Fees and terms of contract
1. SCOPE OF APPLICATION
1.1. The terms and conditions of contract shall apply to all activities as well as court/official and extrajudicial acts of representation that are carried out during the course of the existing relationship between the Lawyer/law firm (hereinafter referred to as simply ?Lawyer?) and the terms of contract (hereinafter referred to as ?Mandate?) with the Client (hereinafter referred to as the ?Client?)
1.2. These terms and conditions of contract shall also apply for new clients, provided that nothing else has been agreed upon in writing.
2. MANDATE AND POWER OF ATTORNEY
2.1. The Lawyer shall be entitled and obligated to represent the Client to the extent necessary and appropriate to fulfil the requirements set forth by the Mandate. Should the legal situation change after the end of the Mandate, the Lawyer shall not be obligated to inform the Client of changes or consequences resulting therefrom.
2.2. Upon request, the Client shall sign a written statement granting power of attorney (hereinafter referred to as POA) to the Lawyer. The POA can be directed to address the execution of individual, precisely specified, or all possible legal acts and transactions.
3. PRINCIPLES OF REPRESENTATION
3.1. The Lawyer must carry out representation entrusted to him according to the law and must represent the rights and interests of the Client toward any party with diligence, loyalty and conscientiousness.
3.2. As a matter of principle, the Lawyer shall be entitled to carry out his services at his own discretion and take all measures, in particular with regard to making pleas for the purpose of prosecution and defence as long as this does not contradict the Client?s Mandate, the Lawyer?s conscience or the law.
3.3. If the Client gives the Lawyer instructions to be followed that contradict the law or any other fundamental statutory regulations on professional conduct in accordance with standards which apply to the Lawyer?s proper professional practice (e.g. the ?Rules on Professional Conduct for Lawyers“ [RL-BA] or the Practice of the Supreme Appeals and Disciplinary Commission for Lawyers and Candidate Lawyers [OBDK]), the Lawyer must refuse to carry out the said instructions. If the Lawyer deems instructions to be inexpedient or even disadvantageous to the Client, the Lawyer must point out the possible disadvantageous consequences to the Client before carrying them out.
3.4. In the event of imminent danger, the Lawyer shall be entitled to carry out or refrain from actions that have not been expressively specified in the Mandate or are against instructions given if it is deemed to be urgently necessary in the interest of the Client.
4. THE CLIENT?S DUTY TO COOPERATE AND PROVIDE INFORMATION
4.1. Upon granting the Mandate, without undue delay, the Client shall undertake to communicate to the Lawyer all information and facts that could be of significance in connection with carrying out the Mandate as well as to make all required documents and evidence accessible. The Lawyer shall be entitled to accept the accuracy of the information, facts, documents, papers and evidence, provided that their incorrectness is obvious. The Lawyer shall work towards obtaining all facts by means of asking the Client target-oriented questions and/or resorting to other appropriate means. The second sentence of section 4.1 shall be deemed applicable with regard to the correctness of supplementary information.
4.2. During the term of the Mandate, the Client shall undertake to communicate to the Lawyer all changed or newly arising circumstances that might be of significance in connection with carrying out the Mandate, immediately after the Client has become aware of them.
5. DUTY OF CONFIDENTIALITY,
CONFLICT OF INTERESTS
5.1. The Lawyer is obligated to uphold confidentiality concerning all matters which have been confided to him and all facts which have otherwise become known to him in his capacity as a lawyer, whose confidentiality is in the interest of his Client.
5.2. Within the terms of applicable laws and guidelines, the Lawyer shall retain the right to assign all staff members to process issues, provided that there is proof that these staff members have been instructed on the duty to maintain confidentiality.
5.3. The Lawyer shall be released from the duty of confidentiality only to the extent that is necessary to pursue the Lawyer?s claims (especially claims pertaining to the Lawyer?s fee) or for the defence of claims against the Lawyer (especially claims for damages by the Client or third parties against the Lawyer).
5.4. The client may release the Lawyer from the duty of confidentiality at any time. This release from the duty of confidentiality by the Client does not release the Lawyer from the obligation of verifying whether the his statement is in the best interest of his Client.
5.5. The Lawyer shall examine whether carrying out the Mandate alludes to the risk of a conflict of interest according to provisions set forth by Regulations Regarding Lawyer?s Practices („Rechtsanwaltsordnung“).
6. THE LAWYER?S OBLIGATION TO INFORM THE CLIENT
The Lawyer shall bring to the attention of the Client all actions taken in connection with the Mandate in sufficient detail, in oral or written form.
7. AUTHORISED PROXIES AND SUBSTITUTION
The Lawyer may ask a trainee lawyer granting services to him, another lawyer, or that lawyer?s authorised trainee lawyer, to represent the Lawyer (authorised proxy). In case of being prevented, the Lawyer may pass on the Mandate or individual subactivities to another lawyer (substitution).
