The following "General Terms and Conditions" apply to contracts between the HoTax mbH company of tax consultants in Krefeld, Germany (hereafter referred to as "tax consultant") and their clients, unless alternative agreements are expressly concluded in writing or statutory regulations prescribe otherwise.
The scope of the services to be provided by the tax consultant shall be determined by the assignment issued.
The assignment is performed in accordance with the principles of proper professional practice.
The tax consultant will assume that the facts - in particular the figures submitted - are correct. Insofar as the tax consultant ascertains that there are inaccuracies, he or she is obliged to point them out.
Verification of the accuracy, completeness, truth and fairness of the submitted documents and figures - in particular the accounts and balance sheet - only forms part of the assignment if this is agreed in writing.
The assignment does not constitute power of representation before public authorities, courts or other bodies, which is to be issued separately. Insofar as agreement with the client concerning the lodging of appeals or the use of legal remedies is not possible due to the client's absence, the tax consultant is entitled and obliged in cases of doubt to perform actions which enable deadlines to be met.
The tax consultant is legally obliged to maintain confidentiality with respect to all facts of which he or she becomes aware in conjunction with the performance of the assignment unless the client releases the tax consultant from this obligation in writing. The confidentiality obligation continues to exist after termination of the contractual relationship.
The tax consultant is entitled to collect personal data of the client and the client's employees electronically within the framework of the assignment issued and process them in an automated file or transmit them to a service computer centre for further processing.
The confidentiality obligation applies to the same extent to the tax consultant's employees.
The confidentiality obligation does not apply insofar as disclosure is required to protect the tax consultant's legitimate interests. The tax consultant is also released from the confidentiality obligation insofar as he or she is obliged to provide information and co-operate in accordance with conditions of his or her professional indemnity insurance.
Statutory rights to refuse to provide information or submit statements in accordance with Section 102 of the German Fiscal Code, Section 53 of the German Code on Criminal Procedure and Section 383 of the German Code of Civil Procedure remain unaffected by the above.
The tax consultant may only submit reports, expert opinions and other written statements of the results of his work to third parties with the consent of the client. Furthermore, there is no confidentiality obligation insofar as this is required for the performance of a certification audit in the tax consultant's offices and the individuals involved have been informed of their obligation to maintain confidentiality. The client declares his or her agreement that the certifier/auditor may have access to the reference file maintained and archived by the tax consultant.
The tax consultant is entitled to use the services of co-workers, third-party specialists and data processing companies in order to carry out the assignment.
Insofar as the services of third-party specialists and data processing companies are used, the tax consultant must ensure that these are subjected to the confidentiality obligation in accordance with section about "confidentiality", paragraph 1 above.
The tax consultant is entitled to allow general representatives (Section 69 of the German Tax Consultancy Act) as well as tax accounting firm trustees (Section 71 of the German Tax Consultancy Act) access to the reference file within the meaning of Section 66, Subsection 2 of the Tax Consultancy Act, insofar as they are appointed.
In order to fulfil his or her obligations in accordance with the German Federal Data Protection Act the tax consultant is entitled to appoint a data protection officer. Insofar as the data protection officer is not subject to the confidentiality obligation referred to in section "confidentiality", paragraph 3 above, the tax consultant shall ensure that the data protection officer is subjected to an obligation to maintain confidentiality with respect to all data before the start of his or her employment.
The client has a right to the correction of all errors. The tax consultant is to be provided with the opportunity to carry out such corrections.
Insofar as the consultant does not correct the errors within a reasonable period or refuses to correct the errors, the client may have the errors corrected by another tax consultant at the expense of the tax consultant committing the errors or - at his or her own discretion - demand a reduction in the tax consultant's remuneration or cancel the contract.
Self-evident inaccuracies (e.g. clerical or mathematical errors) may be corrected by the tax consultant at any time, also with respect to third parties. Other errors may be corrected by the tax consultant with respect to third parties with the client's consent. Such consent is not necessary if the legitimate interests of the tax consultant have priority over the interests of the client.
The tax consultant is liable for his or her own errors as well as those of his or her vicarious agents.
Claims for compensation by the client against the tax consultant for loss or damage caused negligently in accordance with first section (above) shall be limited to an amount of € 1 million (one million euros).
Insofar as alternative conditions are to apply - particularly where liability is to be limited to a lower amount than that stated in section "confidentiality" above - a written agreement shall be required, which is to be drawn up and submitted to the client separately.
Unless statutory legislation stipulates that a claim for damages on the part of the client is subject to a shorter period of limitation, it shall become statute-barred after a period of three years from the time at which the claim arose.
The client shall be obliged to co-operate with the tax consultant insofar as this is necessary for due and proper performance of the assignment. In particular, without being asked the client shall provide the tax consultant with all documentation required for performance of the assignment within good time so that the tax consultant has a reasonable period to deal with the case at hand. This also applies to the provision of information concerning all procedures and circumstances which may be of significance for performance of the assignment. The client is obliged to take note of all written and verbal notifications made by the tax consultant and submit queries in cases of doubt.
The client shall refrain from taking any action which might impair the independence of the tax consultant or his or her vicarious agents.
The client undertakes to pass the results of the tax consultant's work to third parties only with the tax consultant's written consent, unless the consent to pass the results to a specific third party is automatically granted by the contents of the assignment.
