Terms and conditions of DMLG – dr. meinhard Lukas gmbh

 

1. Scope of application

DMLG provides all services exclusively on the basis of the terms in hand. Divergent agreements must be drawn up in writing.

2. Mandate and fulfilment of the mandate

2.1. The subject matter and the scope of the mandate arise from the agreement with the client.

2.1.1 In legal opinions and legal advisory opinions a concrete legal question regarding facts stated by the Principal will be answered on the basis of relevant judicature and literature.

2.1.1.1 The correctness of the facts stated will not be verified by DMLG. Nonetheless, DMLG has reserved the right to deny the legal evaluation of implausible facts which are assessed from the point of view of DMLG. If DMLG finds out that the facts stated by the client do not correspond to the truth, DMLG is entitled to terminate the contract for cause immediately

(see paragraph 8.).

2.1.1.2. DMLG renders legal opinions exclusively based on strict scientific criteria and for which the outcome of the research is open and possible counter arguments and alternative legal viewpoints are disclosed. Results unfavourable for the legal viewpoint of the Principal are approved by the Principal when issuing a mandate.

2.1.1.3. Legal opinions and legal advisory opinions reflect the legal viewpoint of the respective legal expert, whereby a divergence of relevant judicature will be pointed out explicitly.

2.1.1.4. The Principal neither has the right to give instructions nor is he entitled to impinge on the reasoning and the results of the legal opinions and legal advisory opinions. The attempt of exertion of influence entitles the agent to terminate the contract of mandate for cause.

2.1.1.5. Except when otherwise stipulated, the Principal has the option to submit the legal opinions and the legal advisory opinions of DMLG to third parties. However, the Principal is obliged to submit the legal opinions and legal advisory opinions in its entirety.

2.1.1.6 Regardless of a possible submission (see above 2.1.1.5), legal opinions und legal advisory opinions are exclusively addressed to the Principal, which is also pointed out in the official copy. DMLG does not assume liability against third parties at all. (see also clause 7.6)

2.1.2. Legal analyses are exclusively determined for internal purposes of the Principal. In the course of such analyses, not only the decisive legal situation will be described, but also possible argument patterns will be outlined, legal risks of the Principal and possible strategies will be discussed.

2.1.2.1. Except when otherwise agreed in writing, the submission and the miscellaneous passing on of legal analysis is illegitimate.

2.1.2.2. Analyses provided at short notice and/or carried out with limited effort are marked separately. („First analysis“, „Cursory analysis“) Such analyses do not claim to be complete, they do not rely on sufficient research of literature and judicature and therefore, they are not a suitable basis for legal and economic dispositions of the Principal. Instead, these analyses should give the Principal a first impression.

2.1.3. In so far as DMLG provides specific services (such as research of judicature and literature, studying files, developing concrete legal arguments respectively objections, participating in meetings and so on) as a support of the work of attorneys, criminal defence lawyers, notaries, chartered public accountants, the sole responsibility to look after the legal interests of the Principal remains with the legal professional authorized for legal representation (e. g. attorney). Besides, DMLG does not assume any obligations of the legal professionals authorized for representation, even if the Principal has a direct contractual relationship with DMLG.

2.2. Even if the services provided by DMLG serve as a basis to look after the legal interests of the Principal, DMLG is not practising as a legal professional authorized for representation.

2.3. If the Principal is represented (e. g. by a lawyer), all statements of the representative are completely attributable to the Principal. Simultaneously, the Principal has to attribute the representative`s knowledge: Every statement of DMLG to the representative is deemed to be a statement towards the Principal.

3. Obligation of secrecy

3.1. DMLG is obliged to secrecy with regard to all matters entrusted to DMLG and to all facts coming out in the course of the fulfilment of the mandate, provided that the secrecy of those facts is in the Principal`s interest. As far as the services of DMLG serve as a basis for the work of legal professionals authorized for representation, the managing director, staff, subcontractors and substitutes are regarded as assistants of the legal professionals authorized for representation in procedural terms.

