of a matter we have a credit balance of £50 or less on client account, we will take all reasonable steps to refund this money to you. If we are unable to trace for any reason we reserve the right to donate this amount to a charity of our choosing.
12 CREDIT LIMIT
We will set a credit limit for you and a credit search will be carried out to help us set this limit.
The credit limit is for our benefit and is neither a fees estimate nor a limit on the fees we may incur without your consent. We may vary, waive or exceed the credit limit at our discretion. We may reduce it to nil if we consider that you may be unable or unwilling to pay all our fees and disbursements. The credit limit is to cover all outstanding bills, unbilled work in progress, disbursements (including future disbursements we may be committed to incurring) and VAT, for you and related clients, on all matters. If the credit limit is exceeded (or would be exceeded by further work or disbursements) we will normally suspend work until we receive a payment of outstanding bills or a payment on account. We will tell you before we do this. This does not prevent us from taking any other action to recover payment of fees when due, nor from asking for additional payments on account.
13 SERVICE QUALITY
If at any time you would like to discuss with us how our service to you could be improved, or if you are dissatisfied with the service you are receiving, please let us know by speaking to the principal responsible for the matter or to Michael Eyton-Jones, our Client Care Principal. We will look into any complaint carefully and promptly and will do all we can to explain the position to you. If we have given you a less than satisfactory service, we will do everything reasonable to put it right. If you are still not satisfied, you may of course take up matters with the Legal Ombudsman on 0300 555 0333 or via their website www.legalombudsman.org.uk. We have a written complaints procedure which is available on request.
We often have to provide undertakings on behalf of our clients. These are commitments that are binding on us to do things on your behalf (for example to send money or documents to a third party). Where we properly give an undertaking on your behalf, we will be entitled to ignore any instructions that you later give us which would cause us to be in breach of that undertaking, and you agree to do anything required of you to enable us to comply with our undertaking.
15 CLIENT MONEY
Money we hold on your behalf is held in a client account, and is separate from our money. Your money is protected by the Solicitors’ Accounts Rules (“SAR”) and Solicitors’ Compensation Fund. It earns interest at the SAR rates, subject to minimum amounts and time periods. Unless we are negligent or breach the SAR, we are not responsible for loss of client money due to bank failure or any other matter, or for delays in money transmission. We will normally only make payments out of cleared funds, but you will make good to us any loss arising from a client account shortage on your matter (including interest) that is not due to our negligence or breach of the SAR, whether due to returned payments, bank failure or any other matter.
16 FINANCIAL SERVICES
We are not authorised by the Financial Services Authority. We are included on the register maintained by the Financial Services Authority so that we can carry on insurance mediation activity, which is broadly the advising on, selling and administration of insurance contracts. The register can be accessed at www.fsa.gov.uk/register. We are an exempt professional firm able to carry on exempt regulated activities (which are limited in scope) where they arise out of, or are complementary to, the provision of a professional service to you. Services we are able to provide include advising on investments and arranging deals in investments as an incidental part of our professional services. Our insurance mediation activity and exempt regulated activities are authorised and regulated by the Solicitors Regulatory Authority. Complaints and redress mechanisms are provided through the Solicitors Regulation Authority and the Legal Ombudsman.
17 DATA PROTECTION
We outsource elements of our secretarial work to South Africa. We have a confidentiality agreement in place with the provider to protect any information that we outsource. By accepting our terms of engagement you consent to us transferring digital files which may include personal data to our service provider in South Africa. If you do not agree to us transferring personal data to our service provider, please contact our Marketing Manager.
We may from time to time send you information not related to your instructions that we think may be of interest to you. By accepting these terms of engagement, you opt in to receiving this information. If you do not wish to receive this information, please notify our Chief Executive, who will remove your name from our mailing list as soon as reasonably possible. We will not pass your details to any other person for marketing purposes.
You may request details of any personal information that we hold about you at any time. Please send such requests to our Chief Executive. We may charge a fee for the provision of our records. If you believe that any of the personal information that we hold about you is incorrect, please notify our Marketing Manager and we will correct any errors as soon as possible.
18 ENDING THE CONTRACT
You may terminate the Contract at any time. We may terminate the Contract at any time on reasonable notice for good reasons, including: if you do not accept our advice in a material respect or the relationship of trust and confidence between us breaks down; if a conflict of interest arises; if you do not provide us with instructions or necessary information; if we cease a practice area or are otherwise unable to provide you with an adequate service; if we reasonably believe you may be unable or unwilling to pay our fees, or if you do not pay our invoices or any amount we properly ask for on account; or if we are taking a risk on recovery of our full time costs (for example if we are working on a conditional fee arrangement or a fixed or capped fee) and in our opinion a client who was paying our full time costs would not be likely to proceed with the case.
If the Contract ends for any reason before our work is concluded, we will be entitled to charge for all work up to the date of termination (unless we have agreed otherwise in writing) at the lower of our hourly rates or any agreed fee. We will be entitled to charge at our hourly rates for any work done after the Contract ends but arising from it, such as removing our name from a court record, complying with undertakings, dealing with client money, storing, retrieving or copying papers, replying to audit or tax enquiries, complying with legal or regulatory requirements, answering your questions or giving evidence in proceedings arising from your case.
At the end of the contract if you choose to instruct alternative legal advisors and wish us to pass our files to them we will do so provided that you instruct us in writing to do so and all of our outstanding invoices payable by you or by third parties on your behalf have been settled in full.
In the event that any clause (or part of it) of the Contract is held to be unlawful, unenforceable or invalid by any court or other competent body, the remainder of the provisions of the Contract continue in full force and effect.
20 LAW AND JURISDICTION
Our relationship with you in respect of all work undertaken on your behalf is governed by the law of England, and the courts of England shall have exclusive jurisdiction (but nothing shall prevent us from enforcing payment of money due to us in courts outside England).
© EMW Law LLP September 2012