GENERAL CONDITIONS OF CONTRACT
1. Scope of application
1.1. The General Conditions of Contract shall apply to any and all activities and judicial/official as well as extrajudicial acts of representation performed in the course of a contractual relationship existing between Dominik Malicki, LL.M., (hereinafter also referred to as “Lawyer”) and the Client (hereinafter also referred to as “Client”).
1.2. The General Conditions of Contract shall also apply to legal opinions, legal statements, drafting of contracts or other consulting services of any kind whatsoever.
1.3. The General Conditions of Contract shall also apply to new mandates, unless otherwise agreed in writing. If the client usually contracts only on the basis of his General Terms and Conditions or forms, he shall acknowledge, by granting the mandate, that these shall in no case be recognized or become part of the contract and that the lawyer shall contract exclusively on the basis of these General Terms and Conditions for Contracts as amended from time to time.
2. Mandate and power of attorney
2.1. The lawyer shall be entitled and obliged to represent the client to the extent necessary and expedient for the performance of the mandate. If the legal situation changes after the end of the mandate, the lawyer shall not be obliged to inform the client about changes or consequences resulting therefrom.
2.2. Upon request, the client shall sign a written power of attorney for the lawyer, which is coordinated with the mandate and agreed upon with the client, and shall hand it over to the lawyer. Such power of attorney shall either vest the representation power concerning singular special legal transactions or be a general Power of Attorney encompassing all legal transactions or actions respectively.
2.3. Unless expressly agreed otherwise in writing, the lawyer’s scope of consultation/counselling and/or clarification shall not include consultation/counselling and clarification on economic issues and issues of tax law.
2.4. Upon issuing the Mandate, the lawyer shall be granted power of attorney as specified in § 8 RAO, § 10 AVG, § 30 Abs 2 ZPO, § 77 GBG, § 83 BAO and § 77 FinStrG.
3. Principles of Representation
3.1. The lawyer shall conduct the representation entrusted to him in accordance with the law and shall represent the rights and interests of the client vis-à-vis others with zeal, loyalty and diligence. However, the lawyer shall not be liable for knowledge of foreign law and shall neither take foreign law into account, nor shall he take into account directly applicable European Community law unless agreed upon otherwise in writing.
3.2. As a matter of principle, the lawyer shall be entitled to perform his services at his own discretion and to take all steps, in particular to use means of attack and defense in any way, as long as this does not contradict the mandate, his conscience or the law.
3.3. If the client issues an instruction to the lawyer, compliance with which is incompatible with the law or other professional law (e.g. the “Guidelines for the Practice of the Legal Profession” [Richtlinien für die Ausübung des Rechtsanwaltsberufes, RL-BA] or the practice of the Appellate and Disciplinary Tribunals for Lawyers and Trainee Lawyers of the Supreme Court [Oberster Gerichtshof] or the Supreme Court of Justice [Oberster Gerichtshof]), the lawyer shall reject the instruction. If, from the lawyer’s point of view, instructions are inexpedient or even disadvantageous for the client, the lawyer shall inform the client of the possibly disadvantageous consequences before carrying them out.
3.4. In case of imminent danger, the lawyer shall be entitled to perform or refrain from performing an action not expressly covered by the mandate given or contrary to an instruction given, if this appears to be urgently required in the client’s interest.
3.5. The Client further acknowledges that any required electronic archiving of documents (e.g. for company and land registers) shall only be carried out for a period of seven years, after which a new archiving shall be required. A longer archiving period is possible, but only at the express request of the client. The costs incurred for the electronic archiving of documents shall be borne by the client in any case as cash expenditure.
4. Information and cooperation obligations of the client
4.1. After issuing the mandate, the client shall be obliged to immediately inform the lawyer of all information and facts that might be of importance in connection with the execution of the mandate, and to make available all necessary documents and evidence. The lawyer shall be entitled to assume the accuracy of the information, facts, documents, records and means of evidence, unless their incorrectness is obvious.
4.2. The lawyer shall work towards the completeness and correctness of the facts by specifically questioning the client and/or other appropriate means. Regarding the correctness of supplementary information, the second sentence of Section 4.1. shall apply.
4.3. During the term of the mandate, the client shall be obliged to inform the lawyer of any changed or newly occurring circumstances that may be of importance in connection with the execution of the mandate immediately after they become known.
