General Conditions of Contract
for the Public Accounting Professions
(AAB 2018)

Provided by the Board of the Chamber of Tax Advisers and Auditors

Preamble and General Items

(1) Contract within the meaning of these Conditions of Contract refers to each contract on services to be rendered by a person entitled to exercise profession in the field of public accounting exercising that profession (de facto activities as well as providing or performing legal transactions or acts, in each case pursuant to Sections 2 or 3 Austrian Public Accounting Professions Act (WTBG 2017). The parties to the contract shall hereinafter be referred to as the “contractor” on the one hand and the “client” on the other hand).

(2) The General Conditions of Contract for the professions in the field of public accounting are divided into two sections: The Conditions of Section I shall apply to contracts where the agreeing of contracts is part of the operations of the client’s company (entrepreneur within the meaning of the Austrian Consumer Protection Act. They shall apply to consumer business under the Austrian Consumer Protection Act (Federal Act of March 8, 1979 / Federal Law Gazette No. 140 as amended) insofar as Section II does not provide otherwise for such business.

(3) In the event that an individual provision is void, the invalid provision shall be replaced by a valid provision that is as close as possible to the desired objective.

SECTION I

1. Scope and Execution of Contract

(1) The scope of the contract is generally determined in a written agreement drawn up between the client and the contractor. In the absence of such a detailed written agreement, (2)-(4) shall apply in case of doubt:

(2) When contracted to perform tax consultation services, consultation shall consist of the following activities:

a) preparing annual tax returns for income tax and corporate tax as well as value-added tax (VAT) on the basis of the financial statements and other documents and papers required for taxation purposes and to be submitted by the client or (if so agreed) prepared by the contractor. Unless explicitly agreed otherwise, documents and papers required for taxation purposes shall be produced by the client.

b) examining the tax assessment notices for the tax returns mentioned under a).

c) negotiating with the fiscal authorities in connection with the tax returns and notices mentioned under a) and b).

d) participating in external tax audits and assessing the results of external tax audits with regard to the taxes mentioned under a).

e) participating in appeal procedures with regard to the taxes mentioned under a).

If the contractor receives a flat fee for regular tax consultation, in the absence of written agreements to the contrary, the activities mentioned under d) and e) shall be invoiced separately.

(3) Provided the preparation of one or more annual tax return(s) is part of the contract accepted, this shall not include the examination of any particular accounting conditions nor the examination of whether all relevant concessions, particularly those with regard to value added tax, have been utilized, unless the person entitled to exercise the profession can prove that he/she has been commissioned accordingly.

(4) In each case, the obligation to render other services pursuant to Sections 2 and 3 WTBG 2017 requires for the contractor to be separately and verifiably commissioned.

(5) The aforementioned paragraphs (2) to (4) shall not apply to services requiring particular expertise provided by an expert.

(6) The contractor is not obliged to render any services, issue any warnings or provide any information beyond the scope of the contract.

(7) The contractor shall have the right to engage suitable staff and other performing agents (subcontractors) for the execution of the contract as well as to have a person entitled to exercise the profession substitute for him/her in executing the contract. Staff within the meaning of these Conditions of Contract refers to all persons who support the contractor in his/her operating activities on a regular or permanent basis, irrespective of the type of underlying legal transaction.

(8) In rendering his/her services, the contractor shall exclusively take into account Austrian law; foreign law shall only be taken into account if this has been explicitly agreed upon in writing.

(9) Should the legal situation change subsequent to delivering a final professional statement passed on by the client orally or in writing, the contractor shall not be obliged to inform the client of changes or of the consequences thereof. This shall also apply to the completed parts of a contract.

(10) The client shall be obliged to make sure that the data made available by him/her may be handled by the contractor in the course of rendering the services. In this context, the client shall particularly but not exclusively comply with the applicable provisions under data protection law and labor law.

(11) Unless explicitly agreed otherwise, if the contractor electronically submits an application to an authority, he/she acts only as a messenger and this does not constitute a declaration of intent or knowledge attributable to him/her or a person authorized to submit the application.

(12) The client undertakes not to employ persons that are or were staff of the contractor during the contractual relationship, during and within one year after termination of the contractual relationship, either in his/her company or in an associated company, failing which he/she shall be obliged to pay the contractor the amount of the annual salary of the member of staff taken over.

2. Client‘s Obligation to Provide Information and Submit Complete Set of Documents

(1) The client shall make sure that all documents required for the execution of the contract be placed without special request at the disposal of the contractor at the agreed date, and in good time if no such date has been agreed, and that he/she be informed of all events and circumstances which may be of significance for the execution of the contract. This shall also apply to documents, events and circumstances which become known only after the contractor has commenced his/her work.

(2) The contractor shall be justified in regarding information and documents presented to him/her by the client, in particular figures, as correct and complete and to base the contract on them. The contractor shall not be obliged to identify any errors unless agreed separately in writing. This shall particularly apply to the correctness and completeness of bills. However, he/she is obliged to inform the client of any errors identified by him/her. In case of financial criminal proceedings he/she shall protect the rights of the client.

(3) The client shall confirm in writing that all documents submitted, all information provided and explanations given in the context of audits, expert opinions and expert services are complete.

(4) If the client fails to disclose considerable risks in connection with the preparation of financial statements and other statements, the contractor shall not be obliged to render any compensation insofar as these risks materialize.

(5) Dates and time schedules stated by the contractor for the completion of the contractor’s products or parts thereof are best estimates and, unless otherwise agreed in writing, shall not be binding. The same applies to any estimates of fees: they are prepared to best of the contractor’s knowledge; however, they shall always be non-binding.

(6) The client shall always provide the contractor with his/her current contact details (particularly the delivery address). The contractor may rely on the validity of the contact details most recently provided by the client, particularly have deliveries made to the most recently provided address, until such time as new contact details are provided.

