General Terms and Conditions, 30 October 2018
1. Scope of Application
The Terms and Conditions of Contract apply to all activities and judicial/official and extrajudicial representative actions which are carried out in the course of an existing and future contractual relationship („mandate“) between Schima Mayer Starlinger Rechtsanwälte GmbH, FN 499430 g, (Schima Mayer Starlinger Rechtsanwälte GmbH and the persons working for it as partners, substitutes or attorneys at law jointly „SMS“) and a client.
2. Mandate and Power of Attorney
2.1 SMS 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 termination of the mandate, SMS shall not be obliged to inform the client of any changes or the resulting consequences.
2.2 Upon request, the client shall sign a written power of attorney to SMS.
3. Principles of representation
3.1 SMS is generally entitled to perform services at its own discretion and to take all steps as long as this does not contradict the client’s order, the conscience of the person working for SMS or the law.
3.2 If the client issues instructions to SMS, the observance of which is incompatible with the principles of proper professional practice, SMS must reject the instructions. If, from SMS’s point of view, instructions are inappropriate for the client, SMS must inform the client of the consequences prior to implementation.
3.3 In the event of imminent danger, SMS shall also be entitled to take or refrain from any action not covered by the order placed or contrary to instructions given if this appears urgently necessary in the interest of the client.
4. Information and Cooperation
4.1 The client is obliged to inform SMS without delay of all information which could be of significance in connection with the execution of the mandate and to make available all necessary documents and evidence. SMS is entitled to assume the accuracy of the information, documents and evidence, unless their inaccuracy is questionable.
4.2 The client is obliged to inform SMS immediately after becoming aware of any changed or new circumstances which could be of significance in connection with the execution of the mandate.
5. Confidentiality, Data Protection
5.1 In accordance with the law and the following provisions, SMS is obliged to maintain confidentiality and to instruct and oblige its employees accordingly regarding all matters which become known to it in connection with its professional activities for the client.
5.2 SMS shall in any case be released from its obligation to maintain confidentiality insofar as this is required to pursue SMS’s claims (in particular fee claims) or to defend against claims against SMS (in particular claims for damages by the client or third parties).
5.3 Furthermore, SMS shall not be bound by the confidentiality obligation if the client releases SMS from this obligation or if the confidentiality obligation is overruled by statutory obligations. In particular, SMS is obliged to comply with the provisions on combating money laundering and terrorist financing. The release from confidentiality by the client does not relieve SMS of the obligation to protect the interests of the client as far as possible.
5.4 SMS may only pass on file contents, documents handed over by the client etc to third parties with the client’s consent, unless (i) there are legal obligations for disclosure, (ii) disclosure is necessary or expedient within the scope of the handling of the mandate, (iii) the documents handed over were handed over for the purpose of forwarding to courts or authorities or (iv) disclosure is necessary for the prosecution or defence of claims within the meaning of sections 5.2. and 5.3. If SMS acts as joint counsel or otherwise for several clients with their knowledge and agreement, consent is deemed to have been given to inform all clients or contract partners accordingly and to disclose information.
5.5 SMS is authorised to process personal data entrusted to it within the scope of the purpose of the mandate or to have such data processed by third parties. SMS undertakes to observe the best practices and legal obligations of the Data Protection Act and the GDPR. (Further details on the handling of personal data are explained in the privacy statement on the SMS website.)
5.6 The client acknowledges and agrees that the documents necessary for processing the commissioned service are processed automatically and stored in the document archives of the Austrian Bar and/or the Austrian Notary for the legally prescribed duration.
5.7 Unless otherwise agreed or unless SMS clearly has an objective overriding interest in confidentiality on the part of the client, SMS shall be entitled to disclose to third parties the name of the client and the type of mandate. To this extent, the client expressly releases SMS from its duty of confidentiality and expressly consents to the use of this data. Revocation of such consent is possible at any time. SMS will examine in each case whether the disclosure of this information could be detrimental to the client.
5.8 Documents prepared by SMS, including correspondence and file notes, are not intended for publication unless otherwise agreed in writing. They may therefore not be published in whole or in part in a document accessible to the public, on the Internet or in other media directed at the public or referred to in such publications. This does not apply to documents which are intended to be filed in a public register.
6. Obligation to Inform the Client
SMS shall inform the client of its actions in connection with the mandate to an appropriate extent, either verbally or in writing.
7. Sub-Authorization and Substitution
SMS may be represented by an associate/trainee (Rechtsanwaltsanwärter) or another attorney or such attorney’s authorised associate/trainee (sub-authorisation). In case of being prevented, SMS may pass on the mandate or individual subactivities to another lawyer (substitution).
8.1 In the absence of other agreements, SMS shall be entitled to receive an adequate fee.
8.2 If a lump-sum or a time-based fee was agreed, SMS shall at least be entitled to the excess amount by which the cost refund recovered from the opposing party is higher than such fee (to the extent this amount can be collected); otherwise, SMS shall receive the agreed lump-sum or time-based fee.
8.3 In addition to the fee due to/agreed with SMS, SMS shall be entitled to claim for value-added tax at the statutory rate, all required and appropriate expenses (eg, for traveling/commuting, telephone, telefax, copying) and the cash expenses incurred on behalf of the client (eg, court fees).