4.4. If the lawyer acts as the contract drafter, the client shall be obliged to provide the lawyer with all the information necessary for the self-calculation of the real estate transfer tax, registration fee and real estate income tax. If the lawyer performs the self-calculation on the basis of the information provided by the client, he shall be exempt from any liability towards the client in any case. The client, however, shall be obliged to indemnify and hold the lawyer harmless in the event of any pecuniary disadvantages, if it should turn out that the information provided by the client is incorrect.
4.5. On the basis of the statutory provisions on the prevention of money laundering and terrorist financing, the lawyer shall be obliged to carry out certain auditing activities in the case of transactions prone to money laundering. These include, for example, determining the parties, the beneficial owner(s) and their identity. He must also check the purpose of the transaction and, if necessary, the origin of the funds. In the case of such transactions, the client is obliged to provide the lawyer with all information and corresponding evidence requested in this context in full and truthfully without delay. This shall also apply if the lawyer requests such information on behalf of an involved bank.
5. Confidentiality, conflict of interests
5.1. The lawyer shall be obliged to maintain confidentiality in respect of all matters entrusted to him and of facts that otherwise become known to him in his professional capacity, the confidentiality of which is in the interest of his client.
5.2. The lawyer shall be entitled to entrust all employees with the handling of matters within the scope of the applicable laws and guidelines, provided that these employees have demonstrably been instructed about the obligation to maintain confidentiality and the obligation to maintain confidentiality has been contractually agreed upon.
5.3. The lawyer shall be released from the obligation of confidentiality only to the extent that this is necessary for the prosecution of the lawyer’s claims (in particular claims for fees) or for the defense against claims against the lawyer (in particular claims for damages of the client or third parties against the lawyer) or on the basis of statutory obligations to make statements.
5.4. The client shall be aware of the fact that the lawyer is obliged, in some cases, to provide information or make reports to authorities due to statutory orders without having to obtain the client’s consent; in particular, reference shall be made to the provisions on money laundering and financing of terrorism, as well as to provisions of tax law (e.g. Account Register and Account Inspection Act, GMSG, etc.).
5.5. The client may release the lawyer from the confidentiality obligation at any time. Release from confidentiality by his client shall not relieve the lawyer of the obligation to verify whether his statement is in the interest of his client. If the lawyer acts as a mediator or a collaborative lawyer, he shall exercise his right to confidentiality despite his release from the obligation of confidentiality.
5.6. The lawyer shall evaluate whether the execution of a mandate entails the risk of a conflict of interests within the meaning of the provisions of the Code of Conduct for Lawyers (Rechtsanwaltsordnung) and the Guidelines for the Practice of Law (Richtlinien für die Ausübung des Rechtsanwaltsberufes, RL-BA).
6. Intended purpose, disclosure to third parties
6.1. The written materials prepared by the lawyer within the scope of his mandate (in particular legal opinions, legal statements, letters of report, statements and the like or drafts thereof) shall be addressed exclusively to the expressly stated circle of addressees.
6.2. Passing of and/or disclosure of written work created by the lawyer as stated in Section 6.1. to third persons or the publication hereof shall only by permitted after obtaining a written permit by the lawyer beforehand.
6.3. The copyright to all services and works provided by the lawyer shall also remain with the lawyer.
7. Reporting obligation of the attorney
7.1. The lawyer is obliged to inform the client about the performed actions concerning the mandate orally and in writing to the appropriate extent.
8.Sub-authorisation and substitution
8.1. The lawyer may be represented by an associate employed by him or by another lawyer or his authorized associate (sub-authorization). If the lawyer is prevented from doing so, he may pass on the mandate or individual partial acts thereof to another lawyer (substitution). In the event of sub-authorization or substitution to another lawyer, the substituting party shall only be liable for fault in selection.
9. Fees
9.1. Unless otherwise agreed, the lawyer shall be entitled to a reasonable fee based on the RATG (Lawyers’ Fees Act), the NTG (Notaries’ Fees Act) and the AHK (Autonomous Fee Criteria) as amended from time to time.
9.2. The services provided by the lawyer shall – other written agreements notwithstanding – be invoiced as hourly fee. The total amount of time spent on the mandate by the lawyer, his cooperating lawyers, associates, other legal staff or substitutes shall be invoiced, in particular but not limited to study of files, travel time, study of legal provisions, literature or jurisdiction, statements (see Section 7), revision/adjustment of written works and necessary expedient intern conferences as well as electronic communication.
