1st area of application
1.1 The Terms and Conditions of Contract shall apply to all activities and judicial/official and extrajudicial acts of representation performed in the course of a contractual relationship between Allmayer-Beck Stockert Rechtsanwälte GmbH, FN 285232i, Parkring 2, 1010 Vienna (hereinafter referred to as "Lawyer") and the Client (hereinafter also referred to as "Mandate").
1.2 The Terms and Conditions shall also apply to new mandates, unless otherwise agreed in writing.
2. order and power of attorney
2.1 The lawyer shall be entitled and obliged to represent the client to the extent that this is 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 of any changes or consequences resulting therefrom.
2.2 The client shall sign a written power of attorney vis-à-vis the lawyer 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 lawyer shall conduct the representation entrusted to him in accordance with the law and represent the rights and interests of the client vis-à-vis everyone with diligence, loyalty and conscientiousness.
3.2 In 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 client's mandate, his conscience or the law.
3.3 If the client issues an instruction to the lawyer, compliance with which is incompatible with the principles of the proper exercise of the lawyer's profession based on the law or other professional rules (e.g. the "Guidelines for the Exercise of the Profession of Lawyers" [RL-BA] or the ruling practice of the Supreme Appellate and Disciplinary Commission for Lawyers and Trainee Lawyers [OBDK]), the lawyer shall reject the instruction. If the lawyer considers instructions to be inappropriate or even disadvantageous for the client, the lawyer shall inform the client of the potentially disadvantageous consequences before carrying them out.
3.4 In the event of imminent danger, the lawyer shall also be entitled to take or refrain from taking an action not expressly covered by the instruction given or contrary to an instruction given, if this appears to be urgently required in the interests of the client.
4. information and cooperation obligations of the client
4.1 After the mandate has been granted, the client shall be obliged to inform the lawyer immediately of all information and facts that may be of significance in connection with the performance of the mandate, and to make available all necessary documents and evidence. The lawyer shall be entitled to assume that the information, facts, documents, records and evidence are correct, unless their incorrectness is obvious.
4.2 The lawyer shall work towards ensuring the completeness and accuracy of the facts by questioning the client and/or by other suitable means. Here too, the lawyer shall be entitled to assume that the information is correct, unless its incorrectness is obvious.
4.3 During the term of the mandate, the client shall be obliged to notify the lawyer of any changed or newly arising circumstances that may be of significance in connection with the performance of the mandate immediately after they become known.
4.4 If the lawyer acts as contract draftsman, the client shall be obliged to provide the lawyer with all information required for the self-calculation of the real estate transfer tax, registration fee and real estate income tax. If the lawyer performs the self-calculation of real estate transfer tax and real estate income tax on the basis of the information provided by the client, the lawyer shall be released from any liability towards the client. However, the client shall be obliged to indemnify and hold the lawyer harmless in the event of financial disadvantages should the client's information prove to be incorrect.
5. duty of confidentiality and conflict of interest
5.1 The lawyer shall be obliged to maintain confidentiality with regard to all matters entrusted to him and all other facts of which he becomes aware in his professional capacity, the confidentiality of which is in the interest of his client.
5.2 The lawyer shall be entitled to instruct all employees to handle matters within the framework of the applicable laws and guidelines, provided that these employees have been demonstrably instructed about the obligation to maintain confidentiality.
5.3 The lawyer shall only be released from the duty of confidentiality to the extent that this is necessary to pursue claims of the lawyer (in particular claims for the lawyer's fee) or to defend against claims against the lawyer (in particular claims for damages by the client or third parties against the lawyer).
5.4 The client may release the lawyer from the obligation of confidentiality at any time. The release from the duty of confidentiality by the client does not release the lawyer from the obligation to check whether his statement is in the interest of his client.
5.5 The lawyer shall examine whether there is a risk of a conflict of interest within the meaning of the provisions of the Lawyers' Act in the performance of a mandate.
6. reporting obligation of the lawyer
The lawyer shall inform the client orally or in writing to an appropriate extent about the actions taken by him in connection with the mandate.
7. sub-authorization and substitution
The lawyer may be represented by a trainee lawyer employed by him or by another lawyer or his authorized trainee lawyer (sub-authorization). The lawyer shall also be entitled to subcontract the mandate or individual acts to another lawyer (substitution).
8. fee
8.1 Unless otherwise agreed, the lawyer shall be entitled to a reasonable fee. The invoicing of individual services in accordance with the AHK in conjunction with the RATG shall in any case be deemed reasonable.
8.2 Even if a lump-sum or time-based fee has been 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. If an hourly fee is agreed, the service shall be charged for every ten minutes or part thereof.
8.3 Value added tax at the statutory rate, necessary and reasonable expenses (e.g. for travel costs (public transportation, cab, etc.), telephone, fax, copies) and cash expenses paid on behalf of the client (e.g. court fees) shall be added to the fee due to/agreed with the lawyer.
