Terms of Service

The Terms of Service (hereinafter referred to as “Terms”) set out hereinbelow constitute the second part (hereinafter referred to as “Second Part”) of the Agreement that applies to the provisioning of legal services to the client (hereinafter referred to as “Client”) by the Law-Office of D. Banerjee & Associates (hereinafter referred to as “Law-Office”) indicated in the first part (hereinafter referred to as “First Part”) of this Agreement, which is executed separately. Unless agreed otherwise, both the First Part and the Second Part together shall constitute the entire Agreement entered into with the Client. In case of discrepancies between the Second Part and the First Part, the latter shall prevail.

1. CLIENT AGREEMENT

The Agreement is entered into orally, in writing or in a format reproducible in writing. When in writing, the Agreement draft is prepared by the Law-Office. An Agreement is regarded as concluded if it is decided as such by the Law-Office. Oral client agreements may be entered into only for a one-time purpose such as for lawyer notices or investigations or for provision of legal services in respect of a clearly defined assignment, and when possible these oral agreements should be confirmed by the Client in writing or in a format reproducible in writing.

Legal services are provided on behalf of the Law-Office only by members of the Bar Council of the jurisdiction where the Law-Office is established, i.e. Mr. D. Banerjee, Adv. and associate advocates respectively, depending upon each jurisdiction (hereinafter referred to as “Advocate”). The associate advocates provide legal services under the supervision of Mr. D. Banerjee, Adv.

The Advocates may engage other individuals working for the Law-Office in provision of legal services. Such other individuals cannot independently provide legal services to the Client on behalf of the Law-Office, but they assist the Advocates who engage them in provision of legal services under the supervision of, and on the responsibility of those Advocates. Only those Advocates who are actually engaged in provision of services to the Client are considered as engaged.

The party to the Agreement that provides legal services is always the Advocates forming the Law-Office collectively, indicated in the First Part of the Agreement, and provides those services as a legal entity. The services are not to be construed as being provided by a specific Advocate of the Law-Office providing legal services to the Client. The Advocates of the Law-Office or other individuals providing services via the Law-Office are not personally liable to the Client except when stipulated by law.

The Law-Office and its Advocates may represent and defend the Client in all disputes, negotiations and proceedings out of court and in court, in arbitration tribunals, police stations, state and central authorities and elsewhere. Limitations on the right of representation, if any, may be agreed to in writing or in a format reproducible in writing or by law. In particular assignments, e.g. court representations, the Client will provide a separate power of attorney (Vakalatnama) for performing the assignments agreed to in the First Part of the Agreement.

The Client recognises that the successful fulfilment of assignments is only possible with significant participation from the Client. From time to time, the Law-Office will need information, data and/or documents from the Client. The Client may also be required to attend at least one court hearing and appear in-person at witness examination, mediation or arbitration. The Client may also be required to attend court hearings regularly in case of criminal litigation. The Client agrees to cooperate in all litigation related responsibilities, and to be reasonably accessible when the Law-Office needs to communicate with the Client.

The Client further acknowledges that attempting to re-negotiate the terms of the Agreement after it is executed, and withholding cooperation in accomplishing assignments, shall constitute a material breach of the Agreement.

2. PROVISION OF LEGAL SERVICES

At the outset of provision of legal services, the Law-Office agrees with the Client on the scope of work and/or assignments to be performed as legal services by the Law-Office in the First Part of the Agreement.

The scope of work may thereafter be amended by written agreement between the parties.

The legal services provided to the Client by the Law-Office are based on the facts of the specific assignment as provided by the Client. The Client cannot rely on the advice provided by the Law-Office in any circumstances which the Law-Office has not analysed prior to providing the advice.

Legal services only include the provision of legal assistance within the scope of the assignment agreed with the Client. Legal services do not cover advice or assistance in other areas outside the practice areas of the Law-Office such as tax or family matters.

Advocates of the Law-Office are qualified to provide legal services only on the basis of the law of jurisdiction of the respective Law-Office. Based on its general experience in the respective area of law, the Law-Office may provide views on issues related to the law of other jurisdictions, but this does not constitute provision of legal services and the Law-Office does not assume any liability for the correctness of such views.

