1. Oberhammer Rechtsanwälte GmbH
Oberhammer Rechtsanwälte GmbH is a law firm with its seat in Vienna and the business address at Karlsplatz 3/1, 1010 Vienna, registered with the Commercial Court Vienna (Handelsgericht Wien) under FN 401614 i, with offices in Vienna and Wels (together with all of the partners, members, consultants, employees, contractors, owners, directors and associated entities of these persons and entities collectively “Oberhammer“).
2. Scope of Application | Engagement
2.1. It is agreed between the person who appoints Oberhammer as legal counsel ("Client") and the Oberhammer lawyer who communicates with the Client with reference to the General Terms of Engagement ("Terms") that unless expressly agreed otherwise in writing, the Terms shall apply to the relationship between the Client and Oberhammer and to any services which Oberhammer provides for or on behalf of the Client, thus to the entire contractual relationship between the Client and Oberhammer ("Engagement").
2.2. By engaging Oberhammer, the Client agrees that these Terms, together with any other agreements relating to Oberhammer's services on that matter, shall form the contract between the Client and Oberhammer for that particular matter ("Engagement Contract"), except if agreed otherwise in writing between the Client and Oberhammer. General terms and conditions, other conditions or forms of the Client will by no means be accepted or become part of the agreement.
2.3. These Terms 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 the Engagement Contract. The current Terms are also available on the website of Oberhammer (www.oberhammer.co.at).
2.4. If Oberhammer, at Client's request, provide services in connection with the Engagement to another individual or entity (“Associated Person”), the Client undertakes either (i) to accept the terms set out in the Engagement Contract on behalf of the Associated Person if the Client has authority to do so, or (ii) to ensure that each Associated Person enters into the same Engagement Contract with Oberhammer.
2.5. In addition, the Client must ensure that the Associated Person complies with the terms of the Engagement Contract with Oberhammer. The Client is liable to Oberhammer if an Associated Person does not comply with these terms.
3. Services and Scope of Work
3.1. Oberhammer will act as legal advisor in connection with the legal aspects of the Engagement as set out in the Engagement Contract. In addition, Oberhammer may, at the Client’s request and upon agreeing a budget therefor, provide other legal services that may become relevant during the Engagement.
3.2. Oberhammer will also not provide any non-legal advice, including, but not limited to, business, commercial, financial, technical, accounting or information technology matters. Unless expressly agreed in writing, Oberhammer shall not assume any tax or insurance law matters, including stamp duty and security matters, or foreign trade issues such as sanctions and embargos.
3.3. Should the legal framework or situation change after the Engagement has ended, Oberhammer shall not be obliged to inform the Client of these changes and/or its resulting consequences.
4. Power of Attorney | Representation
4.1. Oberhammer shall have the right and obligation to represent the Client to the extent necessary and expedient in order to comply with the Engagement. Oberhammer may, at its own discretion, take all steps as long as such steps are in the Client’s interest and not in conflict with the law. If requested, the Client shall sign a written power of attorney for Oberhammer.
4.2. Oberhammer shall in particular have the right to represent the Client regarding all matters in and out of court and vis-á-vis other authorities, to enter into a settlement, to receive money and monetary values on behalf of the Client and to validly acknowledge receipt thereof, to appoint representatives (substitutes) with the same or limited power of attorney, and to take all measures which Oberhammer and/or any Oberhammer lawyer as holder of such power of attorney and its substitutes deem(s) appropriate.
4.3. Ultimate responsibility for an Engagement lies with the Oberhammer partner or lawyer responsible for the specific matter. In addition, other professional staff, such as additional lawyers, legal assistants, including associates or paralegals, may work on the Engagement from time to time if and to the extent efficient and appropriate.
4.4. Oberhammer may also assist in the selection and engagement of third-party counsel or advisers but does not assume responsibility for the skills and performance of such persons. A third-party counsel, if any, may negotiate specific terms of engagement with the Client. Third party counsel will be directly responsible to the Client for the services to be provided by them.
5. Fee claim | Expenses
5.1. In the absence of any other agreement between Oberhammer and the Client, the fees of Oberhammer’s services in connection with the Engagement will be calculated on the basis of hourly rates, i.e. based on time actually spent.
5.2. In case of an agreement to charge fees based on an hourly rate, Oberhammer is entitled to charge also travelling time based on the rate agreed upon.
5.3. Alternatively, Oberhammer shall be entitled to charge rates according to the Notarial Tariffs / Attorneys’ Tariffs / General Criteria for Fees for services for which the rates under the Notarial Tariffs (“NTG”, e.g. for drawing up documents, contracts and other declarations), the Attorneys’ Tariffs (“RATG”, e.g. written pleadings, court hearings) or the General Criteria for Fees (“AHK”), are appropriate.
5.4. All fees are exclusive of value added (or similar) tax “VAT”, as applicable, and cash expenses. In addition, Oberhammer may further incur expenses such as travel expenses, board and lodging costs, any court and filing fees, translation expenses, notary and notarisation fees and costs for encrypted data transmission, all of which will be charged in addition at cost, together with applicable VAT.
