1. Scope of Application
1.1 These Terms of Engagement shall apply to all activities and acts of representation and consulting in court and out of court, as well as before authorities, which are undertaken in the course of a contractual relationship (hereinafter also referred to as “mandate”) between the lawyer/partnership (hereinafter also referred to “lawyer”) and a client.
1.2 The Terms of Engagement shall also apply to new mandates, unless agreed otherwise in writing.
2. Mandate and Power of Attorney
2.1 The lawyer shall have the right and obligation to represent the client to the extent that is necessary and expedient in order to comply with the mandate. In the event that the legal situation changes after the mandate has ended, the lawyer shall not be obliged to draw the client’s attention to these changes or the consequences resulting therefrom.
2.2 When so requested, the client shall sign a written power of attorney for the lawyer. The power of attorney may relate to the performance of individual, precisely defined or all possible legal services or acts.
3. Principles of Representation
3.1 The lawyer shall perform the representation entrusted to him/her in conformity with statutory provisions and represent the rights and interests of the client vis-à-vis all persons, applying diligence, loyalty and conscientiousness.
3.2 As a matter of principle, the lawyer shall have the right to provide the performance at his/her own discretion and to take all steps, especially to use all means of prosecuting and defending a case, as long as they do not conflict with the mandate with the client, the lawyer’s conscience or the law.
3.3 If the client issues an instruction to his/her lawyer, compliance of which is incompatible with the principles for the proper exercise of the profession of the lawyer, based on statutory provisions or other statutory regulations regarding codes of conduct (e.g. the “Richtlinien für die Berufsausübung der Rechtsanwälte”, i.e. the “Guidelines for the Exercise of the Profession of Lawyers”, or the common practice regarding awards of the Appeals and Disciplinary Senate at the Supreme Court and the former Supreme Commission for Appeals and Disciplinary Measures for Lawyers or Trainee Lawyers), the lawyer shall reject the instruction. In the event that the lawyer considers instructions to be inappropriate for, or even to the detriment of the client, the lawyer shall inform the client of the possibly negative consequences before carrying out the client’s instruction
3.4 In the event of imminent danger, the lawyer shall have the right to take or to refrain from an act, although this may not expressly be covered by the mandate, if this appears to be urgently required in the interest of the client.
4. Client’s Obligations to provide Information and to Cooperate
4.1 After the client has entered into a mandate, the client shall be obliged to provide the lawyer with all information and facts, without delay, which may be of significance for complying with the mandate, as well as to make accessible all required documents and means of evidence. The lawyer shall have the right to assume that the information, facts, documents, papers and means of evidence are correct, unless their incorrectness is obvious. The lawyer shall work towards obtaining complete and correct 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 apply to the correctness of supplementary information.
4.2 During the term of the mandate, the client shall be obliged to communicate to the lawyer all changed or newly arising circumstances that might be of significance in connection with the performance of the mandate, immediately after they have come to the client’s attention.
4.3 When the lawyer sets-up contracts, the client shall provide the lawyer with any information necessary for self-calculation of real estate transfer taxes, registration fees and real estate income taxes. As far as the lawyer performs this self-calculation of the aforementioned taxes based on the information provided by the client, the lawyer then shall be released from any associated liability. The client, however, is obliged to indemnify the lawyer in case of financial disadvantage , if the information provided by the client are shown inaccurate.
5. Obligation of Confidentiality, Conflict of Interests
5.1 The lawyer is bound by professional secrecy in 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 have the right to assign to all staff members the processing of matters, to the extent that there is proof that these staff members have been instructed of the obligation to maintain confidentiality.
5.3 The lawyer shall be released from the obligation of confidentiality only to the extent that is necessary in order to prosecute the lawyer’s claims (especially claims for the lawyer’s fee) or to defend claims against the lawyer (especially claims for damages by the client or third parties against the lawyer).
