The following “General Conditions of Contract” apply to contracts between der Wagemann + Partner PartG mbB Steuerberater Wirtschaftsprüfer (hereinafter “tax advisers”) and their clients, unless otherwise expressly agreed in writing or required by law. If in specific cases, as an exception, contractual relationships are established between the tax adviser and other persons than the client (third party), these General Conditions of Contract also apply vis-a-vis those third parties. In particular, the amount of our liability is governed by the following provision No. 6.
1. Scope and execution of the contract
(1) The scope of the work to be done by the tax adviser is determined by the relevant contract. Object of the contract is the agreed-upon work, not a particular type of economic success.
(2) The contract shall be executed according to the principles of good professional practice.
(3) The tax adviser shall confirm the facts, in particular payment data and information, provided by the client. Insofar as he finds errors, he is obliged to point these out. This also applies if the facts and information provided to him appear implausible to the tax adviser, or appear inconsistent with generally publicly available information.
(4) The examination of the accuracy, completeness and correctness of the documents provided, the information given, the accounts and the balance sheet only belong to the contract if this is agreed in writing. With regard to accounts maintained by the client, the tax adviser assumes no liability for the completeness of the documents and transactions, so that he is not liable if as a result of an incomplete presentation of the actual transactions it occurs that the pre-tax payment or other fiscal benefits cannot be fully enforced.
(5) The contract represents no authorisation for representation before authorities, courts and agencies. This authorisation must be issued separately. If due to the absence of the client a discussion with him concerning the utilisation of legal remedies is not possible, in case of doubt the tax adviser is authorised and obliged to take measures to adhere to deadlines.
(6) You shall be informed of changes to these General Conditions of Contract in writing, by fax or email. If you do not object to such changes within four weeks after receipt of the notification, the changes shall be considered to have been accepted by you. In case of a change in the General Conditions of Contract, you shall be informed separately concerning your right of objection and the legal consequences of your silence.
2. Obligation to maintain confidentiality
(1) The tax adviser is obliged according to law to maintain confidentiality with regard to all facts that he has obtained in connection with the execution of the contract, unless the client releases him from this obligation. The obligation of confidentiality shall continue after termination of the contract. The obligation of confidentiality exists to the same extent for employees and other representatives of the tax adviser.
(2) The confidentiality obligation does not apply if the disclosure of facts falling under the obligation of confidentiality is necessary to the justified interest of the tax adviser. The tax adviser is also released from the obligation of confidentiality if according to the insurance conditions of his professional liability insurance he is obliged to provide information and cooperate.
(3) Legal information and rights to refuse to testify, especially as per § 102 AO, § 53 StGB and § 383 ZPO remain unaffected.
(4) The tax adviser is authorised to collect personal data on the client and his employees in respect of contracts, and to process these in a computer file or release them to a computer service center (e.g. DATEV e.G.) for further data processing.
(5) The tax adviser may release reports, expert opinions, statements and comments about the results of his work to third parties only with the consent of the client. Beyond this there is no obligation of confidentiality insofar as this is necessary for the execution of a certified audit in the office of the tax adviser and the relevant employed persons have been informed of their obligation to maintain confidentiality. The client agrees that the certifier/auditor shall have access to his files prepared and managed by the tax adviser.
(6) The tax adviser must bear in mind the obligation to maintain confidentiality with regard to sending or forwarding documents, files, work results etc. on paper or in electronic form. For his part the client shall ensure that as recipient he shall also take all security measures to ensure that the papers or files provided to him only go to the entities responsible for them. This particularly also applies to faxes and emails. For the protection of the transferred documents, the relevant technical and organizational measures shall be taken. Should special measures beyond the usual need to be taken, a relevant written agreement is to be made bearing in mind additional security-relevant measures, particularly whether encryption needs to be applied in email correspondence.
3. Information regarding third parties
Should the tax adviser, in the context of the given assignment, share information about the audit procedures being undertaken with anyone else but the client, this information will be shared solely and exclusively upon appropriate instruction and in the interest of the client and with no regard for the concerns and interests of the third party.
