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Effective 1 April 2021

1. Introduction

These General Terms and Conditions (“the Conditions”) regulate provision of legal services by the firm Gessel, Koziorowski Kancelaria Radców Prawnych i Adwokatów sp.p. (formerly: Gessel, Koziorowski sp.k.) with its registered seat in Warsaw (“GESSEL”, “the Firm”) to the benefit of a client who is party to an agreement with GESSEL (“the Client”) (with GESSEL and the Client hereinafter jointly referred to as “the Parties”).

2. The Agreement, the General Terms and Conditions

2.1. GESSEL and the Client may execute an agreement pursuant to which GESSEL shall provide legal services to the Client in any form, including the written form and electronic form – in particular by way of an Engagement Letter (“the Agreement”).

2.2. These Conditions shall be binding for the Client and for GESSEL if:

  • They constitute a Schedule to the Agreement; or
  • They are referred to in the text of the Agreement and have been delivered to the Client or made available to the Client in electronic form prior to the Agreement’s execution, in particular by way of reference to the Conditions posted on the Firm’s website; or
  • Have been delivered to the Client or made available to the Client in electronic form, in particular by way of reference to the Conditions posted on the Firm’s website, prior to the Agreement’s execution and accepted by the Client by other means as the terms and conditions of provision of legal services to the Client by GESSEL.

2.3. The Parties confirm that these Conditions, as delivered to the Client or made available to the Client in accordance with section 2.2. above, shall be binding upon the Parties with respect to any additional or further legal services commissioned by the Client from GESSEL.

2.4. These Conditions regulate cooperation between GESSEL and the Client with respect to provision of legal services to the benefit of the Client by GESSEL (“the Brief”) within the scope not regulated in the Agreement.

2.5. In the event that an agreement is made to the benefit of a third party, the Agreement should expressly identify the party for which GESSEL shall provide its services.

2.6. In the event of any discrepancy between the Agreement and these Conditions, provisions of the Agreement shall prevail and be definitive.

3. Means of service provision, timeframes

3.1. Provision of legal services by GESSEL shall comprise, in particular, legal advice, drafting of legal analyses, memoranda, and opinions, drafting and review of contracts and other legal documents, legal representation and advice in the course of negotiations and transactional processes pursued by the Client, and representation of the Client before courts and administrative authorities. GESSEL provides legal services with respect to Polish law. GESSEL may also advise on the laws of other jurisdictions, but only insofar as expressly provided for in the Agreement.

3.2. GESSEL undertakes to provide legal services with due care and skill, in accordance with applicable laws and with the professional codes of ethics binding upon Polish attorneys (radcy prawni) and Polish advocates (adwokaci).

3.3. Unless the Agreement stipulates otherwise, the timeframes and deadlines for performance of specific tasks and actions within the Brief shall depend on the nature of the Brief and on arrangements made with the Client on an ongoing basis. Where the Brief involves litigation or administrative proceedings, the timeframes and deadlines for performance of specific tasks and actions within the Brief shall furthermore depend on the applicable statutory deadlines and on the deadlines set by the courts or administrative authorities involved.

3.4. Unless the Parties have agreed upon another location or the character of the specific actions requires performance in another location, GESSEL shall provide legal services
at its registered seat.

3.5. Provision of legal services by GESSEL is based upon the understanding of GESSEL’s attorneys, advocates, and other lawyers of the applicable laws, of such laws’ interpretation, application, and enforcement in practice, and of any pertinent judicial or administrative authorities as current at the time of performance of the Brief. Any subsequent amendments of the applicable laws or shifts in the relevant interpretation, application, enforcement, or lines of authority may potentially impact on the legal advice provided by GESSEL in performance of the Brief. Unless the legal advice provided by GESSEL expressly provides otherwise, GESSEL shall be under no obligation to update its original advice so as to account for any subsequent change of the law, of judicial and administrative authorities, or of practice. GESSEL shall not be liable for the effects of its advice and of its other services if, subsequent to provision of such advice or services by GESSEL, there transpire amendments of the law, changes in practical application of the law, and/or shifts of the judicial authorities or in the practice of courts and/or authorities applying and enforcing such law.

3.6. GESSEL does not advise on the economic, financial, accounting, or business aspects of any case commissioned to it. In each and every instance, the Client decides to proceed with any given matter based on Client’s own assessment of the economic, financial, accounting, and business aspects and risks.

3.7. GESSEL shall keep the Client informed – as agreed with the Client, and as appropriate given the nature of the case at hand – of progress on the Brief. In particular, GESSEL may forward to the Client drafts of documents prepared in performance of the Brief, including drafts of contracts and communications, so as to enable the Client to comment upon them, and likewise drafts and/or copies of documentation received by GESSEL from the remaining parties to the given case and from any courts and/or administrative authorities.

4. Persons involved in performance of the Brief

4.1. The Agreement shall specify the GESSEL partner responsible for cooperation with the Client. In performance of the Brief, GESSEL shall assemble a team of lawyers specialising in the relevant fields and disposing of the experience and qualifications relevant to the case. If the need arises, GESSEL may modify the composition of this team, also by assigning additional team members to work on the Brief. Auxiliary work may be performed by persons who do not hold degrees in law.

