GTC

GENERAL TERMS AND CONDITIONS OF CONTRACT FOR ATTORNEY AT LAWS

1.    scope of application
1.1.    The Terms and Conditions for Contracts shall apply to all activities and judicial/official as well as extrajudicial acts of representation performed in the course of a contractual relationship (hereinafter also referred to as “mandate”) existing between the Attorney at Law (hereinafter simplified referred to as “Attorney at Law”) and the client.
1.2.    The Terms and Conditions for Contracts shall also apply to new mandates, unless otherwise agreed in writing.

2.    mandate and power of attorney
2.1     The Attorney at Law 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 Attorney at Law shall not be obliged to inform the client about changes or consequences resulting therefrom.
2.2     The client shall sign a written power of attorney vis-à-vis the Attorney at Law upon request. This power of attorney may be directed to the performance of individual, precisely defined or all possible legal transactions or legal acts.

3.    Principles of representation
3.1.     The Attorney at Law shall represent the client in accordance with the law and shall represent the client’s rights and interests vis-à-vis everyone with diligence, loyalty and conscientiousness.
3.2.     In principle, the Attorney at Law 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 client’s mandate, his conscience or the law. If the Client’s medical condition is important for the execution of the mandate, the attorney-at-law is entitled to make use of the release from medical confidentiality, which is also stated in the power of attorney form.
3.3.     If the client issues an instruction to the Attorney at Law, compliance with which is incompatible with the law or other professional rules (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 Attorney at Laws and Trainee Attorney at Laws at the Supreme Court and the former Supreme Appellate and Disciplinary Commission for Attorney at Laws and Trainee Attorney at Laws [Oberster Berufungs- und Disziplinarkommission für Rechtsanwälte und Rechtsanwaltsanwärter, OBDK]), the Attorney at Law shall reject the instruction. If, from the Attorney at Law’s point of view, instructions are inexpedient or even disadvantageous for the client, the Attorney at Law shall inform the client of the possibly disadvantageous consequences before carrying them out.
3.4.     In case of imminent danger, the Attorney at Law shall be entitled to perform or refrain from performing any action not expressly covered by the mandate given or contrary to any instruction given, if this appears to be urgently required in the client’s interest.

4.    Obligations of the client to provide information and to cooperate
4.1.      After the mandate has been granted, the client shall be obliged to immediately inform the Attorney at Law 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 Attorney at Law shall be entitled to assume the accuracy of the information, facts, documents, records and evidence, unless their incorrectness is obvious.

The Attorney at Law shall work towards the completeness and correctness of the facts by specifically questioning the client and/or by other appropriate means. With regard to the correctness of supplementary information, the second sentence of section 4.1 shall apply.

4.2.     During the term of the mandate, the client shall be obliged to inform the Attorney at Law of all changed or newly occurring circumstances that might be of importance in connection with the execution of the mandate, immediately after they have come to the Attorney at Law’s attention.
4.3.     If the Attorney at Law acts as the contracting party, the client shall be obliged to provide the Attorney at Law with all information required for the self-calculation of the real estate transfer tax, registration fee and real estate income tax. If the Attorney at Law 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. On the other hand, the client shall be obliged to indemnify and hold the Attorney at Law harmless in the event of pecuniary disadvantages, should it turn out that the information provided by the client is incorrect.