3.2. DMLG is entitled to empower all staff members, subcontractors and substitutes with the arrangement of matters regarding the mandate, provided that staff, subcontractors and substitutes have been informed of the obligation of secrecy.

3.3. In so far as the services provided by DMLG form the basis for the work of the legal professionals authorized for representation, the managing director, staff, subcontractors and substitutes are regarded as assistants of the legal professionals in procedural terms.

3.4. Only if it is necessary to pursue a claim of DMLG (especially remuneration claims) or to ward off claims (particularly damage claims of the Principal or third parties against DMLG), DMLG (managing director, staff, subcontractors, substitutes) is released from the obligation of secrecy.

3.5. The Principal may release DMLG from the obligation of secrecy at any time.

4. Conflicts of interests

4.1. DMLG has to examine, if there is a danger of a conflict of interests when carrying out the mandate.

4.2. DMLG is obliged to provide services in the same case for not more than one Principal, if there is a clash of interests between (potential) Principals or a serious danger of such a conflict.

4.3. DMLG is obliged to abandon its services towards two or all Principals concerned, if there is a conflict of interests between these Principals, if there is the danger of a violation of the obligation of secrecy or if the independence of DMLG impends to be affected. The services already provided by DMLG up to that point have to be charged regardless of the benefits for the Principal.

4.4. DMLG is obliged not to take over a new mandate, if there is the danger of a violation of the obligation of secrecy with regard to information entrusted by a former Principal or if the knowledge about the case of a former Principal would constitute an unjustified benefit for the new Principal.

5. Subcontractor/ Substitute

5.1. DMLG is entitled to engage subcontractors when carrying out services, given that subcontractors provide a comparable legal background or they are brought in to clear up specific preliminary or main legal questions.

5.2. DMLG is allowed to pass the mandate or particular partial action to another agent having a comparable legal background. (Substitution)

6. Terms of payment/ Remuneration

6.1. Basically DMLG concludes agreements on remuneration based on an hourly rate. In this case the invoicing will be accomplished on the basis of a transparent bill of quantity.

6.2. Global conclusions are only binding as far as a cost overrun does not seem inevitable subsequently. Inevitable cost overruns, as long as they are foreseeable, have to be shown by DMLG towards the Principal; otherwise DMLG loses the claims for additional work.

6.3. If no agreements on remuneration are concluded, DMLG claims remuneration based on an hourly rate which is appropriate to achievements in matters of legal opinion.

6.4. Sales taxes to the statutory extent, the necessary and appropriate extra charges (e.g. flight fees when flying Business Class, travel costs when going by train first class; cab, telephone, fax, copies) as well as various expenses such as fees for bringing in an external expert will be added to the remuneration of DMLG. The time exposure related to departure and arrival will be calculated on the basis of a half hourly rate. Concerning services provided in Vienna, no charges for departure and arrival and no expenses for time exposure are imposed in the case of a timely agreement on deadlines.

6.5. DMLG is entitled to issue an invoice at any time, at least monthly and to demand advances of remuneration. Immediately after receipt by the Principal, the invoice will fall due for payment.

6.6. If the Principal is entrepreneur, an invoice transmitted and itemised properly is deemed to be approved, if and as far as the Principal does not contradict in written form within one month following receipt of the invoice.

6.7. As far as the Principal is in default with paying back the whole or a part of the remuneration, he has to pay statutory default interest to DMLG, at least interest rate in the amount of 8 %. Additional statutory claims remain unaffected.

6.8. When placing an order by several Principals, all of them are liable for all thereof arising claims of DMLG.

7. Liability

7.1. Concerning the breach of duty of care when providing services, the liability of DMLG against Principals, who are entrepreneurs, is restricted to the sum insured (currently € 700.000,-) and available for the concrete damage event.

7.2. DMLG is ready to raise the sum insured and therewith the maximum amount of liability stated in clause 7.1., if the Principal is willing to assume the thereby related extra effort and expense.

7.3. The maximum amount of liability which is stated in clause 9.1 comprises all claims existing against DMLG for defective provision of services, in particular claims for compensation and price reduction claims. The maximum amount of liability under clause 9.1 refers to the insurance case. In the case of the existence of two or more competing aggrieved persons arising from one insurance case, the maximum amount is to be reduced for each aggrieved person according to the proportion of the amount of the claim.

