Terms and Conditions of Engagement
Scope of Engagement
The engagement between Luke Phillips & Co. (the “Firm”) and you will be governed by these terms and conditions and will limit our representation of you to the matters set out in your client consent form (the “Form”), subject to any special conditions specific to the nature of your matter that may be specifically referenced in Item 1A of the Form. Where we act for you in multiple matters, a separate client consent form may not be required for each individual matter. In connection with any such additional engagements, we will seek to agree the scope of those engagements and the applicable billing procedure, whether by way of exchange of correspondence or by way of the execution of a new client consent form, and such engagement shall be governed by these Terms and Condition of Engagement as may be updated from time to time.
We acknowledge that some clients may have their own terms of engagement, and provided that we have had the chance to review same and (subject to any amendments which we may require) have indicated our agreement to those terms in writing, to the extent only of any conflict between these General Terms and Conditions of Engagement and your terms of engagement, these terms and conditions shall prevail.
We profess no expertise with respect to the laws of any jurisdiction outside the island of Jamaica and our engagement shall be so limited. Any view or comment expressed in relation to any such laws shall be by way of information only and shall not be binding upon us.
Where these terms and conditions of engagement require, or refer to, “in writing”, information (or any requirement or permission to give information) that is given electronically shall be taken to be given in writing.
Personnel
Luke Phillips will have overall responsibility for your matter and may be contacted at any time in relation to any aspect of our services. An Associate or other employee may be allocated as the primary contact on a day-to-day basis, and it may be necessary from time to time for other members of the firm to become involved in your matter.
The names and contact details of the employee designated as primarily responsible for your representation are set out in Item 2 of the Form. If you have any concerns regarding any of the persons designated to handle your matter, or you are dissatisfied with any aspect of our service, please contact Mr. Luke Phillips (Lukephillips@phillipscolaw.com). We value your business and would wish to address any service issue at the earliest opportunity.
We will try to avoid making any disruptive changes to the team that handles your work. If, however, this cannot be avoided, we will under normal circumstances inform you promptly who will be handling the matter and why the change was necessary.
Communications
Unless you are advised to the contrary, written communications to our firm should be addressed to the person designated as the primary contact. It is our firm's practice to send copies of all pertinent correspondence, when received or generated by us, unless otherwise instructed by you. We may send these copies to you by e-mail, fax, courier or ordinary post as we deem appropriate, unless directed otherwise.
You confirm that we are authorized to take and receive instructions in connection with this matter from the person(s) identified in Item 6 of the Form or such other person as you may notify to us orally or in writing. Any instruction received from such person, whether orally or in writing, shall be deemed to be an instruction by you and may be acted upon or relied upon by us as such. You agree that so long as we act in accordance with such instructions, we shall have no further duty to verify the content of any instruction or communication or the identity of the sender or confirmer thereof and you expressly agree to be bound by any instructions and communications made to us by such authorized person(s), including without limitation, instructions to pay money or otherwise relating to the disposition of any property or purporting to bind you to any agreement or other arrangement with us or with any other person or to commit you to any other type of transaction whatsoever, regardless of the nature of the transaction or arrangement or the amount of money involved and notwithstanding any error or misunderstanding or lack of clarity in the terms of such instruction. We may decline in our sole discretion to act upon any such instructions purportedly sent by or on your behalf until we have verified the authenticity of such instructions, but we shall not be under a duty to so decline to act nor shall we be liable for any loss incurred by you as a result of our so declining to act.
Owing to the risk of fraud in relation to banking payments, we may seek to confirm bank account details for payments to us, or by us, by telephone prior to the payments being made. You confirm that we are authorized to make payments related to this engagement on your behalf out of funds received by us for your account to the persons or for the purposes and in accordance with the payment instructions set out in the Appendix hereto, as same may be updated from time to time by you, under the signature of any of your authorized persons. We recommend that you take similar precautions in relation to any payments to be made by you to us. This should particularly be the case if you purportedly receive from us notification of change of account details. In the absence of negligence on our part, we cannot accept liability for payments made to incorrect accounts or payees.
Conflicts of Interest
Whilst we have established procedures to identify conflicts of interest, we cannot be certain that we shall identify all potential or actual conflicts which exist or may develop due in large part to the complex nature of our firm’s business. Unless we have so indicated in Item 9 of the Form, we are not currently aware of any existing matter involving material conflicts of interest affecting you and any other client of our firm which would affect our engagement, and we do not anticipate this becoming a problem.
