GENERAL TERMS AND CONDITIONS FOR THE PERFORMANCE OF LEGAL ADVISORY SERVICES AND LEGAL REPRESENTATION
44, avenue des Champs-Elysées
Tel : + 33 1 44 95 20 00
SELAFA with a capital of 291.177,62 euros
SIRET : 391 857 059 00011
Paris Register of Commerce and Companies
Code NAF : 6910 Z
The present general terms and conditions fix the general framework for the performance of legal services undertaken by KGA Avocats through its lawyers, be they partners or associates (the « Services »).
The Services and their performance are governed, notably, by the provisions of Law n° 71-1130 of 31 December 1971 reforming certain judicial and legal professions, of the decree n° 72-785 of 25 August 1972 relating to canvassing and advertising with regard to legal consultation and the drafting of legal instruments, of the decree n° 91-1197 of 27 November 1991 organising the profession of lawyer, of the decree n° 2005-790 of 12 July 2005 relating to the professional conduct rules of the profession of Lawyer and of the internal regulations of the Paris Bar.
The present general terms and conditions, as well as, as the case may be, any special terms and conditions which may have been specially agreed, shall be applied to any request for Services by a private individual or legal entity (the « Client ») who entrusts the protection of their, or its, interests to KGA Avocats.
The special terms and conditions shall be defined in a letter of engagement or in any other written form, proposed by KGA Avocats and accepted by the Client, the purpose of which is to set out the specific agreement between the Client and KGA Avocats regarding the entrusted assignment, the amount of the agreed fees or their method of calculation, and to derogate, as the case may be, in whole or in part, from the present general terms and conditions.
In the case of any conflict between the present general terms and conditions and the special terms and conditions, the latter shall prevail.
Article 1 – Subject matter of the Services
The purpose of the Services of KGA Avocats is to provide the Client with legal advice which is tailored to the objectives pursued by the Client and to the issues facing them, whilst taking account of the background to the Client’s activities, in order to assist the Client in taking decisions.
When the Services relate to the provision of advice, they shall be performed taking proper account of the litigation risk factor.
In litigation matters, the purpose of the Services of KGA Avocats is to ensure that the Client, whether acting as plaintiff or defendant, be represented and/or assisted according to the overall strategy pursued by the Client.
Article 2 – Request of the Client
Subject to exceptions, the Services shall be requested by the Client in writing.
Each written request for Services shall result in a financial proposal being sent to the Client by KGA Avocats.
The financial proposal shall comprise, at the minimum, a notification of the hourly billing rates applied by KGA Avocats or a proposal of a fixed fee approach.
Whenever possible, a fees estimate shall be proposed to the Client. In principle, this estimate is calculated by applying the current hourly rate of each of the lawyers called upon to be involved, to the number of billable hours forecasted for performing the entirety of the Services, whilst making allowance for any potential exclusions of tasks.
If it is impossible to provide an overall estimate of the fees for performing the entirety of the Services, KGA Avocats shall propose an appropriate financial approach : for example, by a stage by stage evaluation, if it is possible to divide the Services into successive stages, with different degrees of uncertainty, as the case may be ; or by keeping the Client regularly informed of developments in the cost of the Services on the basis of their performance ; or by a regular consultation with the Client upon pre-defined budget tranches being exceeded.
The Services may be performed for a fixed amount only if the following conditions are met : the scope and content of the Services are precisely defined and agreed ; the exclusions are specified ; and the duration of their performance does not exceed twelve months.
The Client’s written request for Services shall (subject to exceptions) constitute acceptance of the general terms and conditions, the special terms and conditions, if they have been agreed, and the financial proposal by KGA Avocats.
The Client undertakes to communicate to KGA Avocats any information which is necessary for the overall fees estimate and for the performance of the Services, or which KGA Avocats considers to be useful for the purposes of the latter.
The Client undertakes to produce all necessary proof of identity, to permit KGA Avocats to identify the effective end beneficiary of the Services and to give KGA Avocats the means to assess, during the performance of the Services, the nature and extent of the operation for which the Services are requested.
Except in the case of a specific agreement between the Client and KGA Avocats, the request for Services constitutes, in principle, an undertaking by the Client to make an advance payment on account of costs and fees, upon presentation of an invoice for an advance payment.
In case of emergency, in the case of a subscription, or pursuant to special terms and conditions agreed with the Client, the Services may be requested verbally and their performance commenced without a written request by the Client, on the condition that such request be confirmed in writing as soon as possible and, in any event, at the latest within fifteen business days of the commencement of the Services. In this case, as soon as the Services begin to be performed or the request for them be received, KGA Avocats must, in acknowledging receipt thereof, draw the Client’s attention to the present general terms and conditions and inform the Client, at the least, of the hourly billing rates applied by KGA Avocats.
