General Terms and Conditions (GTC)
The following General Terms and Conditions (GTC) apply to all legal services offered by LICHTNECKER & LICHTNECKER Patent- und Rechtsanwaltspartnerschaft mbB (IP Law Firm) (hereinafter also referred to as the “law firm”), inter alia, via the website www.flatrateip.com (and related websites), which are processed by the law firm within the scope of a client relationship. For non-binding information (e.g. in the case of a free initial assessment by telephone and without written confirmation), no client relationship shall be established and these GTC shall not apply. No liability will be taken over for such information
§ 1 Scope of application
(1) The offered services are only for entrepreneurs according to Section 14 German Civil Code (BGB), but not for consumers according to Section 13 BGB or such according to Section 1 (1) German Price Information Regulation (PAngV).
(2) With the order of the respective service, a binding client relationship is established. By placing the order, the client agrees to the validity of these GTC.
(3) Conflicting GTC of the client shall only be applicable with the explicit written consent of the law firm.
§ 2 Scope of the mandate, conclusion of the contract, duration
(1) The scope of the mandate shall be determined by the very order and, if applicable, by the description specified in more detail on the respective website or within the scope of an individual offer (and, where mentioned, the costs and fees specified therein) and these GTC. The agreed work includes, for example, the registration of intellectual property rights, intellectual property rights searches as well as the enforcement of and defense against claims (e.g. in the case of warning letters) and further consulting services (such as contracts/contract reviews or expert examinations). If it is foreseeable for the law firm that more extensive activities will be required, which are no longer covered by a mentioned flat fee offer, it will duly inform the client of it. In addition to the offered standardized “consulting packages”, different or additional services may be optionally agreed upon and ordered.
(2) Unless otherwise agreed, the law firm shall base its performance of the order as well as its legal examination and evaluation exclusively on the law applicable in the Federal Republic of Germany – as well as, in the case of applications for intellectual property rights, on the respective regulations applicable thereto – and shall examine the same. Advice on tax law as well as information on possible tax law problems are not part of the mandate and do not take place. If it is foreseeable that a mandate will affect an area of law not covered by the law firm or foreign legal systems, the law firm shall, as a rule, point this out and, if necessary, suggest the engagement of a third lawyer.
(3) In the case of an inquiry via the website, the client shall receive – e.g. following an automatically generated confirmation of receipt with further instructions – additional information on the respective requested service (e.g. on the scope of services) as well as generally an offer by email. If the request is made directly by email, the law firm also sends information (e.g. after further clarification) and generally an offer. The client can accept the sent offer – if necessary within a time specified in more detail – by email, telephone or in another way. The client relationship shall only come into existence as a result of such an acceptance. After that, the invoice for the ordered service will be sent to the client and the processing begins after receipt of the payment.
(4) The duration of the client relationship shall depend on the service commissioned in each case. The client relationship can only be terminated during the term for good cause (e.g. lack of payment).
§ 3 Clarification of the scope of the mandate and liability in the case of applications, searches and monitoring of intellectual property rights
(1) It is expressly pointed out that the law firm only owes the agreed service, but – in particular in case of an application for intellectual property rights – no specific success (such as a successful registration/grant of the respective intellectual property right).
(2) In order to avoid conflicts, the law firm recommends that the client, prior to filing an application for an intellectual property right, conducts an appropriate search for possibly conflicting rights or orders such a search as e.g. offered in the “premium packages” or e.g. in separate packages. If the client refrains from doing so, the law firm cannot be held responsible for this and shall be released from liability in this respect. With regard to possible restrictions on corresponding searches, see cf. (3).