As the matter develops and further information regarding the transaction becomes available we may need to carry out additional conflict checks. In the event that we become aware of the existence of a conflict we will notify you. If we believe that your interests can be properly safeguarded by the implementation of appropriate procedures, we shall discuss and agree with you the arrangements that we shall put in place to seek to preserve the confidentiality of your information and to ensure the advice and opinions which you receive from us are independent. These procedures, and our continued engagement, may involve notification to, or be subject to, approval by the other parties who are affected by the conflict. If suitable arrangements acceptable to all parties concerned cannot be made, our representation may thereafter be terminated.
Disbursements
We will bill you for external disbursements, including courier fees, travel costs and other expenses incurred by us on your behalf, in our next invoice after they are incurred and irrespective of whether at that time they had actually been paid by us.
You will also be charged for office disbursements generated by us, including telephone charges, photocopying and binding and other miscellaneous costs.
Billing Procedures
Unless specifically agreed to the contrary our practice is to ensure that work is billed on a fixed fee arrangement at certain defined stages. You may expect that we will submit invoices on a monthly basis or upon the completion of each task depending on the volume of work over any particular period.
our agreement as to the arrangements and the stages at which our bills will be rendered are set out in the Form. Where our services are terminated prior to the completion of the work contemplated to be undertaken by us at the commencement of the engagement, unless otherwise agreed, our professional fees will be calculated by reference to the time spent by the relevant fee earners but will not exceed the agreed fee for the services contemplated and we will be reimbursed for any filing fees or tax paid over on your behalf.
Our invoices may not include some disbursements which, although incurred within the relevant billing period, may have been notified to us too late for inclusion in the invoice. In these circumstances, such costs will be held over and added to later invoices.
Unless we agree to the contrary as set out in Item 3 of the Form, each invoice is due and payable on receipt. In the event that for any reason any invoice remains unpaid for more than thirty (30) days from the date appearing on its face or such other period as may be set out in the Form, we will be entitled to charge you, in our discretion, interest on any amount outstanding until payment in full is received at the rate charged to us by our bankers on overdrafts from time to time. Further, we reserve the right to suspend the provision of our services until payment is received and we shall not be liable for any losses suffered by you, regardless of whether such loss would be foreseeable, during any such period of suspension.
We understand that you may have specific requirements for your billing format as set out in Item 3 of the Form. To the extent that we are able, we will attempt to render our invoices in accordance with that billing format.
Deposit
we ask you to provide us with funds in advance to be placed on account to cover our fees and disbursements required for your requested services from time to time by online credit card payment, or by wire transfer according to the wire transfer instructions set out in Item 5 of the Form. This deposit will generally be retained by us until the completion of this matter and applied towards settlement of our interim or final invoice, at our discretion. All interim invoices are to be paid in full on receipt, or at such interval as stated in Item 3 of the Form.
We reserve the right, in our sole discretion to apply the deposit as we see fit, in whole or in part to any outstanding invoice(s), whether interim or final. Any balance remaining on any invoice after the deposit has been so applied shall remain payable by you.
As expenses are incurred and services are rendered, we may ask you to make further deposits from time to time. If any requested deposit is not received promptly, we reserve the right not to carry out further work in the matter until the funds are received and we shall not be liable for any loss suffered by you as a result, regardless of whether such loss would be foreseeable.
Interest is not payable by us to you on payments made by you on account of fees and disbursements unless and until required by law to be placed by us in an interest-bearing account, in which event interest shall accrue from the date so placed until the date such sums are recalled to facilitate payments.
We will, of course, account to you fully for all funds received by us and will refund to you any balance remaining after all outstanding invoices have been settled.
In the absence of any instructions to the contrary, any funds held by us on your behalf may be deposited in such bank or merchant bank as we determine to be convenient from time to time, and this shall serve as our specific authority for any such funds to be deposited with any such bank or merchant bank.
We will not be responsible for any failure or delay in effecting any payment if this results from (a) the failure or malfunction of a payments system in any country; (b) the imposition of any form of exchange controls, any anti-money laundering regulations or similar regulations in any country; or (c) any other matter or occurrence beyond our control which renders it unlawful or impracticable for the necessary transfer to be made. In such an event, and subject to the matters noted above, we will instruct the relevant financial institution to make the required payment available as soon as it becomes reasonably practicable to do so.
Use of our Bank Account
Where we notify you of the details of our trust account, or other bank account, you must keep these details confidential in order to protect against abuse. Our accounts must not be used in lieu of banking services. We may decline to make payments from our accounts unless we are satisfied that such payments are duly authorized and properly relate to the transaction being handled by us on your behalf.
You must only use the details of any accounts that we share with you for payments which we request, or which are arranged between us.