5.5. Excerpts from the Commercial Register and the Land Register are charged according to the fees charged by the electronic databases but at least EUR 10.00 (plus VAT) per excerpt. For travel by car, EUR 0.60 will be charged per kilometre as well as parking fees and tolls. For train travel the first class can be used and charged. Photocopies are charged at EUR 0.50 per copy and EUR 1.00 per double-sided copy. For facsimile transmission EUR 0.50 per page will be charged. Postage will be charged according to actual expenditure. For overnight stays, the actual hotel costs of appropriate accommodation are charged; in case private accommodation is used, a lump sum of the amount of EUR 130.00 is charged.
5.6. Oberhammer reserves the right to increase the agreed hourly rates at the beginning of each calendar year by the consumer price increase (CPI 2015) of the last 12 months.
5.7. During the term of an Engagement, position of Oberhammer lawyers may change as a result of increased expertise, experience and seniority. This may lead to changes in individual fee rates of Oberhammer lawyers.
5.8. The Client agrees that any advance estimate made by Oberhammer of the extent of the services to be rendered by Oberhammer shall not be binding, unless expressly agreed otherwise in writing.
6. Fee Note | Billing Policy
6.1. The Client agrees to pay the fees and disbursements as set out in Oberhammer’s invoices. Even in the event of termination of the Engagement, Oberhammer is entitled to the fee that corresponds to the previous services. If the Client represents more than one party, the represented parties are jointly and solidly liable for the fees of Oberhammer.
6.2. Questions about the fee note should be asked immediately to the responsible Oberhammer lawyer. Otherwise, a properly submitted fee note shall be deemed approved unless the Client objects to it in writing within one month of receipt of the fee note.
6.3. Unless otherwise agreed, Oberhammer will issue invoices on a monthly basis and the fee notes shall be paid in euros upon receipt. In case fee is not paid within 30 (thirty) days after issuance, Oberhammer is entitled to statutory default interest in the amount of 4 %.
6.4. Oberhammer may demand advance payments on the fee from the Client for a future period, taking into account the expected expenditure of work. Any advance payments made will be credited against Oberhammer's regular fee bill.
6.5. Oberhammer will issue its invoice(s) to the client to the address last communicated by the Client or an address which can reasonably deemed by Oberhammer to be the Client’s official contact address. Any different delivery addresses must be agreed in writing with the Client. Upon request, the Client will notify Oberhammer of additional billing details, such as the appropriate VAT identification number.
6.6. The right of retention of the Client according to Section 1052 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch, hereinafter referred to as “ABGB”) is explicitly excluded.
7. Confidentiality | Data protection | Communication
7.1. Oberhammer will keep confidential all information about the Client’s business and affairs it receives in respect of the Engagement and any other matter on which the Client instructs Oberhammer to provide services.
7.2. In particular, Oberhammer will not disclose any such information to any other person except (i) with the Client’s consent, (ii) where disclosure is required or permitted by law, (iii) to anybody which regulates Oberhammer, (iv) to the extent that such information enters, or has entered, the public domain, or (v) to Oberhammer’s professional indemnity insurers, brokers, auditors or professional advisers.
7.3. The Client releases Oberhammer from the obligation of secrecy insofar as Oberhammer is entitled to disclose to third parties the name of the Client, the nature of the assignment undertaken and a description of the activities carried out by Oberhammer within the scope of this assignment, unless otherwise agreed or there is an overriding interest in secrecy on the part of the Client.
7.4. The documents created by Oberhammer (including correspondence and file notes) can only be released on the basis of a respective written agreement. Exempt hereof are documents which are intended to be filed in a publicly accessible part of a public registry.
7.6. The Client agrees to communicate with Oberhammer in a variety of ways, including communication by e-mail and internet. This electronic communication is known to imply various risks (such as delays or undeliverability, hacking, intervention by third parties, etc.). In case the Client prefers, generally or in specific matters, to use encrypted data transmission for the communication in any particular matter (or parts thereof), it should notify Oberhammer.
7.7. In addition, the Client agrees that Oberhammer works with web-based tools for reasons of cost efficiency and process optimization
8. Client Verification | Compliance Matters | Retention of Files
8.1. Before accepting any Engagement, Oberhammer will perform a thorough conflict check in order to determine whether it is able to act for the Client in accordance with applicable legal, professional and internal regulations. If the Client, at any time, becomes aware of an actual or potential conflict of interest, it shall notify Oberhammer immediately in writing.
8.2. If a conflict of interest arises during the Engagement and applicable, legal, professional and internal regulations prohibit Oberhammer from (further) acting for the Client, Oberhammer has the right to terminate the Engagement Contract in accordance with Section 11.
8.3. Pursuant to applicable anti-money laundering regulations, under certain circumstances, Oberhammer must comply with strict statutory client due diligence, monitoring, reporting and record keeping obligations. Oberhammer will separately contact the Client regarding the details of such identification and disclosure requirements.
8.4. Oberhammer will keep evidence of the Client verification (and copies thereof) even after termination of the Engagement due to legal requirements. Oberhammer may not act on the Client’s behalf and its legally required to renounce acting on the Client’s behalf if it does not receive appropriate evidence of identity within a reasonable time after a disclosure request.