5.    Confidentiality Obligation, Conflict of Interest
5.1.    The Attorney at Law shall be obliged to maintain confidentiality with regard to all matters entrusted to him/her and facts that otherwise become known to him/her in his/her professional capacity, the confidentiality of which is in the interest of his/her client.
5.2.    The Attorney at Law 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.
5.3.    The Attorney at Law shall be released from the obligation of confidentiality only to the extent that this is necessary for the prosecution of the Attorney at Law’s claims (in particular claims for the Attorney at Law’s fee) or for the defense against claims against the Attorney at Law (in particular claims for damages by the client or third parties against the Attorney at Law).
5.4.    The client shall be aware of the fact that, due to statutory provisions, the Attorney at Law shall be obliged in some cases to provide information or reports to authorities 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 Attorney at Law from the confidentiality obligation at any time. The client’s release from the obligation to maintain confidentiality shall not relieve the Attorney at Law of the obligation to verify whether the Attorney at Law’s statement is in the client’s interest.
5.6.    The Attorney at Law shall check whether the execution of a mandate entails the risk of a conflict of interests within the meaning of the provisions of the Attorney at Laws’ Disciplinary Act.

6.    the Attorney at Law’s duty to report
The Attorney at Law shall inform the client to a reasonable extent, orally or in writing, about the actions taken by him/her in connection with the mandate.

7.    sub-authorization and substitution
A Attorney at Law may be represented by a trainee Attorney at Law employed by him or by another Attorney at Law or his authorized trainee Attorney at Law (sub-authorization). In the event that the Attorney at Law is prevented from doing so, he may pass on the mandate or individual partial acts to another Attorney at Law (substitution).

8.    fee
8.1.     Unless otherwise agreed, the Attorney at Law shall be entitled to an adequate fee. If the Attorney at Law’s fee is not agreed upon in the individual case, at least the Autonomous Fee Guidelines of the Austrian Bar Association shall apply in criminal, administrative criminal and administrative cases.
8.2.     Even if a lump sum or hourly fee has been agreed upon, the Attorney at Law shall be entitled to at least the amount of costs recovered from the opposing party in excess of this fee, provided that this amount can be recovered, otherwise the agreed upon lump sum or hourly fee shall apply.
8.3.     If an e-mail is sent to the Attorney at Law by the client or the client’s sphere of influence, the Attorney at Law shall not be obliged to read this e-mail without an explicit order to do so. If the Attorney at Law reads the e-mail sent, he shall be entitled to a fee for this in accordance with an express agreement for comparable services or in accordance with RATG or AHK.
8.4.     Value added tax at the statutory rate, necessary and reasonable expenses (e.g. for travel expenses, telephone, fax, copies) as well as cash expenses paid on behalf of the client (e.g. court fees) shall be added to the fee due to/agreed with the Attorney at Law.
8.5.     The client acknowledges that an estimate made by the Attorney at Law, which is not expressly designated as binding, regarding the amount of the fee likely to be incurred shall be non-binding and shall not be regarded as a binding cost estimate (within the meaning of § 5 (2) of the Austrian Consumer Protection Act (KSchG)), because the extent of the services to be rendered by the Attorney at Law cannot, by its nature, be reliably assessed in advance.
8.6.     The client shall not be charged for the time and effort required for the billing and preparation of the fee notes. This shall not apply, however, to the expenses incurred by the translation of service specifications into a language other than German at the Client’s request. Unless otherwise agreed, the Attorney at Law shall charge for the time and effort spent on letters to the client’s auditor, written at the client’s request, in which, for example, the status of pending cases, a risk assessment for the formation of provisions and/or the status of outstanding fees as of the closing date are stated.
8.7.     The Attorney at Law shall be entitled at any time, but in any case on a quarterly basis, to submit fee notes and to demand advance payments of fees. The fee amount shall be due for payment immediately, unless otherwise agreed.
8.8.     If the client is an entrepreneur, a fee invoice sent to the client and duly itemized shall be deemed approved, if and to the extent that the client does not object in writing within one month (receipt by the Attorney at Law shall be decisive) from receipt.
8.9.     If the client is in default of payment of all or part of the fee, he/she shall pay interest on arrears to the Attorney at Law at the statutory rate, but at least at the rate of 4 %. Any further legal claims (e.g. § 1333 ABGB) of the Attorney at Law shall remain unaffected.
8.10.    All court and official costs (cash expenses) and expenses (e.g. due to purchased external services) incurred in the course of the performance of the mandate may – at the Attorney at Law’s discretion – be forwarded to the client for direct settlement.
8.11.     If several clients place an order in one legal matter, they shall be jointly and severally liable for all resulting claims of the Attorney at Law.
8.12.    The client’s claims for reimbursement of costs against the opponent are hereby assigned to the Attorney at Law in the amount of the Attorney at Law’s fee claim as soon as they arise. The Attorney at Law shall be entitled to inform the opponent of the assignment at any time.

