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

Rec­om­mend­ed for use by the Board of the Cham­ber of Tax Advis­ers and Audi­tors, last rec­om­mend­ed in its deci­sion of April 18, 2018

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 fla­trate 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.

© 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.