5.4 The client is aware that the lawyer, due to legal requirements, in some cases is obliged to provide information and notifications to public authorities without obtaining the client’s consent. Reference is made especially to provisions with respect to anti-money laundering and anti-terrorist financing as well as tax requirements (e.g. Kontenregister- und Konteneinschaugesetz, i.e. Account Registry and Account Audit Act, Gemeinsamer Meldestandard-Gesetz – GMSG, i.e. Common Reporting Standards Act, etc.).
5.5 The client may release the lawyer from the obligation of confidentiality at any time. This release from the obligation of confidentiality by the client does not release the lawyer from the obligation of verifying whether the lawyer’s statement is in the best interest of the lawyer’s client. When acting as a mediator, the lawyer shall exercise the right to confidentiality, despite his/her release from confidentiality.
5.6 The lawyer shall examine whether performance of the mandate creates the risk of conflict of interests under the terms of the Regulations Regarding Lawyer’s Practices (“Rechtsanwaltsordnung”).
6. The Lawyer’s Obligation to Inform the Client
The lawyer shall bring all actions taken in connection with the mandate to the attention of the client, in oral or written form, as well as in sufficient detail.
7. Sub-Authorization and Substitution
The lawyer may ask a trainee lawyer in lawyer’s services or another lawyer, or that lawyer’s authorized trainee lawyer, to represent the lawyer (sub-authorization). 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 Also, when agreeing on a lump-sum or time-based fee, the lawyer – in addition to the lawyer’s fee – shall at least be entitled to the cost refund recovered from the opposing party, to the extent that this amount can be collected; otherwise, the lawyer shall receive the agreed lump-sum or time-based fee.
8.3 The value-added tax at the statutory rate shall be added to the fee due to or agreed with the lawyer, as well as all required and appropriate expenses (e.g. for traveling/commuting, telephone, telefax, copying), and the cash expenses incurred on behalf of the client (e.g. court fees).
8.4 The client takes note of the fact that estimates, made by the lawyer and not expressly referred to as binding, regarding the anticipated amount of the fee are without engagement and cannot be regarded as a binding cost estimate (as defined by Sec 5 (2) of the Austrian Consumer Protection Act), since it is in the nature of the lawyer’s performance that its scope cannot be reliably assessed in advance.
8.5 The effort required for calculating the fee and preparing the invoice shall not be debited to the client. However, this shall not apply to the effort required for translating, upon client’s request, into another language than German the list of services provided. Unless there are other agreements, the invoiced amount shall include the service of drawing up letters upon the client’s request to the client’s chartered accountant which relate, for example, to the status of pending cases, or give an assessment of the risks for the purpose of setting aside provisions and/or reporting on the state of outstanding fees at a certain reporting date.
8.6 The lawyer shall have the right to send invoices at any random point in time, in any event, however, every quarter, as well as to ask for advances on the fee.
8.7 An invoice provided to the client and properly broken down into its various items shall be deemed to have been approved, if and to the extent that the client does not expressly oppose it in writing within 14 days of its receipt (receipt by the lawyer shall be the decisive date).
8.8 Term of payment is 14 days upon receipt of invoice. In the event that the client is delayed in paying all or a part of the fee, the client shall pay interest on arrears to the lawyer in the statutory amount of 4%. In case that payment is delayed due to the client’s fault, the client shall pay the statutory interest amounting 9.2 percentage points above the respectively applicable basic interest rate and shall compensate any exceeding damage that arises as a result. The foregoing shall not affect any further statutory claims (e.g. pursuant to Sec 1333 of the Austrian General Civil Law Code). Reminder fees of EUR 10.00 will be due and payable for every collection letter.
8.9 All judicial and official expenses (cash expenses) and costs (e.g. for subcontracted performances by third parties) incurred in fulfillment of the mandate may be forwarded to the client – at the lawyer’s discretion – for direct payment by the client.
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 claims arising to the lawyer in this connection.
8.11 Claims for cost refunds 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 have the right to inform the opposing party of this assignment at any time.