9.    Liability of the Attorney at Law
9.1.     The liability of the Attorney at Law for faulty advice or representation shall be limited to the insurance sum available for the specific case of damage, but shall be 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). If the client is a consumer, this limitation of liability shall only apply in the event of damage caused by slight negligence.
9.2.    The maximum amount applicable pursuant to item 9.1 shall include all claims existing against the Attorney at Law due to incorrect advice and/or representation, such as, in particular, claims for damages and price reduction. This maximum amount shall not include claims of the client to reclaim the fee paid to the Attorney at Law. Any deductibles shall not reduce the liability. The maximum amount applicable pursuant to item 9.1. shall refer to one insured event. If there are two or more competing injured parties (clients), the maximum amount for each individual injured party shall be reduced in proportion to the amount of the claims.
9.3.    In the event that a law firm is commissioned, the limitations of liability pursuant to Sections 9.1 and 9.2 shall also apply in favor of all Attorney at Laws working for the firm (as its partners, managing directors, employed Attorney at Laws or in any other function).
9.4.    The Attorney at Law shall only be liable for third parties (in particular external experts), who are neither employees nor partners, and who have been commissioned with the client’s knowledge to provide individual partial services within the scope of the provision of services, in the event of fault in the selection of such third parties.
9.5.    The Attorney at Law shall only be liable towards his/her client, not towards third parties. The client shall be obliged to expressly draw the attention of third parties, who come into contact with the Attorney at Law’s services due to the client’s involvement, to this fact.
9.6.    The Attorney at Law shall be liable for knowledge of foreign law only upon written agreement or if the Attorney at Law has undertaken to examine foreign law. EU law shall never be considered foreign law, but the law of the member states shall.

10.   Limitation/Preclusion
Unless a shorter period of limitation or preclusion applies by law, all claims against the Attorney at Law shall be forfeited if they are not asserted by the client in court within six months from the time when the client becomes aware of the damage and the person causing the damage or of the event otherwise giving rise to the claim, but at the latest after the expiry of five years after the conduct (infringement) causing the damage (giving rise to the claim).

11.    Legal Expenses Insurance of the Client
11.1.     If the client has legal expenses insurance, he/she shall inform the Attorney at Law thereof without delay and submit the required documents (if available). Irrespective of this, however, the Attorney at Law shall be obliged to obtain information on his/her own initiative as to whether and to what extent a legal expenses insurance exists and to apply for legal expenses coverage.
11.2.     The client’s disclosure of a legal expenses insurance and the Attorney at Law’s obtaining legal expenses coverage shall not affect the Attorney at Law’s fee claim vis-à-vis the client and shall not be regarded as the Attorney at Law’s agreement to be satisfied with the fee paid by the legal expenses insurance.
11.3.     The Attorney at Law shall not be obliged to claim the fee from the legal expenses insurance directly, but may claim the entire fee from the client.

12.   Termination of the mandate
12.1.     The mandate may be terminated by the Attorney at Law or by the client at any time without observing a period of notice and without stating reasons. The Attorney at Law’s fee claim shall remain unaffected by this.
12.2.     In the event of termination by the client or the Attorney at Law, the Attorney at Law 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/she does not wish further activity of the Attorney at Law.

