TERMS AND CONDITIONS - AGB
Terms and conditions
§ 1 Scope of application
The following General Terms and Conditions apply to all orders placed by the client (hereinafter referred to as "client") of the law firm Dr. Thorn Rechtsanwälte PartG mbB alias THORN Law Firm (hereinafter referred to as "law firm").
The objects of an assignment are all kinds of legal activities such as the provision of advice or information, extrajudicial or judicial representation, agency services and litigation. It is not possible to mandate only one or individual attorneys of the firm. By any orders to THORN Law Firm or a single lawyer, only the law firm Dr. Thorn Rechtsanwälte PartG mbB is commissioned.
The scope of application of these General Terms and Conditions shall also extend to orders which do not relate to the activity of a lawyer as well as services and other activities which are assumed within the scope of an order.
The scope of application of these General Terms and Conditions shall extend to all future legal relationships with the client even without further reference.
Other terms and conditions, in particular those of the client, shall only be included in the client relationship if this has been expressly agreed in writing.
In the case of amendments to the General Terms and Conditions, the current version shall apply in each case; in the case of existing client relationships, the current version shall apply unless the client objects within a reasonable period of time.
§ 2 Establishment and scope of the mandate relationship
Enquiries to the Firm by e-mail, fax, telephone or any other means alone shall not constitute a client relationship.
The mandate shall only come into existence with the express and written acceptance of the request for a mandate by the Firm.
The mandate shall be executed by signing and returning the forms used and requested by the Firm.
The Firm reserves the right to refuse or not to respond to a request for a mandate if the applicant does not return these forms, or returns them incompletely or inadequately.
In the case of existing client relationships, the mandate may be given by verbal order.
In the case of unsolicited forms, the client relationship only comes into existence when the firm sends a written confirmation of the mandate.
Until the order has been accepted, the Firm remains generally free to decide whether to accept the mandate.
A client relationship shall not be established if enquiries are answered in general only within the context of information services.
Oral informations in the context of an initial consultation and telephone information are generally non-binding without written confirmation.
The scope of the client relationship is determined and limited by the specific mandate of the client.
The activity agreed in this respect is not the achievement of a certain legal or economic success.
The mandate is carried out by the Firm in accordance with the principles of proper professional practice to the best of its knowledge and belief, in particular in accordance with the provisions of the Federal Lawyers' Act and other professional regulations for lawyers.
The law firm is entitled to assign the mandate to other attorneys or specialists in whole or in part, if this appears appropriate for the processing of the mandate.
The firm is only obliged to lodge appeals if the client places an order to this effect, the firm accepts it and a calculated advance payment has been made.
A telephone or electronic order must always be confirmed by fax or letter.
An order does not have to be accepted by the Firm.
If several clients are represented by the Firm in the same matter, they are jointly and severally liable for payment of the statutory or agreed remuneration.
If several persons are authorized to represent the client, all of them shall be deemed equally authorized by the Law Firm to receive mandate-related declarations of intent and information. The same applies if in the same matter the client consists of several persons and one person is named as contact person.
§ 3 Changes in services
The Firm will always try to take into account the client's requests for changes with regard to the execution of the order, provided that this is reasonable for the law firm within the framework of its operational capacities and professional orientation, in particular with regard to effort and time planning and the consideration of the client's interests.
Within the framework of the specific execution of the assignment, the Firm shall consult with the Client on the objectives to be achieved, and shall be entitled to deviate from the Client's instructions if the circumstances permit it to assume that the Client would approve the deviation if it were aware of the facts of the case.
Insofar as the examination of the possibilities for changes or the realization of the desired changes have an effect on the contractual conditions, in particular on the expenses of the law firm or the time schedule, the parties agree on an appropriate adjustment of the contractual conditions, in particular with regard to remuneration and scheduling.