3. Safeguarding of Independence

(1) The client shall be obliged to take all measures to prevent that the independence of the staff of the contractor be jeopardized and shall himself/herself refrain from jeopardizing their independence in any way. In particular, this shall apply to offers of employment and to offers to accept contracts on their own account.

(2) The client acknowledges that his/her personal details required in this respect, as well as the type and scope of the services, including the performance period agreed between the contractor and the client for the services (both audit and non-audit services), shall be handled within a network (if any) to which the contractor belongs, and for this purpose transferred to the other members of the network including abroad for the purpose of examination of the existence of grounds of bias or grounds for exclusion and conflicts of interest. For this purpose the client expressly releases the contractor in accordance with the Data Protection Act and in accordance with Section 80 (4) No. 2 WTBG 2017 from his/her obligation to maintain secrecy. The client can revoke the release from the obligation to maintain secrecy at any time.

4. Reporting Requirements

(1) (Reporting by the contractor) In the absence of an agreement to the contrary, a written report shall be drawn up in the case of audits and expert opinions.

(2) (Communication to the client) All contract-related information and opinions, including reports, (all declarations of knowledge) of the contractor, his/her staff, other performing agents or substitutes (“professional statements”) shall only be binding provided they are set down in writing. Professional statements in electronic file formats which are made, transferred or confirmed by fax or e-mail or using similar types of electronic communication (that can be stored and reproduced but is not oral, i.e. e.g. text messages but not telephone) shall be deemed as set down in writing; this shall only apply to professional statements. The client bears the risk that professional statements may be issued by persons not entitled to do so as well as the transfer risk of such professional statements.

(3) (Communication to the client) The client hereby consents to the contractor communicating with the client (e.g. by e-mail) in an unencrypted manner. The client declares that he/she has been informed of the risks arising from the use of electronic communication (particularly access to, maintaining secrecy of, changing of messages in the course of transfer). The contractor, his/her staff, other performing agents or substitutes are not liable for any losses that arise as a result of the use of electronic means of communication.

(4) (Communication to the contractor) Receipt and forwarding of information to the contractor and his/her staff are not always guaranteed when the telephone is used, in particular in conjunction with automatic telephone answering systems, fax, e-mail and other types of electronic communication. As a result, instructions and important information shall only be deemed to have been received by the contractor provided they are also received physically (not by telephone, orally or electronically), unless explicit confirmation of receipt is provided in individual instances. Automatic confirmation that items have been transmitted and read shall not constitute such explicit confirmations of receipt. This shall apply in particular to the transmission of decisions and other information relating to deadlines. As a result, critical and important notifications must be sent to the contractor by mail or courier. Delivery of documents to staff outside the firm’s offices shall not count as delivery.

(5) (General) In writing shall mean, insofar as not otherwise laid down in Item 4. (2), written form within the meaning of Section 886 Austrian Civil Code (ABGB) (confirmed by signature). An advanced electronic signature (Art. 26 eIDAS Regulation (EU) No. 910/2014) fulfills the requirement of written form within the meaning of Section 886 ABGB (confirmed by signature) insofar as this is at the discretion of the parties to the contract.

(6) (Promotional information) The contractor will send recurrent general tax law and general commercial law information to the client electronically (e.g. by e-mail). The client acknowledges that he/she has the right to object to receiving direct advertising at any time.

5. Protection of Intellectual Property of the Contractor

(1) The client shall be obliged to ensure that reports, expert opinions, organizational plans, drafts, drawings, calculations and the like, issued by the contractor, be used only for the purpose specified in the contract (e.g. pursuant to Section 44 (3) Austrian Income Tax Act 1988). Furthermore, professional statements made orally or in writing by the contractor may be passed on to a third party for use only with the written consent of the contractor.

(2) The use of professional statements made orally or in writing by the contractor for promotional purposes shall not be permitted; a violation of this provision shall give the contractor the right to terminate without notice to the client all contracts not yet executed.

(3) The contractor shall retain the copyright on his/her work. Permission to use the work shall be subject to the written consent by the contractor.

6. Correction of Errors

(1) The contractor shall have the right and shall be obliged to correct all errors and inaccuracies in his/her professional statement made orally or in writing which subsequently come to light and shall be obliged to inform the client thereof without delay. He/she shall also have the right to inform a third party acquainted with the original professional statement of the change.

(2) The client has the right to have all errors corrected free of charge if the contractor can be held responsible for them; this right will expire six months after completion of the services rendered by the contractor and/or – in cases where a written professional statement has not been delivered – six months after the contractor has completed the work that gives cause to complaint.

(3) If the contractor fails to correct errors which have come to light, the client shall have the right to demand a reduction in price. The extent to which additional claims for damages can be asserted is stipulated under Item 7.

7. Liability

(1) All liability provisions shall apply to all disputes in connection with the contractual relationship, irrespective of the legal grounds. The contractor is liable for losses arising in connection with the contractual relationship (including its termination) only in case of willful intent and gross negligence. The applicability of Section 1298 2nd Sentence ABGB is excluded.

(2) In cases of gross negligence, the maximum liability for damages due from the contractor is tenfold the minimum insurance sum of the professional liability insurance according to Section 11 WTBG 2017 as amended.

(3) The limitation of liability pursuant to Item 7. (2) refers to the individual case of damages. The individual case of damages includes all consequences of a breach of duty regardless of whether damages arose in one or more consecutive years. In this context, multiple acts or failures to act that are based on the same or similar source of error as one consistent breach of duty if the matters concerned are legally and economically connected. Single damages remain individual cases of damage even if they are based on several breaches of duty. Furthermore, the contractor’s liability for loss of profit as well as collateral, consequential, incidental or similar losses is excluded in case of willful damage.

