Terms of Engagement
Terms of Engagement & Client Service Information
These terms of engagement (Terms) apply to all services we provide to you, unless we agree otherwise in writing. You do not need to sign these Terms in order to accept them. If you have any questions, please contact the partner or team leader responsible for providing our services.
- the patent attorney firm, Baldwins Intellectual Property, which provides intellectual property services;
- the law firm, Baldwins Law Limited, which provides litigation, commercial and other legal services.
While many of our partners and staff provide services to clients on behalf of both Baldwins Intellectual Property and Baldwins Law Limited, others provide services only on behalf of either Baldwins Intellectual Property or Baldwins Law Limited. If you would like further details, please view our structure.
Relevant rules and codes of conduct
Our legal services and patent attorney services are governed by different laws and codes:
- our lawyers are subject to the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (Conduct Rules); and
- our registered patent attorneys are required to follow the Code of Conduct for Patent and Trade Mark Attorneys 2018 (Code). The Code applies to services provided by patent attorneys and trade mark attorneys in Australia and New Zealand. The Code may be reviewed and amended from time to time and will apply to our relevant services accordingly.
A partner or team leader is the client manager responsible for managing our relationship with you. If required, the client manager may involve other partners or staff to assist in relation to your matter, having regard to your specific requirements and their level of expertise and technical specialisation.
Conflicts of interest
If a legal conflict of interest arises in relation to a matter on which you have engaged us, we will inform you of this as soon as possible. In this case:
- we may need to cease acting for you, or decline your instructions;
- we may continue to act for, or accept instructions from, another client, provided that, if we hold any of your confidential information which is relevant to the matter, we have taken appropriate steps to ensure that information will not be disclosed to the other client.
Nevertheless, we may act for clients working in the same or competing markets and whose commercial interests compete with yours.
Where we are advising more than one person (such as a partnership or multiple shareholders in a venture), we may require each person to take separate advice where appropriate.
We will charge a fee which is fair and reasonable in the circumstances. Our fee will take account of the factors detailed in the Conduct Rules including:
- the time and resources involved;
- the urgency, skill level, complexity, responsibility and specialist knowledge involved;
- the result achieved and value added;
- our standard fees for providing certain services;
- the market fee for similar services; and
- the reasonable costs of running our practice.
To avoid incurring additional fees, please instruct us reasonably in advance of any deadlines and provide us with all relevant information regarding your matter.
We will charge you separately for general office services to cover the cost of photocopying, printing, telephone, IT expenses and other office charges. The office service charge is 4% of our fee, although if our actual costs significantly exceed this amount, we may invoice you for these additional costs.
In addition, we will pass on to you the fees and other costs (including official fees, foreign agent fees, travel costs and courier fees) which we incur on your behalf. These fees and costs are identified as “disbursements” in our invoices.
Any applicable goods and services tax (GST) will be passed on to you and will be itemised separately on our invoices. Unless we indicate otherwise, our fee estimates exclude GST (if applicable), disbursements and office service charges.
Unless special arrangements are agreed, we expect full payment of your account by the due date shown on the invoice. If your account remains unpaid beyond its due date, we reserve the right to charge interest on the overdue portion of your outstanding debt.
Payments in advance
We may ask you for a payment in advance to cover our anticipated fees and costs. We may not start work until we receive the payment (even if important deadlines are due, such as for filing applications to register intellectual property).
We maintain a separate trust account for all funds which we receive from clients (other than payments of our invoices). We:
- will hold, on your behalf, any funds paid in advance in our trust account; and
- may deduct any invoiced fees, costs or disbursements from the funds held on your behalf for the purposes for which the funds were paid or according to your instructions.
As we raise invoices for work you have instructed us to perform, you authorise us to transfer the funds you have deposited in our trust account to pay those invoices in full or in part.
If there are residual funds in our trust account and you have instructed us to perform work on other matters, then we will obtain prior approval from you before using any residual trust funds to pay invoices in full or in part for that other work.
We will generally invoice you at certain stages or monthly, unless we have agreed otherwise. We will also send an invoice to you on the completion of your matter.
In some cases, third party fees and disbursements (including costs from foreign associates) can take some time to be charged on to us. If we are charged for any costs related to your matter we will invoice you for those costs and you are required to pay that invoice, regardless of when your matter was completed.
Our invoices are payable on the due date shown on the invoice. Where we do not receive payment by the due date, we may:
- cease to do any further work for you (even if you have deadlines due);
- retain your documents, files and other property in our possession; and
- charge you interest, from the due date of the invoice, at a rate not exceeding 5% per annum above the prevailing indicator lending rate of our bankers, compounding monthly.
You are responsible for paying us, even if you expect someone else will reimburse you for our fees and other charges, or if you ask us to send our invoices to someone else for payment.
We will use the information we acquire and hold about you and your business to provide our services, obtain credit and other references, and undertake credit management. We may also use your information to inform you of developments, services and seminars that may be of interest to you (but please let us know if you do not want your information to be used for this purpose).
Subject to this, we will keep all confidential information we acquire about you and your business strictly confidential, and will not disclose that information to any other person (besides our contractors and agents) except where:
- you authorise us to disclose the information; or
- we are required to do so by law.
Under the Privacy Act 1993, you have the right of access to, and correction of, your personal information held by us.
We generally use CPA Global Limited, a limited liability company based in Jersey which specialises in processing intellectual property globally, to manage our clients’ patent, trade mark and design renewals. We receive commissions from referrals to CPA.
We prefer to communicate with you by email, and will generally do so unless you instruct us otherwise.
