General Terms and Conditions
1. Scope
1.1 These General Terms and Conditions (GTC) apply to all engagements between Matschnig & Forsthuber Patentanwaltskanzlei OG, Biberstrasse 22, 1010 Vienna, Austria (“Contractor”) and its clients (“Client”), which involve advice and/or representation, unless otherwise expressly agreed or required by law.
1.2 These GTC shall also apply to engagements that are not concluded in writing. These GTC shall also apply to future additional, supplementary or follow-up engagements, as well as to all changes and additions to existing engagements.
1.3 The applicability of any general terms and conditions of the client to the engagement between the contractor and the client is excluded. Any deviating, conflicting or supplementary terms and conditions of the client shall not become part of the contract. Any deviation from these GTC must be explicitly agreed upon in writing.
1.4 The version valid at the time of the conclusion of the engagement (available online at www.matschnig-patent.at/agb) shall be decisive.
2. Fees
2.1 Unless otherwise agreed, the contractor is entitled to an appropriate fee. Unless mandatory provisions or special agreements provide otherwise, the contractor is free to charge for services provided in the form of flat fees or time-based fees. The time-based fee shall be calculated on the basis of hourly rates. The value added tax at the statutory rate shall be added to the agreed fee or the fee to which the contractor is entitled.
2.2 Unless a separate hourly rate agreement has been made, an hourly rate of EUR 390,- (all information excluding VAT) shall be deemed agreed for the services of a patent attorney, EUR 350,- for the services of a professional representative before the European Patent Office (European Patent Attorney) and EUR 300,- for the services of a patent attorney candidate. Time recording and billing shall be carried out in increments of 15 minutes, with each commenced 15-minute unit being counted as one increment.
2.3 Unless otherwise agreed, travel and commuting times as well as telephone calls, e-mail correspondence, etc. made in the course of the engagement, which also constitute work performance, shall be charged on the basis of the hourly rate agreement in accordance with point 2.2.
2.4 In addition to his fee claim, the contractor is entitled to reimbursement of his expenses, including reimbursement of travel costs, meals and accommodation expenses, as well as reimbursement of official and/or court fees, in particular registration or entry fees, as well as any procedural, research, examination, publication and transmission fees. All court and official costs (cash expenditures) and expenses (e.g. purchased third-party services) may be forwarded to the client for direct payment.
2.5 Any fee estimates provided by the contractor that are not explicitly marked as binding regarding the amount of the anticipated fee are not binding and are not to be regarded as a binding cost estimate (as defined by § 5 (2) KSchG [Austrian Consumer Protection Act]), because the extent of the services to be provided by the contractor cannot, by its very nature, be reliably assessed in advance.
2.6 Furthermore, the preparation of a cost estimate (as defined in § 5 (1) KSchG [Austrian Consumer Protection Act]) in accordance with the hourly rate agreement may be invoiced at the discretion of the contractor.
2.7 The contractor is entitled to request a reasonable advance payment and to make the commencement and/or continuation of the work dependent on its immediate payment.
2.8 The contractor is entitled to issue invoices and demand advance payments of fees at any time, but in any case quarterly. The term of payment for each invoice is 14 days from the invoice date, unless otherwise agreed. An invoice sent to the client and clearly itemized shall be deemed approved if and to the extent that the client does not object in writing within one month of receipt.
2.9 If the client is in default of payment of the entire fee or a portion thereof, the client shall pay default interest to the contractor in the statutory amount, but at least 4 percentage points above the respective base interest rate. Further statutory claims (e.g. § 1333 ABGB [Austrian General Civil Code]) remain unaffected.
2.10 In the event of termination of the engagement, the contractor shall in any case be entitled to claim for services provided and expenses incurred.
2.11 If there are several clients for a engagement, they shall be jointly and severally liable for the contractor’s fees and expenses.
3. General Provisions
3.1 All statements made by the contractor to the client shall be deemed to have been received if they are sent to the delivery point notified by the client when the order is placed or to a different delivery point notified in writing thereafter. However, the contractor is free to correspond with the client in any manner it deems appropriate.
3.2 Unless otherwise agreed, written declarations may also be submitted by post, fax or e-mail. Unless otherwise agreed, the contractor may, at its own discretion, conduct all correspondence with the client via unencrypted e-mail and/or by post.
3.3 The competent court in Vienna shall have jurisdiction for all disputes in connection with these GTC or a contract, including disputes regarding its conclusion, legal validity and amendments. The contractor shall nevertheless be entitled to sue the client at the client’s general place of jurisdiction.
3.4 All amendments, supplements, ancillary agreements and the amendment of the written form requirement shall always require a written agreement.
3.5 The client waives the right of rescission due to laesio enormis, i.e., rescission due to disproportionate loss) (§ 934 ABGB [Austrian General Civil Code] in conjunction with § 351 UGB [Austrian Commercial Code]), as well as the right of rescission and adjustment due to mistake, and the right of rescission or adjustment due to the initial absence or subsequent loss of the basis of the transaction.
3.6 Should there be different linguistic versions of these General Terms and Conditions (GTC), the German version shall prevail. In the event of discrepancies or differences in interpretation between the different linguistic versions, the German version shall prevail.
4. Scope and provision of services
4.1 The contractor shall carry out the work under the engagement without undue delay, in a professional and workmanlike manner, and in in accordance with the professional standards for patent attorneys.
