GENERAL TERMS & CONDITIONS
General terms of engagement for entering retainer agreements with attorneys acting on behalf of Artejura Partnerschaftsgesellschaft
I. Terms of engagement and applicability of the General Terms & Conditions
These general terms of engagement are an integral part of all contracts involving legal counsel and/or representation (such contracts will hereinafter be referred to as “retainer agreements”) between Artejura Partnerschaftsgesellschaft (hereinafter “Artejura”) and its contracting parties (hereinafter “clients”). The contracting party of the client is always the Artejura partnership and the partner (attorney) in charge of the respective retainer agreement. The latter renders his services independently and by his own authority in accordance with the applicable regulations governing professional conduct. In doing so, the partner makes use of the partnership’s material and human resources. The applicability of any other general terms and conditions, in particular those of the client, within the scope of the attorney-client relationship is expressly prohibited. Artejura is generally retained by signing a written authorization or compensation agreement. However, it is also possible to enter a retainer agreement by oral arrangement, in writing, or by implication. Artejura reserves the right to refuse to act for a client, even after a power of attorney has been signed. The client must be informed of the refusal within a reasonable period, normally one week.
II. Scope and performance within the case/retainer agreement
1. The scope of service to be rendered by Artejura is always based on the instructions given for the individual case. Commissioning the partnership to handle a certain matter does not include tax advice unless this is the explicit purpose for seeking counsel or representation.
2. The matter will be handled according to the principles of proper professional conduct. The person appointed to handle the respective matter is at the discretion of Artejura.
3. The partner appointed to handle the matter and Artejura will act on the assumption that the facts provided by the client, in particular figures and documentation, are accurate and correct. Should the facts originally presented prove inaccurate, the client must notify the partner without being asked. If the partner who has been appointed to handle the matter and Artejura discover inaccuracies in the information provided by the client, the client must explain and resolve these. The partner and Artejura will not make use of or represent vis-à-vis third parties any information that is obviously inaccurate.
4. Unless separately agreed upon in writing, the instruction does not include verifying the accuracy, completeness and correctness of the documents and figures provided, in particular bookkeeping and balance sheets.
5. Unless agreed upon separately in writing, the person in charge of the matter and Artejura are not obligated to inspect bundles/collections of documents and review them to determine their legal or tax relevance, provided the client has not previously requested this in writing and discussed the necessity of such a review and unless the matter explicitly includes the inspection and review of such documents from any legal perspective.
III. Fees, retainer, setoff limitation
Provided there is no written compensation agreement in accordance with Section 4 of the [German] Law on the Remuneration of Attorneys [Gesetz über die Vergütung der Rechtsanwältinnen und Rechtsanwälte – RVG], Artejura’s fees are essentially calculated based on the provisions laid down in the RVG. The fees charged in accordance with the RVG are based on the value of the matter. This also applies to activities of a purely consultative and/or extra-judicial nature. Immediately upon entering into the retainer agreement, Artejura may send an invoice requiring advance payment in a reasonable amount for the estimated fees and may commence or resume work contingent upon on when this payment has been made. The client is entitled to offset costs against Artejura’s charges only if the client’s receivable is recognized in writing or is otherwise legally binding.
IV. Information provided by the client
The client is generally required to furnish Artejura with information in writing or by e-mail. Although copies of any required documents are generally sufficient, Artejura may also verbally request access to the original documents. The client is required to carefully read all documents sent to him and to communicate as promptly as possible any comments and remarks to Artejura.
V. Corrective measures
If the services rendered by Artejura or one of the partners are deficient in any way, the client must give the partner and Artejura the opportunity to rectify the error or deficiency. Obvious errors (e.g. spelling errors, calculation errors) can be reported by Artejura at any time, including to third parties. Artejura and the partner handling the respective matter may inform third parties of any other errors or defects with the consent of the client. Consent is not required whenever legitimate interests of Artejura and the partner handling the matter take precedence over those interests of the client.