9.3. The invoicing of the hourly fees shall be based upon the hourly rate for Partners, Lawyers and Associates disclosed to the client by the lawyer or in case of regular counselling upon the hourly rate set forth and invoiced by in an already issued mandate, unless explicitly agreeing upon different hourly fees. The invoicing shall be based upon true services in real time and not according to minimal units. The minimal time unit to be invoices shall be 10 minutes whereas each commenced 10 minutes shall constitute full 10 minutes.
9.4. Even if a lump-sum or time-based fee or a fee reduced in comparison to the RATG is agreed, the lawyer shall be entitled to at least the amount of reimbursement of costs claimed from the opposing party in excess of this fee, insofar as this can be recovered, otherwise the agreed lump-sum or time-based fee.
9.5. Explicit reference is made to the fact, that the fees invoiced based upon the hourly rates may exceed a possible reimbursement by the legal expense insurance or the reimbursement of costs calculated for the client towards third parties based upon the RATG and to the fact that the client shall be obliged to pay any difference unless explicitly agreed upon otherwise in writing. The receiving and safekeeping of money, saving books, bonds, valuables including accounting, charging, delivery or deposit to authorities, as well as executing of trusteeships by the lawyer – with the exception of management of bills of exchange, debt instruments, witness-, experts- or postal fees etc. – shall be charged in place of the usual hourly fee with a safekeeping fee according to § 24 NTG.
9.6. The currently valid value added tax shall be invoiced in addition to the fee the lawyer is eligible to / which has been agreed upon, as well as appropriate expenses (travel expenses, telephone fees, telefax, copies, postal fees etc.) or cash expenditure (court fees, excerpts from commercial or land registries, inquiries to the register of residents, advances on costs etc.) in the name of the client. The lawyer shall be eligible – to his own discretion – to forward any and all of the court or administrative fees (cash expenditures) and expenses (e.g. bought services of third parties) directly to the client for direct payment. The lawyer shall also be eligible to invoice a flat expense fee of 3 % (excl. VAT) instead of charging the detailed necessary appropriate expenses to the client. The lawyer shall be eligible to make certain steps (e.g. bringing in the legal claim) dependent on advance payment of the expenses (e.g. court fee). Possible negative consequences resulting from the client not paying the cash expenses shall be borne by the client and he shall hold the lawyer completely harmless in this respect.
9.7. The client accepts that any estimate about the probable amount of fees made by the lawyer and not explicitly declared as binding is only informative and not to be seen as a binding cost estimate (as stated in § 5 par 2 KSchG), because the extent of the services to be provided by the lawyer cannot by its nature be estimated reliably in advance; the client also accepts, that the actual fees can exceed the estimate (substantially). Upon explicit written request, the lawyer is obliged to inform the client at the time the fees of a given mandate have exceeded the corresponding cost estimate.
9.8. The cost of the billing and the preparation of the invoice will not be charged to the client. This does not apply to any costs with respect to the possible translation of the service specifications into other language then German upon special request of the client. Other agreement notwithstanding, the cost of letters to the auditor of the client requested by the client, which e.g. inform about the status of ongoing cases, about the risk estimates concerning the forming of accruals and/or about the status of unpaid fees to a certain date shall be invoiced to the client.
9.9. The lawyer shall be eligible to send invoices at any time, in any event however, every quarter, as well as to ask for advance on the fee. Other agreement notwithstanding, the services of the lawyer shall be generally invoiced every quarter or monthly. Following an explicit request of the client, a detailed service specification containing the provided services in the given time period shall be sent in addition to the invoice.
9.10. In case the client is an entrepreneur, a properly broken down invoice sent to client shall be deemed accepted unless the client objects in writing within 14 days (incoming by the lawyer) after receiving the invoice. This term begins upon outgoing mail by the lawyer.
9.11. If the client is in default of payment of all or part of the fee, he shall pay default interest to the lawyer at the statutory rate, but at least at the rate of 4 % p.a. If the client is responsible for the delay in payment and if he is an entrepreneur, the statutory interest rate shall be 9.2 percentage points above the respective base interest rate (Basiszinssatz). The client shall also compensate the lawyer for any damage actually incurred beyond this. Any further legal claims (e.g. § 1333 ABGB) shall remain unaffected. In particular, the lawyer shall be entitled to charge reminder fees in an appropriate amount.
