GENERAL TERMS AND CONDITIONS OF ENGAGEMENT (AAB)
All consulting orders and mandates placed with us are exclusively based on the following General Terms and Conditions of Contract (GTC):
§ 1 Scope of Application
1. These General Terms and Conditions apply to contracts between FEHN Legal RECHTSANWÄLTE STEUERBERATER Partnerschaftsgesellschaft mbB Köln Düsseldorf Hamburg, Konrad-Adenauer-Ufer 65, D-50668 Cologne (hereinafter: “Contractor”) and the Client (hereinafter: “Client”), unless otherwise expressly agreed in writing or mandatory by law.
2. The scope of these General Terms and Conditions of Business shall extend – subject to effective inclusion – to both existing and all future legal relationships between the Contractor and the Client, in particular also in the event of an amendment or extension of an existing order (mandate).
3. If, in individual cases, persons other than the Client fall within the scope of protection of the contractual relationship or if contractual relationships between the Contractor and such third parties are established in another manner, the provisions of these General Terms and Conditions of Business shall also apply to such third parties.
4. business conditions of the client shall only apply if this has been expressly agreed in writing.
§ 2 Scope and execution of the order
1. The scope of the services to be rendered by the Contractor shall be determined by the order placed. The order shall be executed in accordance with the principles of proper professional practice. The subject of the order is only the agreed service, not a specific legal or economic success.
2. The examination of the correctness, completeness and regularity of the documents, information and figures provided to the Contractor by the Client for the execution of the order, including the bookkeeping and balance sheet, shall only be part of the order if this has been expressly agreed in writing. Otherwise, the Contractor shall be entitled to assume that the facts, including figures, stated by the Customer are correct.
3. The Contractor shall be obliged to provide the Customer with the necessary information, to provide information on the status of the matter upon request and to render account.
4. The Contractor shall execute the order only under consideration and examination of German law. If it is necessary to take foreign law into account, the Contractor shall inform the Customer thereof. 5.
5. If the legal situation changes after the final professional statement has been made, the Contractor shall not be obliged to inform the Client of any changes or of any consequences resulting therefrom.
6. The order does not constitute a power of attorney for representation before authorities, courts and other bodies. Such a power of attorney shall be issued separately. If, due to the Client’s absence, it is not possible to coordinate the filing of appeals or legal remedies, the Contractor shall, in case of doubt, be entitled and obligated to act in a timely manner.
7. The Customer shall not be entitled to have its order processed by a particular partner or employee within the Contractor, unless expressly agreed otherwise in writing. The assignment of tasks within the Contractor shall be the sole responsibility of the Contractor.
8. The Contractor shall be entitled to place orders with third parties (e.g. experts, subcontractors, etc.) for the execution of the order if this is necessary for the proper fulfillment of the order. Insofar as this results in additional costs for the Client, this shall only be permissible with the prior consent of the Client. § 3 remains unaffected.
§ 3 Confidentiality obligation; data protection
1. The Contractor and its employees shall be obliged in accordance with the law to maintain secrecy about all facts which come to their knowledge in connection with the execution of the order, unless the Customer expressly releases the Contractor from this obligation. The duty of confidentiality shall continue to exist after termination of the contractual relationship.
2. The obligation to maintain secrecy shall not apply if disclosure is necessary to protect the legitimate interests of the Contractor or if the Contractor is obliged to provide information and to cooperate in accordance with the terms and conditions of its professional liability insurance. 3.
3. Statutory rights to information and rights to refuse to give evidence shall remain unaffected.
4. The Contractor may only hand over reports, expert opinions and other written statements on the results of its activities to third parties with the consent of the Client.
5. There shall be no obligation to maintain secrecy insofar as this is necessary for the performance of a certification audit in the office of the Contractor and the persons commissioned have in turn been instructed on the obligation to maintain secrecy.