8.5. Files are kept by Oberhammer in paper or electronic form. After the period stipulated by law, Oberhammer has the right to destroy such files and delete all information from Oberhammer’s IT systems without prior notice to the Client of such destruction or deletion.
9. Intellectual Property
9.1. Oberhammer’s work products generated in the course of the Engagement are solely addressed at the explicitly specified addressee. The Client has the right to use these documents prepared by Oberhammer for purposes of the Engagement and legitimate ancillary purposes. Any passing on and/or providing access to the work products of Oberhammer to a third party requires the prior written consent of Oberhammer; in such case these Terms, in particular its provisions referring to liability, are to be passed on.
9.2. Without express written agreement to the contrary, Oberhammer does not transfer any intellectual property rights, including copyright, or licenses in any documents or other materials prepared by third parties which are passed to the Client during the course of the Engagement.
10. Liability | Limitation of Liability
10.1. Oberhammer shall not be liable for damages, losses, expenses or other disadvantages caused as a result of slight negligence.
10.2. Further, except if and to the extent liability cannot be validly excluded under applicable law, Oberhammer shall not be liable for indirect and consequential damages, losses, expenses or other disadvantages or lost profit.
10.3. Subject to Sections 10.1 and 10.2, any liability of Oberhammer for all damages, losses, expenses and other disadvantages suffered, directly or indirectly, as a result of, or in connection with, Oberhammer’s advice under an Engagement of Oberhammer’s handling of a matter, shall be limited to EUR 6,000,000 (Euro six million). This limitation of liability shall not apply in case of Oberhammer acting with bad intent (Vorsatz) or blatant gross negligence (krass grobe Fahrlässigkeit).
10.4. Reversal of evidence according to Section 1298 sentence 2 ABGB is expulsed.
10.5. In case of business with consumers, the liability of Oberhammer for personal injury is unlimited and for all other damages as follows:
(i) Oberhammer is liable towards the Client for wrong advice, wrong representation or wrong other services in case of infringements of Oberhammer’s duties, if the damage occurred by Oberhammer or a person Oberhammer is responsible for on the basis of gross negligence or intent.
(ii) In case of slight negligence, liability of Oberhammer for wrong advice, wrong representation or other wrong services for infringements of Oberhammer’s duties is limited to the maximum amount of EUR 6,000,000.
10.6. The aforementioned limitations of liability are applicable to the benefit of all shareholders, managing directors, attorneys, associates or other employees working for Oberhammer Rechtsanwälte GmbH. No claim shall be brought against any partner, member, contractor, employee, consultant or agent of Oberhammer personally.
10.7. Oberhammer shall only be liable to the Client but not to any third party/-ies.
10.8. Information and/or advice given verbally or on the phone only cause liability as stated in these Terms in case such information and/or advice was confirmed by Oberhammer in writing.
11.1. Either party may terminate the Engagement at any time on written notice to the other party without stating reasons for the termination. The representation of the Client will terminate immediately upon the giving of this notice by either party, with the exception of those cases in which the immediate termination would endanger the interests of the Client. In the last-mentioned case, Oberhammer will continue to be at the Client’s service for another 14 days following receipt of the termination notice. Oberhammer's fee claim remains unaffected by this.
11.2. Sections 7 (Confidentiality, Data protection, Communication), 8 (Client Verification, Compliance Matters, Retention of Files), 9 (Intellectual Property), 10 (Liability, Limitation of Liability), 12 (Governing Law and Jurisdiction) and 13 (Miscellaneous) shall remain in force upon termination of the Engagement.
12. Governing Law | Jurisdiction
12.1. Subject to any other written agreement between Oberhammer and the Client, these Terms shall be governed by, and interpreted in accordance with, Austrian law, excluding the Austrian conflict of laws rules.
12.2. Subject to any other written agreement between Oberhammer and the Client, the competent courts of the first district in Vienna, Austria, shall have exclusive jurisdiction to settle any disputes, controversies or claims arising out of, or in connection with these Terms, or related to their creation, interpretation, validity, performance, violation, termination, or nullity.
13.1. These Terms shall be binding upon, and inure to the benefit of Oberhammer and the Client and their respective successors and permitted assigns. No party shall, nor shall it purport to assign, transfer, charge or otherwise deal with all or any of its rights and/or obligations under these Terms, nor grant, declare, create or dispose of any right or interest in them, without the prior written consent of the other party.
13.2. The illegality, invalidity or unenforceability of a provision of these Terms shall not affect the legality, validity or enforceability of any other provision of these Terms. Such invalid, unenforceable or unenforceable provision shall, to the extent permitted by law, be deemed replaced by a provision which, to the extent possible, carries out the original intent of the parties.
14. Locations of Oberhammer Rechtsanwälte GmbH
Oberhammer Rechtsanwälte GmbH operates and is accessible in Austria at the following locations:
Karlsplatz 3/1, 1010 Vienna
T: +43 1 5033000
F: +43 1 503300033
Location Upper Austria:
Dragonerstraße 67A, WDZ 10, Top 1.1, 4600 Wels
T: +43 7242 309050 100
F: +43 1 503300033