9. The Lawyer’s Liability
9.1 The lawyer’s liability for faulty advice or representation is limited to the insured sum available for every individual case. At present, the amount is EUR 2,400,000.00 (in words: two million four-hundred thousand euros). In case that the client is not an entrepreneur according to Sec 1 Austrian Consumer Protection Act, this restriction of liability shall only apply to events in which the damage is 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 comprise the client’s claims to receive back the fee paid to the lawyer. Possible deductibles do not reduce the liability. The maximum amount applicable pursuant to Section 9.1 relates to a single insured incident (including a “continuous incident”, which shall be treated as a single 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 law firm (in their capacity as 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 with the consent of the client in the framework of the lawyer’s performance (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 be obliged to expressly bring this circumstance to the attention of third parties who come into contact with the lawyer’s performance on account of the client’s efforts.
9.6 The lawyer shall be liable for any knowledge of foreign law only in the event of a written agreement, or if the lawyer offers to examine foreign law. EU law shall never be deemed to be foreign law, whereas this applies to the law of Member States.
10. Lapse / Preclusive Period
Unless the law stipulates a shorter term of lapse or preclusion, all claims (excluding warranty claims, unless the client is not an entrepreneur according to the Austrian Consumer Protection Act) against the lawyer shall lapse, unless the client has claimed them in court within six months 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 of the foregoing, 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.
11.3 The lawyer shall not be obliged 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 giving any reasons. The lawyer’s fee claim shall remain unaffected by the foregoing.
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 Surrender
13.1 The lawyer shall return the originals of documents after the mandate relationship has ended upon the client’s request. The lawyer shall have the right 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 this connection.
13.3 The lawyer shall be obliged to keep the files either electronically or as a hard copy 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 in analogy 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 Terms of Engagement 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, governed by the present Terms of Engagement, which shall also include disputes regarding its validity. However, the lawyer shall also have the right to file claims against the client at any other court in Austria or abroad, which has competency over the place at which the client has his/her seat, domicile, place of business, or property.
15. Information on the Processing of Personal Information
On your request, we are happy to send you information on the processing of personal information of our law firm by postal mail. This information is also available on our homepage for download at www.kt.at/privacy-notice. We reserve the right to amend and adapt the information on the processing of personal information to the factual circumstances as permitted by law, at any time. The information on the processing of personal information is not subject to the terms of our engagement.
16. Final Provisions
16.1 Changes or amendments of the present Terms of Engagement 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.
16.2 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, especially via e-mail sent to the e-mail address as provided by the client for communication purposes, unless provided otherwise. As far as the client sends e-mails from another e-mail address or instructs others to send e-mails from different e-mail addresses to the lawyer, the lawyer may communicate with the client via these e-mail addresses as well. Any communication that needs to be in written form pursuant to the present Terms of Engagement may also be forwarded by means of telefax 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 unencoded form. The client is aware of the attaching risks (especially access, confidentiality, alterations in communications in the course of forwarding) as well as of the possibility of using TrustNetz and accepts – in full awareness of these risks – that e-mail communication is conducted in unencoded form.
16.3. The Attorney-at-Law provides the Client with the option to encrypt the communication with the e-mail server of the Attorney-at-Law, to exchange secure attachments, or to securely transfer data via secure data exchange platforms (TrustNetz, Fabasoft Cloud). The Client is thus obliged to contact the Attorney-at-Law to agree an adequately secure mode of data transfer if the type and extent of data to be transferred in connection with the client relationship requires encryption (in particular, in the event of a transfer of special categories of data or of data, which is subject to the Attorneys-at-Law’s professional confidentiality obligation). The Attorney-at-Law is entitled to communicate with the Client via unencrypted e-mail unless agreed otherwise in writing. However, the Attorney-at-Law reserves the right to transfer data only subject to appropriate security measures to the extent this is required for the security of the transfer within the meaning of section 32 GDPR.
16.4. Whenever one or several conditions of the present Terms of Engagement or of the contractual relationship governed by the present Terms of Engagement 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.