6. Within the scope of the contractual relationship, the Contractor shall be entitled to collect personal data of the Client and to process such data electronically or to transfer such data to a service computer center for data processing in compliance with the statutory provisions of data protection law.
7. The Contractor shall observe the confidentiality obligation when sending or transmitting all documents on paper, by fax or in electronic form. For its part, the Customer shall ensure that it, as the recipient, also observes all security measures so that the papers or files sent to it are only received by the offices responsible for this. If special precautions are to be taken which go beyond the normal measures, an express written agreement shall be made on this.
§ 4 Communication
1. The address and communication data provided by the client at the beginning of the mandate shall be deemed to be correct until the client has made any changes. The Contractor shall be informed immediately of any changes, as well as of absences during which the Client cannot be reached. Insofar as the Contractor sends documents to the address provided, it thereby fulfills its duty to inform. 2.
2. If the Client provides e-mail addresses and/or fax numbers as address data at the beginning of the mandate, the Contractor may also send information via these means of communication to the specified address data of the Client until expressly revoked, unless the Client expressly objects to this method of transmission.
3. If the Customer provides an e-mail address, the Customer expressly agrees that messages may also be transmitted to it in unencrypted form. If an encrypted transmission of e-mails is to take place, a written agreement in accordance with § 3 No. 7 Sentence 3 shall be required.
4. § 4 No. 2 and No. 3 shall also apply mutatis mutandis to other electronic forms of communication and media, insofar as the Client expressly or impliedly agrees to their use.
5. It is expressly pointed out to the Principal that confidentiality cannot be guaranteed when using fax and electronic media (e-mail, SMS, etc.).
§ 5 Liability; Limitation of Liability
1. The Contractor shall be liable for its own fault as well as for the fault of its vicarious agents.
2. In the absence of a separate written agreement, the Customer’s claim against the Contractor for compensation for damage caused by simple negligence pursuant to § 5 No. 1 shall be limited to € 4,000,000 (in words: four million euros). Liability claims for damage caused intentionally or by gross negligence as well as for damage resulting from injury to life, body or health are expressly excluded from this limitation of liability. 3.
3. the professional liability insurance required by law for the admissibility of the limitation of liability according to § 5 No. 2 pursuant to § 52 Para. 1 Sentence 1 No. 2 BRAO exists for the contractor with Allianz Versicherungs AG, 10900 Berlin under the insurance no.: GHV 90/0453/9045830/230.
4. the client is expressly informed of the possibility that he can have the contract-typical risk exceeding the amount mentioned in § 5 No. 2 insured separately at his own expense or that he can at any time request the contractor to increase the liability sum by taking out a corresponding insurance policy at the expense of the client.
§ 6 Limitation
1. Insofar as a claim for damages on the part of the Customer is not subject to a shorter limitation period by virtue of the law, it shall become statute-barred
a) three years from the date on which the claim arose and the Customer became aware of the circumstances giving rise to the claim and the person of the debtor or should have become aware without gross negligence, and
b) without regard to knowledge or grossly negligent lack of knowledge in six years after termination of the contract.
2. expressly excluded from the provisions of § 6 No. 1 are liability claims for damage caused intentionally or by gross negligence and for damage resulting from injury to life, limb or health.
§ 7 Involvement of third parties
1. The Contractor shall be entitled to involve employees, expert third parties and data processing companies in the execution of the order and also to appoint a data protection officer in accordance with the Federal Data Protection Act, provided that these persons also undertake to maintain confidentiality in accordance with § 3.
2. The Contractor shall be entitled to provide general representatives as well as law firm processors or practice trustees with access to the files within the meaning of the relevant statutory provisions in the event of their appointment.
§ 8 Remedy of Defects
1. The Client shall be entitled to have any defects remedied by the Contractor. The Contractor shall be given the opportunity to remedy the defect in accordance with the statutory provisions.
