Walfischgasse 12
1010 Vienna
Austria
Phone: +431 9577887
Fax: +431 957788720
1. Scope of Application
1.1 The Terms and Conditions for Contracts shall apply to all activities and acts of representation 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 MMag. Gustav Walzel, Attorney At Law (hereinafter simply referred to as “Lawyer”) and a client.
1.2 The Terms and Conditions for Contracts 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/to her in conformity with statutory provisions and represent the rights and interests of the client vis-a-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 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 Supreme Commission for Appeals and Disciplinary Measures for Lawyers or Trainee Lawyers) the lawyer shall reject the 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 oblieged 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 all facts by means of asking the client targetoriented 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 oblieged 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.
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 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.
5.5 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. Fees
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/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 § 5 (2) of the Austrian Consumer Protection Act
[KSchG]), 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 in 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 In the event that the client is an entrepreneur, an
invoice forwarded to 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 one
month of its receipt (receipt by the lawyer shall be the
decisive date).
8.8 In the event that the client is delayed in paying
all or the part of the fee, the
client shall pay interest on arrears to the lawyer in
the statutory amount, as a
minimum, however, 4% above the respectively applicable
basic interest rate. The
foregoing shall not affect any ffirther statutory claims
(e.g. pursuant to § 1333 of the
Austrian General Civil Law Code [ABGB]).
8.9 All expenses paid to courts or authorities (cash
expenses) and costs (e.g. for subcontracted
performances by third parties) may be forwarded to the
client the
discretion of the lawyer - 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 in every specific case, but amounts at
least to the insured sum
indicated in § 21 a of the Regulations Regarding
Lawyer's Practices
(''Rechtsanwaftsordnung') in its respectively valid
version. At present, the amount is
EUR 400,000.00 (in words: fourhundred thousand euros)
and EUR 2,400,000.00 (in
words: two million fourhundred thousand euros) for law
firms with the legal structure
of a limited liability company under Austrian law. In
the event that the client is a
consumer, 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. 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 When mandating a law firm, 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,
however, warranty claims in the event that the client is
not an entrepreneur as
defined in the Austrian Consumer Protection Act) against
the lawyer shall lapse,
unless the client has claimed them in court within six
months (in the event that the
client is an entrepreneur) or within one year (in the
event that that the client is not
an entrepreneur) 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. The lawyer shall draw the client's
attention to this fact.
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 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 and Conditions for Contracts 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 and
Conditions for Contracts, 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.
The provisions on the legal venue as defined in §
14 of the Austrian Consumer
Protection Act [KSchG] shall apply with regard to
clients who are consumers as
defined in the Austrian Consumer Protection
Act.
15. Final Provisions
15.1 Changes or amendments of the present Terms and
Conditions for Contracts
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.
15.2 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, unless provided otherwise.
Any communication that needs to be in written form
pursuant to the present Terms
and Conditions for Contracts 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 shall
state that he/she is aware of the attaching risks
(especially access, confidentiality,
alterations in communications in the course of
forwarding) and accepts – in full
awareness of these risks - that e-mail communication is
conducted in unencoded
form.
15.3 The client shall expressly agree that the lawyer
processes, provides or
communicates person-related data regarding the client
and/or client's enterprise (as
defined in the Austrian Data Protection Act) to such an
extent as this appears to be
necessary and expedient or results from statutory
obligations or duties under the
provisions on the exercise of the profession of legal
counseling (e.g. to take part in
the electronic legal data exchange, etc.), in order to
comply with the tasks for which
the client has retained the lawyer.
15.4 Whenever one or several conditions of the present
Terms and Conditions for
Contracts or of the contractual relationship governed by
the present Terms and
Conditions for Contracts 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.