As soon as Services are requested, by whatsoever means, KGA Avocats shall verify the absence of a conflict of interest.
KGA Avocats are at liberty to refuse to perform Services requested.
Article 3 – Calculation of fees
In principle, the Services are billed by applying the current hourly rate of each of the lawyers to the number of billable hours devoted to their performance. The hourly rate of each lawyer is set according to their professional experience, the degree of specialisation of their practise and their technical expertise. It is reviewed each calendar year.
When, according to their nature, the Services are billed by applying a fixed fee, their scope excludes all tasks of which the occurrence, the content or the duration are beyond the control of KGA Avocats. On this basis, the scope covered by the fixed fee may exclude meetings or telephone conference calls requested by the Client, negotiation sessions with third parties or work performed in relation to an expert assessment procedure. These tasks are billed according to the time which they have required.
The Services may be remunerated in part according to the result obtained by KGA Avocats. In this case, the principle, and the formula for the calculation, of this success-related fee are agreed prior to the occurrence of the event which it has been decided will determine the success of the result. A guaranteed minimum fee is due, in any event, regardless of the result.
Article 4 – Subscription
The Client can ask to purchase an annual subscription or a subscription per project ensuring an estimated volume of hours of work by lawyers at KGA Avocats, for the performance of Services which do not have unusual or particular characteristics, in return for an undertaking on the part of the Client to use this estimated volume of hours or to pay the fees corresponding to this estimated volume. In this case, the fees are fixed by applying lower hourly rates than the hourly rates normally applied, giving consideration to the volume of hours involved.
In principle, the annual subscription is payable monthly, at the start of each month.
One month before the expiry date of the subscription, KGA Avocats and the Client shall examine the terms of its potential renewal.
The Client or KGA Avocats may terminate the subscription prior to the agreed expiry date provided that the other party has received notice thereof at least one month prior to such termination. In this case, the entirety of the sums paid to KGA Avocats under the subscription shall remain definitively the property of KGA Avocats.
The subscription shall always result in KGA Avocats issuing a letter of engagement setting out the Services which KGA Avocats undertakes to perform in the framework of the subscription, the amount of the subscription, the reference hourly rates, the payment terms and the terms and conditions applying to any disparities between the subscription forecasts and the Services effectively performed, whether the Services so performed be more or less than the said forecasts, together with, if required, the specific terms governing the termination of the subscription.
Article 5 – Financial monitoring of the performance of the Services
At the time the Services are billed a summary of them shall be addressed to the Client, presenting the narrative of the Services and the aggregate number of hours, lawyer by lawyer, which has been required to perform them. The summary shall be presented in accordance with the standard form document of KGA Avocats.
KGA Avocats and the Client must together take care to ensure that they monitor the Services from a financial point of view, doing so on the basis of good faith and each of them according to the information at their disposal. The terms and conditions of this monitoring may, as the case may be, be specified in the special terms and conditions.
Article 6 – Costs and disbursements
The special costs incurred by KGA Avocats for the performance of the Services which are not part of the general and administrative expenses of KGA Avocats are to be borne by the Client.
These special costs are incurred for the acquisition of goods and services which KGA Avocats must acquire specifically for the performance of the Services, such as travel away from the firm, accommodation outside of Paris, specialised studies or monographs, access to databases, long-distance telephone calls, special mail items, data protection means and specialised software.
The disbursements incurred by KGA Avocats for the performance of the Services are to be borne by the Client.
These disbursements comprise the cost of acquiring specialised professional services which the Client must acquire for the defence of its interests and which KGA Avocats acquires in the name of, and on behalf of, the Client, in its place, such as, for example, services provided by court bailiffs, notaries, « avocats aux conseils » (French lawyers representing clients before the Cour de Cassation and the Conseil d’Etat), lawyers who, on appeal, perform the services previously undertaken by the « avoués à la cour » (lawyers having previously enjoyed certain exclusive rights of representation before courts of appeal), « avocats postulants » (attorneys of record handling court formalities in cases before courts located outside the jurisdiction of the Bar at which the acting lawyer is registered), « mandataires d’audience devant les juridictions consulaires » (representatives at hearings before consular jurisdictions (commercial tribunals)), experts, translators or interpreters.
The principle governing the performance of the Services for the Client and which, by its request for Services, the Client undertakes to respect, is that KGA Avocats must not, under any circumstances, finance, out of its own funds, costs and disbursements incurred for the Client.
