General Conditions of Contract

for auditors and auditing firms

from January 1, 2017

 

1. Scope

The terms of engagement apply to the contracts between auditors or auditing companies (hereinafter referred to collectively as “auditors”) and their clients for audits, tax advice, advice on economic matters and other orders, unless something else has been expressly agreed in writing or is mandatory by law. Third parties can only derive claims from the contract between the auditor and the client if this has been expressly agreed or results from mandatory statutory regulations. With regard to such claims, these terms and conditions also apply to these third parties.

 

2. Scope and execution of the order

The subject of the order is the agreed service, not a specific economic success. The order is carried out according to the principles of proper professional practice. The auditor does not assume any management duties in connection with his services. The auditor is not responsible for the use or implementation of the results of his services. The auditor is entitled to use experts to carry out the assignment. Except for business audits, the consideration of foreign law requires an express written agreement. If the factual or legal situation changes after the final professional statement has been made, the auditor is not obliged to inform the client of any changes or the consequences arising from them.

 

3. Customer's obligations to cooperate

The client must ensure that all documents and other information necessary for the execution of the engagement are sent to the auditor in good time and that he is informed of all processes and circumstances that may be of importance for the execution of the engagement. This also applies to the documents and other information, processes and circumstances that only become known during the activity of the auditor. The client will nominate suitable persons to provide information to the auditor. At the request of the auditor, the client must confirm the completeness of the submitted documents and other information as well as the information and explanations given in a written declaration formulated by the auditor.

 

 

4. Securing Independence

The client must refrain from anything that endangers the independence of the auditor's employees. This applies for the duration of the contractual relationship, in particular for offers of employment or assumption of board functions and for offers to take on orders for one's own account associated companies, to which the independence regulations apply in the same way as to the auditor, in other engagements, the auditor is entitled to extraordinary termination of the engagement.

 

5. Reporting and Verbal Information

Insofar as the auditor has to present the results in writing as part of the processing of the order, this written representation alone is authoritative. Drafts of written representations are non-binding. Unless otherwise agreed, verbal statements and information from the auditor are only binding if they are confirmed in writing. Statements and information provided by the auditor outside of the commission are always non-binding.

 

 

6. Disclosure of a professional statement by the auditor

The disclosure of professional statements by the auditor (work results or excerpts of work results - whether in draft or in the final version) or the information about the work of the auditor for the client to a third party requires the written consent of the auditor, unless the client is to Disclosure or information is obligatory due to a law or an official order. The use of professional statements by the auditor and the information about the activities of the auditor for the client for advertising purposes by the client are not permitted.

 

7. Elimination of Defects

In the event of any defects, the client is entitled to supplementary performance by the auditor. He can only reduce the payment or withdraw from the contract in the event of failure, omission or unjustified refusal, unreasonableness or impossibility of supplementary performance; if the order was not placed by a consumer, the customer can only withdraw from the contract due to a defect if the services rendered are of no interest to him due to failure, omission, unreasonableness or impossibility of subsequent performance. Insofar as there are claims for damages beyond this, No. 9 applies. The customer must immediately assert a claim for the elimination of defects in text form. Claims according to paragraph 1, which are not based on an intentional act, become statute-barred after one year from the start of the statutory limitation period auditor can be corrected by the auditor at any time, including to third parties. Inaccuracies that are capable of calling into question the results contained in the auditor's professional statement entitle the auditor to withdraw the statement, including from third parties. In the aforementioned cases, the client should be heard by the auditor beforehand if possible.

 

 

8. Confidentiality towards third parties, data protection

According to the law (§ 323 Para. 1 HGB, § 43 WPO, § 203 StGB), the auditor is obliged to maintain secrecy about facts and circumstances that are entrusted to him or that become known to him in the course of his professional activity, unless the client releases him from this duty of confidentiality. When processing personal data, the auditor will observe the national and European data protection regulations.

 

