General Terms and Conditions
of Harisch & Partner Rechtsanwälte GmbH
Otto Holzbauer-Straße 1, A-5020 Salzburg
These General Terms and Conditions of Contract (“GTCs”) apply to all clients for all activities, in particular for court / regulatory and out-of-court representation and consulting services provided to clients by Harisch & Partner Rechtsanwälte GmbH (hereinafter H&P), their agents and/or employees, unless agreed otherwise in writing in a given case. Clients also include any natural persons or legal entities belonging to the same group of customers as our clients, especially if they hold a share or are affiliated with same and H&P acts on behalf of such persons or entities by the agency of and / or on order by the respective client.
2. Contract and Power of Attorney
2.1 The scope of the contract depends on the agreement concluded with the client in a given case. However, H&P shall in any case be authorised to represent the client within the scope that appears necessary and expedient to fulfil the contract.
2.2 H&P may in any case reject or terminate contracts without stating reasons, even during an already existing contractual and / or representation relationship.
3. Principles of Representation
3.1 H&P shall be entitled to provide the services at its own discretion, and to take any measures, provided these are compliant with the contract, in the client’s interest and not in conflict with the law.
3.2 If the client issues an instruction to H&P, the compliance with which would be irreconcilable with statutory provisions, regulatory orders or the rules of professional conduct, H&P shall be entitled to reject the instruction. H&P shall further be entitled to reject instructions on the grounds that they can be inappropriate or disadvantageous for the client.
3.3 In the case of imminent danger, H&P shall be entitled to take or omit actions not explicitly covered by the contract or issued instructions, if this appears imperative in the client’s interests.
3.4 H&P shall be entitled, at its own discretion, to delegate contracts and representation services to other lawyers (in particular lawyers regularly cooperating with H&P); however, H&P shall remain liable to the client in such cases.
4. Client’s Collaboration Duties
The client shall be obliged to provide all information, documents, materials and evidence that may be required in connection with fulfilment of the contract to H&P promptly. H&P shall be entitled to assume the validity and authenticity of information, documents, materials and evidence thus received, without H&P being obliged to verify the same.
5. Intellectual Property
5.1 The copyright to all work results created by H&P in the course of fulfilment of the contract shall remain exclusively with H&P. The work results may be used only by the client and solely for the agreed purpose. The disclosure of work results to third parties shall require explicit written consent by H&P.
5.2 If work results are disclosed to third parties without the explicit written consent and without an explicit written assumption of liability by H&P, liability on the part of H&P, especially vis-à-vis such third parties, shall in any case be ruled out. In the event of any claims by third parties, the client shall hold harmless and indemnify H&P.
6. Obligation to Maintain Confidentiality, Data Processing
6.1 H&P shall be obliged to maintain confidentiality in accordance with the professional code of conduct with regard to all information disclosed within the scope of the contract.
6.2 Where necessary in order to pursue claims (in particular fee claims) by H&P or ward off claims (in particular claims for damages) against H&P, H&P shall be released from the obligation to maintain secrecy.
6.4 The client acknowledges that access to and confidentiality of fax and e-mail messages cannot be guaranteed absolutely. Notwithstanding the above, the client agrees to us corresponding with him by fax and e-mail, unless he explicitly instructs otherwise in a given case. H&P shall not be liable for any damages resulting from the risks of transmission of messages, in particular by fax or e-mail. Nor shall H&P be obliged to review and process such e-mails and their attachments that are merely sent in copy (“cc/bcc”) and without a separate, specific contract.
7.1 H&P shall be entitled to a reasonable fee for its services. Unless explicitly agreed otherwise, H&P shall be entitled to bill the fee at its own discretion in accordance with the provisions of the Austrian Rechtsanwaltstarifgesetz(RATG- Lawyers’ Fees Act) and the Autonome Honorarkriterien für Rechtsanwälte(AHK- Autonomous Fee Criteria for Lawyers), or on the basis of hours actually worked (billing at hourly rates). Where hourly rates are billed, H&P shall bill the usual hourly rates for the respective service unless specific hourly rates have been agreed. H&P shall be entitled to adjust these hourly rates reasonably from time to time, but at least annually.
7.2 A lump-sum fee may be agreed in a given case. If a lump-sum fee has been agreed and it turns out that such lump-sum fee is inadequate as a reasonable compensation due to circumstances occurring and / or emerging later that are beyond the sphere of control of H&P, H&P shall be entitled to bill the reasonable extra expenses in addition to the agreed lump-sum fee.
7.3 If the reimbursement of costs received from an opponent exceeds the fee, H&P shall also be entitled to the amount exceeding the billed fee.
7.4 Unless agreed otherwise, the fee shall be billed monthly or at the option of H&P at longer intervals. The fees receivable shall be payable promptly on service of the fee note. Payments by the client shall, unless verifiably agreed otherwise, be credited to the oldest fee note outstanding. In addition to the fee, sales tax (where applicable) shall be billed at the statutory rate. If sales tax is not billed (especially in the case of foreign clients) due to the legal situation, H&P reserves the right to bill sales tax in arrears in the event of a change in the legal situation.