4. Cooperation of third parties
(1) The tax adviser is authorised to use employees, expert third parties and data processing firms for the execution of his task. When using the services of third parties, and data processing companies the tax adviser must see to it that they are held to the obligation to maintain confidentiality as per No. 2 in paragraph 1.
(2) The tax adviser is authorised to allow general representatives (§ 69 StBerG) and practice trustees (§ 71 StBerG) access to the manual files if they are so appointed, as per § 66 Par. 2 StBerG.
(1) The client is entitled to the remedy of any defects (subsequent performance). The tax adviser shall be given the opportunity to make improvements. The client has the right – if and when this is in the mandate for a service contract within the meaning of § § 611.675 Civil Code – to refuse said improvement by the tax adviser if the mandate is terminated by the client and the error is only determined after the effective termination of the mandate, by a different tax adviser.
(2) If the tax adviser does not correct the asserted deficiencies within a reasonable time or refuses to correct them, the client can have the deficiencies corrected by another tax adviser and demand reimbursement of associated costs, or at his choice decide to refrain from paying a fee or revoke the contract.
(3) If the contract was issued by a merchant as part of his commercial activities, a legal person under public law or a publicly-owned corporation, the client can only demand the revocation of the contract if the work carried out is uninteresting to him due to the failure of secondary fulfilment. The right to correction of deficiencies must also be enforced immediately and in writing by the client of the aforementioned type.
(4) Claims for damages extending beyond the correction of deficiencies are subject to the provisions of the below number 5.
(5) Obvious errors, including typographical errors, calculation errors and form defects, which are contained in a professional statement (report, opinions, etc.) of the tax adviser may be corrected at any time by the tax adviser, including vis-a-vis third parties. The tax adviser may correct other deficiencies vis-a-vis third parties with the agreement of the client. Such agreement is not necessary if justified interests of the tax adviser take precedence over the interests of the client.
(1) The tax adviser is responsible for his own negligence and that of his agents.
(2) The client’s claim against the tax adviser for compensation for damage imputably caused as per Par. 1 is limited to €4,000,000.
(3) Unless this is deviated from in individual instances, particularly if the liability is to be limited to an amount less than that mentioned above, an individually negotiated written agreement is required that must be prepared separately and handed to the client together with these General Conditions of Contract.
(4) Exempt from the limitations of liability are liability claims for loss due to injury to life, limb and health.
(5) Insofar as a claim for damages of the client, by law, is not subject to a shorter statute-barring, it becomes statute-barred a) in three years from the time at which the claim arose and the client finds out about the circumstances on which the claim is based as well as the person that is liable or asks for this, b) without consideration of said knowledge or grossly negligent ignorance in five years from its occurrence, and c) without consideration of its occurrence and that knowledge or grossly negligent ignorance in 10 years from the event, the violation of obligation or the other event leading to loss. The earlier deadline is decisive. This applies regardless of the knowledge of the client. Rights to damages that already existed on 15 December 2004 become statute-barred within three years from the date of their occurrence.
(6) The measures taken in paragraphs 1 to 4 also apply vis-a-vis persons other than the client, inasmuch as in individual cases contractual or non-contractual relations were also established between the tax adviser and said persons.
(7) The release of professional statements of the tax adviser to third parties requires the written authorisation of the tax adviser, insofar as according to the contents of the contract such authorisation for release to a certain third party is evident. The tax adviser is only liable vis-a-vis a third party if the conditions of Sentence 1 exist.
7. Reporting and verbal information
(1) If the tax adviser is to present the results of his work in writing, only the written presentation is authoritative. Oral statements and information provided by employees of the tax adviser and telephone information are only binding after they have been confirmed in writing by the tax adviser.