Unless otherwise agreed, and provided that this does not entail any direct disadvantages for the client, the law firm shall in this case continue its work to the original extent while safeguarding the interests of the client until the contract is adjusted. Otherwise, the Firm shall be entitled to terminate the client relationship.
§ 4 Client's obligations to cooperate
The client is obliged to support the Firm to the best of his ability during the execution of the mandate and to create all conditions necessary for the proper execution of the mandate. In particular, the Client undertakes to inform the Firm immediately and comprehensively of all facts relating to the mandate and to submit to it all documents relating to the mandate. In addition, the Client shall be obliged to immediately submit to the Firm any new documents received, found or any other documents connected with the Client and to inform the Firm of any new facts.
The law firm is entitled to take as a basis the facts, including figures, stated by the client. The Law Firm may always believe the client's data and does not have to carry out any further investigations.
The client further undertakes to contact courts, authorities, the opposing party or other parties during the term of the mandate only in consultation with the Law Firm.
The client undertakes to always read carefully the correspondence, written pleadings, expert opinions and the like provided to him and, in particular, to check whether the actual information contained therein is true and complete.
If this is not the case, the client must inform the firm immediately and comprehensively. The Firm may request that the corrections be made in writing.
The client must inform the law firm in good time and, if possible, in advance if he changes his address, telephone number, bank details, etc. or if he cannot be contacted for a longer period of time. This also applies in the event of changes to the company, the client's shareholding structure, legal form, etc. The new information must be submitted in writing to the Law Firm upon request.
§ 5 Data Protection, Confidentiality, Communication
The law firm is authorised to collect, store and process the personal data entrusted to it by the client within the scope of the purpose of the respective order, in compliance with the relevant data protection regulations. The firm may pass this data on to third parties and have them processed by them, insofar as it considers this to be expedient within the scope of the assignment or insofar as this is prescribed by law.
The Law Firm is obliged for an unlimited period of time to maintain secrecy regarding all information or business and trade secrets of the Client which have come to its knowledge in connection with the mandate. The Client expressly consents to the disclosure of information to employees of the Firm and to attorneys-at-law who are engaged in the performance of the mandate.
The information may only be passed on to a Correspondence Attorney with the client's consent. The transfer to third parties not involved in the execution of the mandate may only take place with the consent of the client.
The client expressly agrees that the law firm may pass on client information to the client's legal expenses insurance if the law firm has been instructed to correspond with the legal expenses insurance.
The law firm expressly points out that the client's obligation to pay the lawyer's fee does not cease when he takes over the correspondence with the legal expenses insurance.
The client expressly agrees to the use of e-mail and telephone as means of communication.
With regard to emails, the following is pointed out:
Emails contain confidential information and are intended only for the named recipient(s). Any unauthorized distribution or reproduction is prohibited. Statements made to the addressee are subject to the provisions of the underlying order, in particular these General Terms and Conditions of Mandate and, if applicable, the individual liability agreement. The content of the e-mail is only legally binding if it is confirmed by a letter.
The sending of e-mails shall not have any effect in compliance with the time limit.
The same applies to declarations and information provided by telephone.
Deliveries and deadlines can only be sent to the law firm by fax or letter with legal effect.
The law firm may assume in its correspondence that the communication data provided is and remains correct.
Changes of address (in particular changes of telephone number, fax number or e-mail address) must be notified immediately. Failure to do so may result in misdirection and delays, which may also lead to complete loss of rights.
The firm is authorised to send information to the client at this e-mail address when communicating an e-mail address without security measures (encryption), unless the circumstances would immediately indicate a threat to the interests of the client or the client objects or withdraws his consent to this procedure or otherwise announces a change in the communication data.
The Client is aware that in view of the electronic transmission of texts and data as well as any other communication in electronic form between the Client, the Firm and possible vicarious agents of the Firm, an absolute protection of trade and information secrets and other confidential data and information cannot be guaranteed, since it cannot be ruled out that unauthorised third parties may access the transmitted texts electronically.
