Standard Terms of Service

Entire Agreement

The following documents will constitute the entire agreement relating to the Engagement Terms[cite: 6]:

1. Any letter of engagement[cite: 7];
2. The Standard Terms[cite: 8]; and
3. Any amendments or supplements to any of the foregoing agreed from time to time[cite: 9].

In the event of any conflict between the terms of the foregoing, the documents shall be construed in the order of priority in which they are referred to above, but subject to any amendments as referred to in point 3 above[cite: 10].

Your Relationship with Us

When you instruct us on an individual matter, we will write to you to set out[cite: 12]:

• Which entity is the Contracting Party[cite: 13];
• The scope of the work we have agreed to undertake and any assumptions on which it is based[cite: 14];
• Who will be the responsible partner or director and other key team members whom we will try not to replace, although unforeseen circumstances may require that[cite: 15];
• The fees and invoicing arrangements[cite: 16];
• Any applicable limitation of liability[cite: 17]; and
• The governing law applicable to the contractual relationship with you and the choice of jurisdiction for resolving any issues[cite: 18].

Your contractual relationship for individual matters is between you and the Contracting Party[cite: 19]. You understand that we do not make any promises or warranties as to the outcome of the representation[cite: 20].

Contractual Limitation of Liability

To the extent permitted by law, our aggregate liability for all claims directly or indirectly arising from or connected with any matter (whether in negligence, breach of legal duty, breach of contract, delict (or tort) or otherwise and whether to you or any other person) is limited[cite: 22].

This limitation is to the amount of the indemnity provided by our professional indemnity insurers in respect of such claims, except in matters involving the preparation of due diligence reports, in which cases our liability is further limited to the amount of our professional fees (exclusive of VAT) in respect of the due diligence report[cite: 23]. Should your matter be renewed or extended, the above limitation of liability will include such renewal or extension[cite: 115].

You agree that the services rendered under or in connection with the terms of our engagement are rendered by incorporated entities and you agree not to pursue any action against any individual director, employee or consultant of those entities in respect of any claim[cite: 24].

Settlement of Invoices

Our invoices are payable within 5 business days of receipt and in the currency in which they are submitted[cite: 26]. Payment must be made into the bank account nominated by us[cite: 27]. Payment of our invoice will not be subject to any deduction or withholding on account of taxes or charges of any nature[cite: 28]. Where a deduction or withholding is levied by law, you agree to pay such additional amount so as to ensure our receipt of the full amount of the invoice[cite: 29].

We need to approve in advance any proposal for any part of one of our invoices to be paid by a third party[cite: 30]. Notwithstanding our approval, you agree that you will remain responsible for paying the whole bill and any interest accrued on it[cite: 31].

If an invoice remains unpaid 30 days after delivery[cite: 32]:

• You agree that we may be entitled to charge interest at 10.5% per annum on it or at such rate and under such arrangements allowable under the laws and professional regulations applicable to us as may be provided for in applicable additional standard provisions or an agreement between us and you[cite: 33]; and
• On giving written notice to you, we may cease work on the matter to which the bill relates and any of your other matters[cite: 34]. You agree that we are not responsible for any loss resulting from such inactivity[cite: 35].

If the matter is litigious, we may also remove ourselves from the Court or tribunal record[cite: 36]. You agree that we may exercise a lien over your files and documents until all invoices due to us from you have been paid in full, subject to the laws and professional regulations applicable to us[cite: 37].

If we are required by any governmental or regulatory body, or by a service provider appointed by you, to submit one of our invoices to audit, to produce documents or provide information on any individual matter on which you have instructed us, we shall be entitled to bill you for the work involved (and any disbursements incurred) at the rates agreed for the relevant matter[cite: 38]. If legal privilege attaches to any such documents, you will either waive privilege or instruct us to review them in your interests[cite: 39].

In the event of any dispute regarding the quantum or appropriateness of our fees, which dispute in the normal course would be subject to taxation by the taxing master, you specifically agree that the dispute will be resolved by the fee assessment committee of the relevant Provincial Council rather than by the taxing master[cite: 40].