While we take appropriate steps to ensure our emails are secure and accurate, we cannot guarantee that they will not be intercepted, interfered with, or will be free of defects (such as viruses). We do not accept responsibility, and will not be liable, for any damage or loss caused by an email that is intercepted, interfered with or is defective. Therefore, please request an acknowledgement of receipt for important communications.
From time to time we will send you by email, information and articles about intellectual property topics of New Zealand and international importance we consider may be of interest to you. Every publication carries an “Unsubscribe” note which enables you to discontinue this service if you wish.
Only you may rely on our advice. If you would like someone else to be able to do so, you must first obtain our written consent.
Where you are a company, we act for you alone and not for your directors and shareholders, unless we otherwise agree in writing.
Retention and disposal of documents
Our practice is to keep files in electronic form only, but we may store your files and documents in either electronic or paper form, or both. If at any time we choose to store any of your files or documents in electronic form only, we may return to you any hardcopies of those files or documents in our possession.
If you provide us with documents for our file they will become the property of Baldwins and will not be returned unless you specifically notify us that you wish to retain ownership of such documents and/or that they should be returned to you.
If for any reason you would like us to store hardcopy documents or any other physical objects on your behalf or if you would like such items to be returned to you, you must indicate this to us either at the start of your retainer or when the item comes into our possession and tell us how you would like items to be dealt with at the end of your retainer.
Any internal correspondence, file notes, drafts, or other documents created in the course of the retainer are the property of Baldwins, even if we send or file such documents to or with a third party on your or your organisation’s behalf.
We may retain copies of documents sent to you and these will become our property to which you may have access while your file remains in existence.
At the end of your retainer, we will generally retain files and documents (in electronic form) for a period of 10 years from the date your file is closed. However, we may review retained files and documents after 6 years to determine at our sole discretion whether we need to retain them any longer. You authorise us to deal as we see fit, with files, documents and other physical objects which we consider do not need to be retained. Disposal may include permanent deletion or destruction of unwanted items.
If you wish to uplift your files or other documents from us at any time, we may make and retain copies of these files and documents before they are uplifted.
Intellectual property rights
Baldwins owns and retains any and all intellectual property rights in any documents or other works created by us for you or sent on your behalf unless otherwise agreed at the commencement of the retainer.
You may terminate our engagement at any time by written notice to us.
We may terminate our engagement in the circumstances permitted by the Conduct Rules and/or the Code. If we withdraw our services, or cease to act for you, we will inform you of any actions necessary to maintain your existing intellectual property rights for which we are responsible.
You must pay all fees and costs charged and incurred by (or for) us up to termination and any other fees and costs we may incur, such as debt recovery costs. If you terminate our engagement, we may retain your files and other documents until all fees and charges are paid. We will also charge you for the costs of destruction or return of files following termination of our engagement.
Limitation of liability
To the extent permitted by law and unless we agree otherwise in writing, our total liability to you (whether in contract, tort or otherwise) in relation to any matter you engage us on will not exceed:
- if an amount is available to be paid out to you under any relevant insurance held by us in respect of our liability to you, up to a maximum of NZ$20 million (including interests and costs); and
- in any other case, an amount equal to five (5) times the amount of our applicable fee (excluding GST, disbursements and office service charges) on the matter you have instructed us on.
Our relationship with you is governed by New Zealand law, and subject to the exclusive jurisdiction of the New Zealand courts. However, subject to Part 6 of the Patents Act 2013, any proceedings before the Trans-Tasman IP Attorneys Disciplinary Tribunal may be conducted in New Zealand or Australia.
We may change these Terms at any time by notifying you in writing of the changed Terms. The changes will bind you in respect of any matters for which we accept instructions after notification, unless otherwise agreed in writing.
These Terms bind you and your successors.
Client Service Information
Client care and service
The obligations lawyers owe to you through Baldwins Law Limited are described in the Conduct Rules. Our lawyers must:
- act competently, in a timely way, and in accordance with the 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; and
- if requested, let you know how to make a complaint and deal with any complaint promptly and fairly.
The obligations under the Conduct Rules 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 telephone the New Zealand Law Society on 0800 261 801.
Patent attorney services
The obligations patent attorneys owe to clients are described in the Code. We confirm that the patent attorney providing services to you:
- is registered as a patent attorney and/or trade mark attorney in New Zealand and Australia;
- has the appropriate competency (including by drawing on technical expertise) to provide the services; and
- is bound by the Code.
In accordance with the Code, where we are providing patent attorney services to you for the first time, or if any services we provide are materially different to those provided to you before, we will provide a written estimate for the services that we will provide to you, along with other relevant information regarding the implications of having our registered patent attorney provide you with the services (including procedures, cost and timing).
If you have any complaint about our services, please raise it with the person who is responsible for your work.
If you are not satisfied with their response or you do not want to raise your complaint with that person, you may contact our General Manager, at:
Baldwins Intellectual Property
Level 15, HSBC House
1 Queen Street
PO Box 5999 Wellesley Street
Auckland, New Zealand
T: +64 9 373 3137
You may also raise your complaint:
- about a lawyer with the New Zealand Law Society Complaints Service by telephoning 0800 261 801 (New Zealand).
- about a patent attorney with the Secretary to the Trans-Tasman IP Attorneys Board (firstname.lastname@example.org).
Professional indemnity insurance
We hold current professional indemnity insurance which meets the minimum standards from time to time specified by the New Zealand Law Society.
The Lawyers Fidelity Fund
The New Zealand Law Society maintains the Lawyers’ Fidelity Fund to provide compensation to 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. The Fidelity Fund does not usually cover a client for loss relating to money that a lawyer is instructed to invest on behalf of a client.