8.1. In the absence of other agreements, the Lawyer shall be entitled to receive an adequate fee.
8.2. In addition to the Lawyer?s fee, also when a lump-sum or time-based fee has been agreed upon, the Lawyer shall be entitled to at least the cost reimbursement recovered from the opposing party, provided that this amount can be collected; otherwise, the lawyer shall receive the agreed lump-sum or time-based fee. If a time-based fee has been agreed upon, the minimum invoicing unit shall be 10 minutes.
8.3. The value-added tax at the statutory rate shall be added to the fee due to the Lawyer, having been agreed upon with the Lawyer. This shall also include required and appropriate expenses (e.g. travel costs, telephone, fax, copying), and the cash expenses incurred on behalf of the Client (e.g. court fees). The Lawyer shall be entitled to invoice the expenses as a flat rate of 5 percent of the net fee.
8.4. The Client shall acknowledge the fact that estimates made by the Lawyer regarding anticipated fees, which have not been expressly referred to as binding, shall be deemed non-binding and cannot be regarded as a binding cost estimate (as defined by § 5 (2) of the Austrian Consumer Protection Act), since the extent of services rendered by the Lawyer, due to their nature, cannot be reliably assessed in advance.
8.5. The effort required for calculating the fee and issuing the invoice shall not be charged to the Client. However, this shall not apply to the expense and effort required for translations of the list of services rendered into another language other than German, performed upon Client’s request. Provided that no other agreements have been made, the invoiced amount shall not include the service of drawing up letters upon the Client’s request to the Client’s accountancy expert, which, for example, relate to the status of pending cases, or give an assessment of the risks for the purpose of forming provisions and/or reporting on the state of outstanding fees at a certain reporting date.
8.6. The Lawyer shall be entitled at any time, but by all means at the end of the month, to issue an invoice for fees due and request fees in advance.
8.7. In the event that the Client is an entrepreneur, an invoice forwarded to Client and properly broken down into its various items shall be deemed to have been approved if and provided that the Client does not expressly oppose it in writing within one week of its receipt (receipt by the Lawyer shall be deemed the decisive).
8.8. In the event that the Client is in arrears with paying all or a part of the fee, the Client shall pay interest on arrears to the Lawyer in the statutory amount, as a minimum, however, 8% above the respectively applicable basic interest rate. Any further statutory claims beyond this (e.g. pursuant to § 1333 of the Austrian General Civil Law Code) shall remain unaffected.
8.9. All expenses paid to courts or authorities (cash expenses) and additional expenses (e.g. for sub-contracted services rendered by third parties) may be transferred to the Client – at the discretion of the Lawyer – for direct payment.
8.10. In the event that several Clients enter into a Mandate with the lawyer regarding a legal matter, all clients are collectively liable for any of the Lawyer?s claims that result therefrom.
8.11. Cost reimbursement claims made by the Client against the opposite party are herewith assigned to the Lawyer in the amount of the Lawyer?s fee claim, as soon as they arise. The Lawyer shall be entitled to inform the opposing party of this assignment at any time.
9. LIABILITY ASSUMED BY THE LAWYER
9.1. The Lawyer?s liability for faulty advice or representation is limited to the insured sum available in every specific case, but for a sum amounting to at least the insured amount indicated in § 21 a of the Regulations Regarding Lawyer?s Practices („Rechtsanwaltsordnung“) in its respectively valid version. In any case, the Lawyer shall not assume liability for damages exceeding 2,400,0000.00 EUR. If the Client is a consumer, this liability limit shall apply only in the case of damage due to minor negligence.
9.2. The maximum amount applicable pursuant to section 9.1 comprises all claims existing against the Lawyer for faulty advice and/or representation, such as, in particular, claims for damages and price reduction. This maximum amount does not include the Client’s claims to receive back the fee paid to the Lawyer. Any and all deductibles do not reduce the liability. The maximum amount applicable pursuant to section 9.1 relates to a single insured incident. In the presence of two or several competing damaged parties (Clients), the maximum amount of each damaged party shall be reduced in proportion to the amounts claimed.
9.3. The restrictions on liability pursuant to sections 9.1 and 9.2 also apply to the benefit of all lawyers acting on behalf of the firm (as well as their partners, managing directors, employed lawyers or in another function).
9.4. The Lawyer shall be liable for individual sub-contracted services provided by third parties that the Client is aware of within the framework of the Lawyer?s service (especially external experts), who are neither staff members nor partners, only in case of fault in selecting the third party.
9.5. The Lawyer shall only be liable to the Client but not to third parties. The Client shall undertake to expressly bring this circumstance to the attention of third parties who come into contact with the Lawyer?s services due to Client?s efforts.
9.6. The Lawyer shall not be liable for any knowledge of foreign law unless a written agreement has been made or the Lawyer has offered to examine foreign legislation. EU legislation shall not be deemed foreign law, provided it is directly applicable in Austria.