8.4 If an e-mail is sent to the lawyer by the client, the lawyer shall not be obliged to read this e-mail unless expressly instructed to do so. If the lawyer 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 the RATG or AHK.
8.5 The client acknowledges that any estimate made by the lawyer regarding the amount of the anticipated fee that is not expressly designated as binding shall be non-binding and shall not be regarded as a binding cost estimate (within the meaning of Section 5 (2) KSchG), because the extent of the services to be rendered by the lawyer cannot, by its nature, be reliably assessed in advance.
8.6 The client shall not be charged for the costs of invoicing and preparing the fee notes. However, this shall not apply to the expenses incurred for the translation of service specifications into a language other than German at the client's request. Unless otherwise agreed, the time and effort required to write letters to the client's auditor at the client's request, in which, for example, the status of pending cases, a risk assessment for the creation of provisions and/or the status of outstanding fees as at the balance sheet date are stated, shall be charged.
8.7 The lawyer shall be entitled to submit fee notes at any time, but in any case on a quarterly basis, and to demand advances on fees. Unless the fee note contains a payment deadline, the fee shall be due for payment immediately upon receipt of the fee note.
8.8 If the client is an entrepreneur, a properly itemized fee note sent to the client shall be deemed accepted if and insofar as the client does not object in writing within one month of receipt (the date of receipt by the lawyer shall be decisive). The inclusion of an invoice in the books shall in any case be deemed to be an acknowledgement.
8.9 If the client is in arrears with the payment of all or part of the fee, he shall pay the lawyer interest on arrears at the rate of 4% p.a.. For entrepreneurs, a default interest rate of 9% shall be deemed agreed. Any further statutory claims (e.g. § 1333 ABGB) shall remain unaffected.
8.10. All court and official costs (cash disbursements) and expenses (e.g. due to purchased external services) may - at the discretion of the lawyer - be passed on to the client for direct payment. The client shall be obliged to pay these cash disbursements or expenses immediately and shall indemnify and hold the lawyer harmless in the event of non-payment or late payment.
8.11. If an instruction is given by several clients in one legal case, they shall be jointly and severally liable for all resulting claims of the lawyer.
8.12. The client's claims for reimbursement of costs against the opposing party are hereby assigned to the lawyer as soon as they arise in the amount of the lawyer's fee claim. The lawyer shall be entitled to notify the opposing party of the assignment at any time.
8.13. If the client has been granted a discount or rebate compared to the agreed fee (hourly rate/lawyer's rate/flat fee), the reduced invoice amount shown shall only be an offer to the client, which shall lapse in the event of non-acceptance (by timely payment of the fee). If payment is not made on time, the lawyer shall therefore be entitled to invoice the originally agreed higher amount.
8.14. In any case, in particular in the event that a fee is agreed in accordance with the RATG/AHK, the lawyer shall also be entitled to an appropriate fee for all services rendered and commissioned, even if the costs are not awarded to the client by the court. This applies, for example, to applications for extension of time limits submitted on behalf of the client, participation in certification hearings, applications for evidence, preparatory pleadings, etc. If the lawyer attends a hearing for the client outside the registered office of the law firm, the lawyer may charge the client double the standard rate, even if the client is not awarded double the standard rate by the court.
9 Liability of the lawyer
9.1 The Lawyer shall not be liable for slightly negligent damages arising from his professional activity, with the exception of personal injury. In addition, the Lawyer shall not be liable to entrepreneurs for loss of profit, third-party damages, indirect damages and/or consequential damages.
9.2 The lawyer's liability for faulty advice or representation shall be limited to the sum insured available for the specific case of damage, but shall at least amount to the sum insured specified in § 21a RAO. This is currently EUR 400,000.00 (in words: four hundred thousand euros) and in the case of law firms in the form of a limited liability company EUR 2,400,000.00 (in words: two million four hundred thousand euros). If the client is a consumer, this limitation of liability shall only apply in the event of slightly negligent damage and only if the complete exclusion of slight negligence pursuant to clause 9.1. should be ineffective for whatever reason.
9.3 The maximum amounts applicable pursuant to Clause 9.2. shall include all claims against the lawyer arising from his professional activity, such as for incorrect drafting of contracts, legal advice or representation, in particular claims for damages and price reduction. This maximum amount does not include claims by the client to reclaim the fee paid to the lawyer. Any deductibles shall not reduce the liability. The maximum amount applicable pursuant to clause 9.2. refers 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.
9.4 If a law firm is commissioned, the limitations of liability pursuant to Sections 9.1. and 9.2. shall also apply in favor of all lawyers working for the law firm (as its partners, managing directors, employed lawyers or in any other capacity).
9.5 The lawyer shall only be liable for third parties (in particular external experts) who are neither employees nor partners and who have been commissioned with individual partial services with the knowledge of the client in the course of the provision of services, if they are at fault in their selection.
9.6 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.
9.7 The lawyer shall only be liable for knowledge of foreign law if this has been agreed in writing or if he has undertaken to examine foreign law. EU law is never considered foreign law, but the law of the member states is.