The Client undertakes to provide the Law-Office all relevant information and documents concerning the assignment and to keep the Law-Office informed of facts that change or may be anticipated to change. In co-operating with the Law-Office and at its request, the Client will promptly deliver documents, data and positions and perform other acts necessary for timely performance of the assignment.

The Client undertakes to accept the assignment carried out by the Advocates of the Law-Office and forthwith notify the Law-Office regarding any amendments required. If the Client fails to deliver such notification to the Law-Office, the legal services shall be considered to have been accepted by the Client.

Unless otherwise agreed with the Client in writing or in a format reproducible in writing, the Law-Office does not undertake to amend or update any information, opinions or documents provided to or prepared for the Client after performance of an assignment due to amendments to or revocation of legal statutes, development of case law or due to apparent or actual changes in any other circumstances.

3. FEES, EXPENSES & INVOICING

Unless agreed otherwise, the Client pays the Law-Office for legal services based on the rates set out in the First Part of the Agreement. The amount of fees is determined irrespective of whether those fees will be reimbursed to the Client as cover for legal expenses.

The Law-Office may unilaterally change its fee rates at the time of or before provisioning legal services. If the Client does not agree to pay the revised fee rates for provision of legal services that are different from the fee rates set out in the First Part of the Agreement or agreed upon between the parties at a later date, each party will be entitled to terminate the Agreement in line with Clause 11 of these Terms. Termination of the Agreement by the Client does not release the Client from the obligation to pay an invoice delivered for legal services provided, and expenses related thereto, up to and including the moment of cancellation.

Fee estimates are always indicative and are based on information available to the Law-Office at the time the estimate is given. Unless agreed otherwise, fee estimates cannot be regarded as fixed quotes.

The Law-Office issues an invoice either directly to the Client or to an authorised party designated by the Client. If the Client or the authorised party designated by the Client fails to pay an invoice within a period of 15 calendar days, the Law-Office may, in its sole discretion, reissue the invoice to the Client, and the Client shall pay the invoice within an extended period not exceeding 15 calendar days, unless otherwise agreed in writing.

The Law-Office invoices on a monthly basis on or before the 5th day of the calendar month, taken in advance, unless otherwise agreed in writing. Invoices are sent to the Client in electronic form to the e-mail address indicated in the First Part of the Agreement and without a physical signature, through the Billing Desk. Upon the Client’s request, the Law-Office will provide an invoice in paper form.

Unless otherwise instructed by the Client, the Law-Office may take such action as it considers necessary or advisable in order to carry out an assignment, and incur reasonable out-of-pocket expenses on the Client’s behalf, which shall be duly covered by the Client forthwith.

In addition to fees, the Client also reimburses direct expenses incurred by the Law-Office in provision of legal services (including, but not limited to, translations, printing and photocopying, long distance calls, notary fees, stamp duties, courier and postal charges, payment of costs, etc.).

The Client shall reimburse to the Law-Office all additional expenses incurred by the Law-Office in relation to collection of any amounts not paid by the due date of payment by the Client. The Law-Office will charge the Client for time its personnel spends travelling in performance of any assignment (conveyance charges).

If payment of an invoice is delayed, the Law-Office may suspend provision of legal services and may charge interest at the rate of 0.5% on the overdue amount for each calendar day of delay.

3A. FLAT BILLING

Under the flat billing structure, the amount of the fee for legal services requested by the Client is calculated on the basis of, but not limited to the following criteria: (i) the total estimate on fees in fulfilling the assignment based on past experience in handling similar matters; (ii) the qualifications and experience of the Advocate performing the assignment, and the resources required for fulfilling the assignment; (iii) the personal/business interest involved; and (iv) the risks assumed (if any) in fulfilling the assignment.

Unless agreed otherwise, the Client will make advance payment to the Law-Office for litigation disputes for case planning, preparation, drafting and investigation and also towards final arguments. For the avoidance of doubt, the Client will make advance payment to the Law-Office in single-day or short assignments, such as advisory work, issuing lawyer notices, visitations, vetting and drafting agreements, etc.