9.12. The client is obliged to pay the fees and cash expenses of the lawyer or his substitutes. In case the mandate is issued to several clients, they shall be jointly (undivided) liable for any and all claims of the lawyer resulting from this mandate.
9.13. Reimbursement of costs claims of the client against the opponent are at the time of their emergence hereby assigned in the amount of the fees of the lawyer to the lawyer. The lawyer shall be eligible to inform the opponent of this assignment at any time.
9.14. If the lawyer receives an e-mail from the client or the client’s sphere that is not addressed to the lawyer, but is only sent to the lawyer by cc or bcc, the lawyer shall not be obliged to read the e-mail without an express instruction to do so. If the lawyer reads the e-mail sent, he shall be entitled to a fee for this as for comparable services pursuant to the RATG or AHK.
9.15. All court and official costs (cash outlays) and expenses (e.g. due to purchased external services) incurred in the performance of the mandate may – at the lawyer’s discretion – be passed on to the client for direct settlement.
10. Liability
10.1. Any liability of the lawyer in case of slightly negligent breach of the obligation assumed by him is generally excluded and in any case limited to the insurance sum available for the specific case of damage, but shall exist at least in the amount of the insurance sum specified in § 21a RAO as amended. This is currently € 400,000 (in words: Euro four hundred thousand) and in the case of law firms in the form of a limited liability company € 2,400,000 (in words: Euro two million four hundred thousand). Any liability exceeding this maximum amount is therefore expressly excluded. This shall also apply to any liability towards third parties, for example arising from a contract with protective effects in favor of third parties. The reversal of the burden of proof according to § 1298 ABGB at the expense of the lawyer is expressly excluded. If the client is a consumer in the sense of the Consumer Protection Act (KSchG), any liability of the lawyer shall be excluded only in the case of slightly negligent infliction of damage.
10.2. The maximum sum according to Section 10.1. shall include any and all claims made against the lawyer on the grounds of incorrect consultation and/or representation, in particular damage claims or reduction of price. The maximum sum according to Section 10.1. refers to one insurance case. Should several competing claims and/or clients be present, the maximum sum shall be reduced for any singular aggrieved party according to the relation of the sums of the claims. If a law firm corporation is commissioned, the limitations of liability pursuant to Sections 10.1. and 10.2. shall also apply in favor of all lawyers working for the corporation (as its partners, managing directors, employed lawyers or in any other capacity).
10.3. The lawyer shall not be liable for information provided by telephone or oral statements or declarations made by his employees, unless the lawyer has expressly confirmed them in writing.
10.4. The lawyer shall only be liable for third parties (in particular external experts, foreign lawyers, auditors, tax consultants or management consultants), who are neither employees nor partners and who have been commissioned with the client’s knowledge to provide individual partial services, in the event of fault in the selection of such third parties.
10.5. The lawyer shall only be liable towards his client, not towards third parties. The client shall be obliged to expressly draw the attention of third parties, who come into contact with the lawyer’s services due to the client’s involvement, to this fact; this in the case of complete indemnification and indemnification of the lawyer
10.6. The lawyer shall be liable for knowledge of foreign law only in case of a written agreement or written consent of the lawyer to examine foreign law. Directly applicable EU law shall not be considered foreign law, but the national law of the individual member states of the European Union shall be.
11. Limitation of claims, preclusion
11.1. Unless there is a statutory shorter period of limitation / preclusion in place, all claims against the lawyer shall be deemed forfeit, unless those claims are made before a competent court of justice within a period of six months after the client becomes aware of the damage and the damaging party or the incident that otherwise gives rise to a claim, but at the latest after three years after the damaging (giving rise to a claim) incident (violation).
12. Legal expense insurance of the client
12.1. If the client has legal expenses insurance, he shall inform the lawyer thereof without undue delay in the course of placing the mandate and shall submit the required documents (if available). If the lawyer has sufficient information on the client’s existing legal expenses insurance, he shall apply to the insurance company for legal expenses coverage.
12.2. The fee claim of the lawyer shall be unaffected by the information about existing legal expense insurance by the client and by obtaining of the coverage by the lawyer. In no case it shall be seen as a declaration of consent to be content with the coverage provided by the insurance as sufficient fee in particular where the lawyer and the client agreed an hourly rate (time fee) and the insurance would only pay lower fee (coverage) according to the terms of insurance.