9. Liability

The applicable legal limitations of liability, in particular the limitation of liability of § 323 Para. 2 HGB, apply to legally prescribed services of the auditor, in particular audits Exceptions to damages resulting from injury to life, limb and health, as well as damages that justify the manufacturer's obligation to pay compensation according to § 1 ProdHaftG, are limited to €4 million in the case of an individual case of damage caused by negligence according to § 54a Paragraph 1 No. 2 WPO. The auditor is also entitled to pleas and objections from the contractual relationship with the client towards third parties lt is the maximum amount specified in paragraph 2 for the relevant claims of all claimants in total. A single case of damage within the meaning of paragraph 2 is also given with regard to uniform damage resulting from several breaches of duty. The individual case of damage includes all the consequences of a breach of duty, regardless of whether the damage occurred in one year or in several consecutive years. Multiple actions or omissions based on the same or similar source of error are considered a uniform breach of duty if the matters in question are legally or economically related. In this case, the auditor can only be claimed up to the amount of €5 million. The limitation to five times the minimum sum insured does not apply to statutory mandatory tests. A claim for damages expires if legal action is not taken within six months of the written refusal to provide compensation and the client has been informed of this consequence. This does not apply to claims for damages that can be traced back to intentional conduct, culpable injury to life, limb or health, or damage that justifies the manufacturer's obligation to pay compensation under Section 1 of the ProdHaftG. The right to plead the statute of limitations remains unaffected.

 

 

10. Supplemental Provisions for Audit Engagements

If the client subsequently changes the financial statements or management report that have been audited by the auditor and provided with an audit opinion, he may not continue to use this audit opinion. If the auditor has not issued an audit opinion, a reference to the audit carried out by the auditor in the management report or in another place intended for the public is only permitted with the written consent of the auditor and with the wording approved by him. If the auditor revokes the audit opinion, the auditor's report may no longer be used. If the client has already used the auditor's report, he must announce the revocation at the auditor's request. The client is entitled to five copies of the report. Additional copies will be charged separately.

 

 

11. Additional Provisions for Assistance in Tax Matters

The auditor is entitled to assume that the facts specified by the client, in particular figures, are correct and complete, both in the case of advice on individual tax issues and in the case of long-term advice; this also applies to bookkeeping orders. However, he must inform the client of any inaccuracies he has identified. The tax consultancy assignment does not include the actions required to meet deadlines, unless the auditor has expressly accepted the assignment for this. In this case, the client must submit to the auditor all documents essential for meeting deadlines, in particular tax assessments, in good time so that the auditor has a reasonable processing time. In the absence of any other written agreement, ongoing tax advice includes the following activities falling within the contract period: a) Preparation of annual tax returns for income tax, corporation tax and trade tax as well as wealth tax returns, based on the annual financial statements to be submitted by the client and other lists and evidence required for taxationb) Review of tax assessments for the taxes mentioned under a) c) Negotiations with the tax authorities in connection with the declarations mentioned under a) and b) and decision) Participation in tax audits and evaluation of the results of tax audits with regard to the under a) mentioned ten taxes) Participation in objection and complaint proceedings regarding the taxes mentioned under a). mentioned taxes. In the above-mentioned tasks, the auditor takes into account the main published case law and administrative opinion. If the auditor receives a flat-rate fee for ongoing tax advice, the activities mentioned under paragraph 3 letters d) and e) are to be remunerated separately unless otherwise agreed in writing. If the auditor is also a tax consultant and the tax consultant remuneration regulation is to be applied for the assessment of the remuneration, a higher or lower fee than the statutory remuneration can be agreed in writing. Income tax, other taxes and duties are due to a special order. This also applies to a) the processing of one-off tax matters, e.g. in the area of inheritance tax, capital transactions tax, real estate transfer tax, b) participation and representation in proceedings before the courts of financial and administrative jurisdiction as well as in criminal tax matters, c) advisory and expert work in connection with conversions, capital increases and reductions, restructuring, entry and exit of a shareholder, sale of a business, liquidation and the like andd) support in fulfilling notification and documentation obligations. Insofar as the preparation of the annual sales tax return is taken over as an additional activity, this does not belong to this the review of any special accounting requirements and the question of whether all eligible sales tax benefits have been taken advantage of. A guarantee for the complete recording of the documents for the assertion of the input tax deduction is not assumed.

 

12. Electronic Communications

Communication between the auditor and the client can also take place via e-mail. If the client does not wish to communicate by e-mail or has special security requirements, such as the encryption of e-mails, the client will inform the auditor accordingly in text form.

 

13. Compensation

In addition to his fee or fee claim, the auditor is entitled to reimbursement of his expenses; sales tax will be charged additionally. He can demand appropriate advances on remuneration and reimbursement of expenses and make the delivery of his service dependent on the full satisfaction of his claims. Several clients are jointly and severally liable. If the client is not a consumer, offsetting against claims by the auditor for remuneration and reimbursement of expenses is only permissible with undisputed or legally established claims.

 

 

14. Dispute Resolution

The auditor is not willing to participate in dispute settlement proceedings before a consumer arbitration board within the meaning of Section 2 of the Consumer Dispute Settlement Act.

 

 

15. Governing Law



Only German law applies to the order, its implementation and the resulting claims.