Customer Due Diligence
In order to ensure compliance with the laws of Jamaica and in keeping with the global concerns and responses to money laundering, we need to obtain satisfactory information in relation to our clients and sometimes people related to them in order to enable us to satisfy relevant government agencies that we are not being used by persons knowingly or unknowingly to launder money. We therefore need to obtain evidence of your identity and other relevant due diligence information. Our practice is to require, and we hereby request, the items set out in Item 8 of the Form. If you are not able to provide us with the specific information requested, please contact us as soon as possible to discuss other ways in which we may be able to verify your identity and undertake the necessary due diligence.
Please note that regulatory requirements imposed on the firm require that we not only gather this information at the time that we are opening a new matter, but also that we update this information periodically so long as the file remains open. We may, therefore, from time to time need to request additional due diligence information from you or may need to ask that you verify that the information that we have on file for you remains current and up-to-date. We appreciate and look forward to your cooperation if and when this becomes necessary.
It is also necessary in connection with any sums received by us from you to obtain from you the source of those funds in order to confirm that all funds deposited to or transferred through the firm’s accounts are derived from legitimate sources only. Please identify in Item 7 of the Form the source of the funds that you will pay to us. You acknowledge and confirm that the source of funds identified by you in Item 7 of the Form will be true and accurate at all times during the engagement. You further acknowledge and confirm that we are authorized to so indicate the source of such funds to such financial institution in which the funds are deposited, and if so requested by such financial institution, to provide it with copies of any customer due diligence information which we may have on file in connection with the beneficial owners of such funds. If you are not the source of the money, we reserve the right to request evidence of the identity of the payer and details as to the payer’s source of funds. We may be restricted in returning to you or dealing with such money until all such enquiries are completed. Any receipts which are not expected and/or are not identifiable may be returned to the sender or held pending investigation.
Data Protection
While we are professionally and legally obliged to keep your affairs confidential, we may be required to make a disclosure to the relevant authority where we know or suspect that a transaction may involve money laundering and the information is communicated or given to us with the intention of furthering a criminal purpose. You understand and acknowledge that no such disclosure shall amount to a breach of confidence by us. In addition, it may become necessary from time to time for us to store information using third party servers or other service providers, you acknowledge and confirm that the use of our firm’s website or the signing of the Form shall serve as your specific authority and consent to the storage and sharing of your information in such manner as we may determine from time to time and without any requirement for giving you any further notice.
Upon acceptance of these Terms and Conditions of Engagement you hereby explicitly agree and consent to the processing i.e. collection, use, storage, disclosure, erasure and destruction of your Personal Data (as defined below) by the firm in accordance with any applicable data protection laws and regulations.
You further acknowledge and agree that (i) the Firm may transfer your Personal Data both locally and internationally to any third-party supplier engaged by the Firm; (ii) your Personal Data may be transferred to a territory outside of Jamaica which does not provide for the same level of data protection as granted under Jamaican law and you acknowledge that you understand that there are risks associated with the transfer of data to a territory without adequate data protection safeguards; and (iii) the Firm may otherwise deal with your Personal Data in such manner as is set out in the Firm’s Privacy Policy as it is updated from time to time. a copy of which is available on the Firm’s website for your review.
“Personal Data” is defined as any data (whether stored in an electronic or printed form) relating to a living individual who can be identified-
a) from the data; or
b) from the data and other information in the possession of, or likely to come into the possession of the firm.
Foreign Currency
Funds paid to us on your behalf in foreign currency may be converted to Jamaican dollars generally at the buying rate offered by our commercial bankers at the material time unless prior to payment you instruct us in writing to the contrary.
Termination
The Firm's engagement with you will terminate automatically upon completion of the scope of work set out in the Form. However, either you or the Firm may terminate our engagement at any time prior to completion for any reason by notice in writing. In the event that we determine to terminate the engagement we will seek to do so with minimum disruption or dislocation to you. In the event of termination, you will promptly pay all outstanding fees for work done and expenses incurred by our firm to the date of termination.
All files generated by our firm are the property of our firm and we retain all copyright and other intellectual property rights in everything developed by us both before and during our engagement with you. Upon termination, provided that all our fees and expenses have been fully satisfied and that the request for same is received by us within 30 days of termination, one copy of our files can be made available to you. Subject to the foregoing, we will cooperate in all ways reasonably requested in the transfer of pending matters to you or your appointed agent.
We ordinarily retain copies of files, either in physical form or electronically, for a period of about seven (7) years after termination. Thereafter our files may be destroyed. We are not obliged to provide you with any notice of such destruction. You hereby expressly authorize us to keep and maintain any personal information provided to us during the course of our engagement for a period of ten (10) years or such longer period as may be necessary in the circumstances. You further acknowledge and agree that you will obtain the consent for us to retain for a similar period the personal information of any third party shared with us for the purposes of this engagement and will wholly indemnify and keep us indemnified against any loss, damage or claim made against or incurred by us resulting from the retention of such information by us.