(4) Any action for damages may only be brought within six months after those entitled to assert a claim have gained knowledge of the damage, but no later than three years after the occurrence of the (primary) loss following the incident upon which the claim is based, unless other statutory limitation periods are laid down in other legal provisions.

(5) Should Section 275 Austrian Commercial Code (UGB) be applicable (due to a criminal offense), the liability provisions contained therein shall apply even in cases where several persons have participated in the execution of the contract or where several activities requiring compensation have taken place and irrespective of whether other participants have acted with intent.

(6) In cases where a formal auditor’s report is issued, the applicable limitation period shall commence no later than at the time the said auditor’s report was issued.

(7) If activities are carried out by enlisting the services of a third party,

e.g. a data-processing company, any warranty claims and claims for damages which arise against the third party according to law and contract shall be deemed as having been passed on to the client once the client has been informed of them. Item 4. (3) notwithstanding, in such a case the contractor shall only be liable for fault in choosing the third party.

(8) The contractor’s liability to third parties is excluded in any case. If third parties come into contact with the contractor’s work in any manner due to the client, the client shall expressly clarify this fact to them. Insofar as such exclusion of liability is not legally permissible or a liability to third parties has been assumed by the contractor in exceptional cases, these limitations of liability shall in any case also apply to third parties on a subsidiary basis. In any case, a third party cannot raise any claims that go beyond any claim raised by the client. The maximum sum of liability shall be valid only once for all parties injured, including the compensation claims of the client, even if several persons (the client and a third party or several third parties) have sustained losses; the claims of the parties injured shall be satisfied in the order in which the claims have been raised. The client will indemnify and hold harmless the contractor and his/her staff against any claims by third parties in connection with professional statements made orally or in writing by the contractor and passed on to these third parties.

(9) Item 7. shall also apply to any of the client’s liability claims to third parties (performing agents and vicarious agents of the contractor) and to substitutes of the contractor relating to the contractual relationship.

8. Secrecy, Data Protection

(1) According to Section 80 WTBG 2017 the contractor shall be obliged to maintain secrecy in all matters that become known to him/her in connection with his/her work for the client, unless the client releases him/her from this duty or he/she is bound by law to deliver a statement.

(2) Insofar as it is necessary to pursue the contractor’s claims (particularly claims for fees) or to dispute claims against the contractor (particularly claims for damages raised by the client or third parties against the contractor), the contractor shall be released from his/her professional obligation to maintain secrecy.

(3) The contractor shall be permitted to hand on reports, expert opinions and other written statements pertaining to the results of his/her services to third parties only with the permission of the client, unless he/she is required to do so by law.

(4) The contractor is a data protection controller within the meaning of the General Data Protection Regulation (“GDPR”) with regard to all personal data processed under the contract. The contractor is thus authorized to process personal data entrusted to him/her within the limits of the contract. The material made available to the contractor (paper and data carriers) shall generally be handed to the client or to third parties appointed by the client after the respective rendering of services has been completed, or be kept and destroyed by the contractor if so agreed. The contractor is authorized to keep copies thereof insofar as he/she needs them to appropriately document his/her services or insofar as it is required by law or customary in the profession.

(5) If the contractor supports the client in fulfilling his/her duties to the data subjects arising from the client’s function as data protection controller, the contractor shall be entitled to charge the client for the actual efforts undertaken. The same shall apply to efforts undertaken for information with regard to the contractual relationship which is provided to third parties after having been released from the obligation to maintain secrecy to third parties by the client.

9. Withdrawal and Cancellation („Termination“)

(1) The notice of termination of a contract shall be issued in writing (see also Item 4. (4) and (5)). The expiry of an existing power of attorney shall not result in a termination of the contract.

(2) Unless otherwise agreed in writing or stipulated by force of law, either contractual partner shall have the right to terminate the contract at any time with immediate effect. The fee shall be calculated according to Item 11.

(3) However, a continuing agreement (fixed-term or open-ended contract on – even if not exclusively – the rendering of repeated individual services, also with a flat fee) may, without good reason, only be terminated at the end of the calendar month by observing a period of notice of three months, unless otherwise agreed in writing.

(4) After notice of termination of a continuing agreement and unless otherwise stipulated in the following, only those individual tasks shall still be completed by the contractor (list of assignments to be completed) that can (generally) be completed fully within the period of notice insofar as the client is notified in writing within one month after commencement of the termination notice period within the meaning of Item 4. (2). The list of assignments to be completed shall be completed within the termination period if all documents required are provided without delay and if no good reason exists that impedes completion.

(5) Should it happen that in case of a continuing agreement more than two similar assignments which are usually completed only once a year (e.g. financial statements, annual tax returns, etc.) are to be completed, any such assignments exceeding this number shall be regarded as assignments to be completed only with the client‘s explicit consent. If applicable, the client shall be informed of this explicitly in the statement pursuant to Item 9. (4).

10. Termination in Case of Default in Acceptance and Failure to Cooperate on the Part of the Client and Legal Impediments to Execution

(1) If the client defaults on acceptance of the services rendered by the contractor or fails to carry out a task incumbent on him/her either according to Item 2. or imposed on him/her in another way, the contractor shall have the right to terminate the contract without prior notice. The same shall apply if the client requests a way to execute (also partially) the contract that the contractor reasonably believes is not in compliance with the legal situation or professional principles. His/her fees shall be calculated according to Item 11. Default in acceptance or failure to cooperate on the part of the client shall also justify a claim for compensation made by the contractor for the extra time and labor hereby expended as well as for the damage caused, if the contractor does not invoke his/her right to terminate the contract.

(2) For contracts concerning bookkeeping, payroll accounting and administration and assessment of payroll-related taxes and contributions, a termination without prior notice by the contractor is permissible under Item 10. (1) if the client verifiably fails to cooperate twice as laid down in Item 2. (1).