7.4. DMLG is liable for third parties (particularly subcontractors respectively substitutes), empowered by DMLG to provide several partial services for selective fault only, if the Principal has been informed of using third parties which are neither staff members nor shareholders.

7.5. DMLG does not take on any liability of any kind for legal professionals authorized for representation having brought DMLG into the case as an expert, regardless of DMLG being empowered by them on their own behalf or on the behalf of their Principal.

7.6. DMLG is only liable towards its Principal, whereas not towards third parties. The Principal is obliged to expressively point out this circumstance towards third parties that have come into touch with achievements of DMLG.

7.7. Claims for damages against DMLG by Principals who are entrepreneurs prescribe within a year of the Principal having obtained knowledge of the damage suffered and of the person of the tortfeasor or of circumstances substantiating claims. However the statute of limitation ends longest upon expiry of five years after the damage causing behaviour or any other event which bases a claim.

7.8. DMLG is ready to extend the statute of limitation pursuant to clause 7.7 for a concrete mandate, as long as the indemnity insurer extends the insurance cover accordingly and the Principal assumes the thereby related extra effort and expenses.

8. Termination of the mandate

8.1. The mandate may be terminated by the Principal regardless of adherence to a time limit and without stating any reasons. In this case DMLG has a claim to remuneration pursuant to Article 1168 § 1 ABGB.

8.2. DMLG may terminate the undertaken mandates for cause, in so far as they involve the rendering of legal opinions, advisory legal opinions or legal analyses; mandates concerning miscellaneous services may be terminated regardless of cause under adherence to a time limit of 14 days, however not inopportunely.

8.3. If DMLG terminates the mandate for cause, the Principal will lose the right to use and to pass the provided findings to third parties.

9. Return of documents

9.1. After the termination of the contract of mandate original documents shall be returned by DMLG on the demand of the Principal. However DMLG is entitled to keep copies of the documents.

9.2. DMLG is not obliged – apart from original documents-retain files after the termination of the mandate.

10. Choice of law and jurisdiction

10.1. The terms and conditions of the mandate and thereby regulated contract of the mandate shall be subject to the Austrian substantive law.

10.2. With regard to legal disputes arising from or connected with the contract of mandate which is regulated by the terms and conditions of the mandate wherefore also disputes over the validity are included, the Principal shall agree to the exclusive competence of the pertinent court, located in Linz, unless barred by compelling reasons. However, DMLG is entitled to lodge a claim against the Principal before an alternative court in Austria or abroad, located in a judicial district of the place, domicile, establishment or capital of the Principal. Concerning Principals who are consumers, the choice of forum agreement according to Article 14 KSchG (Article 14 of the Consumer Protection Act) shall be applicable.

11. Final provisions

11.1. Modifications and supplements of the terms and conditions of the mandate have to be drawn up in writing, as far as the Principal is not a consumer.

11.2. Statements of DMLG addressed to the Principal are in any case deemed to be receipted when they have been sent to the address announced or to the address afterwards specified in writing and changed by the Principal. DMLG may correspond to the Principal in every way, which is suitable for DMLG unless otherwise determined. Statements may be issued by fax or e-mail unless otherwise agreed. Without a contrary written instruction by the Principal, DMLG is entitled to handle the e- mail communication with the Principal respectively with his/her legal professional authorized for representation in a non-encrypted form. The Principal shall state to be informed about the risks involving thereby (access, secrecy, modifications of messages in the course of conveyance in particular) and to bear the thereby related risks.

11.3. Hereby the Principal shall state expressively to agree to the processing, levying or transport of personal data concerning the Principal and/or its company in so far as it is necessary and appropriate to fulfil the mandate or as far as it arises from legal obligations.

11.4. The invalidity of individual or several provisions of these terms and conditions or contractual relationship governed by terms and conditions remains the validity of the agreement left unaffected. The contracting party is obliged to replace the invalid provision(s) by a regulation which is close to the economic result of the replaced one.