VI. Right to store, deliver and retain work products and documents
The attorney and Artejura are required to keep files for a period of five years following conclusion of the matter. However, this obligation becomes invalid before the end of this period if the attorney has asked the client in writing to receive the files but the client does not comply with this request within six weeks of receiving the request. Files within the meaning of this provision include all written documents that the attorney has received from or for the client in order to perform his professional duties. This does not, however, apply to written correspondence between the attorney and his client and originals or copies of documents that the attorney has already received, or working documents prepared for internal purposes.
At the request of the client, but no later than upon completion of the matter, the attorney must return within a reasonable period the documents provided by the client. The attorney may make or keep duplicates or photocopies of the documents he has returned to the client.
The attorney may refuse to deliver his work products and files until his fees and expenses have been settled. This does not apply if, based on the circumstances, withholding such documents would be in violation of the principles of good faith, particularly when the amounts due are negligible.
Artejura has a duty to maintain confidentiality with respect to all client information to which it becomes privy within the scope of the retainer agreement. This excludes facts that are common knowledge or that by their nature do not require confidentiality. By entering into a retainer agreement with Artejura, the client grants permission to disclose to third parties facts that are subject to the obligation of confidentiality, provided this is required in order to perform its normal duties within the retainer agreement. This also includes passing on any information subject to the confidentiality obligations to Artejura’s non-legal and freelance employees, provided they, too, have been placed under an obligation of confidentiality by Artejura. In addition, the client releases Artejura from the attorney’s obligation of confidentiality towards its own legal protection insurer if the policy is to be used to cover costs.
VIII. Liability / insurance / statute of limitations
The partner entrusted to handle a matter is liable for his or her own actions as well as those of his or her vicarious agents. This liability is limited to the value of Artejura’s assets and is subject to the following provisions: Persons liable at Artejura are its respective shareholders. These are presently attorneys Markus Hennig, Harald Nieber, Wilfried Stechow and Ira Breuer.
Any claim by the client exists only with respect to the attorney handling the matter insofar as this person is handling the matter within the scope of his own professional capacities.
Section 8 subs. 2 of the [German] Partnership Act applies. Further claims against Artejura and the other partners are excluded. The attorney-client relationship exists only in relation to the client as the contracting party, and Artejura is liable only to this client. Liability toward any third party is excluded unless this third party is explicitly included in the scope of protection of the attorney-client relationship.
Information provided by the partner, Artejura and its staff over the phone is not subject to liability claims. Such information is always provided reserving for the possibility of requiring a more detailed examination and confirmation in writing. Otherwise, the information is always non-binding.
Liability for damages arising from the attorney-client relationship due to a violation of contractual, pre-contractual and/or principle and subsidiary legal obligations as well as non-contractual, fault-based liability is limited to four times the amount of the current statutory minimum for legal liability insurance. The statutory minimum insurance for attorneys is currently EUR 250,000; the maximum liability in case of a damage claim is therefore EUR 1,000,000 per damage claim. Artejura maintains insurance protection required under Section 51a [German] Federal Lawyers’ Act (Bundesrechtsanwaltsordnung - BRAO); Artejura must present documentation of this coverage at the request of the client. Under Section 51a BRAO, the limitation of liability does not apply in cases of gross negligence or intentionally inflicted damage, nor does it apply to liability for non-accidental damages from injury to life and limb or the health of a person.
The aforementioned limitation of liability (4) applies to clients who enter a retainer agreement as a company within the meaning of Section 13 German Civil Code (Bundesgesetzbuch - BGB) (e.g. in practicing their commercial or independent professional activities) as well as public legal entities and special funds under public law, provided that the liability for gross negligence on the part of Artejura’s basic vicarious agents is also limited to EUR 1,000,000 excluding liability for non-accidental damages arising from injury to life and limb or the health of a person.
At the written request of the client – which also includes the obligation to pay any associated additional costs in advance – Artejura is willing to take out an insurance policy for the specific case in an amount requested by the client (excess of loss insurance) and offset the aforementioned liability limitations up to the amount of the coverage obtained. It should be noted that Germany usually only requires coverage in due time for damages resulting from legal malpractice at most in the amount of EUR 5,000,000 and that Artejura assumes no guarantee that the protective coverage in the amount desired by the client – particularly on short notice – will be granted. The statutory limitation rules apply.