Our invoices set out professional fees charged during the billing period, as well as the disbursement categories (for VAT purposes) and the total disbursement[cite: 41]. If we neglect to account to you regularly whether by inadvertence or deliberately (by agreement with you or otherwise) this will not mean we are disentitled to our fees[cite: 42]. Unless you and we have agreed otherwise, we may apply any part of the money we hold on your behalf in trust to settle any outstanding invoices we submit to you[cite: 43].

You should raise any queries regarding any of our invoices with the partner or director responsible for the matter as soon as possible[cite: 98]. If any part of one of our invoices is queried by you or the relevant payer, you agree to immediately pay, or procure payment of, those parts not subject to query[cite: 99].

Disbursements and Other Charges

We may consider it to be in your interests to instruct counsel or engage correspondent lawyers, experts or others on your behalf and at your expense[cite: 45]. We will consult you before doing so if such instructions or engagements will result in significant fees becoming payable[cite: 46].

We will charge you the actual cost charged to us by others for services and disbursements of third parties and our associated entities, and we also charge for printing, long-distance telephone calls, fax, searches, inquiries, filing of documents and court fees[cite: 47]. We may also charge for photocopying, telephone calls, travel, searches, court fees, hosting on-line data or deal rooms and for other services at our or their standard rates from time to time and for other expenses and other costs incurred on your behalf[cite: 48].

These charges will be included in our invoices and will not include any mark-up of expenses for which the precise cost can be readily determined but may vary from or exceed our or their direct cost for services for which the precise cost cannot be readily determined[cite: 49]. If we believe that these disbursements will be substantial, we may ask you to pay them directly or in advance[cite: 50]. The disbursements are included in our bills and we make every effort to make sure that these bills are as complete as possible[cite: 51]. However, some disbursements, such as telephone charges, are not available until after bills are sent out and they are billed for later[cite: 52].

External Advisers and Third-Party Professionals

We shall use all reasonable care in our selection of external advisers and other professionals such as, but not limited to, counsel, correspondent lawyers, experts or others instructed by us on your behalf[cite: 54]. We shall not, however, be responsible for the advice given or services provided by, or negligence or misconduct on the part of, such persons[cite: 55].

If we instruct professional or other external advisers on your behalf, we may provide to them copies of documents or other information in our possession which they require for their compliance with anti-money laundering legislation in their countries[cite: 56].

Deposits

If a deposit has been agreed upon, it is further agreed that we have a security interest in that deposit[cite: 58]. Deposits are usually considered to be unearned advances. They are placed in trust accounts, usually placed in pooled interest-bearing trust accounts[cite: 59]. All accruing interest is paid to the Legal Practitioners Fidelity Fund[cite: 60].

If you would like your deposit to be placed in an interest-bearing account with the interest accruing to your benefit we require written instructions from you to this effect[cite: 61]. The need to replenish the deposit is a condition of our continued work and is set forth in the letter of engagement itself[cite: 62].

Copyright and Intellectual Property

You are free to use and copy all documentation created by us for you in the course of any matter but we retain all copyright and other intellectual property rights in all material developed, designed and created by us in the course of the matter and they will remain our property[cite: 105]. All original ideas created by us in the course of the matter will remain our property[cite: 65].

We may use all documents created by us in the course of any matter for legal training, forms and research purposes, without attribution to you[cite: 106].

Changes by Others to Our Work Product

If we transmit or provide any document to you or to another party, and changes are made to the document by someone else, we are not responsible for any loss caused by the changes unless we have specifically approved the changes[cite: 67].

Communicating with Us

When you seek and receive legal advice from us on your rights and obligations, legal advice or attorney-client privilege will attach to our communications related to that advice[cite: 69]. If we act for you in contemplated or actual legal proceedings, litigation or attorney-client privilege will attach to our communications related to those proceedings[cite: 70].

You agree that we may communicate with you using electronic means, knowing that certain risks (including, for example, interception, unauthorised access and risk of viruses) are associated with such means[cite: 71].

Confidentiality, Conflict of Interests, and Relationships

Confidentiality

We will keep all information obtained from you, which is not in the public domain, confidential, and will only otherwise disclose it with your authority or if required to do so by the laws and professional regulations applicable to us[cite: 74].