(3) Intellectual property rights searches are based on the commissioned scope as well as the professional assessment of the attorneys. The search takes e.g. place in the official databases of the relevant patent and trademark offices or with the involvement of external service providers. However, even with such a search and a professional assessment, there is no 100% certainty that problems will not arise, as this depends on various factors and cannot be finally predicted seriously. Therefore, no liability can be taken for the accuracy, completeness and/or actuality of searches. For example, despite careful examination, it cannot be ruled out that a third party may feel disturbed by an intellectual property right application or a new offer and may e.g. take legal action against the application or the registered intellectual property right at the respective patent and trademark office (e.g. by filing an opposition or cancellation action) and/or (possibly in the case of respective offers) take direct action against the intellectual property right holder or the one responsible for the new offer (e.g. by issuing a costly warning letter) or other cost-triggering measures may be taken by third parties. Such legal disputes can also result in the intellectual property right not being registered or being cancelled and can entail a considerable cost and litigation risk for the client. Particularly in case of technical intellectual property rights, it cannot be ruled out that, despite a search, further documents and/or prior publications exist which are not found and may possibly conflict with the registration or that the documents found are assessed differently, for example by an examiner.
(4) The reaction to or defense in case of problems with the respective patent and trademark offices (e.g. in the event of objections within the scope of the application procedure), in the event of corresponding proceedings before these offices (e.g. opposition, cancellation and nullity proceedings) as well as representation out of court or in court against attacks by third parties is not covered by the corresponding offers for intellectual property right applications without express confirmation and must be ordered separately by the client. If further action before the patent and trademark offices become necessary, the law firm may generally make a separate flat fee offer for further handling of the case based on the expected effort, or shall communicate the price range or further information in this regard.
(5) Without a separate order, there will be no monitoring of the respective intellectual property right application with respect to third party applications. However, for a separate order and remuneration, the law firm offers a wide variety of monitoring services with regard to third party intellectual property rights or respective applications, which as a rule have a minimum term of one year and can be extended thereafter.
§ 4 Remuneration and terms of payment
(1) The stated attorney’s fees are net prices (without statutory VAT). They are mainly out-of-court flat fees according to Section 4 (1) German Act on the Remuneration of Lawyers (RVG), where also a lower fee than the statutory fee can be agreed upon. Official fees are added to the fees (as usually stated) and are – as far as they concern the German Patent and Trademark Office (GPTO), the European Intellectual Property Office (EUIPO) as well as the European Patent Office (EPO) – exempted from VAT. If an application is unsuccessful and rejected, any official fees already paid will not be refunded by the patent and trademark offices. Also, unless separately assured by the law firm, there will be no refund of the attorney’s fee paid.
(2) In the absence of a corresponding agreement, other extrajudicial or judicial legal services shall, in case of doubt, be invoiced based on the RVG. It is pointed out that in the case of judicial activities the law firm is obliged to charge at least the fees calculated on the basis of the RVG (including the schedule of fees) on the basis of the value of the subject matter / value in dispute (pursuant to Section 2 RVG). If a higher remuneration (e.g. hourly fee) is agreed for judicial activities, this may also exceed the statutory remuneration, whereby in this case, in a reimbursement of costs, the opposing party, a party to the proceedings or the state treasury or any existing legal expenses insurance shall normally not have to reimburse more than the statutory remuneration (fees and expenses).
(3) Unless otherwise stated or agreed, the amounts to be paid shall be due upon invoicing and payable immediately to the account of the law firm (without deduction). Any bank and exchange rate charges have to be borne by the client so that the law firm receives the complete invoiced amount. Alternative methods of payment shall be provided only upon separate agreement. If an invoice is not paid within the payment period, the law firm may charge a reminder fee of 40 Euro (net) as well as corresponding interest on late payments. If there are several clients, they shall be liable as joint and several debtors for the respective claim concerning the client relationship.
(4) If, in the course of the commissioned examination of an intellectual property right intended by the client – such as a trademark or design application or a technical intellectual property right – the law firm comes to the conclusion that its application is not possible or does not make sense and/or the client decides against an application, the fee of the commissioned package (excluding official fees) shall be due for the work performed to date in this connection. In individual cases, this can be partially credited by the law firm to the processing of a future intellectual property right proposal and its examination.
