1.1. These terms and conditions apply to all activities and judicial/official as well as extrajudicial acts of represen-tation which are undertaken in the course of a contractual relationship existing between the lawyer Dr. Oliver Peschel (hereinafter referred to simply as “lawyer” or “attorney”) and the client (hereinafter also referred to as “client”).
1.2. These terms and conditions shall also apply to new mandates unless otherwise agreed in writing.
2. Mandate and power of attorney
2.1. The lawyer is entitled and obliged to represent the client to the extent that this is necessary and expedient for the fulfilment 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 changes or the consequences thereof.
2.2. Upon request, the client shall sign a written power of attorney to the lawyer. This power of attorney may be directed at the performance of individual, specific or all possible legal transactions or acts.
3. Principles of representation
3.1. The lawyer shall represent the client in accordance with the law and shall represent the rights and interests of the client in relation to all persons with zeal, loyalty and conscientiousness.
3.2. The lawyer is in principle entitled to perform his services independently at his own discretion and to take all steps, in particular to use means of attack and defence in any way, as long as this does not contradict the mandate of the client, his conscience or the law.
3.3. If the client instructs the lawyer, whose observance is incompatible with the principles of the proper exercise of the profession of lawyer based on law or other professional law (e.g. the “Richtlinien für die Ausübung des Rechtsanwaltsberufes” [RL-BA] or the ruling practice of the “Richtlinien für die Ausübung des Rechtsanwalts-berufes” [Guidelines for the Exercise of the Legal Profession] [RL-BA] or the ruling practice of the Appeals and Disciplinary Senates for Lawyers and Trainee Lawyers at the Supreme Court and the former Oberster Berufungs- und Disziplinarkommission für Rechtsanwälte und Rechtsanwaltsanwärter [OBDK]), the lawyer shall reject the instruction. If, from the lawyer’s point of view, instructions are inappropriate or even disadvan-tageous for the client, the lawyer must inform the client of the possibly 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 any action not expressly covered by the order placed or contrary to an instruction given, if this appears urgently necessary in the interest of the client.
4. Information and cooperation obligations of the client
4.1. After the mandate has been granted, the client is obliged to inform the lawyer immediately of all information and facts which might be of significance in connection with the execution of the mandate and to make all necessary documents and evidence available. The lawyer shall have the right to assume the accuracy of the information, facts, documents and evidence, provided that their inaccuracy is not obvious.
4.2. The lawyer has to work towards the completeness and correctness of the facts by questioning the client and/or other suitable means. The lawyer is also entitled here to assume the accuracy of the information, provided that its inaccuracy is not obvious.
4.3. During the term of a valid mandate, the client is obliged to inform the lawyer immediately after becoming aware of any changed or newly occurring circumstances which could be of significance in connection with the exe-cution of the assignment.
4.4. If the attorney acts as the contract constructor, the client is obliged to provide the attorney with all necessary information necessary for the self-calculation of the real estate transfer tax, registration fee and real estate income tax. If the lawyer carries out the self-calculations on the basis of the information provided by the client, he is released from any liability towards the client. The client, on the other hand, is obliged to indemnify and hold the lawyer harmless in the event of any loss of property if the client’s information proves to be inaccurate.
5. Confidentiality obligation, conflict of interests
5.1. The lawyer is obliged to maintain secrecy regarding all matters entrusted to him and all other facts of which he becomes aware in his professional capacity, the secrecy of which is in the interest of his client.
5.2. The lawyer is 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 secrecy.
5.3. The lawyer is only released from the obligation of secrecy to the extent that this is necessary to pursue the lawyer’s claims (in particular claims to 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 is aware that in some cases the lawyer is obliged by law to provide information or reports to the authorities without having to obtain the client’s consent; in particular, reference is made to the provisions on money laundering and terrorist financing as well as to provisions of tax law (e.g. Account Register and Account Inspection Act, GMSG etc.).
5.5. The client may at any time release the lawyer from the obligation of confidentiality. The release from confiden-tiality by his client does not relieve the lawyer of the obligation to verify whether his statement is in the interest of his client. The lawyer may maintain secrecy even in the event of a release from secrecy.
6. Attorney at Law’s Reporting Obligation
The lawyer shall inform the client, orally or in writing, to an appropriate extent, of the actions he takes in connection with the mandate.