Nevertheless, you agree that we may disclose any relevant information in order to protect and/or defend ourselves in any actual or threatened legal, civil or regulatory proceeding and may also disclose any relevant information in confidence to our insurers, insurance brokers, auditors and other advisers if and to the extent such disclosure may occur without waiving or losing any applicable legal privilege[cite: 75]. You will provide us, and will instruct your other advisers and any co-venturer or other co-participants to provide us, on any matter on which we are instructed, with all relevant information and documents, all of which will have been properly obtained and on which we may rely without verification[cite: 76].

You agree that, unless you instruct us otherwise, we may disclose any relevant information to your other professional advisers[cite: 77].

Conflicts of Interest

We shall carry out internal conflict checks against the names and matter descriptions you give us in respect of your matter on a continuing basis until our engagement is terminated[cite: 79]. Where a potential conflict of interest arises, we may consult with you to determine whether or not a conflict does in fact exist[cite: 80]. If a conflict does exist, we may require a waiver of conflict in order to accept instructions and act or continue to act on your behalf or we may have to decline to act[cite: 81].

However, we will not act where a conflict of interests – or a significant risk of such a conflict – exists, unless we are permitted to do so under the laws and professional regulations applicable to us and, where required, with your consent[cite: 82]. However, we advise a large number of clients and may not always be able to anticipate all such occasions; please inform us promptly if you become aware of any such circumstances[cite: 83, 84].

You agree that we may act for other clients in transactions or disputes in which you or any affiliated entity of yours has an interest but on which you or they have instructed another law firm, provided that we do not thereby breach our duty of confidentiality to you[cite: 85, 86].

We act for diverse clients, some of which operate in the same industry or sector[cite: 87]. Some clients we represent may have, or develop, commercial or legal interests adverse to other clients[cite: 88]. You agree that we may act for current or future clients who do, or may in the future operate in the same industry or sector as you, or who may have or develop commercial or legal interests adverse to yours provided that we do not use any of your confidential information for the benefit of another client[cite: 89].

Disclosure

You agree that we are under no duty to disclose to you or use on your behalf any information in respect of which we owe a duty of confidentiality to another client or any other person[cite: 91].

You agree that we may disclose our role as legal advisers in any matter on which we are instructed following its completion, for the purposes of publicity, unless you instruct us otherwise[cite: 92]. You also agree that, unless you instruct us otherwise, we may publicise the fact that we have a relationship with you[cite: 93].

Complaints

Any concerns or complaint about our work should be directed initially to the partner/director responsible for carrying out your instructions or, if you prefer, to the relationship partner/director[cite: 95]. We maintain internal procedures that can be employed should a concern require escalation beyond the responsible partner/director[cite: 96]. The laws and professional regulations applicable to us may also provide formal complaint procedures[cite: 97].

Data Protection and Storage of Documents

We will process personal data provided to us by you or your employees or agents in accordance with data protection standards required by applicable law[cite: 101]. For the purposes of providing our services to you, personal data (if any) with respect to persons in the European Economic Area (“EEA”) may be accessible to us but as to such personal data we will ensure compliance with the data protection standards of the UK Data Protection Act 1998 or higher standards under other laws applicable to such personal data[cite: 102]. Some of your data may be stored in a single private cloud located within or outside the EEA and managed by a third-party service provider[cite: 103].

Anti-Money Laundering Procedures & Compliance

We have a legal duty to verify the identity of all our clients, and, in the case of corporate clients, to establish their beneficial owners and to verify the identity of the beneficial owners, by obtaining satisfactory evidence of identity[cite: 108]. The precise nature of the evidence required will vary according to circumstances, including the nature of your organisation or trading vehicle (where you are not instructing us as an individual)[cite: 109]. We shall set out these know-your-client requirements and request copies of the required documentation[cite: 110]. In addition to the legislative requirements we require corporate clients to provide evidence of their ultimate beneficial ownership[cite: 111].