8.4 Fee estimates provided by SMS shall not be binding unless expressly declared as binding.
8.5 SMS shall have the right to issue invoices and to request advances on the fees at any time, in any event, however, at least once every quarter.
8.6 If the client is an entrepreneur, an invoice issued to the client shall be deemed to be approved, if and to the extent that the client does not expressly object in writing within one month upon receipt.
8.7 In the event of default in payment of the fee, the client shall pay default interest at the statutory rate, but at least 4% above the respective base interest rate.
8.8 All expenses paid to courts or authorities (cash expenses) and costs (eg, for sub-contracted performances by third parties) may be forwarded to the client – in the discretion of the lawyer – for direct payment by the client.
8.9 If a mandate is issued by several clients, they are jointly and severally liable.
8.10 The client’s claims for reimbursement of costs against the opponent are hereby assigned to SMS in the amount of SMS’s fee claim as they arise.
9.1 SMS’s liability for faulty advice or representation is limited to the insured sum available for the specific case of damage but amounts at least to the insured sum indicated in § 21a of the Lawyers’ Code of Conduct (Rechtsanwaltsordnung) in its respectively valid version. At present, the amount is EUR 2,400,000.00 (in words: two million four-hundred thousand Euros) for law firms organized as limited-liability company under Austrian law. This limitation of liability applies, if the client is a consumer, only in the case of slightly negligent infliction of damage.
9.2 The maximum amount applicable under section 9.1 relates to an insured event and includes all claims against SMS for incorrect advice and/or representation, in particular claims for damages and price reduction. Any deductibles do not reduce liability. Where there are two or more competing injured parties, the maximum amount for each individual injured party shall be reduced in proportion to the amount of the claims.
9.3 When mandating a law firm, the restrictions on liability pursuant to sections 9.1 and 9.2 also apply to the benefit of all other persons acting on behalf of the law firm (in their capacity as partners, managing directors, employed lawyers or in another function).
9.4 For individual sub-contracted services provided by third parties with the consent of the client in the course of SMS’s representation (especially external experts), who are neither staff members nor partners of SMS, SMS shall only be liable in case of fault in selecting the third party.
9.5 SMS shall only be liable to the client but not to third parties. The client shall be obliged to notify this circumstance to third parties who are or may be affected by the lawyer’s performance due to an act or a failure to act of the client.
9.6 SMS shall only be liable for the knowledge and examination of foreign law if agreed in writing.
10. Statute of Limitation/Preclusion
10.1 Unless a shorter period of limitation or preclusion applies by law, all claims against SMS shall lapse unless the client has claimed them in court within six months from the time at which the client becomes aware of the damage and the person of the injuring party or of the event otherwise giving rise to the claim, but no later than five years after the damaging (claim substantiating) conduct (infringement).
10.2 In the case of consumer transactions, all claims against SMS shall lapse unless the client has claimed them in court within one year from the date on which the client becomes aware of the damage and the person of the injuring party or of any other event giving rise to the claim. This does not apply to warranty claims. However, all claims against SMS shall lapse no later than five years after the damaging (claim substantiating) conduct (infringement).
11. Termination of the Mandate
11.1 SMS or the client may terminate the mandate at any time without observing a notification period and without giving any reasons. SMS’s fee claim shall remain unaffected by the foregoing.
11.2 In the event of a termination by any party, SMS shall continue to represent the client for another 14 days, to the extent necessary in order to protect the client against any legal detriment. This does not apply if the client revokes the mandate and states that it/he/she does not wish to obtain any further service by SMS.
12. Return of Documents
12.1 Upon termination of the contractual relationship, SMS shall return original documents to the client upon request. SMS is entitled to keep copies of these documents.
12.2 Whenever the client requests further documents or copies of such documents after termination of the mandate, which the client already received during the term of the mandate, the client shall bear the respective costs.
12.3 SMS is obliged to keep the files for a period of five years from the end of the mandate or a longer statutory period. The client agrees to the destruction of the files (including original documents) after expiry of the retention obligation.
13. Choice of Law and Jurisdiction
13.1 These General Terms and Conditions and the client/lawyer relationship governed by them shall be subject to Austrian substantive law.
13.2 Any and all disputes arising out of or in connection with the mandate, including, without limitation, a dispute as to the conclusion, validity or existence of the mandate shall be finally and exclusively settled before the Vienna Commercial Court. However, SMS 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. The provisions on the legal venue as defined in § 14 of the Austrian Consumer Protection Act shall apply with regard to clients who are consumers as defined in the Austrian Consumer Protection Act.
14. Final Provisions
14.1 Changes or amendments of the present 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.
14.2 Declarations made by SMS to the client shall in any case be deemed to have been received if they are sent to the address provided by the client at the outset of the mandate or to an alternate address. However, SMS may correspond with the client in any way it deems appropriate. Declarations to be made in writing in accordance with these order conditions may also be made by fax or e-mail.
14.3 Unless otherwise instructed in writing by the client, SMS shall be entitled to handle e-mail communication with the client in non-encrypted form. The client declares to be informed about the associated risks (in particular access, secrecy, change of messages in the course of transmission) and to agree, knowing these risks, that the e-mail traffic will not be carried out in encrypted form. At the client’s request, however, encrypted communication can be set up at any time.
14.4 The invalidity of one or more provisions of these terms and conditions or of the contractual relationship regulated by these terms and conditions 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 economic result.