10. STATUTE OF LIMITATION / PRECLUSION
Unless the law stipulates a shorter term of lapse or preclusion, all claims (excluding, however, warranty claims, in the event that the client is not an entrepreneur as defined in the Austrian Consumer Protection Act) against the Lawyer shall lapse, unless the Client has claimed them in court within six months (in the event that the client is an entrepreneur) or within one year (in the event that the client is not an entrepreneur) as of the date at which the Client becomes aware of the damage and the damaging party, or of the incident that otherwise gives rise to a claim, but at the latest after the expiry of five years as of the conduct (infringement) causing the damage (giving rise to a claim).
11. CLIENT’S LEGAL EXPENSES INSURANCE
11.1. In the event that the Client has taken out legal expenses insurance, he/she shall inform the Lawyer thereof without delay and present the required papers (if available). However, independent thereof, the Lawyer shall also be obliged to obtain information as to whether and to what extent there is insurance of legal expenses and apply for coverage under the legal expenses insurance.
11.2. The disclosure of legal expenses insurance by the Client and obtaining coverage under the legal expenses insurance by the Lawyer shall not affect the fee claim of the lawyer against the client. Nor shall it be deemed as consent on the part of the lawyer, i.e. to accept as the lawyer?s fee the payment made pursuant to the legal expenses insurance. The Lawyer must indicate this to the Client.
11.3. The Lawyer shall not be obligated to claim his/her fee directly from the legal expenses insurance, but may request payment of the full remuneration from the Client.
12. TERMINATION OF THE MANDATE
12.1. The Lawyer or the Client may end the mandate at any time without observing a deadline and without disclosing any reasons. The Lawyer?s fee claim shall remain unaffected therefrom.
12.2. In the event of a termination by the Client or by the Lawyer, the Lawyer shall continue to represent the Client for another 14 days, inasmuch as this is necessary in order to protect the Client against any legal detriment. This obligation does not apply in the event that the Client revokes the mandate and states that he/she does not wish to obtain any further service by the Lawyer.
13. OBLIGATION TO RETURN DOCUMENTS AND PROPERTY
13.1. The Lawyer shall return the originals of documents after the Mandate relationship has ended upon the Client’s request. The Lawyer shall be entitled to keep copies of these documents:
13.2. Whenever the Client asks for further documents (copies of documents) after the end of the Mandate, which the client already received during the term of the Mandate, the Client shall bear the costs incurred in connection with this.
13.3. The Lawyer shall be obliged to keep the files for a period of five years as of the end of the Mandate and to provide the Client with copies, if so needed, during that time. Section 13.2 shall apply to such costs. Whenever there are longer statutory periods pertaining to the obligation to keep documents, these shall be observed. The Client shall agree to the destruction of the files (also of original documents) after the expiry of the storage period.
14. CHOICE OF LAW AND JURISDICTION
14.1. The present General Terms and Conditions and the Client/Lawyer relationship governed by them shall be subject to Austrian substantive law.
14.2. Unless there are peremptory statutory provisions to the contrary, the parties shall agree on the sole competency of the court with jurisdiction over the subject matter at the seat of the Lawyer for any and all legal disputes arising from, or in connection with the contractual relationship, which also includes disputes regarding their validity. However, the Lawyer shall also be entitled to file claims against the Client at any other court in Austria or abroad with jurisdiction over the place at which the Client has his/her seat, domicile, place of business, or property. The provisions on the legal venue as defined in Art. 14 of the Austrian Consumer Protection Act shall apply with regard to Clients who are consumers as defined in the Austrian Consumer Protection Act.
15. FINAL PROVISIONS
15.1. Changes or amendments of the present General Terms and Conditions shall be made in writing in order to be valid, whenever the Client is not a consumer as defined by the Austrian Consumer Protection Act.
15.2. Communications by the Lawyer to the Client shall, in any event, be deemed to have been received if they are sent to the address communicated by the Client when retaining the Lawyer, or to another address communicated subsequently in writing. However, the Lawyer may correspond with the Client in any other form that is deemed to be appropriate, unless provided otherwise. Any communication that needs to be in written form may also be forwarded by means of fax or e-mail, unless provided otherwise. Unless the client issues another written instruction, the Lawyer shall have the right to engage in e-mail communication with the Client in unencrypted form. The Client shall declares that he/she is aware of the associated risks (especially access, confidentiality, alterations in communications during transmission) and grants consent, being fully aware of the risks, that e-mail communication is conducted in unencrypted form.
15.3. The Client shall expressly agree that the Lawyer processes, provides or communicates personal data regarding the Client and/or Client’s enterprise (as defined in the Austrian Data Protection Act) to such an extent as this appears to be necessary and expedient or results from statutory obligations or duties under the provisions on the exercise of the profession of legal counselling (e.g. to take part in the electronic legal data exchange, etc.), in order to comply with the tasks for which the Client has retained the Lawyer.
15.4. Whenever one or several conditions of the present General Terms and Conditions or of the contractual relationship governed by the present General Terms and Conditions becomes invalid, this shall not affect the validity of the remaining provisions. The contracting parties agree to replace the ineffective provision(s) by another provision that comes closest to the intended economic result.