IX. Limitations on assignability
The client’s rights within the scope of the attorney-client relationship cannot be assigned without the prior written consent of Artejura. Artejura’s claims to remuneration can only be assigned to third-parties who are attorneys; in case of a legally binding receivable, a fruitless attempt at enforcement or the prior express written consent of the client, such claims can also be assigned to authorize third parties who are not attorneys.
X. Written form
Additions or amendments to these general terms of engagement, including simple deviations within the scope of a retainer agreement, are not valid unless put in writing. The same also applies to any amendments to this clause requiring written form.
XI. Electronic correspondence and data storage
The client is aware that the data security of electronic media, in particular e-mails and messages sent over the Internet, cannot be guaranteed and that correspondence, legal documents, and notices sent in this way therefore cannot be protected or can be protected only when both parties have agreed to take effective security precautions to prevent unauthorized access by third parties to guard against malfeasance. Within the scope of the retainer agreement, the attorneys and Artejura are neither accountable for receiving nor for sending communications in this way. For this reason, they will use these media to send and receive correspondence only when this is expressly requested and the client assumes and accepts the aforementioned risks. The client grants Artejura permission to use electronic media either by expressing this explicitly or by disclosing his e-mail address. The appointed attorneys and Artejura assume no guarantee for the availability, completeness, correctness or timely confirmation of communications sent or received by them using these channels. If the client uses these channels to communicate with the appointed attorneys, even in cases where he has been granted permission by them to do so, he is – apart from the availability, timeliness and completeness – responsible for ensuring the correctness and, above all, that attorney commissioned by him personally acknowledges the correspondence sent by him in this way. Artejura saves the personal details of the client as client master and billing data and, where applicable, in an electronic file or as bookkeeping data. Artejura can also send this data to third parties if necessary to perform its duties. Data subject to statutory retention periods cannot be deleted during the legally required retention periods.
XII. Content of the website/limitations of liability/subject to changes notice
The content of the Artejura Partnerschaftsgesellschaft website is not intended for consulting purposes and instead provided purely for general information purposes. This applies specifically to actual cases. Artejura Partnerschaftsgesellschaft has prepared and thoroughly reviewed all of the information presented on its website (e.g. case law, brochures, documents) to the best of its knowledge and in good conscience. Artejura offers no guarantee for the currentness, correctness, completeness or quality and constant availability. The following limitation of liability applies: Artejura Partnerschaftsgesellschaft assumes no liability for damages arising from the use or non-use of the information presented on its website. The same applies in case of damages specifically caused by computer viruses or the installation or use of software when accessing or downloading information or data. Section 675 subs. 2 BGB remains unaffected. Artejura Partnerschaftsgesellschaft reserves the right to modify, add to, delete, or modify the contents or sections of or even the entire website and to temporarily or permanently remove specific content without prior notice.
XIII. Place of performance, jurisdiction, applicable law
The place of performance is the professional law office of the partner handling the matter. The jurisdiction for fee- and liability-related disputes is the office location of the appointed partner. The city in which the professional office of the appointed partner is located is also explicitly agreed as the place of jurisdiction for any other legal disputes, provided the client is a business owner or his general place of jurisdiction within the meaning of the [German] Code of Civil Procedure is not located in Germany. The aforementioned provision applies accordingly if the client’s domicile or habitual residence is beyond the purview of the [German] Code of Civil Procedure after conclusion of the contract or the domicile and habitual residence is unknown at the time the claim is filed. Artejura may also sue the client in its own general place of jurisdiction. All retainer agreements are exclusively subject to German law.
XIV. Effectiveness in case of partial invalidity
Should any individual provision of these terms be or become invalid, the validity of the remaining provisions remains unaffected. The ineffective provision is to be replaced by a valid provision that comes as near to the original provision as possible.
XV. Applicability of deviating general terms & conditions
Third-party general terms and conditions, the client’s purchase and payment terms or deviating agreements concerning jurisdiction are of no consequence whatsoever. The content of any protective clauses is expressly prohibited.