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, such charges as are fair and reasonable. Charges are calculated principally by reference to the amount of time spent in dealing with the matter, but may be increased to reflect the complexity and/or urgency of the matter.
2.2 Marcus Andreen is entitled to increase any agreed hourly or daily 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 hourly or daily rate was agreed.
2.3 If Marcus Andreen is expressly instructed to undertake work for the Client outside normal working hours (being 08:30 – 18:00, 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.
2.5 Unless otherwise agreed in advance, Marcus Andreen does not charge for the cost of telephone calls, postage, scanning, photocopying, or storage of documents.
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 direct transfer to the bank account specified on such
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 chargeable at
the agreed hourly rate.
3.2 Unless otherwise agreed, Marcus Andreen will invoice the Client at the end of each month, or
more frequently if it reasonably consider that the circumstances or the likely amount due makes
it appropriate to do so, even though the work is not completed. In some cases Marcus Andreen
may require the Client to make a payment on account of anticipated fees and/or expenses
before any work is undertaken or continued, or expense incurred, and/or at stages throughout
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 (but without prejudice to 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. Files and documents
4.1 Marcus Andreen will retain on the Client’s behalf, in storage, papers relating to matters on
which it has acted for the Client for a reasonable period, which will normally be for six years
after a matter is completed. After this period, the papers may be destroyed without notice to
the Client unless it has been agreed in writing that Marcus Andreen will continue to store them.
4.2 Marcus Andreen may also retain, on the Client’s behalf, various papers relating to matters on
which it has acted for the client in electronic format.
4.3 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.
6.1 In this section, “Data Protection Laws” means (i) unless and until it is no longer directly applicable in the UK, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 2018. The terms “Controller”, “Processor”, “data subject”, “personal data” and “process” have the meanings given to them in the Data Protection Laws.
6.2 If the Client provides Marcus Andreen with any personal data in connection with an engagement, then, for the purposes of Data Protection Laws, the Client is the Controller and Marcus Andreen is the Processor of that personal data.
6.3 Marcus Andreen undertakes that it will:
(a) only process the Client’s personal data for the purpose of providing legal services to the Client, and otherwise in accordance with the Client’s written instructions;
(b) ensure that each member of its personnel who has access to the Client’s personal data is subject to a duty of confidentiality;
(c) assist the Client in complying with in complying with the Client’s obligations under the Data Protection Laws, including with the Client’s obligations to respond to requests from data subjects;
(d) implement and maintain appropriate technical and organisational measures to meet the requirements of the Data Protection Laws, including to ensure the security of the processing of the Client’s personal data;
(e) notify the Client, and then and provide the Client with co-operation, assistance and information, if the Client receive any complaint or other notice relating to the processing of the Client’s personal data under this agreement or compliance with Data Protection Laws;
(f) notify the Client if it becomes aware of any security breach;
(g) keep a written record of its processing of the Client’s personal data under this agreement; and
(h) at the end of the agreement, delete or, at the Client’s option, return all the personal data that Marcus Andreen processes on the Client’s behalf, except to the extent that, and for so long as, Marcus Andreen is legally required to keep the Client’s personal data.
6.4 The Client authorises Marcus Andreen on a general basis to use sub-processors for the purpose of providing legal services to the Client, provided that Marcus Andreen complies with its obligations under section 6.5.
6.5 In connection with the engagement by Marcus Andreen of sub-processors, Marcus Andreen shall:
(a) if it proposes to appoint any new or replacement sub-processors, notify the Client of the relevant change or changes and give the Client an opportunity to object;
(b) enter into a written contract with each sub processor which provides equivalent data protection obligation as those to which Marcus Andreen is subject under this section 6, and which terminates on termination or expiry of this agreement; and
(c) remain liable for all acts or omissions of the sub-processors as if they were Marcus Andreen’s acts or omissions.
6.6 The Client agrees to comply with its obligations under Data Protection Laws in respect of the processing of the Client’s personal data in connection with an engagement and will ensure that Marcus Andreen is lawfully permitted to process the Client’s personal data.
7.1 Marcus Andreen’s duty of care is to the Client, not to any third party, unless otherwise agreed in writing.
7.2 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.
8.1 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.
8.2 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.
9.1 Marcus Andreen may accept verbal, written or email instructions from the Client. Marcus Andreen may send the Client written or e-mail confirmation of the Client’s instructions or ask for written or e-mail confirmation of the Client’s instructions.
9.2 Marcus Andreen cannot guarantee that its e-mails 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.
9.3 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.
10.1 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 country 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.
11.1 The Client may, at any time, terminate Marcus Andreen’s services by giving written notice.
11.2 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 and may also terminate any other retainers with the Client.
11.3 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 any of its retainers with 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, notwithstanding that the retainer is an entire retainer and has not been entirely fulfilled.
11.4 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 any of its retainers in accordance with the provisions of this section.
11.5 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.
12.1 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.
12.2 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.
13.1 The contract for the provision of Marcus Andreen’s services to the Client is governed by English law.
13.2 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.
13.3 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 purpose.