11. Entitlement to Fee

(1) If the contract fails to be executed (e.g. due to withdrawal or cancellation), the contractor shall be entitled to the negotiated compensation (fee), provided he/she was prepared to render the services and was prevented from so doing by circumstances caused by the client, whereby a merely contributory negligence by the contractor in this respect shall be excluded; in this case the contractor need not take into account the amount he/she obtained or failed to obtain through alternative use of his/her own professional services or those of his/her staff.

(2) If a continuing agreement is terminated, the negotiated compensation for the list of assignments to be completed shall be due upon completion or in case completion fails due to reasons attributable to the client (reference is made to Item 11. (1). Any flat fees negotiated shall be calculated according to the services rendered up to this point.

(3) If the client fails to cooperate and the assignment cannot be carried out as a result, the contractor shall also have the right to set a reasonable grace period on the understanding that, if this grace period expires without results, the contract shall be deemed ineffective and the consequences indicated in Item 11. (1) shall apply.

(4) If the termination notice period under Item 9. (3) is not observed by the client as well as if the contract is terminated by the contractor in accordance with Item 10. (2), the contractor shall retain his/her right to receive the full fee for three months.

12. Fee

(1) Unless the parties explicitly agreed that the services would be rendered free of charge, an appropriate remuneration in accordance with Sections 1004 and 1152 ABGB is due in any case. Amount and type of the entitlement to the fee are laid down in the agreement negotiated between the contractor and his/her client. Unless a different agreement has verifiably been reached, payments made by the client shall in all cases be credited against the oldest debt.

(2) The smallest service unit which may be charged is a quarter of an hour.

(3) Travel time to the extent required is also charged.

(4) Study of documents which, in terms of their nature and extent, may prove necessary for preparation of the contractor in his/her own office may also be charged as a special item.

(5) Should a remuneration already agreed upon prove inadequate as a result of the subsequent occurrence of special circumstances or due to special requirements of the client, the contractor shall notify the client thereof and additional negotiations for the agreement of a more suitable remuneration shall take place (also in case of inadequate flat fees).

(6) The contractor includes charges for supplementary costs and VAT in addition to the above, including but not limited to the following (7) to (9):

(7) Chargeable supplementary costs also include documented or flat-rate cash expenses, traveling expenses (first class for train journeys), per diems, mileage allowance, copying costs and similar supplementary costs.

(8) Should particular third party liabilities be involved, the corresponding insurance premiums (including insurance tax) also count as supplementary costs.

(9) Personnel and material expenses for the preparation of reports, expert opinions and similar documents are also viewed as supplementary costs.

(10) For the execution of a contract wherein joint completion involves several contractors, each of them will charge his/her own compensation.

(11) In the absence of any other agreements, compensation and advance payments are due immediately after they have been requested in writing. Where payments of compensation are made later than 14 days after the due date, default interest may be charged. Where mutual business transactions are concerned, a default interest rate at the amount stipulated in Section 456 1st and 2nd Sentence UGB shall apply.

(12) Statutory limitation is in accordance with Section 1486 of ABGB, with the period beginning at the time the service has been completed or upon the issuing of the bill within an appropriate time limit at a later point.

(13) An objection may be raised in writing against bills presented by the contractor within 4 weeks after the date of the bill. Otherwise the bill is considered as accepted. Filing of a bill in the accounting system of the recipient is also considered as acceptance.

(14) Application of Section 934 ABGB within the meaning of Section 351 UGB, i.e. rescission for laesio enormis (lesion beyond moiety) among entrepreneurs, is hereby renounced.

(15) If a flat fee has been negotiated for contracts concerning bookkeeping, payroll accounting and administration and assessment of payroll-related taxes and contributions, in the absence of written agreements to the contrary, representation in matters concerning all types of tax audits and audits of payroll-related taxes and social security contributions including settlements concerning tax assessments and the basis for contributions, preparation of reports, appeals and the like shall be invoiced separately. Unless otherwise agreed to in writing, the fee shall be considered agreed upon for one year at a time.

(16) Particular individual services in connection with the services mentioned in Item 12. (15), in particular ascertaining whether the requirements for statutory social security contributions are met, shall be dealt with only on the basis of a specific contract.

(17) The contractor shall have the right to ask for advance payments and can make delivery of the results of his/her (continued) work dependent on satisfactory fulfillment of his/her demands. As regards continuing agreements, the rendering of further services may be denied until payment of previous services (as well as any advance payments under Sentence 1) has been effected. This shall analogously apply if services are rendered in installments and fee installments are outstanding.

(18) With the exception of obvious essential errors, a complaint concerning the work of the contractor shall not justify even only the partial retention of fees, other compensation, reimbursements and advance payments (remuneration) owed to him/her in accordance with Item 12.

(19) Offsetting the remuneration claims made by the contractor in accordance with Item 12. shall only be permitted if the demands are uncontested and legally valid.

13. Other Provisions

(1) With regard to Item 12. (17), reference shall be made to the legal right of retention (Section 471 ABGB, Section 369 UGB); if the right of retention is wrongfully exercised, the contractor shall generally be liable pursuant to Item 7. or otherwise only up to the outstanding amount of his/her fee.

(2) The client shall not be entitled to receive any working papiers and similar documents prepared by the contractor in the course of fulfilling the contract. In the case of contract fulfillment using electronic accounting systems the contractor shall be entitled to delete the data after handing over all data based thereon – which were prepared by the contractor in relation to the contract and which the client is obliged to keep – to the client and/or the succeeding public accountant in a structured, common and machine-readable format. The contractor shall be entitled to an appropriate fee (Item 12. shall apply by analogy) for handing over such data in a structured, common and machine-readable format. If handing over such data in a structured, common and machine-readable format is impossible or unfeasible for special reasons, they may be handed over in the form of a full print-out instead. In such a case, the contractor shall not be entitled to receive a fee.