2.If the Contractor fails to remedy the defects claimed within a reasonable period of time or refuses to remedy the defects, the Customer may have the defects remedied by another Contractor at the Contractor’s expense.
3. Obvious inaccuracies (e.g. spelling mistakes, miscalculations) may be corrected by the Contractor at any time, also vis-à-vis third parties. The Contractor may correct other defects vis-à-vis third parties with the Customer’s consent. Consent shall not be required if legitimate interests of the Contractor take precedence over the interests of the Customer.
§ 9 Duties of the Customer
1. The Customer shall be obliged to cooperate to the extent necessary for the proper completion of the order. In particular, the Customer shall provide the Contractor, without being requested to do so, with all documents necessary for the execution of the order in such a complete and timely manner that the Contractor has a reasonable processing time. The same shall apply to the provision of information on all processes and circumstances which may be of significance for the execution of the order. The Customer shall be obliged to take note of all written and verbal communications from the Contractor and to consult with the Contractor in the event of any doubt.
2. the client shall refrain from anything that could impair the independence of the contractor or his vicarious agents.
3. The Customer undertakes to pass on the results of the Contractor’s work only with the Contractor’s written consent, insofar as the consent to pass them on to a specific third party does not already result from the content of the order.
§ 10 Right of termination in the event of failure to cooperate or default of acceptance on the part of the Principal
If the Customer fails to cooperate in accordance with § 9 or defaults in accepting the service offered by the Contractor, the Contractor may terminate the contract without notice in accordance with § 14 No. 2 Sentence 2 and No. 3, provided that the Contractor has first unsuccessfully set the Customer a reasonable deadline for the performance of the act of cooperation or acceptance of the service and has pointed out the possibility of termination without notice after unsuccessful expiry of the deadline. This shall not affect the Contractor’s claim for compensation for the additional expenses incurred by it as a result of the Client’s failure to cooperate or delay in cooperation, or for the damage caused, even if the Contractor does not exercise its right of termination.
§ 11 Remuneration; Advance Payment; Set-Off
1. The remuneration (fees and reimbursement of expenses) of the Contractor for its professional activities shall be calculated in accordance with the statutory remuneration regulations applicable to the respective activity, unless a separate remuneration agreement is made. In the event that the remuneration is calculated in accordance with the statutory remuneration provisions, the Contractor shall not be obliged to inform the Client of the amount of the total costs incurred prior to the execution of the order; the Client shall expressly waive the right to economic information in this respect.
2. The Contractor shall be entitled to demand a reasonable advance payment on its remuneration. If the advance payment demanded is not paid, the Contractor may, after due prior notice, cease further work for the Client until the advance payment is received.
3.Offsetting against a remuneration claim of the Contractor shall only be permissible with undisputed or legally established claims. The prohibition of set-off shall not apply to counterclaims arising from the same contractual relationship, in particular to claims for costs of remedying defects within the meaning of § 8.
§ 12 Storage, surrender and retention of files, work results and documents
1. The Contractor shall keep the reference files for the period prescribed by law. However, this obligation shall expire before the end of the legally prescribed period if the Contractor has requested the Client in writing to take receipt of the reference files and the Client has not complied with this request within six months of receipt.
2. Upon request of the Customer, the Contractor shall return the reference files within a reasonable period of time. The Contractor shall be entitled to make and retain copies or photocopies of documents which it returns to the Customer.
3. all documents which the Contractor has received from or on behalf of the Client on the occasion of its professional activities shall belong to the reference files within the meaning of this provision. However, this shall not apply to the correspondence between the Contractor and the Client and to the documents which the Client has already received in original or copy as well as to the Contractor’s working papers prepared for internal purposes.
4. The Contractor shall be entitled to refuse to hand over the files and the results of its work until it has been satisfied with regard to its claims for remuneration and expenses from all work performed for the Client. This shall not apply insofar as the withholding would violate good faith according to the circumstances, in particular due to the relative insignificance of the amounts owed. The client shall be entitled to withhold an appropriate part of the remuneration until defects notified by the client in due time have been remedied.