§ 5 Cooperation duties of the client, contact data and correspondence via email
(1) For the proper fulfillment of the order, the client shall take note of the information originating from the law firm – in particular such information sent by email – observe it and, if necessary, communicate its comments hereto without undue delay. Furthermore, the client shall provide the law firm with all information and documents required for the proper fulfillment of the order (in particular complete and correct contact information as well as all requested and other background information relevant for the fulfillment of the order) in an appropriate and necessary quality and in due time. If specific deadlines for processing have been agreed upon or are to be met by law / legal regulation or have been set by third parties, delays caused by the client cannot be held against the law firm. In case of more than one client, the law firm may act according to the instructions of one of them, unless otherwise communicated or agreed.
(2) The contact data provided by the client to the law firm shall be correct and have to be kept up to date at all times. This applies in particular to the provided email address. The law firm shall also be informed of any changes in the name or address of the proprietor in the case of applications for or for registered intellectual property rights. If the client cannot or can no longer be reached under the contact data provided, the law firm shall not be responsible for any legal disadvantages resulting from the non-availability (e.g. missing of deadlines with offices, courts or opponents, missing renewal of intellectual property rights, etc.) and it shall not be obliged to contact the client by mail or to make further inquiries in the event of non-availability by email through the last provided email address. In case of non-availability, the law firm is also not obliged to take measures to maintain the protection of the IP right or to avert other legal disadvantages. This shall apply in particular, if such measures would incur costs.
(3) If the client does not or not sufficiently cooperate, the law firm shall not be responsible for any resulting omissions or delays.
(4) By using the offer of the law firm and submitting his email address, the client agrees that relevant information in connection with the mandate will be sent to him by the law firm via this channel. If the client requests that documents and information be sent by normal mail, the law firm reserves the right to charge reasonable additional costs for this after prior notification. This consent to the sending of emails may be revoked at any time and without giving reasons. The client is aware that communication via the internet and unencrypted email involves a certain risk to the confidentiality of such communication. If information and/or documents are transmitted in this way, this is done solely at the responsibility and risk of the client. If the client wishes to communicate with the law firm in encrypted form, the client shall coordinate this separately with the law firm.
The law firm shall not be responsible or liable for any problems with the transmission or the server or software used. Emails from the law firm which end up in the client’s spam folder, for example, shall also be deemed to have been delivered.
§ 6 Liability and statute of limitations
For damages resulting from intent or gross negligence, or in the event of culpable breach of a material contractual obligation (in a manner endangering the purpose of the contract), the firm shall be liable without limitation. The same applies to slight negligence with regard to injury to life, body or health of the users.
Information provided via phone as well as verbally – in particular within the scope of an initial assessment – shall not be binding without written confirmation.
The law firm shall not be liable for any disadvantages resulting from incorrectly or incompletely transmitted or communicated data or information of the client or of third parties. This shall especially apply to any further liability for any claims (for example, of a tortious nature or for reimbursement of futile expenses) in connection with the changes of ownership or further register changes of an intellectual property right. This exclusion of liability applies to the firm as well as to the personal liability of the partners, employees and other fulfillment agents of the law firm.
Possible claims for damages of the client shall lapse – unless otherwise agreed – in accordance with the general statute of limitations provisions of Sections 194 et seq. BGB.
§ 7 Final provisions (applicable law, place of jurisdiction, severability clause)
(1) Any amendments or additions to these GTC including these very requirements must be made in writing.
(2) The relationship between the client and the law firm shall be governed exclusively by the laws of the Federal Republic of Germany.
(3) The exclusive place of jurisdiction for all disputes arising from the client relationship shall be the Regional Court of Munich I.
(4) Should any provisions of these GTC be invalid in whole or in part, the remaining provisions shall remain unaffected. Ineffective provisions shall be or become replaced by such effective provisions that come closest to them in terms of meaning and purpose.
LICHTNECKER & LICHTNECKER Patent- & Rechtsanwaltspartnerschaft mbB (IP Law Firm)
represented by the partners Dr. Markus Lichtnecker und Dr. Florian Lichtnecker
Im Schlosspark Gern 2
Registered at the partnership register at the Amtsgericht Landshut PR 72
Phone: +49 (0)8721/98240-07