We may require you to provide identifying documents and information concerning yourself and individuals and/or entities associated with you in order to comply with anti-money laundering laws and regulations, and to keep those documents and information up to date[cite: 120]. We may be unable to carry out your instructions if we are unable to verify your identity or, in some instances, the identities of your directors, shareholders and eventual beneficial owners[cite: 121].

We may be required by law or regulation to report to a governmental or regulatory authority our knowledge and/or suspicion that certain criminal offences have been committed, regardless of whether such an offence has been committed by a client of ours or by a third party[cite: 122]. We may not be able to discuss such reports with you because of restrictions imposed by those laws and regulations, and we may have to cease acting for you in those circumstances[cite: 123]. You agree that we are not responsible for any adverse consequences you may suffer as a result of our compliance with such laws and regulations[cite: 124].

It is possible that because we have been appointed in a matter, or because we have received funds, documents or information in the course of, or in connection with, a matter, we may be required in future to participate in an inquiry, commission or proceedings arising out of, or in connection with, the matter[cite: 125]. This may, for example, involve us producing documents, seeking to claim or defend your privilege to resist inspection or disclosure of certain documents or information, or giving evidence at an inquiry[cite: 126]. We shall endeavour to seek your instructions if these circumstances arise to the extent it is lawful for us to do so, but in any event, you agree to reimburse us for out-of-pocket expenses and for the time we spend at our hourly rates then current[cite: 127].

Litigation

A court or arbitration order may require you to pay another party's legal fees and costs (for instance, if you lose the case)[cite: 113]. These fees and costs are in addition to those payable to us under these standard terms[cite: 114].

Files and Document Retention

In the interest of storage space, we may destroy any file (except documents in safe custody) at any time seven years after the date of settlement of the final invoice to you in the matter to which the documents relate[cite: 117]. You should let us know if you would like to make other arrangements[cite: 118].

Force Majeure

Neither you nor we will be responsible for failure to perform our respective obligations concerning your instructions (save for your responsibility to pay our invoices in full) if the failures are due to causes outside, respectively, your or our control[cite: 129].

Amendments and Limitations

From time to time, we may need to amend these terms of service[cite: 131]. If this occurs, we will notify you of the changes but they will not affect any matter on which we are then currently instructed[cite: 132].

If the validity or enforceability of any of these terms of service is in any way limited by the laws and professional regulations applicable to us, those laws and professional regulations will take precedence over these terms of service but they will be valid and enforceable to the fullest extent permitted by such laws and professional regulations, and such limitation shall not affect the validity or enforceability of any other term[cite: 134].

Integrity and Ethics

Our policy is to act at all times in accordance with the highest professional, ethical and business standards, and we expect you to act in like manner in all your dealings with us and your business counter-parties[cite: 136]. We do not countenance bribery or corruption in any form and you agree (i) not to expect or request any conduct from us that might bring our name into disrepute or compromise our integrity, (ii) that you and your employees and agents will refrain from any practices involving bribery or any other corrupt activities and (iii) that you have taken or will take internal steps or procedures designed to ensure that the risk of corruption and bribery during the course of our relationship is eliminated[cite: 137].

Termination

Either you or we may terminate our engagement at any time by giving reasonable prior notice in writing, subject, in our case, to any applicable laws or regulations[cite: 139]. We will only stop acting for you if we believe we have a good reason to do so, but we retain sole discretion regarding any such decision[cite: 140].

If our engagement is terminated for any reason, you agree to pay in full our invoices representing fees, costs, disbursements and other charges up to the time of the engagement’s termination[cite: 141].

A solicitor/client or attorney/client relationship exists between you and us only if, at the relevant time, we are working under instructions from you; we shall have no duty to provide you advice at any other time concerning changes in laws, rules or regulations that might affect your rights[cite: 142, 143].

Further, if we are not under instructions from you at a given time, you agree that, unless prohibited by applicable laws or regulations, we are entitled to accept at that time other instructions to act in respect of the subject matter of your previous instructions although we will not disclose to, or use to the benefit of, another client any information or documents in respect of which we owe you a duty of confidentiality[cite: 144]. We may send you general information on legal developments without charge, or may include you in general mailings, after our engagement with you has been terminated. This will not change the fact that our engagement has been terminated[cite: 145, 146].