12.3. The lawyer shall not be obliged to claim the fee directly from the legal expenses insurance, but may also claim the entire fee primarily from the client.
13. Termination of a mandate
13.1. The mandate may be terminated by the lawyer or the client at any time without notice and without reasons. The dissolution of the mandate shall be effective only if made in writing (also by e-mail). The lawyer’s fee claim shall remain unaffected.
13.2. In the event of termination by the client or the lawyer, the lawyer shall continue to represent the client for a period of 14 days insofar as this is necessary to protect the client from legal disadvantages. This obligation shall not exist if the client revokes the mandate and expresses that he does not wish further activity from the lawyer or if the client appoints a new legal representative to represent his interests.
14. Obligation to surrender, retention obligation
14.1. Upon termination of the attorney-client relationship, the lawyer shall return the original documents to the client upon request. The lawyer shall be entitled to keep copies of such documents.
14.2. If the client requests documents (copies of documents) again after the end of the mandate, which the client has already received in the course of the mandate, the client shall bear the costs (e.g. postage, copies) as well as the time fee for obtaining/providing and transmitting the requested documents.
14.3 The lawyer shall be obliged to keep the files for a period of five years from the termination of the mandate and to hand over copies to the client during this period, if required. The costs shall be borne in accordance with Section 14.2. If longer statutory periods apply to the duration of the obligation to retain the files, they shall be complied with. The client agrees to the destruction of the files (including original documents) after expiry of the retention period.
15. Choice of law, place of jurisdiction
15.1. The General Conditions of Contract and the mandate shall be governed by Austrian material law with the exception of national and international conflict of law rules.
15.2. Any disputes under or relating to the General Conditions of Contract, including any disputes concerning the validity thereof, are to be settled exclusively by the competent court of justice at the seat of the lawyer, unless mandatory legal provisions state otherwise. The lawyer shall be eligible to pursue his claims against the client at any other court of justice whether domestic or in a foreign country, where the client has his seat, domicile, branch or assets.
15.2. For Clients who are consumers as stated in the Consumer Protection Act, the legal venue provisions stated in § 14 KSchG shall apply.
16. Concluding provisions
16.1 Amendments or supplements to these General Conditions of Contract shall be valid only if made in writing, provided that the client is a consumer as defined by the Austrian Consumer Protection Act (KSchG).
16.2. Declarations by the lawyer to the client shall be deemed to have been received in any case if they are sent to the (e-mail) address provided by the client when the mandate was granted or to the changed (e-mail) address provided in writing thereafter. However, unless otherwise agreed, the lawyer may correspond with the client in any way he deems appropriate. Statements to be made in writing pursuant to these General Conditions of Contract may also be made by fax or e-mail, unless otherwise provided. Unless otherwise instructed in writing by the client, the lawyer shall be entitled to conduct e-mail correspondence with the client in non-encrypted form. The client shall declare that he is aware of the risks involved (in particular access, confidentiality, alteration of messages in the course of transmission) and that, being aware of these risks, he agrees that the e-mail correspondence shall not be conducted in encrypted form.
16.3. The client expressly agrees that the lawyer may process, provide or transmit (within the meaning of the Data Protection Act) personal data relating to the client and/or his enterprise to the extent that this is necessary and expedient for the performance of the tasks assigned to the lawyer by the client or results from legal or professional obligations (e.g. participation in electronic legal communication, etc.).
16.4. The client shall give his explicit consent to the disclosure of the representation relationship within the meaning of § 49 of the Austrian Federal Lawyers’ Act (RL-BA as amended) to third parties for advertising purposes and to the disclosure of the collected data. In particular, the client gives his consent that his (company) name, residential or company address, telephone and fax number and e-mail address may be included in the lawyer’s client reference list and may be disclosed to third parties for advertising purposes, for example by naming the client in a lecture and/or seminar held by the lawyer or in a company presentation.
16.5. The invalidity of one or individual provisions of these General Conditions of Contract or of the contractual relationship governed by the General Conditions of Contract shall not affect the validity of the remaining agreement. The contracting parties undertake to replace the invalid provision(s) with a provision that comes as close as possible to the invalid provision in terms of the economic result.
16.5. These General Conditions of Contract shall not affect the rights and obligations of the lawyer arising from the Rechtsanwaltsordnung (RAO), the Richtlinien für die Ausübung des Rechtsanwaltsberufes (RL-BA), and the related legal provisions.