3B. HOURLY BILLING

Under the hourly billing structure, the amount of the fee for legal services requested by the Client is calculated on the basis of, but not limited to the following criteria: (i) the time spent in fulfilling the assignment; (ii) the qualifications and experience of the Advocate performing the assignment, and the resources required for fulfilling the assignment; (iii) the personal/business interest involved; (iv) the risks assumed (if any) in fulfilling the assignment; and (v) the time constraints for fulfilling the assignment.

For the avoidance of doubt, unless the call is long distance, time spent on telephone calls relating to the Client’s matters, including calls with the Client and other advisors of the Client will not be charged. The time spent on fulfilling an assignment is recorded in a time-tracking system outside the control of the Law-Office. The minimum time tracking unit is 10 minutes.

3C. SUBSCRIPTION BILLING (RETAINER)

Under this billing structure, the amount of the fee for legal services requested by the Client is calculated on the basis of, but not limited to the following criteria: (i) the monthly income of the Client; (ii) the qualifications and experience of the Advocate performing the assignment, and the resources required for fulfilling the assignment; (iii) the business interest involved; and (iv) the risks assumed (if any) in fulfilling the assignment.

Unless agreed otherwise, the fees will increase by 10% every financial year.

3D. PRO-BONO

The Law-Office, at its own discretion, may offer pro-bono services to the Client for assignments, based either on quantitative parameters such as the Client’s annual income, age, disability or on qualitative parameters as a unique question of law, compassion, political causes. Notwithstanding, pro-bono services are not offered for any service outside the practice area of the Law-Office. Under this structure, no invoices are raised by the Law-Office and no payment is necessary.

4. TAXES & DEDUCTIONS

If the Client is required to deduct or withhold any taxes or other sums (such as bank charges, TDS, GST & payment gateway charges) from any amount payable indicated in an invoice in whatever circumstances, the Client will pay and bear such taxes or other amounts and ensure that the Law-Office receives the full amount of the invoice net of any deduction or withholding. It is clarified that the Client who is an individual need not deduct TDS, unless specifically required to do so by law.

In some cases, the Law-Office may have to provide information to the Tax, Revenue and Customs authorities on the GST registration number of a Client and the value of services purchased by the Client. Additionally, in certain cases the authorities and trustees in bankruptcy may require submission of invoices and annexes thereto.

5. CONFLICT OF INTEREST

Before accepting an assignment, the Law-Office conducts an internal conflict of interest check to verify that the Law-Office can accept the assignment. Notwithstanding such checks, circumstances may arise that prevent the Law-Office from acting for the Client in an existing ongoing or future matter. In these situations, the rules of professional conduct regulating conflict of interest applies, and the Law-Office may terminate the Agreement in line with Clause 11 of the Terms, either wholly or in part.

The relations between the Law-Office and the Client do not create mutual exclusivity. The Client may use the services of other professionals for the purpose of fulfilment of any assignment. In addition, the Law-Office retains the right to render legal assistance to other persons and execute assignments not connected to the Client’s assignment, including provisioning of legal services to persons, firms, societies, startups, partnerships and companies operating in the same field as the Client. However, should the Law-Office receive credible and reliable information from any source which makes it clear that the provisioning of legal services to the Client is in conflict of interest against an existing client, the Law-Office may terminate the Agreement in line with Clause 11 of the Terms, unless the conflict of interest is resolved by direct negotiation.

6. CLIENT IDENTIFICATION

The Law-Office is mandatorily required to fulfil certain client identification and verification obligations in accordance with applicable laws. In case the Client is a company, the Law-Office may need to verify necessary individuals associated with the Client, including directors, partners and authorised representatives.

The Law-Office may be obligated to decline or suspend an assignment and report to the authorities if the Client does not provide the required information, if a transaction is suspicious in comparison with previously known transactions, or if assets are suspected of being used for terrorist financing or money laundering.

Although it is the professional and legal obligation of the Law-Office to avoid disclosing information concerning its Clients and the legal services provided to them, applicable mandatory regulations may require the Law-Office to inform the authorities about cash transactions exceeding a statutory amount, regardless of whether the transaction is carried out as a single payment or as several linked payments, or if it becomes known to the Law-Office or the Law-Office has reason to suspect that any given transaction being carried out in the Client’s name may be related to money laundering. If it appears to be necessary to give notice of money laundering at any time while the Law-Office is acting in the interests of the Client, it may not be possible for the Law-Office to inform the Client about notification or the reasons for it.