7.5 H&P shall be entitled at any time to demand reasonable advance payments from the client. Fee quotes prepared at the client’s request for services to be provided in the future shall, unless explicitly assured otherwise, merely by non-binding estimates and shall not be binding quotes.
7.6 Fee notes that have been sent to the client shall be deemed accepted if the client does not object in writing within two weeks of receipt of the fee not (the date of receipt of the objection by H&P is decisive).
7.7 In the event of late payment of fees, default interest at a rate of 10% p.a. shall be deemed agreed. Any further claims for default (cf. Section 456 UGB- Austrian Business Code) shall remain unprejudiced. If a contract is awarded by multiple clients, they shall be jointly and severally liable to H&P for any fees receivable under the contract.
7.8 H&P shall be entitled to deduct outstanding and due fees from any payments received by H&P on the client’s behalf. H&P shall notify the client promptly of any set-off made. A set-off against fees receivable by H&P by the client shall only be permissible in the case of claims explicitly accepted in writing by H&P or ascertained finally by a court.
8. Cash Outlays
Cash outlays (including, e.g. costs for substitutes, travel expenses, translation costs, legalisation costs) shall be billed separately. Insignificant expenses (e.g.: costs for phone and fax communications, postage, Internet costs, costs for copies prepared internally, etc.) may be billed as a lump sum by H&P (“lump sum for cash outlays”).
9.1 H&P shall only be liable for intentional or grossly negligent breaches of the obligations entered into. Moreover, other than in cases of intent, the liability of H&P shall be limited to ten times the net fee paid for the respective contract, and in any case to a maximum of EUR 750.000,00- (in words: seven hundred and fifty thousand euros). Liability for loss of profit shall be ruled out entirely, where permissible by law.
9.2 The limitation of liability shall also apply to the benefit of all persons acting on behalf of H&P (as managers, employees, lawyers, substitutes or in another function), inasmuch as they are actually (directly) liable in a given case.
9.3 H&P shall not be liable for errors by third-parties contracted with the client’s knowledge within the scope of contract fulfilment (e.g. external expert witnesses).
9.4 Any claims for damages against H&P must be asserted by the client in writing within three months of becoming aware of the damage on pain of forfeiture. All claims for damages shall lapse three years after provision of the service by H&P establishing the damage, unless they have already been asserted in court by this time.
9.5 H&P shall not be liable for knowledge of foreign law, unless it was explicitly agreed that foreign law was to be included in the examination.
10. Legal Expenses/Liability Insurance
10.1 If the client has legal expenses or liability insurance, he must notify H&P thereof promptly and submit the necessary documentation (in particular the policy). It is the sole responsibility of the client to make the necessary insurance reports and to obtain confirmation of cover for the legal services to be provided by H&P from the legal expenses or liability insurance. H&P shall not be obliged to claim its fee directly from the legal expenses or liability insurance, and may request payment of the full fee by the client.
10.2 Even if the client has legal expenses insurance, H&P shall in any case be entitled to bill the fee as set out in Section 7. In this context, the client explicitly acknowledges that there is no guarantee that the legal expenses insurance will cover the fee of H&P in full.
11. Termination of the Mandate
11.1 The contractual relationship may be terminated by the client and by H&P without notice and without stating reasons, with immediate effect (in accordance with professional standards). The contractual relationship must be terminated in writing (or by fax or e-mail). Termination that is declared verbally shall not be effective until confirmed in writing (or by fax or e-mail).
11.2 H&P shall be entitled to remuneration for all services provided until termination of the contractual relationship, as well as any services dutifully provided thereafter. This also includes the expenses for preparing interim and final reports, as well as returning documents and materials to the client. H&P shall be entitled to keep copies of these materials inasmuch as this is permissible in accordance with the professional code, and inasmuch as this is necessary for billing of fees.
11.3 H&P shall only be obliged to keep the files for a period of five years as of termination of the contractual relationship, and to provide the client with copies at his expense on demand during that time. Any applicable longer statutory obligations to keep records shall remain unprejudiced.
12. Governing Law, Venue
12.1 All agreements concluded with H&P shall be governed exclusively by Austrian substantive law, excluding the conflict-of-law rules of international private law.
12.2 The sole venue for any legal disputes arising from or in connection with the contractual relationship shall be the competent court in rem in 5020 Salzburg. H&P shall, however, be entitled at its option to assert claims against the client at the court at any other (statutory) venue.
13.1 Should any provision of these GTCs or any agreements concluded between H&P and the client be or become void, unenforceable and/or invalid, this shall not result in nullity, unenforceability and/or invalidity of the entire GTCs. The void, unenforceable and/or invalid provision shall be replaced by a valid provision that covers the party’s intention most closely.
13.2 Declarations by H&P to the client shall in any case be deemed received if sent to an address, fax number or e-mail address provided by the client.
Revised May 2018