7. Subauthorization and Substitution
The lawyer may be represented by a trainee lawyer or another lawyer or his authorised trainee lawyer (sub-authorisation). In the event of prevention, the lawyer may pass on the order or individual partial actions to another lawyer (substitution).
8.1. Unless otherwise agreed, the lawyer is 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 at least be entitled to the reimburse-ment of costs in excess of the lump-sum or time-based fee paid by the opponent, insofar as this can be made recoverable, otherwise the agreed lump-sum or time-based fee. If a time fee is agreed, the service will be charged per ten minutes.
8.3. If an e-mail is sent to the attorney by the client or his sphere of influence, the attorney is not obliged to read this without an explicit order. If the lawyer reads the e-mail sent, he is entitled to a fee for this in accordance with an express agreement for comparable services or in accordance with RATG or AHK.
8.4. In addition to the fee agreed with/due to the lawyer, the statutory value-added tax, the necessary and reason-able expenses (e.g. for travel costs, telephone, fax, copies) and the cash expenses paid on behalf of the client (e.g. court fees) shall be added.
8.5. The client acknowledges that an estimate made by the lawyer of the amount of the fee expected to be incurred, which is not expressly designated as binding, is not binding and should not be regarded as a binding cost estimate (as defined in § 5 para. 2 KSchG), because the extent of the services to be rendered by the lawyer cannot be reliably assessed in advance by its nature.
8.6. The client shall not be invoiced for the expense of invoicing and preparing the fee notes. However, this does not apply to the costs incurred by the translation of service specifications into a language other than German at the client’s request. In the absence of any agreement to the contrary, the expenses for letters to the client’s auditor written at the client’s request, in which, for example, the status of pending cases, a risk assessment for the formation of provisions and/or the status of open fees on the balance sheet date are stated, shall also be invoiced.
8.7. The lawyer shall be entitled at any time, but in any case monthly and quarterly, to issue fee notes and to demand advance payment of fees. The fee is due immediately after receipt of the fee note.
8.8. If the client is in arrears with the payment of all or part of the fee, he shall pay the lawyer default interest at the statutory rate of 4%. If the client is to blame for the delay in payment, he shall also compensate the lawyer for the loss actually incurred in excess thereof. Further legal claims (e.g. § 1333 ABGB) remain unaffected. For entrepreneurs, a default interest rate of 9.2% above the basic rate of interest is agreed.
8.9. All judicial and official costs (cash expenses) and expenses (e.g. due to purchased external services) incurred in the fulfilment of the mandate can be transferred to the client for direct payment. The client is obliged to pay these cash expenses immediately and shall indemnify and hold the lawyer harmless in the event of non-payment or late payment.
8.10. If the client has been granted a discount or rebate compared to the agreed fee (hourly rate / lawyer’s tariff / lump sum), the stated reduced invoice amount is only an offer to the client, which becomes invalid in the event of non-acceptance (through timely payment of the fee). If payment is not made on time, the lawyer is therefore entitled to invoice the originally agreed higher amount.
8.11. In any case, in particular in the case of the agreement of a fee in accordance with 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 or recognised as not being appropriate for the purpose of prosecution. This applies, for example, to applications for extension of time limits submitted in the name of the client, participation in certification bylaws, applications for evidence, preparatory pleadings, replicas, etc. If the lawyer attends a hearing for the client outside the place of the office, the lawyer may charge the client the double standard rate (Einheitssatz), even if the double standard rate is not awarded to the client by the court.
8.12. If several clients are repr one case, they shall be jointly and severally liable for all resulting claims of the lawyer, insofar as the lawyer’s services are not divisible from the mandate and were not clearly provided for only one client.
9. Liability of the lawyer
9.1. A liability of the lawyer for slightly negligent damage caused by his professional activity, excluding personal injury, is excluded. The following additionally applies to entrepreneurs: The lawyer shall not be liable to entre-preneurs for loss of profit, third-party damage, indirect damage and/or consequential damage.
9.2. Without prejudice to point 9.1 following shall apply: The lawyer’s liability arising from his professional activity, for example for incorrect preparation of contracts, legal advice or representation, is limited to the respective statutory minimum liability amount. According to § 21a RAO as amended, this is currently € 400,000 (in words: four hundred thousand euros). This limitation of liability does not apply to intentional or grossly negligent dam-age and personal injury. For consumers, this limitation of liability applies only to slight negligence (excluding personal injury) and only if the total exclusion of slight negligence under Clause 9.1, for whatever reason, should be ineffective.