The Client understands and accepts that such measures, being mandatory legal obligations of the Law-Office, do not constitute breach of professional secrecy provisions.

7. PRIVACY, INTELLECTUAL PROPERTY & CONFIDENTIALITY

The Law-Office collects, stores, uses and processes data about the Client and the persons directly related to it (e.g. employees and/or representatives) in accordance with laws applicable to protection of personal data for, amongst others, the purposes of performing the Agreement, administering billing and accounting systems, maintaining its internal information systems, managing client relationships and complying with its legal obligations. As pioneers in adopting and developing tech and automation processes, the Law-Office employs strict administrative and technical measures to ensure that the security and privacy of all communications with the Client are consistent with the sensitivity of the information being protected.

The Law-Office may transfer the above referred to information about the Client and the persons directly related to it (e.g. employees and/or representatives) to third parties where such information is needed for the performance of the Client’s assignment (e. g. to external counsels which the Client may ask the Law-Office to engage or to which the Client’s assignment may be transferred, etc.), as much as it is needed to achieve this purpose and may execute binding agreements for non-disclosure, if required to do so.

Copyright and other intellectual property rights in all advocate work product generated in the course of the assignments by the Law-Office belong to the Law-Office. However, the Client has the right to use such advocate work product for the purposes for which they are provided.

Subject to Clause 4, Clause 6 and Clause 9 of these Terms, the Law-Office will keep confidential Client information that becomes known to the Law-Office while providing legal services in accordance with the rules of professional conduct.

If necessary for the provision of legal services, or if the obligation derives from the law, the Law-Office may disclose to third persons (including notaries, oath commissioners and state authorities) confidential information and documents regarding the Client without separate consent from the Client. If the Client instructs the Law-Office to use the services of other service providers for provision of legal services or if the Client agrees with the use of other service providers suggested by the Law-Office, the Law-Office may, unless clearly agreed otherwise, disclose to them such confidential information and materials as the Law-Office considers necessary for the fulfilment and overall performance of the assignment.

8. NON-SOLICITATION

During the period of the Agreement and for a period of 2 years since termination, the Client agrees to avoid soliciting an advocate or other individual who worked for and on behalf of the Law-Office during the validity of the Agreement for employment or provisioning of legal services under another contract. The Client shall pay liquidated damages to the Law-Office to the tune of 200% of all amounts paid in furtherance of any breach of this Clause.

9. REFERENCES

The Law-Office may reveal to third persons the fact that the Client is, in fact, a client of the Law-Office and the general nature of the services provided to the Client. Contents of the legal services provided to the Client may be disclosed without the Client’s consent provided that such information has been already legally published or made accessible to the public in any other way to at least the same extent (such as reporting in newpapers, social media, etc.). Information publishable on the basis of the law, including information on public court cases, or published by means of mass media by the Client itself or third persons may be disclosed by the Law-Office to the extent which it has already been published or is subject to publishing pursuant to the law. For the purposes of this Clause, the Law-Office may either disclose the name of the Client or the assignments done for the Client, but never both.

When the Client publicises information regarding the assignment carried by the Law-Office, the Client shall, to the extent possible, indicate that the legal assistance in relation thereof was provided by the Law-Office.

10. LIMITATION OF LIABILITY

The Law-Office will use its best efforts in representing the Client, but can make no promises or guarantees regarding the outcome of the Client's matters under the rules of professional conduct. The Law-Office’s comments regarding the outcome of the case are mere expressions of opinion. Neither does the Law-Office guarantee any time frame within which the Client's case will be resolved.

The Client has been advised that litigation is inherently risky, unpredictable, and expensive. While the Law-Office will use best efforts and reasonable professional judgment, it remains possible that this matter could be resolved against the Client simply because a judge or jury disagrees with the Client and or the Law-Office regarding the merits of the case. The Client is hereby warned that, should the Client become unavailable or inaccessible for an extended period of time, one consequence of such unavailability could be exposure to shifted fees. In no event shall the Law-Office be liable for any prevailing party litigation expenses or costs incurred by the Client.