(3) At the request and expense of the client, the contractor shall hand over all documents received from the client within the scope of his/her activities. However, this shall not apply to correspondence between the contractor and his/her client and to original documents in his/her possession and to documents which are required to be kept in accordance with the legal anti-money laundering provisions applicable to the contractor. The contractor may make copies or duplicates of the documents to be returned to the client. Once such documents have been transferred to the client, the contractor shall be entitled to an appropriate fee (Item 12. shall apply by analogy).

(4) The client shall fetch the documents handed over to the contractor within three months after the work has been completed. If the client fails to do so, the contractor shall have the right to return them to the client at the cost of the client or to charge an appropriate fee (Item 12. shall apply by analogy) if the contractor can prove that he/she has asked the client twice to pick up the documents handed over. The documents may also further be kept by third parties at the expense of the client. Furthermore, the contractor is not liable for any consequences arising from damage, loss or destruction of the documents.

(5) The contractor shall have the right to compensation of any fees that are due by use of any available deposited funds, clearing balances, trust funds or other liquid funds at his/her disposal, even if these funds are explicitly intended for safekeeping, if the client had to have anticipated the counterclaim of the contractor.

(6) To secure an existing or future fee payable, the contractor shall have the right to transfer a balance held by the client with the tax office or another balance held by the client in connection with charges and contributions, to a trust account. In this case the client shall be informed of the transfer. Subsequently, the amount secured may be collected either after agreement has been reached with the client or after enforceability of the fee by execution has been declared.

14. Applicable Law, Place of Performance, Jurisdiction

(1) The contract, its execution and the claims resulting from it shall be exclusively governed by Austrian law, excluding national referral rules.

(2) The place of performance shall be the place of business of the contractor.

(3) In absence of a written agreement stipulating otherwise, the place of jurisdiction is the competent court of the place of performance.

 

SECTION II

15. Supplementary Provisions for Consumer Transactions

(1) Contracts between public accountants and consumers shall fall under the obligatory provisions of the Austrian Consumer Protection Act (KSchG).

(2) The contractor shall only be liable for the willful and grossly negligent violation of the obligations assumed.

(3) Contrary to the limitation laid down in Item 7. (2), the duty to compensate on the part of the contractor shall not be limited in case of gross negligence.

(4) Item 6. (2) (period for right to correction of errors) and Item 7. (4) (asserting claims for damages within a certain period) shall not apply.

(5) Right of Withdrawal pursuant to Section 3 KSchG:

If the consumer has not made his/her contract statement in the office usually used by the contractor, he/she may withdraw from the contract application or the contract proper. This withdrawal may be declared until the contract has been concluded or within one week after its conclusion; the period commences as soon as a document has been handed over to the consumer which contains at least the name and the address of the contractor as well as instructions on the right to withdraw from the contract, but no earlier than the conclusion of the contract. The consumer shall not have the right to withdraw from the contract

1. if the consumer himself/herself established the business relationship concerning the conclusion of this contract with the contractor or his/her representative,

2. if the conclusion of the contract has not been preceded by any talks between the parties involved or their representatives, or

3. in case of contracts where the mutual services have to be rendered immediately, if the contracts are usually concluded outside the offices of the contractors, and the fee agreed upon does not exceed €15.

In order to become legally effective, the withdrawal shall be declared in writing. It is sufficient if the consumer returns a document that contains his/her contract declaration or that of the contractor to the contractor with a note which indicates that the consumer rejects the conclusion or the maintenance of the contract. It is sufficient if this declaration is dispatched within one week.

If the consumer withdraws from the contract according to Section 3 KSchG,

1. the contractor shall return all benefits received, including all statutory interest, calculated from the day of receipt, and compensate the consumer for all necessary and useful expenses incurred in this matter,

2. the consumer shall pay for the value of the services rendered by the contractor as far as they are of a clear and predominant benefit to him/her.

According to Section 4 (3) KSchG, claims for damages shall remain unaffected.

(6) Cost Estimates according to Section 5 Austrian KSchG:

The consumer shall pay for the preparation of a cost estimate by the contractor in accordance with Section 1170a ABGB only if the consumer has been notified of this payment obligation beforehand.

If the contract is based on a cost estimate prepared by the contractor, its correctness shall be deemed warranted as long as the opposite has not been explicitly declared.

(7) Correction of Errors: Supplement to Item 6.:

If the contractor is obliged under Section 932 ABGB to improve or complement his/her services, he/she shall execute this duty at the place where the matter was transferred. If it is in the interest of the consumer to have the work and the documents transferred by the contractor, the consumer may carry out this transfer at his/her own risk and expense.

(8) Jurisdiction: Shall apply instead of Item 14. (3)

If the domicile or the usual residence of the consumer is within the country or if he/she is employed within the country, in case of an action against him/her according to Sections 88, 89, 93 (2) and 104 (1) Austrian Court Jurisdiction Act (JN), the only competent courts shall be the courts of the districts where the consumer has his/her domicile, usual residence or place of employment.

(9) Contracts on Recurring Services:

(a) Contracts which oblige the contractor to render services and the consumer to effect repeated payments and which have been concluded for an indefinite period or a period exceeding one year may be terminated by the consumer at the end of the first year, and after the first year at the end of every six months, by adhering to a two-month period of notice.

(b) If the total work is regarded as a service that cannot be divided on account of its character, the extent and price of which is determined already at the conclusion of the contract, the first date of termination may be postponed until the second year has expired. In case of such contracts the period of notice may be extended to a maximum of six months.

(c) If the execution of a certain contract indicated in lit. a) requires considerable expenses on the part of the contractor and if he/she informed the consumer about this no later than at the time the contract was concluded, reasonable dates of termination and periods of notice which deviate from lit. a) and b) and which fit the respective circumstances may be agreed.