9.3. The maximum amount applicable pursuant to Clause 9.2. includes all claims existing against the lawyer due to incorrect advice and/or representation, in particular claims for damages and price reduction. This maximum amount does not include the client’s claims for reimbursement of the fee paid to the lawyer. Any deductibles do not reduce liability. The maximum amount applicable pursuant to Clause 9.2. is relating to one damage-event. Where there are two or more competing injured parties (clients), the maximum amount for each injured party shall be reduced in proportion to the amount of the claims.
9.4. The lawyer is only liable for third parties (in particular external experts and substitutes) within the framework of the provision of the service and only for false negligent selection.
9.5. The lawyer is only liable to his client, not to third parties. The client is obliged to expressly point out this cir-cumstance to third parties who come into contact with the lawyer’s services as a result of the client’s interven-tion.
9.6. The lawyer is liable for the knowledge of foreign law only in the case of a written agreement or if he has made himself necessary to examine foreign law. EU law is never regarded as foreign law, but the law of the Member States is.
10. Legal expenses insurance of the client
10.1. If the client has legal expenses insurance, he must inform the lawyer immediately and submit the necessary documents (if available).
10.2. The announcement of a legal protection insurance policy by the client and the obtaining of legal protection coverage by the lawyer shall not affect the lawyer’s claim to a fee from the client and shall not be regarded as the lawyer’s consent to be satisfied with the fee paid by the legal protection insurance policy for his perfor-mance.
10.3. The lawyer is not obliged to claim the fee directly from the legal expenses insurance but can demand the entire fee from the client.
11. Trademark applications
11.1. In the context of a trademark application, complaints, queries and negative decisions in the examination pro-cedure can occur on the part of the respective trademark offices. The lawyer therefore does not guarantee success. Oppositions and invalidity proceedings may also be brought by other trademark owners. Should an identical or confusingly similar trademark be used or otherwise encroach upon the rights of third parties, trade-mark owners or persons entitled to the trademark may assert claims under civil law. The lawyer assumes no liability for this. In the absence of a special agreement, all services relating to complications in the registration procedure or claims by third parties are not part of a registration order and must be commissioned and remu-nerated separately.
11.2. In the case of trademark-identity or -similarity tests, only an assessment of the chances of success of a trade-mark registration can be made, but trademark offices and courts may reach different conclusions and possibly affirm a likelihood of confusion with other trademarks. In the absence of a special agreement, tests in the EU trademark register do not include the registers of all EU states. An application for a Union trade mark may give rise to oppositions or invalidity proceedings from national trade mark proprietors in all Member States. When national trademarks are applied for, oppositions or invalidity proceedings may be brought by Union trade mark proprietors. Objections by third parties of any kind cannot be excluded or prevented under any circumstances, as this is not within the lawyer’s sphere of influence.
11.3. A successful trademark registration or an application procedure without complications can under no circum-stances be guaranteed, as the course and outcome of a trademark procedure cannot be predicted.
11.4. In the absence of an individual agreement, the scope of services for trademark applications via www.easybrands.at includes only the legal services offered in the respective packages. If a pure (basic) trade-mark application is commissioned, the lawyer is not obliged to examine any grounds for non-registrability or third-party rights. The customer has the option of commissioning a trademark search or consultation at any time.
12. Statute of limitation/preclusion
12.1. All claims against the lawyer shall lapse if they are not asserted in court by the client within six months of the time at which the client becomes aware of the damage and the person causing the damage. If the client is a consumer, this does not apply to warranty claims – the statutory period of two years applies.
12.2. All claims against the lawyer shall lapse even without knowledge of the damage and the party causing the damage, at the latest five years after the event giving rise to the damage (event giving rise to the claim).
The client is entitled to use documents written by the lawyer in connection with the mandate. Any other use, in particular publication, requires the prior written consent of the lawyer. Unless expressly agreed otherwise in individual cases, the lawyer shall not grant any rights, in particular but not limited to copyrights and rights of use, to documents or other works written by third parties which the lawyer passes on or has passed on to the client in connection with the mandate.
14. Termination of contract
14.1. 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 remains unaffected by this.
14.2. In the event of dissolution by the client or the lawyer, the latter shall represent the client for a period of 14 days to the extent necessary to protect the client from legal disadvantages. This obligation does not apply if the client withdraws the mandate and expresses that he does not wish the lawyer to continue working.