13.   Obligation to return documents, safekeeping
13.1.     Upon termination of the attorney-client relationship, the Attorney at Law shall return the original documents to the client upon request. The Attorney at Law shall be entitled to retain copies of these documents.
13.2.     If the client requests documents (copies of documents) again after the end of the mandate, which the client has already received within the scope of the mandate, the costs shall be borne by the client.
13.3.     The Attorney at Law shall be obliged to keep the files for a period of five years from the end of the mandate and to hand over copies to the client during this period, if required. The Attorney at Law shall archive or keep the files electronically, which means that the contents of the files shall be scanned after the termination of the mandate and the paper originals – with the exception of the original documents – shall be destroyed; the client shall agree to such destruction of the paper originals – with the exception of the original documents – immediately after the termination of the mandate.
The Attorney at Law shall be entitled to hand over the original documents to the Client upon termination of the mandate.
If longer statutory periods apply for the duration of the obligation to retain the documents, these shall be observed. The client shall agree to the destruction of the original documents and to the electronic deletion of the files after the expiry of the retention obligation.

14.   Choice of Law and Place of Jurisdiction
14.1.     The terms and conditions of the mandate and the mandate relationship governed by them shall be subject to Austrian substantive law.
14.2.     For legal disputes arising from or in connection with the contractual relationship governed by the Terms and Conditions for Contracts, including disputes regarding its validity, it shall be agreed that the court having subject-matter jurisdiction at the Attorney at Law’s domicile shall have exclusive jurisdiction, unless this is opposed by mandatory law. However, the Attorney at Law shall be entitled to bring claims against the client also before any other court in Austria or abroad, in whose jurisdiction the client has his/her registered office, place of residence, branch office or assets. For clients who are consumers within the meaning of the Consumer Protection Act (KSchG), the jurisdiction provision of § 14 KSchG shall apply.

15.   Final Provisions
15.1.     Any amendments or supplements to these Terms and Conditions of Assignment shall be valid only if made in writing.
15.2.    Declarations made by the Attorney at Law to the client shall be deemed to have been received, in any case, if they are sent to the address provided by the client when the mandate was granted or to the changed address provided in writing thereafter. However, unless otherwise agreed, the Attorney at Law may correspond with the client in any way he deems appropriate, in particular also via e-mail to the e-mail address the client provides to the Attorney at Law for the purpose of communicating with the client. Statements to be made in writing pursuant to these Terms and Conditions may also be made by e-mail, unless otherwise provided.
15.3.    Unless otherwise instructed by the client in writing, the Attorney at Law shall be entitled to conduct e-mail communication with the client in a non-encrypted form. The client shall declare that he/she has been informed about the risks involved (in particular access, confidentiality, alteration of messages in the course of transmission) and about the possibility of using TrustNetz, and that, being aware of these risks, he/she agrees that the e-mail correspondence shall not be conducted in encrypted form.
15.4.    Declarations made by the Attorney at Law to the client shall be deemed to have been received in any case if they are sent to the address provided by the client when the mandate was granted or to the changed address provided in writing thereafter. However, unless otherwise agreed, the Attorney at Law may correspond with the client in any way he deems appropriate, in particular also via e-mail to the e-mail address the client provides to the Attorney at Law for the purpose of communicating with the client. Declarations to be made in writing pursuant to these Terms and Conditions may also be made by e-mail, unless otherwise provided.
15.5.    The client expressly agrees that the Attorney at Law may process, provide or transmit (within the meaning of the Data Protection Act) personal data relating to the client and/or his/her enterprise to the extent that this is necessary and expedient for the performance of the tasks assigned to the Attorney at Law by the client or results from the Attorney at Law’s legal or professional obligations (e.g. participation in electronic legal transactions, etc.).
15.6.    The invalidity of one or individual provisions of these Terms and Conditions for Contracts or of the contractual relationship governed by the Terms and Conditions for Contracts shall not affect the validity of the remaining agreement. The contracting parties undertake to replace the invalid provision(s) by a provision that comes as close as possible to the invalid provision in terms of the economic result.