Following termination of our engagement, we are not obliged to inform you of any approaching deadlines or to take any steps required to protect an interest or legal right. Our practice of archiving or storing files and documents of this kind for seven (7) years does not impose any continuing obligation on us in respect of these files or documents.
Exclusion of Liability
We will provide our services to you with reasonable skill and care and acknowledge that we will be liable to you for losses, damages, costs or expenses (“losses”) which are determined to have been caused by our negligence, breach of contract or wilful default, subject to the following provisions:
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we will not be liable if such losses are due to the provision of false, misleading or incomplete information or documents or due to the acts or omissions of any other person;
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we will not be liable for any indirect or consequential losses, including any loss suffered by any third party claiming through you;
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where you suffer any losses for which we are jointly and severally liable with any third party or third parties, the extent to which such losses shall be recoverable by you from us, as opposed to the third party, shall be limited so as to be in proportion to our contribution to the overall fault for such losses, as agreed between all of the parties, or in the absence of agreement, as finally determined by the Courts of Jamaica;
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we will not be liable for any loss arising from our delay in proceeding with our engagement due to or arising from compliance with the Proceeds of Crime Act or Regulations or any directions issued by the Competent Authority thereunder.
You are deemed to agree to the risks and limitations on our responsibility as set out in this our Terms of Engagement. The scope of our duties and obligations and liabilities to you shall be limited accordingly.
Use of Client Name
We are often asked by persons, including various publications to provide examples of any information regarding our experience in particular areas of practice. The information provided to them by us are often used for firm reviews, for commentary on significant transactions, reviews or commentary on lawyers or to assist such persons to determine whether to engage our services. However, we are bound by duties of confidentiality which prohibit us from naming our clients and any information that we acquire in the course of acting for them, without their consent unless that information is already in the public domain or we are compelled by law to disclose. In the absence of any instructions to the contrary, you confirm that by accepting these Terms and Conditions of Engagement, you give us specific authority to disclose the fact that you are a client of the firm and to describe the matter to which this engagement relates in general terms.
Virus Protection
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During the course of our engagement, it is to be expected that we will exchange electronic versions of documents and emails with you using commercially available software, such as .pdfs, .xls, .docx and other formats used by Microsoft office suite and other program files. Unfortunately, the business community is occasionally victimized by the creation and dissemination of computer viruses, malware or other similar programs. We take the issues raised by these threats seriously and have invested in software aimed at identifying and dealing with files containing known viruses. By utilizing this software, our system may occasionally reject a communication you send to us, where it perceives either an actual or potential threat exists. We in turn may send you something that is rejected by your system. Unfortunately, this sort of occurrence has become a part of the ordinary course of business.
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The virus protection software solutions are, unfortunately, generally one or two steps behind new viruses. We cannot, therefore, guarantee or provide any warranty that our communications and documents will always be virus free. Please inform us immediately in the event that you determine that a virus has entered your company’s system via any means. Through our mutual efforts we can minimize any disruption to our communications.
General
These Terms are governed by and construed in accordance with the laws of Jamaica, and you irrevocably submit to the exclusive jurisdiction of the Courts of Jamaica to hear and decide any suit, action or proceedings and to settle any dispute which may arise out of or in connection with these Terms and Conditions and our engagement with you.
A variation of these Terms and Conditions is valid only if it is in writing and signed by both you and the Firm.
The failure to exercise or delay in exercising a right or remedy provided by these Terms and Conditions of Engagement or by law does not constitute a waiver of the right or remedy or a waiver of other rights and remedies. No single or partial exercise of a right or remedy provided in these Terms and Conditions of Engagement or by law prevents further exercise of the right or remedy or the exercise of another right or remedy.
Each of the provisions contained in these Terms and Conditions of Engagement shall be construed as independent of every other such provision, so that if any provision of these Terms and Conditions of Engagement shall be determined by any court or competent authority to be illegal, invalid or unenforceable then such determination shall not affect any other provision of this agreement, all other provisions of which shall remain in full force and effect.
You confirm your acceptance of these Terms and Conditions of Engagement by continuing to use the Firms website and you confirm our appointment as your attorneys-at-law by providing the information requested in the Form and signing the Form on the last page in the space indicated. Please return a completed and signed copy of the Form to us by e-mail with the hard copy to follow, or by completing the Form and accepting these Terms and Conditions of engagement electronically through the Firms website. You understand that failure to provide us with the requested due diligence information and a completed signed/ electronically accepted copy of the Form will result in a delay in the commencement of the Firm’s engagement with you or allow the Firm to rescind any agreement that the Firm has entered into with you.