8. Obligations of the Client
(1) The client is obliged to cooperate to the extent necessary for the proper implementation of the contract. In particular he must hand over to the tax adviser, without being requested to do so, all the documents necessary, and in good time, for the tax adviser to have a reasonable processing time at his disposal. The same applies to the disclosure of all events and circumstances that could be significant with regard to the execution of the contract. The client is obliged to take cognizance of all written and oral communications of the tax adviser and consult in case of doubt. At the request of the tax adviser, the client must confirm the completeness of the provided documents and the information given in a written statement formulated by the tax adviser.
(2) If the contract of the tax adviser also includes adherence to deadlines on necessary actions, particularly the enforcement of legal remedies, the client must present the documents relevant to said deadlines in such good time – particularly tax documents – as to enable the tax adviser to have a suitable period of time at his disposal for their processing.
(3) The client must refrain from doing anything that might influence the independence of the tax adviser or his agents.
(4) The client agrees not to disclose work results of the tax adviser except with his written authorisation, insofar as the consent to release to a third party is not already apparent from the contents of the contract. At the request of the tax adviser the client must provide evidence as to whom the results of the work of the tax adviser should be passed on (distributor).
(5) If the tax adviser revokes a certificate or another professional statement, the client may not use said certificate or professional statement further. If the client has already used the certificate or professional statement, at the request of the tax adviser he must make its revocation known. If the client does not make that disclosure to third parties, then the tax adviser – immediately if delay would be dangerous – has the right to inform the third parties himself.
(6) If the tax adviser uses data processing systems at the premises of the client, the client is obliged to follow the instructions of the tax adviser with regard to the installation and application of the programs. Furthermore, the client is entitled and obliged to only reproduce said programs to the extent specified by the tax adviser. The client may not distribute the programs. The tax adviser remains the owner of usage rights. The client must refrain from anything that opposes the exercise of the rights to use the programs by the tax consultant.
9. Failure to cooperate and delayed acceptance of the client
(1) If the client fails to carry out an obligation as per No. 7 or another obligation to which he is obliged, or if he comes to be in arrears with the acceptance of the work carried out by the tax adviser, the tax adviser is authorised to stipulate a suitable deadline with the statement that he refuses to continue the contract after the termination of said deadline. After unsuccessful expiry of the period set as above, the tax adviser may terminate the contract without notice. This does not affect the entitlement of the tax adviser to compensation due to the additional costs and loss incurred due to the delay or failure of the client to cooperate, including in such case as the tax adviser does not make use of the right to terminate. If the tax adviser must issue a document concerning the results of his work or if he is contracted to issue a statement, the client is not authorised to refuse the acceptance of the work of the tax adviser on the grounds that the statements may not be consistent with the expectations of the client. § 324 HGB applies in case of disputes with the proviso that the Chamber of Tax Advisers is to be contacted with a request for mediation.
10. Assessment and due date for payment
(1) The remuneration (fees and reimbursement of expenses) of the tax adviser for his work as per § 33 StBerG is calculated according to the fee regulations for tax advisers, tax agents and tax consultants.
(2) For activities that are not mentioned in the fee regulations (e.g. § 57 Par. 3 No 2 and 3 StBerG), the agreed remuneration applies, and otherwise the normal remuneration (§ 612 Par. 2 and § 632 Par. 2 BGB).
(3) In case of a resignation from a client relationship because of a lack of reasonable prospects of success the claim for remuneration shall remain unaffected..
(4) A set-off against a claim for payment of the tax adviser is permitted only with regard to undisputed or legally established claims.
(5) The payment is due immediately after issue of the invoice, without discount.
(1) The tax adviser can request an advance on already incurred and expected fees and expenses.
(2) If the requested advance is not paid, after prior notice the tax adviser can suspend his further work for the client until the advance is received. The tax adviser is obliged to inform the client in good time of his intention of ceasing work if the client could experience a disadvantage from the termination of said work.
12. Termination of the contract
(1) The contract ends through the fulfilment of the agreed services, by the termination of the agreed term or by notice. The contract does not end by the death or commencement of business incapacity of the client. Nor does the contract end by the dissolution of the company of the tax adviser or the entry or exit of individual shareholders. An authorised termination as per § 627 BGB remains unaffected.