Therefore, this means of communication is neither secure nor confidential.
The sending of information by e-mail is therefore at the sole risk of the client.
There is no guarantee that the client's e-mail request will reach the firm.
Although the firm checks its mailbox several times during normal office hours, no guarantee can be given that the e-mails sent will be received in good time.
§ 6 Obligation to retain records
According to § 50 BRAO, the law firm's obligation to keep all documents which the client or a third party has entrusted to the law firm for the purpose of executing the mandate, ends 5 years after the termination of the order. The law firm shall not be obliged to keep the documents for a longer period of time. This obligation expires before the end of this period if the firm has requested the client to receive the reference files and the client has not complied with this request within six months of receiving the request.
If documents are sent, this can be done to the address last communicated. The client bears the dispatch risk, unless he has objected to the dispatch and has made a binding commitment to collect the documents immediately. The law firm is entitled to refuse to hand over the goods as long as the client does not pay the fees in full. In accordance with § 50 BRAO, the obligation to surrender only extends to documents which the client has not already received in duplicate.
§ 7 Remuneration
The remuneration of the Firm shall be calculated in accordance with the provisions of the Rechtsanwaltsvergütungsgesetz (RVG - German Lawyers' Remuneration Act) as applicable from date of this Agreement or in accordance with a separate remuneration agreement, unless otherwise agreed.
In judicial matters, the Law Firm may not agree on any lower fees than the statutory fees.
In extrajudicial matters, the Law Firm may agree on lump-sum fees and time allowances which are lower than the statutory fees, § 4 para. 2 RVG.
(2) A fee payable according to the degree of success or only in the event of success is generally excluded.
To the extent that an individual remuneration agreement has not been concluded or has not been concluded effectively, the remuneration of the Law Firm shall be determined in accordance with the applicable statutory remuneration provisions for lawyers, in particular the RVG.
The settlement according to the RVG is generally based on the subject value of the mandate, in criminal cases framework fees and in exceptional cases flat-rate fees.
Where a time objective has been set, it should be understood as an estimate only.
Should the actual expenditure exceed this target by more than one third, the firm will inform the client accordingly.
An additional expense of up to one third of the estimate shall be covered and remunerated by the agreement.
If the client does not object to the continuation of the mandate, the parties agree on an appropriate adjustment of the contractual conditions, in particular with regard to remuneration and scheduling.
Should the client not accept an appropriate adjustment or should the parties not be able to agree on an adjustment, the firm shall be entitled to resign.
In this case, the time required by the firm to fulfil its duties to inform the client shall continue to be covered by the agreement and remunerated.
In accordance with § 9 RVG, the law firm is entitled to demand an appropriate advance payment for the anticipated fees/remuneration and expenses when the mandate is issued and to make the commencement or continuation of the activity dependent on its payment. The advance may consist of payment of the full expected remuneration.
Unless otherwise agreed, the firm is entitled to reimbursement of expenses and statutory value-added tax in addition to the fee claim.
Expenses for travel, meals, etc. are due and payable immediately without deductions upon invoicing and presentation of a copy of the invoice. Expenses for photocopies, communications, as well as literature, judgments, etc., which were purchased for a fee to process the mandate, shall become due immediately upon invoicing and payable without deductions.
Where an individual fee agreement exists, the Registry shall keep handwritten or computerised time records of the time taken to complete the mandate. These are used as the basis for the fee settlement after the agreed accounting period has expired. If no settlement period has been agreed, the Firm shall be entitled to settle accounts on a monthly basis.
In this case, the law firm is entitled to invoice the remuneration claim only on a pro rata basis even without special notice.
The portion not invoiced shall remain unaffected and may be invoiced in full at a later date.
If the client does not object immediately after receipt of the invoice, the time expenditure on which the cost note is based shall be deemed to have been approved.
The client may at any time request access to time records prepared by the firm.