Article 7 – Billing
The price of the Services shall be subject to value added tax at the rate in force, when such tax is due.
In principle, the Services are billed at monthly intervals. They may be billed at any other intervals depending on how they divide up into homogenous sets.
The bills issued by KGA Avocats are payable within a maximum of thirty (30) days from their receipt by the Client.
In the case of non-payment within this time limit, the additional payment of interest or late-payment penalties and fixed recovery costs shall be due to KGA Avocats, pursuant to the legal provisions in force which are reiterated on the bills of KGA Avocats.
In the event of non-payment beyond this time limit, KGA Avocats reserves the right, in its sole discretion, to suspend the performance of the Services, until such time as the sums due to KGA Avocats, either for the Services undertaken, or by way of advances to be settled ahead of the performance of Services, shall have been paid in full. KGA Avocats shall exercise this right giving due consideration to the preservation of the interests of the Client, in compliance with the applicable professional conduct rules of the profession of lawyer and the provisions of titre (title) XII of livre (book) 1 of the Civil Procedure Code.
Article 8 – Professional liability of KGA Avocats
KGA Avocats is responsible for the due performance of the Services in the conditions defined by the rules applying to the profession of lawyer.
KGA Avocats holds « professional civil liability » risk insurance, supplemental « professional civil liability » risk insurance and « civil operating liability for bodily injury and consequential non-material loss » risk insurance taken out with Zurich Insurance PLC, Axa France IARD and Allianz. KGA Avocats may be held liable only in the case of fault on its part and subject to the limits of its « professional civil liability » risk coverage.
Since the Services are performed in a given context, on the basis of factual and legal circumstances prevailing in such context, KGA Avocats shall incur no liability if documents prepared, assessments made or solutions proposed in this context are subsequently used or implemented in another context.
Article 9 – Professional secrecy
KGA Avocats are subject to the rules governing and protecting the professional secrecy of lawyers, determined by article 66-5 of law n° 71-1130 of 31 December 1971 reforming certain judicial and legal professions and by article 2 of the first part of the internal regulations of the Paris Bar.
The violation of these rules may give rise to criminal sanctions pursuant to the provisions of article 226-13 of the Penal Code and to professional disciplinary sanctions upon the matter being referred to the bâtonnier (president) of the Paris Bar.
Article 10 – Intellectual property – References
KGA Avocats holds the entirety of the moral and economic rights over all of the Services. In any event, KGA Avocats retains ownership of the methods, the know-how and the procedures developed or implemented by KGA Avocats in order to produce the Services and which KGA Avocats shall be free to use for the benefit of third parties.
KGA Avocats confers on the Client a personal and non-assignable right to use the documents or methods created by KGA Avocats in the performance of the Services, such right being limited to the individual needs of the Client resulting from the definition of the Services.
Article 11 – Completion of the performance of the Services – Archiving
Within two months of completion of the performance of the Services, KGA Avocats shall return to the Client the documents which the Client has entrusted to them. The other file documents are archived by KGA Avocats. Upon the expiry of the period for which, by law, they must be kept, these other documents shall be destroyed on the initiative of KGA Avocats, who are not obliged to inform the Client of this.
Article 12 – Termination
Upon giving reasonable notice, the Client or KGA Avocats shall be entitled to terminate the performance of the Services, notably in the case of a default by the Client in the payment, on the due date, of fees, costs and disbursements due to KGA Avocats, subject to KGA Avocats complying with the professional conduct rules of the profession of lawyer.
In this case, the Client shall be obliged to pay the entirety of the fees and costs due to KGA Avocats as of the day the performance of the Services ceases. As regards the Services performed for a fixed fee supplemented by a success-related fee, the decision of the Client to terminate such Services shall bring about the elimination of the commitment of KGA Avocats to the fixed fee and oblige the Client to pay the fees of KGA Avocats for the Services performed by applying the standard hourly rates of KGA Avocats.
Upon the Client so requesting, the entire file concerning them shall be returned to them.
Article 13 – Governing law
The present general terms and conditions shall be subject to French law.
Any dispute relating to the present general terms and conditions, or to the amount or the recovery of the fees, costs and disbursements of KGA Avocats shall, in the absence of an agreement between the parties, be resolved according to the procedure provided for in articles 174 et seq. of decree n° 91-1197 of 27 November 1991 organising the profession of lawyer. The matter shall be referred to the bâtonnier (president) of the Association of lawyers at the Paris Court of Appeal upon the request of the first party to act.
Article 14 – Modifications to the general terms and conditions
The present general terms and conditions may be modified at any time by KGA Avocats.
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