(d) If the consumer terminates the contract without complying with the period of notice, the termination shall become effective at the next termination date which follows the expiry of the period of notice.

 

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Special Terms and Conditions
(BAB)

1. Provision of services

(1) Within the scope of G & W International Steuerberatungs- und Wirtschaftstreuhand GmbH, G & W, will, in accordance with this Service Agreement, solely recommend potential courses of action with respect to management decisions, indicating possible consequences and alternatives, and will advise the Client accordingly. In this regard, decision making powers lie exclusively with the Client. Unless there is a legal requirement which demands otherwise, G & W will only deal with the authorities on behalf of and upon instruction of the Client, and will do so only in a supportive and advisory capacity. This applies in particular when it comes to G & W exercising its power of attorney in tax related matters, meaning that G & W will only exercise this power of attorney upon instruction and subject to the approval of the Client. The Client will be responsible for any tax returns, in particular with regard to their correctness and filing. Under no circumstances will G & W use its own bank account to make payments (for example to settle any tax liabilities) in the name of the Client. All documents, information and data which are sent from the client we expect to be correct, accurate and complete. They will not be checked separately by G & W and therefore G & W accepts no liability.

(2) G & W advises or reports on the basis of our understanding of the relevant tax laws, provisions and decisions that are applicable on the effective date. The effective date is the date specified as such in the report or statement; if no effective date is specified, the date on which the report or statement is signed by G & W is considered the effective date. Changes in the legal situation occurring after the effective date will not lead to any obligations on the part of G & W or other affiliated firms to make any corrections or to provide any information. If, in exceptional cases based on a separate Agreement, any binding information should be provided orally, this will consequently mean that the date on which the information was given is to be regarded as the effective date, as specified above.

(3) G & W will assign suitably qualified staff to provide the services. Decisions on which G & W staff members are to be used to provide the services will be a matter for the sole discretion of G & W. In particular, G & W also retains the right to replace staff or persons who are assigned to provide the services or who are named in the Service Agreement with other (also suitably qualified) staff at any stage.

2. Copyright

(1) G & W and affiliated firms are the owners of all intellectual goods (as well as their written or graphic representation) acquired by G & W or affiliated firms in connection with the fulfilment of the Engagement. As a consequence, these may be used for other clients by G & W or affiliated firms, in compliance with their professional duties, in amended as well as unamended form. Please see Point 5 AAB 2018 for further details.

3. Subcontracting of affiliated firms

(1) The Service Agreement will be concluded exclusively between the Client and G & W. Other affiliated firms may support G & W with respect to the provision of the services agreed upon.

(2) G & W remains solely responsible for the services agreed upon. Point 7 para. (5) AAB 2018 therefore does not apply with respect to any subcontracts commissioned by G & W to other affiliated firms. The Client hereby agrees not to bring any claims (whether in contract, tort or otherwise) against G & W or any other affiliated firms or any partners or employees of other affiliated firms (including partners or employees of G & W) in connection with this Agreement. The above provisions of this paragraph do not, however, apply to any damage caused by a wilful violation of duties or to such instances of violation of duties for which direct claims cannot lawfully be limited or excluded. The Client shall also ensure that no entity which is directly or indirectly affiliated under company law with the Client (“group members”), both during and after the time in which the entity is or was a group member, brings any such claim against any affiliated firm (including G & W) or its partners or employees.

(3) The provisions of the previous two paragraphs are agreed upon between G & W and the Client expressly for the benefit of other affiliated firms, their partners and employees as well as the partners and employees of G & W (“beneficiaries”). The Client hereby agrees that each of the beneficiaries has the right to rely on this Service Agreement as if he/she were a party to this Service Agreement.

4. Due dates and schedules/fee estimates

(1) The due dates and schedules indicated by G & W for the completion of products or parts thereof are estimates which are made to the best of our knowledge and – unless otherwise agreed in writing – are not binding. The same applies to any fee estimates, which are given to the best of our knowledge; however, such estimates are not binding.

5. Electronic communication

(1) With regard to Point 4 AAB 2018 the following is specified:

(a) The Client hereby agrees that, within the framework of the provisions of the AAB 2018 (in particular Point 4 AAB 2018), G & W is permitted to transmit data and information to the Client or to third parties in electronic form. Damage caused by transmission to a recipient other than the intended person as well as damage caused by unauthorised access by third parties is also regarded as damage within the meaning of Point 4 para. (3) AAB 2018.

(b) Both parties hereby commit themselves to undertaking measures that will protect the integrity of information and data. In particular, the recipient is responsible for ensuring that all file attachments are checked with appropriate anti-virus software prior to being opened. The parties are not obliged to use encryption systems, electronic signatures or password protection features.

6. Data protection

(1) The Client hereby agrees to the (particularly electronic) use of client data (name, address, any available identification numbers [such as company register number, DUNS, UID (VAT identification) number, tax number], contact details of the Client, contact partner with the Client and his/her contact details, type and scope of services, fees, duration of services) within the G & W group pursuant to article 6 (1) lit. a GDPR and in accordance with the following provisions:

(2) G & W is entitled to process these data and to transmit them (also outside Austria) for processing purposes to other affiliated firms and to make these data available for the internal purposes of G & W as well as other affiliated firms. These internal purposes include checking whether any conflicts of interest exist and whether professional independence provisions are adhered to (in particular for the purpose of determining the existence of grounds of bias or grounds for exclusion of auditors); they also include ensuring adherence to supervisory regulations and statutory compliance provisions as well as the provisions related to risk management and quality assurance, client information and Client Relationship Management (“CRM”), the coordination of engagements within the Client’s group, financial reporting as well as the storage of data abroad. In non-EU Member States, a lower level of data protection may prevail than in EU Member States; as a matter of course, however, all affiliated firms observe certain guidelines that ensure an appropriate level of data protection. These data will neither be transmitted nor made available to third parties outside the above mentioned group of recipients. The Client may revoke this consent at any time by writing to G & W.