(2) The contract can – if and insofar as it constitutes a service contract within the meaning of § § 611, 675 BGB – be terminated by either party in accordance with § § 626 et seq BGB. Such termination must be in writing. If this is to be deviated from in individual cases, this requires a written agreement that must be prepared separately and handed to the client.
(3) In the case of termination of the contract by the tax adviser, in order to prevent legal detriment to the client in any case those activities are to be undertaken that are essential and cannot be postponed (e.g. deadline extension request in case of imminent deadline). The tax adviser is also liable for these activities as per No. 5.
(4) The tax consultant is obliged to pass on everything he has received or shall receive in order to execute the contract and what he has obtained in the context of the contract. In addition, the tax adviser is obliged to give the client the necessary information, on request to inform him of his activities and account for these.
(5) With the termination of the contract the client must immediately return to the tax adviser the data processing programs used by the latter, as well as all copies and other program documentation, or else delete these from his hard disc. Upon termination of the contract by the tax adviser, the client can nonetheless retain the programs for a period to be agreed upon if this is absolutely necessary in order to avoid legal detriment.
(6) After termination of the contract the client must pick up documents to be provided by the tax adviser from the tax adviser.
13. Right to compensation for early termination of contract
(1) If the contract terminates before its complete execution, the right to compensation of the tax adviser is as stipulated by law. If this is to be deviated from in individual cases, this requires a written agreement that must be prepared separately and handed to the client.
14. Storage, release and retention of work results and documents
(1) The tax adviser is required to keep the files for a period of seven years after termination of the contract. However, this obligation terminates before the termination of said period if the tax adviser has asked the client in writing to take receipt of the files, and the client has not complied with this request within six months after receiving it.
(2) The files in the context of this regulation include all written documents that the tax adviser has received from or for the client in the context of his professional activities. However, this does not extend to correspondence between the tax adviser and his client and to documents that the client had already received in their original form or as a copy, as well as for the work papers prepared for internal purposes.
(3) At the request of the client, at the latest after the termination of the contract, the tax adviser must hand over the files to the client within a reasonable amount of time. The accountant can make copies or photocopies of documents that he returns to the client and keep these.
(4) The tax adviser may refuse to release results of his work and the files until he has been paid his fees and expenses. This does not apply if such withholding under the circumstances, particularly in terms of the relative minimality of the amounts owed, would be in conflict with good faith.
15. Information regarding consumer alternative dispute resolution (ADR) law
(1) There is no legal obligation and no willingness to participate in any in any consumer ADR procedures in front of any ADR entity.
16. Third-party liability
(1) There is professional indemnity insurance related to normal professional activities in Germany. That insurance has been purchased with HDI Gerling Firmen und Privat Versicherung AG, Postfach 21 27 30021 Hannover.
17. Applicable law and place of fulfilment
(1) The contract, its execution and the resulting rights are subject to German law only.
(2) EPlace of fulfilment is the location of the local business establishment or the place of another advisory facility of the tax adviser, unless agreed otherwise. The regulation on the place of fulfilment only applies if the client is a merchant within the meaning of the Commercial Code.
(3) Only the German version of the General Conditions of Contract is legally valid and binding.
18. Effectiveness in case of partial nullity
(1) Should individual provisions of these General Conditions of Contract be or become ineffective, this shall not affect the effectiveness of the remaining provisions. The ineffective provision shall be replaced by an effective one that comes as close as possible to the intended goal.
19. Changes and additions
(1) Changes in the General Conditions of Contract are considered to have been agreed upon if the client does not refute these within a period of eight weeks after these are announced to him. In that case the contract applies with the last amended General Conditions of Contract. Said announcement can be made in general form, e.g. through notifications, general information materials of the tax adviser, unless the tax adviser knows that the client cannot take note of these. Supplements to the General Conditions of Contract shall be in writing.