The Law-Office is not liable for direct proprietary damage wrongfully caused to the Client through provision of legal services. The Law-Office is not liable for loss of profit or non-proprietary damage. Without limiting the generality of the foregoing, the Law-Office is not liable for any lien incurred or any form of action or negligence on our part resulting in any consequential, special, incidental or punitive loss, damage or expense to the Client, even if the Law-Office has been cautioned.

The Law-Office is not liable for damage caused by advice or data or documents provided to the Client if they are used for any purpose whatsoever. The Law-Office is further not liable for damages that may be caused to any third person.

If the law prescribes the liability of the Advocates working with the Law-Office or other individuals providing services via the Law-Office, the limitation of liability set out above also apply to those persons to the extent permitted by law.

Headings are only for reference and do not form part of the Agreement. Any clause not in conformity with the law must be read to be severed and will not affect the operation of the other clauses in any way.

11. TERMINATION

This Agreement shall come into effect on the date of its execution and shall remain valid until its termination if not provided otherwise below.

The Client may terminate the Agreement at any time by notifying the Law-Office in writing or in a format reproducible in writing.

The Law-Office may terminate the Agreement at any time by notifying the Client. It is clarified that notice and waiver is at the sole discretion of the Law-Office. Further, the Law-Office may terminate fulfilment of an assignment with immediate effect provided that such termination does not contradict rules of professional conduct if the Client fails to pay an invoice for legal services when due. An invoice overdue for over 30 days constitutes a fundamental (material) breach of the Agreement, and the Law-Office may then terminate the Agreement extraordinarily with an immediate effect irrespective of the assignment for the performance whereof the Agreement has been entered into.

In some cases, the Law-Office may be obligated and entitled under the rules of professional conduct to terminate the Agreement, for example if the Client uses improper or illegal mannerisms and means, submits falsified evidence or demands that the Advocate use means or ways that are contrary to law in order to protect the Client’s interests or demands that the Advocate act in a way not in compliance with the honour and reputation of a legal practitioner or rules of professional ethics, or if a conflict of interest exists / arises in fulfilling the Client’s assignment, or if the Client acts contrary to the Advocate’s instructions or in any other manner expresses that the Client has lost trust in the Advocate, or if the Client gives instructions to the Advocate that are detrimental to the Client’s interest or clearly useless for performance of an assignment, and does not forego demanding compliance with these instructions irrespective of the Advocate’s explanations.

Upon termination of the Agreement, the Client shall pay to the Law-Office fees for legal services provided and expenses incurred prior and up to termination of the Agreement.

If services to the Client under this Agreement are not rendered for 6 months or longer, the Law-Office, at its own discretion, shall be entitled: (i) to unilaterally change the fees indicated in the First Part of this Agreement; or (ii) to unilaterally terminate this Agreement with immediate effect by serving a respective notice to the Client.

12. COMMUNICATIONS

All notices, requests, demands and other communications between the parties under this Agreement shall be made in writing and shall be deemed to have been duly given when delivered in person, courier, registered post or e-mail at the addresses of the parties indicated in the First Part of this Agreement. In case of convenience or urgency, such specific notice, request, demand or other communication between the parties may be made through phone call or instant messaging. Further, each party shall forthwith notify the other party about any change of its contact details indicated in the First Part of the Agreement.

The Client agrees to exchange of information electronically. The Client is aware of the risks deriving from electronic communication: messages may get delayed or lost, confidential and personal information may be inadvertently modified or stolen by hackers.

Measures taken to protect electronic communication and to ensure its confidentiality and preservation by the Law-Office may in certain cases cause communications from the Client to be blocked or delayed. The Client is advised to follow up by telephone regarding any messages that are particularly time-sensitive or in circumstances in which it is unclear that the message has been duly received by Law-Office.

The Law-Office uses tech and automated systems (including electronic communication, time-tracking, client administration and document administration systems) which contain information on clients of the Law-Office, the legal services provided to them and documents related thereto.

13. DISPUTES & GOVERNING LAW

Any dispute, controversy or claim arising out of or relating to the Agreement is settled by amiable negotiation.

14. AMENDMENTS

The Law-Office may unilaterally amend these Terms from time to time. The Law-Office publishes amendments to the Terms on its website and this page available at www.dbanerjee.in/tos.