§ 13 Several Clients
1. Several principals shall be jointly and severally liable for all claims of the Contractor within the legal relationship underlying the authorization, these GCS and any remuneration agreement.
2. Several clients shall be joint and several creditors vis-à-vis the Contractor.
The Contractor may rely on the information and instructions of each of several principals, unless one of them objects in text form. If the instructions of several principals contradict each other, the Contractor may terminate the contract without notice in compliance with § 14 No. 2 sentence 2 and No. 3 (good cause).
§ 14 Termination of the Contract
1. The contract shall end by performance of the agreed services, by expiry of the agreed term or by termination. The contract shall not be terminated by the death or incapacity of the principal or, in the case of a company, by its dissolution.
2. The contract may be terminated by either party for cause in accordance with the statutory provisions. The termination shall be made in text form. If this is to be deviated from in individual cases, a separate written agreement shall be required. 3.
3. In the event of termination of the contract by the Contractor, in order to avoid any loss of rights on the part of the Customer, such actions shall be taken as are reasonable and cannot be postponed (e.g. application for an extension of the deadline in the event of imminent expiry of the deadline). The Contractor shall also be entitled to remuneration for these actions and shall be liable in accordance with the provisions of § 5.
§ 15 Applicable Law; Place of Jurisdiction; Settlement of Disputes
1. Only German law shall apply to the order, its execution and the claims arising therefrom.
2. If the Client is a consumer and has his habitual residence outside Germany, the choice of law pursuant to § 15 No. 1 shall not result in the Client being deprived of the protection afforded to him by those provisions which, under the law of the country of his habitual residence, may not be deviated from by agreement.
3. Jurisdiction for actions against the Contractor or against the Customer due to obligations arising from the contractual relationship shall be determined according to the Contractor’s principal place of business (Cologne), if a specific branch office of the Contractor has been commissioned, according to the registered office of this branch office, if
a) the Client’s place of residence or business or habitual abode is unknown at the time the action is brought, or
b) the Customer is a merchant, a legal entity under public law or a special fund under public law and has its place of business in Germany, or
c) the Customer is an entrepreneur and has its place of business outside Germany, or
d) the Customer is domiciled outside a member state of the European Union.
4. the contractor is not willing to participate in dispute resolution proceedings before a consumer arbitration board within the meaning of the Consumer Dispute Resolution Act (VSBG).
§ 16 Effectiveness in the event of partial invalidity; amendments and supplements
1. The invalidity or unenforceability of one or more clauses shall not affect the validity of the remaining provisions of the agreement between the parties concerning the execution of the order. Should one or more clauses of the order agreement be or become invalid or unenforceable, the invalid or unenforceable clause shall be replaced by a valid or enforceable clause which comes so close in its economic effect to the invalid or unenforceable clause that it can reasonably be assumed that the parties would also have concluded the order agreement concluded between them with this valid or enforceable clause in the knowledge of the invalidity or unenforceability of the clause concerned. This shall apply mutatis mutandis in the event that the order agreement concluded between the parties contains a loophole, i.e. in order to close the loophole, the clause shall be deemed to have been agreed which corresponds to what would have been reasonably agreed by the parties according to the meaning and purpose of the order agreement with regard to the economic and legal purpose intended by the parties when viewed objectively, if the aspects not regulated had been considered by the parties.
2. Amendments and supplements to these Terms and Conditions of Contract must be made in writing. This shall also apply to any waiver of this written form requirement.
§ 17 Notification
These General Terms and Conditions of Contract shall be notified to the Customer by the Contractor electronically or in writing before the order is placed. In addition, these General Terms and Conditions of Contract can be accessed on the Contractor’s website www.fehn-legal.de -> General Terms and Conditions of Contract.
End of the General Conditions of Contract