7. Confidentiality

(1) Pursuant to professional legal regulations (§ 80 Auditing, Tax Advising and Related Professions Act (WTBG 2017)), G & W is BAB G&W International Steuerberatungs- und Wirtschaftstreuhand GmbH 05/2018 obligated to maintain strict secrecy unless the Client releases G & W from its obligation to maintain secrecy or G & W is bound by law to deliver a statement.

(2) Unless previous written consent has been obtained from G & W, the Client shall not disclose to any third parties any confidential information or documents (in particular the provisions of this Service Agreement and the fees agreed upon as described in it) received by the Client from G & W within the context of the provision of services, unless (and only to the extent necessary) bound to do so by law. Before doing so, the Client is particularly to ensure that any references to G & W or affiliated firms are removed.

(3) In accordance with § 80 para. 4 no. 2 WTBG 2017, the Client expressly releases G & W from the obligation to maintain secrecy in the following instances: (i) Use of data for those purposes set out under Point 5; (ii) Disclosure of confidential information and documents to advisors as well as other third parties assigned by the Client, any subcontractors of G & W commissioned for the completion of the Engagement as well as any legal advisors, insurance companies or insurance brokers of G & W; (iii) Disclosure of confidential information and documents if G & W is required to disclose such information due to Austrian or foreign legal provisions, other regulations (such as rules of professional conduct) or decrees made by the authorities; (iv) G & W is further entitled to use the name of the Client and the products and services provided in accordance with the Service Agreement as a reference for other clients or potential clients.

(4) With respect to the use and disclosure of products and any professional statements made by G & W, reference is made to Point 5 AAB 2018 as well as to Point 1 (Provision of services) of this document. This provision of AAB 2018 further applies to the disclosure of any information or documents related to the Engagement (in particular to the terms and conditions of the Service Agreement and the fees agreed as described in it) which the Client has received from G & W.

(5) The consultancy services are, however, provided by G & W exclusively for the benefit of the Client and for those purposes of the Client as set out in writing to G & W; they are not appropriate for the purposes of third parties and third parties may not rely upon them. The Client agrees to indemnify and hold harmless G & W as well as any other affiliated firms and their respective partners and employees against any claims made by any third party which has not signed a general Hold Harmless Agreement and Release Agreement (submitted by G & W) entered into with G & W, any other affiliated firms and their staff. This Point 7 para. (5) remains unaffected by the provisions of the following paragraphs.

(6.1.) If the Client is an audit client of G & W or of an affiliated firm and if the Client is registered with the U.S. Securities and Exchange Commission (SEC), or if the Client is an affiliate (within the meaning of the SEC regulations on auditor independence) of a company registered with the SEC and audited by G & W or by another affiliated firm (i.e. if the SEC rules on auditor independence are applicable to our services), paras 6.2.-6.4. below apply.

(6.2.) Both the Client and any party authorised by the Client may, as an exception, disclose to third parties all information and documents in

connection with tax consultancy services provided by G & W with regard to the tax treatment and structuring of transactions within the meaning of Rule 3522 of the United States Public Company Accounting Oversight Board (“PCAOB”). This is referred to as “disclosure permissible pursuant to PCAOB Rule 3522”, with such services being referred to as “3522 tax consultancy services”. This provision applies in deviation from Point 5 (1) AAB 2018 or from any other applicable provisions of this Agreement.

(6.3.) In the event that, within the framework of a disclosure pursuant to PCAOB Rule 3522, the Client should make available to third parties the 3522 tax consultancy services provided by G & W – in particular any statements, expert opinions, tax returns or other associated documents and information (“Engagement results”) – the Client shall do as follows: (a) Provide G & W with the name and the address of the third party as well as a list of the information and documents disclosed; (b) Inform the third party recipient of the above mentioned information and documents in writing that under no circumstances may he/she or any other third parties rely upon the consultancy services provided for the Client, that such services are exclusively intended for the purposes of the Client and that, in relation thereto, G & W accepts no liability or responsibility towards him/her or any other third parties; and (c) Undertake all efforts to obtain from the recipient of the aforementioned information and documents written consent to a general Hold Harmless Agreement and Release Agreement (submitted by G & W) entered into with G & W, any other affiliated firm and their partners and staff for any liability obligations, damage, claims, costs, expenditure or court claims resulting from instances in which the third party in question may have relied upon or acted on the basis of any information or documents made available by the Client.

(6.4.) In signing the Service Agreement, the Client hereby confirms to G & W that it has not entered into any confidentiality terms (as stipulated in PCAOB Rule 3522) with any other consultant who provides or has provided tax consultancy services in connection with our activities pursuant to this Service Agreement. Furthermore, the Client hereby agrees to inform G & W if, once G & W has commenced the provision of services, another consultant demands confidentiality terms (as stipulated in PCAOB Rule 3522) with regard to our activities pursuant to this Service Agreement; the purpose of this provision is to allow G & W to discontinue its services in order to prevent any violation of the independence of G & W or of any other affiliated firm pursuant to PCAOB Rule 3522.

8. Maintenance of independence

(1) The Client hereby acknowledges that it is possible, in the event that the Client is or becomes an audit client or a company affiliated with an audit client of a G & W firm within the meaning of the applicable independence regulations for auditors, that G & W will no longer be allowed to perform certain services or that certain formalities may have to be adhered to before providing the services (e.g. obtaining prior permission) as well as during or after the termination of the Engagement (e.g. disclosure of non-audit fees).

(2) In order to ensure the auditor independence of G & W and other affiliated firms, G & W will not provide any services that are associated with or bear the risk of jeopardising the independence of G & W or any other affiliated firms as auditors or of violating any professional regulations as well as internal or external standards.