If a mandate, which was initially settled out of court according to an individual remuneration agreement, is transferred to judicial proceedings, it shall not be offset against the statutory fees for the legal dispute.
All fee claims are due upon invoicing or after expiry of the objection period and are payable immediately without deductions.
The client expressly undertakes to pay to the institution and account number specified by the firm by bank transfer.
The transfer shall only be effective after the amount has been irrevocably credited to the account of the Law Firm and only in this amount.
This obligation also applies to clients who are not resident in the Federal Republic of Germany or whose head office is located abroad.
Payment orders, cheques and bills of exchange will not be accepted. Should such means of payment exceptionally be permitted, they shall only be accepted after all collection and discount charges have been invoiced and shall only be considered as fulfilment of the payment claim if the amount is redeemed and after which the amount is irrevocably credited to the account of the law firm.
The firm's fee claims shall exclude performance in lieu of and on account of performance.
In accordance with the legal provisions, the client is automatically in default 30 days after the due date, without the need for a special reminder or reminder from the law firm. From the 31st day after the due date, the Law Firm shall be entitled to charge interest on the amount of arrears at the statutory rate.
If the client is in default of payment to the firm, the firm is entitled to demand a reminder fee of EUR 5 per reminder. Further rights of the law firm, in particular to damages and interest on late payments, remain unaffected by this.
The client hereby transfers all claims for reimbursement arising from the client relationship against the opponent, the public purse or other third parties liable for reimbursement to the law firm in the amount of the claim for reimbursement and the expenses as well as value added tax by way of security with the authorization to notify the transfer in the name of the client.
The law firm will not collect the claim for reimbursement as long as the client meets his payment obligations, in particular does not refuse payment or is in default of payment or has filed an application for the opening of insolvency or composition proceedings against his assets.
The firm shall be entitled to set off incoming refund amounts and other payment amounts due to the client, which it receives, against outstanding fees or services still to be invoiced, insofar as this is legally permissible.
The law firm or the lawyer commissioned is exempt from the restrictions of § 181 BGB (German Civil Code).
Rights of use to contracts drawn up by the firm for the client and all other texts - regardless of the copyright qualification as a text work - are transferred exclusively under the resolutory condition of full and punctual payment of the agreed remuneration and expenses. If the client does not pay the agreed remuneration and expenses in full or on time as agreed, the firm has the right to object to any further use by the client.
The client shall only be entitled to offset a claim against a claim of the firm if the claim of the client is undisputed or has been finally and conclusively established.
The rights to which the client is entitled under the client relationship shall not be transferable without the prior written consent of the Firm.
8. Money laundering and terrorist financing
The Law Firm must comply with the Money Laundering Act ( Geldwäschegesetz - GwG). Pursuant to § 3 (1) GwG in conjunction with § 4 (3) GwG, the law firm is obliged to establish the identity of the client. If the client is a natural person, he/she must prove his/her name, place of birth, date of birth, nationality and address by means of a valid official identity document with a photograph. If the client is a legal entity or partnership, the identity shall be established by means of an extract from the commercial register or register of cooperatives or a comparable official register or register of foundation documents or equivalent conclusive documents. The law firm is also obliged to ensure through continuous monitoring of the business relationship that there is no suspicion that the origin and use of the assets are involved in money laundering or terrorist financing.
The Firm may accept assets provided by a third party only if the identity of such third party and the origin of the assets have been established in advance in accordance with the means described above.
The client undertakes not to transfer to the firm any assets, in particular those of third parties, without the firm's prior written consent. The client shall bear the costs associated with the identification.
If the Law Firm has reason to believe that the assets are involved in money laundering or terrorist financing, it will inform the competent authority. The client is aware that the Law Firm may not be able to provide him with information about this notification. The Client is also aware that the Law Firm may have to temporarily suspend the execution of the mandate without providing an explanation. Under these circumstances, the Law Firm has the right to terminate the mandate without notice.
