1.1 In these Terms of Business the “Client” is the company, partnership, individual or other entity identified in an engagement letter and “Marcus Andreen” is Marcus Andreen Limited, a company registered in England and Wales with registration number 1061612 and its registered office at 3 Shortlands, London W6 8DA.
1.2 The terms of engagement with the Client comprise these Terms of Business and an engagement letter.
2. Fees and Expenses
2.1 The charges will be as agreed with the Client in advance or, if not agreed in advance, calculated by reference to the agreed hourly rate.
2.2 Marcus Andreen is entitled to increase any agreed rate with effect from 1 January in each year, provided that each such increase expressed as a percentage shall not exceed the percentage increase in the Retail Price Index (as published by the Office for National Statistics or replacement statutory body) during the period since the previous increase or, in the case of the first increase, since the date on which the rate was agreed.
2.3 If Marcus Andreen is expressly instructed to undertake work for the Client outside normal working hours (being 8am – 6pm, Mondays to Friday, except English bank and public holidays), then Marcus Andreen is entitled to charge 1½ times the agreed hourly rate for time spent undertaking such work.
2.4 Marcus Andreen charges for all time spent in relation to the matter, including correspondence, meetings, telephone calls, research, drafting and amending documents, and travel.
2.6 The Client is responsible for payment (or reimbursement) of liabilities to third parties, including barristers, trade mark agents, couriers and translators. As Marcus Andreen is directly responsible for third party charges incurred in connection with advice given to the Client, Marcus Andreen may require a payment in respect of them in advance.
2.7 Marcus Andreen’s charges and expenses are exclusive of VAT, which will be charged where applicable to the Client.
3. Payment Terms
3.1 Unless otherwise agreed, payment of invoices is due within 14 days of the date of each invoice and the Client shall pay each invoice by bank transfer to the bank account specified on the invoice. Marcus Andreen reserves the right to charge interest on any invoice which is not paid within one month of its date at the rate prescribed under The Late Payment of Commercial Debts (Interest) Act 1998. Time spent chasing payment of any overdue invoice is charged at the agreed hourly rate. If an undisputed invoice remains is overdue by at least ten (10) business days, then Marcus Andreen is entitled to suspend work on any then-current instruction until full payment of the overdue amount is received.
3.2 Unless otherwise agreed, Marcus Andreen will invoice the Client at the end of each month for work carried out during that month.
3.3 Where a fixed fee has been agreed for an assignment, the Client acknowledges and agrees that:
(a) if the Client fails to provide its feedback, comments or other substantive response within ten (10) business days of a reasonable request to do so, then Marcus Andreen may invoice the Client for the entire fixed fee. Payment of the fixed fee does not however affect the Client’s right to require completion of the remainder of the assignment at no additional charge; and
(b) if the assignment continues for more than two months from the date of the Client’s initial instruction, then Marcus Andreen is entitled to issue an invoice for a reasonable proportion of the fixed fee at the end of such two-month period and, if applicable, further invoices thereafter on a monthly basis.
3.4 If the Client asks Marcus Andreen to do work for any other person, company or entity and to submit an invoice to that person, company or entity, the Client will be jointly liable for payment.
4.1 Marcus Andreen retains copyright in all original documents that it has prepared.
5. Responsibility and liability
5.1 Marcus Andreen will exercise reasonable skill, care and diligence in carrying out legal work identified in the Client’s instructions and that has been agreed. Marcus Andreen’s duty to the Client does not extend beyond the contractual duty arising from those instructions.
5.2 The commercial implications of the matters on which the Client has asked Marcus Andreen to advise are a matter for the Client to assess at all times.
5.3 If Marcus Andreen is engaged in transactional work, the decision as to whether to complete a transaction remains a commercial decision solely for the client. Neither Marcus Andreen’s work nor its advice constitutes a recommendation as to whether or not the Client should complete or discontinue the transaction.
5.4 The Client may only rely on advice for the purposes for which, and the time at which, it was given and only if the Client has clearly made known those purposes to Marcus Andreen.
5.5 Where Marcus Andreen is asked to prepare a report or otherwise give detailed advice on legal issues, the Client should not rely on any verbal, draft or interim reports or advice unless the Client has specifically asked Marcus Andreen to confirm such advice in writing and Marcus Andreen has done so.
5.6 Marcus Andreen is not under any obligation to update any advice, report or product of its services to take account of events occurring after the advice, report or product has been issued in final form. Unless otherwise agreed in writing, Marcus Andreen is not under any obligation to remind the Client of any time critical date or of any other matter or event occurring after it has submitted its invoice for the matter.
5.7 If the Client requests Marcus Andreen to perform any transaction within a time-scale which involves exceptionally long hours or which is insufficient to enable the issues that may arise in connection with the transaction to be researched or considered fully, the standard of care which the Client is entitled to expect shall be no more than that which may reasonably be expected in the circumstances.
5.8 If the Client requests that Marcus Andreen establishes a new legal entity, whether or not in conjunction with a third party, and to treat that legal entity as its client for all or part of a particular matter, either in place of or in addition to the original Client, Marcus Andreen will do so on condition that the original Client will promptly indemnify it against any fees and expenses that the new legal entity does not pay.