(3) The Client shall provide G & W with any information required for determining the independence status of G & W (especially regarding the issue as to whether the Client or a company affiliated with the Client is an audit client of any firm connected with G & W within the meaning of the applicable independence regulations) and shall, if necessary, immediately inform G & W of any changes to such information.

9. Conflicts of interest

(1) G & W performs its services for the Client on a purely non-exclusive basis.

(2) G & W provides a wide range of services to a large number of clients, and thus might provide services to companies or organisations which the Client might deem to be affected by a conflict of interest. G & W may also provide services to companies or organisations which might – pursuant to professional guidelines – be deemed to be affected by a conflict of interest. The Client shall therefore inform G & W of any (potential) conflicts of interest with respect to our services which the Client is aware of or becomes aware of.

(3) The Client hereby agrees that, in the event of any (potential) conflict of interest, G & W is entitled to continue providing the services to the Client as well as to other clients, including those which the Client considers to be affected by a conflict of interest or which may be considered to be affected by a conflict of interest. In such instances, G & W shall take appropriate measures in order to settle the (potential) conflict of interest and to maintain secrecy for the duration of the Engagement.

10. Limitation of liability

(1) This limitation of liability as stated in Point 7 AAB 2018 refers to the individual case of damage. The individual case of damage encompasses all consequences arising from a breach of duty without taking into account whether the instances of damage occurred in the course of one year or in a number of successive years: multiple acts or omissions based on the same or similar source of error are deemed to constitute a uniform breach of duty if the matters in question are legally and economically connected to one another. Where a uniform case of damage occurs, such damage remains to be considered an individual case of damage BAB G&W International Steuerberatungs- und Wirtschaftstreuhand GmbH 05/2018 even if such damage arises from a number of breaches of duty. Furthermore, with the exception of cases of wilful misconduct, G & W will not be liable for any lost profits or any collateral, consequential, incidental or similar damage. Liability with respect to third parties is – as far as is legally permissible and where not otherwise negotiated by the parties to the Agreement on an individual basis in relation to the subject of the Agreement – hereby excluded. On a secondary level, liability limitations of G & W in relation to the Client also apply in relation to third parties. Point 7 AAB 2018 remains unaffected.

11. Employment and assignment of G & W staff

(1) The prohibition to employ G & W staff pursuant to para. (12) of the Scope and Execution of Contract Points of the AAB 2018 also extends to the staff of other affiliated firms. The term staff refers to employees and other personnel. Commissioning a staff member as a freelance public accountant, tax advisor or business consultant is regarded as employing this person. The penalty sum agreed upon will not be subject to the discretion of the court. Further claims related to damages remain unaffected.

12. Amendments or additions to the Engagement and subsequent engagements

(1) Any changes to the Engagement or the provision of any additional services are in principle to be subject to agreement in writing. Where there is no such agreement in writing, the terms and conditions of the last Service Agreement concluded in writing between G & W and the Client will apply accordingly. However, in such case, irrespective of any provisions to the contrary in this Service Agreement, time-based billing and current hourly rates will be deemed applicable.

13. Duration and termination

(1) This Service Agreement is in force for an unlimited period of time. It may be terminated on the basis of the provisions of AAB 2018. If G & W has started to provide services prior to the signing of the Service Agreement, the provisions of the Service Agreement will also be applicable in relation to these services.

(2) Both parties are hereby entitled to terminate this Service Agreement at any time in writing. The Service Agreement may be terminated in its entirety or in part with immediate effect if it is to be assumed that fulfilling the Service Agreement or any aspect of the Service Agreement results in or might result in an infringement of a legal or regulatory requirement of any applicable legal system by any party or any affiliated firm. Within the scope of this Service Agreement, this is in any case considered a significant reason within the meaning of § 77 para. 5 WTBG 2017 and Point 9 para. 3 AAB 2018. Nevertheless, each party may under such circumstances demand an amendment or an adaptation of the Service Agreement in order to avoid any such infringement of a legal or regulatory requirement.

(3) Furthermore, each party may terminate the Service Agreement in its entirety or in part with immediate effect if and when (i) insolvency proceedings have been opened for the other party, that is unless a termination is not admissible pursuant to § 25a Austrian Insolvency Code (Insolvenzordnung), or (ii) the opening of insolvency proceedings has been rejected due to lack of sufficient funds, or (iii) the issue of a party’s insolvency has not been disclosed to the court.

(4) In the event that one of the parties terminates the contractual relationship, the Client is obligated to remunerate G & W for all services performed up to the termination of the contractual relationship as well as for all additional expenses, such as expenses for subcontracts. G & W will endeavour to keep such additional expenses at a reasonable level. The AAB 2018 provisions on remuneration claims remain unaffected.

(5) G & W ´s entitlement to receive payment for services already provided will remain valid even if the continuation or completion of the Engagement is not possible for reasons extending beyond the control of G & W. In instances where, despite termination of the Service Agreement, G & W remains legally bound to continue with the provision of the services, the Client shall be further obligated to pay the applicable fees.

14. Severability clause

(1) Should any provision of the Service Agreement prove to be invalid, this will not affect the validity of the other remaining provisions of the Service Agreement. The invalid provision is to be replaced with a provision that reflects as closely as possible the intentions and the purpose of the invalid provision.

15. Applicable law

(1) The Service Agreement, its execution and any claims resulting from it will be wholly governed by Austrian law; international conflict-of-law provisions will not be applicable.

16. Place of jurisdiction

(1) The place of jurisdiction for all legal disputes arising out of or in connection with the Service Agreement is the District Commercial Court of Vienna (Bezirksgericht für Handelssachen Wien) or the Commercial Court of Vienna (Handelsgericht Wien), depending on the amount in dispute.

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