4.2 The subject of the engagement is the agreed service, but not a specific legal or economic outcome.
4.3 The place of performance is always the contractor’s place of business, even if services are provided or handed over at a different location as agreed.
4.4 In principle, the contractor is entitled to provide engagement-related services at his own discretion. The contractor will safeguard the client’s interests with the necessary care.
4.5 The contractor is only obliged to seek legal remedies and/or actions if he has received and accepted an order to do so.
4.6 If it appears to be urgently required in the interest of the client, the contractor is entitled, in the event of imminent danger, to take or refrain from an act that is not expressly covered by the order issued or that is contrary to an instruction issued.
4.7 The contractor is also entitled to commission third parties (e.g. subcontractors) to provide the service.
5. Client’s duty to cooperate
5.1 The client shall be obliged to cooperate to the full extent necessary to ensure proper performance of the engagement.
5.2 The client shall provide the contractor with all documents and information in such good time that the contractor has a reasonable period of time in which to fulfill the order addressed to him. In the case of work that must be completed by a certain deadline, a period of 10 days before the deadline is considered a reasonable amount of time. If the client provides the necessary information and documents later than 10 days before the deadline, the contractor reserves the right to charge an additional 50% of the agreed hourly rate or a pre-determined flat fee, or refuse to complete the order within the remaining time.
5.3 The contractor shall be entitled to consider the information provided and the documents handed over by the client as correct and complete and to base further activities on them.
5.4 Should any information be incorrect, the client shall be obliged to indemnify the contractor for any resulting pecuniary losses.
5.5 At the request of the contractor, the client shall sign the written powers of attorney required for the performance of the engagement. These powers of attorney may be directed towards the performance of individual, precisely described or all possible legal transactions or acts.
5.6 It is the client’s responsibility to check the documents sent by the contractor to the client for comment and review for technical correctness and other errors. If the client does not provide the relevant corrections within a reasonable period of time, the contractor may assume that the client has accepted the documents as correct and complete.
6. Duty of confidentiality
6.1 The contractor shall, in accordance with the duties incumbent upon him under the Austrian Patent Attorneys Act, maintain confidentiality with regard to all matters entrusted to him in his professional capacity in the course of his work for the client. This duty of confidentiality shall continue to apply even after the engagement relationship has ended and shall apply to the same extent to all of the contractor’s employees. The contractor is not subject to the confidentiality obligation if he has been released from it by the client in writing or if the confidentiality obligation conflicts with legal obligations. Furthermore, the contractor is released from the confidentiality obligation if this is necessary to pursue his claims or to defend against claims against the client.
6.2 The contents of files, documents and the like provided by the client may only be passed on to third parties with the client’s consent, unless there are legal disclosure obligations or the documents provided were handed over for the purpose of forwarding or for submission to offices, courts and authorities or the disclosure serves to defend against claims within the meaning of point 6.1.
6.3 The contractor is authorized to process personal data entrusted to it by the client or to transfer the processing to third parties. In doing so, the contractor is obliged to comply with national and EU data protection regulations.
6.4 Unless otherwise agreed or unless there is an overriding legitimate interest in maintaining confidentiality, the contractor may disclose the client’s name and the nature of the mandate to third parties. The client expressly releases the contractor from his confidentiality to this extent and gives his express consent to the use of this data. The consent can be revoked in writing at any time.
7. Termination of the contract and/or engagement
7.1 The engagement may be terminated by either party at any time without notice and without stating reasons. The contractor’s fee claim remains unaffected.
7.2 In the event of a dissolution, the contractor shall continue to represent the client for a period of 14 days, to the extent necessary to protect the client from legal disadvantage or harm.
7.3 This obligation does not apply if the client revokes the engagement and states that he does not wish to receive any further services from the contractor.
8. Limitation of Liability
8.1 The amount of any liability of the contractor for each individual case of damage is limited to the sum insured by the contractor’s liability insurance. In accordance with the statutory provisions, the maximum liability amount is currently at least EUR 400.000,- for each insured event. The contractor’s liability for information and advice provided orally or by telephone is limited to intent and gross negligence.
8.2 An “individual claim” is the sum of the claims for damages of all injured parties arising from a damaging act. An individual claim is also the sum of all claims for damages due to several damaging acts carried out by the contractor in the course of the same order or in the course of some other uniform activity by one or more persons.
8.3 If there are several injured parties arising from a single damaging event, the maximum liability amount will be proportionally distributed among the injured parties in proportion to the amount of their claims, so that the maximum liability amount applies only once in total for all injured parties.
8.4 Unless the law stipulates a shorter term of lapse or preclusion, all claims against the contractor shall lapse if they are not asserted in court by the client within six months (if the client is an entrepreneur as defined by the Austrian Consumer Protection Act) or within one year (if the client is not an entrepreneur) from the time at which the client becomes aware of the damage and the person of the damaging party or of the event otherwise giving rise to a claim, but at the latest after the expiry of two years after the conduct giving rise to the claim.
8.5 The contractor is authorized to transfer its obligations in whole or in part, and thus also with regard to individual services or the entire contract, to a suitable and sufficiently qualified third party with debt-discharging effect and shall inform the client of this. The right to use vicarious agents remains unaffected.
9. Severability Clause
Should any provision of this contract be or become invalid or unenforceable, in whole or in part, this shall not affect the validity and enforceability of the remaining provisions. In such a case, an invalid or unenforceable provision will be replaced with a valid and enforceable provision that comes as close as possible to the economic purpose of the invalid or unenforceable provision.