§ 9 Limitation of liability
Unless an individual provision has been made, the limitation of liability shall apply:
The liability of the Law Firm and its attorneys or of the attorney or attorneys alone commissioned in individual cases (all mandates are exclusively concluded with the Law Firm, i.e. Dr. THORN Rechtsanwälte PartG mbB) from the mandate relationship for damages due to breach of contractual, pre-contractual and statutory main and ancillary obligations as well as the non-contractual fault-based liability is limited to EUR 1.000,000.00 per claim if the law firm or the attorneys commissioned by the law firm maintains the insurance cover stipulated in § 51a BRAO; this must be proven by the law firm at the client's request. In accordance with § 51a BRAO, the limitation of liability does not apply to grossly negligent or intentional damage, nor to liability for culpably caused damage resulting from injury to life, body or health of a person. The personal liability for damages is limited to the acting lawyer.
The above limitation of liability shall also apply to clients who conclude the mandate as entrepreneurs, i.e. in the exercise of their commercial or self-employed professional activity, as well as to legal entities under public law and special funds under public law with the proviso that the liability for gross negligence of ordinary vicarious agents of the firm is also limited to EUR 1,000,000.00, with the exception of liability for culpably caused damages arising from injury to life, limb or health of a person.
If, from the client's point of view, liability in excess of this amount is to be insured, there is the possibility of additional insurance for each individual case, which can be taken out at the client's request and expense. This must be taken out separately before the start of the mandate.
No liability is assumed for unsolicited content sent by e-mail, fax or other means. There is no claim to return.
The law firm works with technical procedures that do not yet allow cryptographic transmission and electronic signature of content. Anyone who transmits content without using appropriate security procedures himself therefore does so at his own risk.
§ 10 Statute of limitations
Any claims for damages by the client against the law firm or the lawyer shall become statute-barred within 2 years of their occurrence, but no later than 2 years after the termination of the mandate, unless the statute of limitations is earlier according to the law.
This statute of limitations does not apply in the case of grossly negligent or intentional damage, nor does it apply to liability for culpably caused damage resulting from injury to the life, body or health of a person.
In the cases mentioned in sentence 2, the claims shall become statute-barred in accordance with the statutory provisions.
§ 11 Termination
Unless otherwise agreed, the contractual relationship may be terminated by the client at any time. Notice of termination must be given in writing.
The law firm shall also be entitled to terminate the contract, whereby the mandate may not be terminated at an inopportune time, unless the relationship of trust necessary for the processing of the transferred mandate is permanently disturbed.
The right of termination pursuant to §§ 3 (2), 8 (4) shall remain unaffected.
Claims that have not yet been settled shall be settled immediately upon receipt of the notice of termination and are due immediately upon receipt of the invoice, unless otherwise stated therein.
The right to extraordinary termination for good cause remains unaffected.
An important reason is also given if a conflict of interest exists or is recognized.
§ 12 Written form
Amendments or changes to these General Terms and Conditions of Mandate, including mere deviations within the scope of an individual mandate, require written agreement in order to be effective. This shall also apply to any amendments to this written form requirement.
§ 13 Final provisions
Place of performance and exclusive place of jurisdiction for all claims and disputes between the parties regarding the establishment, content, execution or termination of the client relationship is, to the extent legally permissible, the registered office of the firm.
All claims between the parties arising from or in connection with the client relationship shall be governed exclusively by the law of the Federal Republic of Germany.
These general terms and conditions of mandate replace all agreements and understandings that may have been made prior to the conclusion of an order contract and conclusively regulate the relationship between the parties, unless written supplements to this order contract are made, which are declared an integral part of the contract.
Should any provision of these Terms and Conditions of Mandate or the contracts based on them be or become void or ineffective, this shall not affect the effectiveness of the remaining provisions. In this case, the provision in question shall be replaced by another provision which comes as close as possible in its economic intentions to the provision complained of. The same applies accordingly to the incompleteness of the provisions.