Insofar as the tax consultant uses data processing programs on the client's premises, the client shall be obliged to follow the tax adviser's instructions concerning the installation and application of the programs. Furthermore, the client shall only be obliged and entitled to copy the programs to the extent specified by the tax consultant. The client may not pass the programs on to others. The tax consultant also remains the holder of the rights of use. The client shall refrain from taking any action which prevents the tax consultant from exercising his or her rights of use to the programs.
Insofar as the client fails to provide the cooperation which he or she is obliged to provide according to paragraph no. 6 above or any other form of obligatory cooperation, or if the client is in default with respect to acceptance of the services offered by the tax consultant, the tax consultant shall be entitled to lay down a reasonable deadline and submit a declaration that he or she will refuse to continue the contract once the deadline has expired. If the deadline passes and the client has not fulfilled his or her obligations, the tax consultant may terminate the contract with immediate effect (cf. section "termination of the contract" below, paragraph 3). This shall not affect the tax consultant's claim to compensation for the additional expenditure incurred as a result of the client's failure to cooperate or default of acceptance, as well as the loss or damage caused, even if the tax consultant has not exercised the right of termination.
The tax consultant's remuneration (fees and reimbursement of out-of-pocket expenses) for his or her professional work in accordance with Section 33 of the Tax Consultancy Act shall be assessed according to the scale of charges for tax consultants, tax attorneys and tax accounting firms.
For work for which the above scale of charges does not stipulate any fee (e.g. Section 57, Subsection 3, Paragraphs 2 and 3 of the Tax Consultancy Act), the agreed remuneration shall apply, or in all other cases the standard remuneration (Section 612, Subsection 2 and Section 632, Subsection 2 of the German Civil Code).
Offsetting against another remuneration claim of the tax adviser is only permitted in the case of claims which are undisputed or have been legally established.
Payment of the remuneration shall become due upon completion of the work.
The tax consultant may request an advance payment for charges and expenses which have already been incurred or which are foreseeable.
Insofar as the requested advance payment is not effected, the tax consultant may - after announcing his or her intention to do so in advance - refrain from working on the client's behalf until the advance payment is received. The tax consultant is obliged to inform the client in good time of his or her intention to suspend the work if the client might experience disadvantages from such a suspension.
The contract shall end upon fulfilment of the agreed services, expiry of the agreed term or by the serving of notice of termination. The contract shall not end as a result of death, the occurrence of the client's inability to contract or - in the case of a company - as a result of the dissolution of the company.
An agreement concluded for an indefinite period can - if and to the extent that it represents a contract for services within the meaning of Sections 611 and 675 of the German Civil Code - be terminated by any contracting partner in accordance with Sections 626ff. of the German Civil Code; termination must be declared in writing. Insofar as alternative arrangements are to apply in a specific case, there must be a written agreement which is to be drawn up separately and submitted separately to the client.
In order to avoid the loss of rights by the client, upon termination of the contract by the tax consultant all actions are to be performed which are reasonable and which cannot be deferred (e.g. application for the extension of a deadline which is about to expire). For such actions the tax consultant is also liable in accordance with section "liability".
The tax consultant is obliged to return to the client all items which he receives or has received for performance of the assignment and which he obtains from business activities conducted on the client's instructions. Furthermore, the tax consultant is obliged to submit all necessary notifications to the client, provide the client with information upon request concerning the status of the matter at hand and render an account of his or her actions.
Upon termination of the agreement the client shall immediately return to the tax consultant the data-processing programs used on the client's premises for performance of the assignment, including any copies that have been made and other program documentation, and delete any such programs from his or her hard disk.
Upon termination of the client-consultant relationship the documents are to be collected from the tax consultant.
Insofar as the assignment ends before it has been completed, the tax consultant's remuneration claim shall be based on statutory regulations. If alternative arrangements are to apply in a specific case, a separate written agreement must be drawn up and submitted to the client upon conclusion of the agreement.
The tax consultant shall store the reference files for a period of seven years after termination of the assignment. However, this obligation shall end before this period has elapsed insofar as the tax consultant requests the client in writing to take receipt of the reference files and the client has not complied with this request within a period of six months of receiving it.
The term reference files within the meaning of this provision includes all written documents which the tax consultant has received from the client or on the client's behalf within the framework of his or her professional work. This does not apply however to the correspondence exchanged between the tax consultant and his or her client, documents which the client has already received in the original or as a copy or to working documents compiled for in-house purposes.
At the request of the client - and not later than the time of termination of the assignment - the tax consultant shall surrender the reference files to the client within a reasonable period. The tax consultant may make and retain copies (including photocopies) of documents which he or she returns to the client.
The tax consultant may refuse to surrender the results of his or her work and the reference files until such time as his or her fees and expenses have been settled. This does not apply insofar as such retention would be a breach of good faith in the specific circumstances, particularly if the amounts owing are relatively small. The client is entitled to retain an appropriate portion of the remuneration until the correction of errors by the tax consultant for which the client has asserted claims within the prescribed period.
German law applies exclusively to the assignment, its performance and any associated claims.
The place of performance is Krefeld, Germany.
Insofar as individual provisions of these terms of engagement are or become invalid, this shall not affect the validity of the remaining provisions. The invalid provision is to be replaced by a valid provision that comes as close as possible to the intended aim.
All amendments and supplements to these terms of engagement shall require the written form to take effect.