10 Statute of limitations and preclusion
10.1 Unless a shorter period of limitation or preclusion applies by law, all claims against the lawyer shall lapse if they are not asserted in court by the client within six months (if the client is an entrepreneur within the meaning of the Austrian Consumer Protection Act) or within one year (if the client is not an entrepreneur) from the time at which the client becomes aware of the damage and the person causing the damage or of the event otherwise giving rise to the claim. If the client is a consumer, this does not apply to warranty claims - the statutory limitation period of two years applies.
10.2 All claims against the lawyer shall lapse at the latest five years after the conduct (infringement) causing the damage (giving rise to the claim), even without knowledge of the damage and the injuring party.
11. legal expenses insurance of the client
11.1 If the client has legal expenses insurance, he shall inform the lawyer thereof without delay and submit the required documents (if available).
11.2 The disclosure of legal expenses insurance by the client and the lawyer's obtaining of legal expenses insurance coverage shall not affect the lawyer's fee claim against the client and shall not be regarded as the lawyer's agreement to be satisfied with the fee paid by the legal expenses insurance.
11.3 The lawyer shall not be obliged to claim the fee directly from the legal expenses insurance, but may demand the entire fee from the client.
12. termination of the mandate
12.1 The mandate may be terminated by the lawyer or the client at any time without notice and without giving reasons. The lawyer's fee claim shall remain unaffected.
12.2 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 apply if the client revokes the mandate and expresses that he does not wish the lawyer to continue working for him.
12.3 If the lawyer or the client terminates the mandate in a lawsuit with an attorney's duty and the client does not immediately announce a new representative, the lawyer shall only be obliged to forward court documents to the client. There is no further obligation, in particular to take legal action.
13. obligation to surrender
13.1 Upon termination of the attorney-client relationship, the lawyer shall return the originals of documents to the client upon request. The lawyer shall be entitled to retain copies of these documents.
13.2 If the client requests further documents (copies of documents) after the end of the mandate, which he has already received in the course of the mandate, the costs shall be borne by the client.
13.3 The lawyer shall be obliged to retain the files for a period of five years from the termination of the mandate and to provide the client with copies during this period if required. Section 13.2 shall apply to the bearing of costs. If longer statutory periods apply to the duration of the retention obligation, these shall be complied with. The client agrees to the destruction of the files (including original documents) after expiry of the retention obligation.
14 Choice of law and place of jurisdiction
14.1 The Terms and Conditions of Engagement and the client relationship governed by them shall be subject to Austrian substantive law to the exclusion of the conflict of law rules.
14.2 For legal disputes arising from or in connection with the contractual relationship governed by the Terms and Conditions of Contract, including disputes regarding its validity, the exclusive jurisdiction of the competent court at the registered office of the lawyer shall be agreed, unless this is contrary to mandatory law.
However, the lawyer shall also be entitled to bring claims against the client before any other court in Austria or abroad in whose jurisdiction the client has his registered office, domicile, branch office or assets. With respect to clients who are consumers within the meaning of the Austrian Consumer Protection Act (Konsumentenschutzgesetz), the jurisdiction provision of § 14 of the Austrian Consumer Protection Act shall apply.
15. final provisions
15.1 Amendments or supplements to these Terms and Conditions must be made in writing in order to be valid, unless the Client is a consumer within the meaning of the Austrian Consumer Protection Act. This shall also apply to any waiver of the written form requirement.
15.2 Unless the client is a consumer, statements made by the lawyer to the client shall in any case be deemed to have been received if they are sent to the address communicated by the client when the mandate was granted or to the changed address communicated subsequently in writing. Unless otherwise agreed, however, the lawyer may correspond with the client in any way he deems appropriate.
Declarations to be made in writing in accordance with these Terms and Conditions of Contract may - unless otherwise specified - also be made by fax or e-mail.
Unless otherwise instructed in writing by the client, the lawyer shall be entitled to conduct e-mail correspondence with the client in unencrypted form.
in unencrypted form. The client declares that he is aware of the associated risks (in particular access, confidentiality, alteration of messages in the course of transmission) and agrees, in full knowledge of these risks, that e-mail correspondence will not be conducted in encrypted form.
15.3 If the client has named a contact person to the lawyer, such as an employee/officer in the company or a third party, the lawyer may assume that orders from this employee/officer or third party are binding and are made on behalf of the client.
15.4 The client expressly agrees that the lawyer may process, transfer or transmit (within the meaning of the Data Protection Act) the personal data relating to the client and/or his company 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 of the lawyer (e.g. participation in electronic legal transactions, etc.). The lawyer's data protection declaration applies, which can be viewed and downloaded at any time at www.allmayer.at.
15.5 The invalidity of one or individual provisions of these Terms and Conditions of Contract or of the contractual relationship governed by the Terms and 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 economic effect of the invalid provision(s). The GTC can be viewed and downloaded at any time at www.allmayer.at. The German version of these GTC shall prevail.