14.3. If the lawyer or the client dissolves the mandate in a trial with attorney duty and the client does not immediately announce a new representative, the lawyer is only obliged to forward judicial documents to the client. There shall be no further obligation, in particular to set procedural actions.
15. Obligation to surrender
15.1. Upon termination of the contractual relationship, the lawyer shall upon request return the original documents to the client. The lawyer shall be entitled to retain copies of such documents.
15.2. If the client requests further documents (copies of documents) after the end of the mandate, which he has already received within the framework of the mandate processing, the client shall bear the costs.
15.3. The lawyer shall be obliged to keep the files for at least five years from the end of the term of office and to provide copies to the client, if necessary, during that period. Point 15.2 applies to the bearing of costs. Insofar as longer statutory periods apply for the duration of the storage obligation, these shall be complied with. The client agrees to the destruction of the files (including original documents) after expiry of the retention obligation.
16. Choice of law, place of jurisdiction and out-of-court settlement of disputes
16.1. Austrian substantive law shall apply to the exclusion of reference norms and the UN Convention on Contracts for the International Sale of Goods. If Article 6(1) of the Rome I Regulation is applicable, this choice of law, in accordance with Article 6(2) of the Rome I Regulation, does not deprive the consumer of the additional pro-tection afforded by the mandatory provisions of the law of the Member State of consumption.
16.2. The following applies to entrepreneurs: For legal disputes arising out of or in connection with the contractual relationship governed by the terms and conditions of the contract, including disputes regarding its validity, the exclusive jurisdiction of the competent court at the registered office of the lawyer in Vienna shall be agreed, unless mandatory law contradicts this. However, the lawyer is also entitled to bring claims against the client before any other court in Austria or outside, where the client has his registered office, domicile, branch or assets.
16.3. The following applies to consumers: Should disputes arise between the lawyer and the client regarding the fee, the client is free to demand that the fee be reviewed by the Vienna Bar Association. If the lawyer agrees to the review by the Bar Association, this will lead to an out-of-court review of the appropriateness of the fee free of charge.
16.4. Consumers also have the possibility to lodge complaints with the EU online dispute settlement platform: http://ec.europa.eu/odr. The lawyer will not and is not obliged to participate in any dispute resolution proceed-ings before a consumer arbitration body.
17. Communication and final provisions
17.1. Until otherwise agreed, the lawyer may correspond with the client in any way he deems appropriate, in partic-ular by e-mail with the e-mail address that the client provides to the lawyer for the purpose of communicating with him. If the client in turn sends e-mails to the lawyer from another e-mail address, the lawyer may also communicate with the client via this e-mail address if the client does not expressly reject this communication beforehand. The contract language is German.
17.2. Declarations to be made in writing in accordance with these Terms and Conditions may also be made by fax or e-mail, unless otherwise specified. Unless otherwise instructed in writing by the client, the lawyer shall be entitled to handle e-mail communication with the client in unencrypted form. E-mails, electronic contract dec-larations, other legally significant electronic declarations and electronic acknowledgements of receipt shall be deemed to have been received if the party for whom they are intended can retrieve them under normal cir-cumstances.
17.3. If the client has named a contact person to the lawyer, such as an employee/specialist in the company or a third party, the lawyer may assume that orders from this employee/specialist or third party are binding and are carried out on behalf of the client.
17.4. All subsidiary agreements, amendments or supplements to this contract must be made in writing in order to be legally effective; this also applies to the cancellation of this requirement for the written form.
17.5. Should any provision of these GTC be invalid, this shall not affect the validity of the remaining provisions. The general terms and conditions can be viewed and downloaded at any time at www.peschel.at/agb-datenschutz. The German version of these general terms and conditions remains the authoritative version.
18. DATA PROTECTION
18.1. The lawyer’s data protection declaration applies, which can be viewed and downloaded at any time at www.peschel.at/agb-datenschutz.
18.2. The client expressly agrees that the lawyer processes, transfers or transmits personal data relating to the client and/or his company (as defined by the Austrian Data Protection Act and the DSGVO) to the extent that this is necessary and expedient to fulfil the tasks assigned to the lawyer by the client or results from legal or profes-sional obligations of the lawyer (e.g. participation in electronic legal transactions, etc.).