6. Third Parties
6.1 Marcus Andreen’s duty of care is to the Client, not to any third party, unless otherwise agreed in writing.
6.2 If the Client asks Marcus Andreen to take instructions on its behalf from a third party then:
(a) until the Client notifies Marcus Andreen in writing to the contrary, it is entitled to act on any instructions given by that third party as if they were given by the Client; and
(b) the Client will indemnify Marcus Andreen against any claim that the third party was not entitled to act or give instructions on the Client’s behalf or that Marcus Andreen was not entitled to act on any such instructions.
7. Confidentiality and conflicts
7.1 Marcus Andreen will keep information and documentation entrusted to it confidential subject to any duties or obligations imposed by law or by professional rules. Marcus Andreen may disclose any relevant aspect of the Client’s affairs to the Client’s other professional advisors, unless the Client requests it, in writing, not to do so.
7.2 Professional rules may prevent Marcus Andreen continuing to act where there is, or there is reasonably likely to be, a conflict of interest between two or more clients, or where Marcus Andreen holds or come into possession of confidential information that may be material to the Client but which Marcus Andreen is under a duty to keep confidential for another client. In such circumstances, Marcus Andreen may have to stop acting for the Client. If this happens Marcus Andreen will tell the Client as soon as reasonably practicable and will endeavour to minimise any inconvenience to the Client.
8. Communications policy
8.1 Marcus Andreen may accept verbal, written, email or other electronic instructions from the Client. Marcus Andreen may send the Client email confirmation of the Client’s instructions or ask for email confirmation of the Client’s instructions.
8.2 Marcus Andreen cannot guarantee that its emails are virus and malware free although it will use regularly updated, state of the art scanning software to try to ensure that they are. The Client should ensure that all its incoming messages are scanned for viruses and malware.
8.3 The Client will provide, and will instruct its other advisors and other participants in any matter to provide, Marcus Andreen promptly with all information relevant to that matter. Marcus Andreen is entitled to rely on such information unless the Client expressly notifies it otherwise in writing.
9. Advice on the law of countries other than England and Wales
9.1 If the Client requests that Marcus Andreen carries out any work in relation to an agreement or other matter which is governed by the laws of any jurisdiction other than England and Wales, then, subject to Marcus Andreen notifying the Client in writing that such agreement or matter is or may not be governed by the laws of England and Wales, the Client acknowledges and agrees that:
(a) Marcus Andreen does not provide any advice on the effects or implications of such agreement or other document being governed by any laws other than those of England and Wales and, for the purposes of any advice which is given or work which is carried out by Marcus Andreen in relation thereto, such agreement or other matter shall be deemed to be governed by the laws of England and Wales; and
(b) it is the sole responsibility of the Client to obtain advice on such agreement or other document from a lawyer qualified in the relevant foreign jurisdiction.
10. Termination of engagement
10.1 The Client may, at any time, terminate Marcus Andreen’s services by giving written notice.
10.2 If the Client does not pay any invoice when due or does not comply with any request for payment on account of costs incurred or to be incurred, Marcus Andreen may stop work on any matters on which it is acting for the Client.
10.3 Marcus Andreen may, on reasonable notice, stop work on any matters on which it is acting for the Client and without prejudice to its right to be paid for work up to the date of expiry of its notice of termination. It may also terminate its engagement by the Client on seven days’ notice if it considers that the relationship of trust and confidence inherent in a solicitor-client relationship has broken down.
10.4 Marcus Andreen will not be liable to the Client for any resulting financial loss or any other consequences that the Client may incur as a result of the termination of its engagement in accordance with the provisions of this section.
10.5 If the Client or Marcus Andreen decides that Marcus Andreen should stop acting for the Client, the Client will pay the charges as set out in the Terms of Business and the Client’s engagement letter up until that point.
11. Client care
11.1 Marcus Andreen is committed to providing a first class service to its clients. If a Client is not satisfied with any service, or has a complaint about the charges, then the Client should raise the concern with Marcus Andreen. If the problem cannot be resolved directly, the Client may be able to refer its complaint to the Legal Ombudsman, which operates a complaints and redress scheme and/or apply to the court for an assessment of the invoice under Part III Solicitors Act 1974. For further information about the Legal Ombudsman, including whether the Client can complain, a Client should contact 0300 555 0333 or www.legalombudsman.org.uk.
11.2 If Marcus Andreen considers it necessary or desirable to consult its professional indemnity insurers, its insurance brokers, the SRA or the Legal Ombudsman over work that it has done for the Client, then it may share with them all necessary documents and information in its possession in relation to that work, or any related matter.
12. Governing law and jurisdiction
12.1 The contract for the provision of Marcus Andreen’s services to the Client is governed by English law.
12.2 No courts other than the courts of England are to have jurisdiction over any claim brought by the Client against Marcus Andreen, or by Marcus Andreen against the Client.
12.3 However, Marcus Andreen may bring proceedings against the Client in any jurisdiction, including (without limitation) any jurisdiction in which the Client is resident, domiciled, incorporated or has assets, for the purpose of enforcing any judgment and the Client irrevocably and unconditionally submits to such jurisdiction for that pur