4.2. Representation of the Client before the general courts, arbitration tribunals, and administrative authorities in court or administrative proceedings, and also vis a vis natural persons, legal persons, and organisational units shall require written powers of attorney issued to the attorneys or advocates specified by GESSEL. GESSEL’s attorneys and advocates, in their turn, shall be empowered to grant further powers of attorney to other attorneys or advocates and of authorisations to trainee attorneys and trainee advocates.

4.3. Representation of the Client by GESSEL and/or by GESSEL lawyers for the purposes of acts in law effectuated for and on behalf of the Client shall proceed on the basis of powers of attorney as well as of instructions given by the Client.

4.4. The Client undertakes that, for the duration of Client’s cooperation with GESSEL as well as over a period of 6 (six) months following cessation of such cooperation, neither the Client nor any of its affiliates shall retain – in whatever form and on any basis, including any employment contract or any type of civil law agreement – any GESSEL lawyer or otherwise embark on any cooperation with any GESSEL lawyer without first securing GESSEL’s written permission. Any Client in breach of the above undertaking shall be obligated to remit to GESSEL liquidated damages corresponding to 6 (six) times the monthly remuneration of such lawyer.

4.5. The Client undertakes that, for the duration of Client’s cooperation with GESSEL as well as over a period of 6 (six) months following cessation of such cooperation, neither the Client nor any of its affiliates shall retain – in whatever form and on any basis, including any employment contract or any type of civil law agreement – any GESSEL lawyer or otherwise embark on any cooperation with any GESSEL lawyer without first securing GESSEL’s written permission. Any Client in breach of the above undertaking shall be obligated to remit to GESSEL liquidated damages corresponding to 6 (six) times the monthly remuneration of such lawyer.

5. Cooperation by the Client

5.1. The Brief shall be performed by GESSEL in reference to the facts of the case as presented by the Client, and on the basis of any documents and information made available by the Client.

5.2. The Client shall be obligated to cooperate with GESSEL within the scope necessary for performance of the Brief. In particular, the Client shall provide GESSEL with exhaustive and truthful information and documents (also, where circumstances warrant, in the original) necessary for due performance of the Brief by GESSEL, shall notify GESSEL of any subsequent changes with respect to information and/or documents already furnished by the Client, and shall notify GESSEL of any decisions and/or actions on the Client’s part which may impact upon performance of the Brief.

5.3. Unless the scope of the Brief provides otherwise, GESSEL shall be under no obligation to verify the completeness or truthfulness of any information or documents presented by the Client for purposes of performance of the Brief.

5.4. GESSEL shall not be liable for any failure to perform, or improper performance of, the Brief caused by breach of the obligations incumbent upon the Client in accordance
with this section 5, including lack of requisite cooperation by the Client, provision of untrue or incomplete information by the Client, or failure by the Client to provide the information necessary for due performance of the Brief by GESSEL.

6.3 The Client shall be obligated to cover, by its own resources, any and all expenses associated with performance of the Brief such as, in particular, any and all court fees, stamp taxes, administrative fees and sundry other costs necessary for performance of the Brief – unless the Parties have agreed that specific costs shall be borne for and on behalf of the Client by GESSEL, subject to reimbursement by the Client. GESSEL shall notify the Client of the rules applicable to incurrence of such costs by GESSEL (the applicable amounts, principles, and deadlines).

6.4 GESSEL may request that the Client remits an advance payment towards fees, with the exact amount of such advance, the deadline for its remittance, and the means of payment specified in the Agreement. Upon completion of the Brief, the amount of such advance shall be credited towards the final amount due to GESSEL, and any surplus shall be returned to the Client.

6.5 In the event that there is more than one entity on the Client’s side, all such entities shall be jointly and severally liable for remittance of fees to GESSEL and for reimbursement of expenses associated with performance of the Brief to GESSEL.

6.6 Unless the Agreement stipulates otherwise, the amounts of fees payable to GESSEL as well as the hourly rates of GESSEL lawyers are net amounts and, as such, should be increased by VAT in accordance with the then-applicable rate.

6. Remuneration, additional expenses

6.1. The Client shall be obligated to remit the remuneration specified in the Agreement in consideration for the legal services provided by GESSEL.
Unless the Agreement stipulates otherwise, the fees charged by GESSEL for services provided shall depend on the number of hours expended by individual GESSEL lawyers on the given Brief (in increments of 15 minutes), with the hourly rate of each GESSEL lawyer depending on her/his qualifications and experience. The hourly rate brackets of GESSEL lawyers are set out in the table made available to the Client by GESSEL. Where requested by the Client, GESSEL shall inform the Client of the exact hourly rates of the specific lawyers assigned to performance of the Brief.

6.2 The hourly rate brackets and the hourly rates for individual GESSEL lawyers may be subject to adjustment – usually on an annual basis, effective 1 January. The Client shall be notified of any such rate adjustment in writing 1 (one) month in advance.

7. Billing procedure, payments

7.1. In consideration for services provided, GESSEL issues VAT invoices which cover the fees due for services provided as well as reimbursement of any expenses incurred by GESSEL during such provision. Where GESSEL’s remuneration is denominated in EUR (or in any currency other than PLN), then – absent any arrangements to the contrary with the Client – invoices shall be issued for the PLN equivalent of the given amounts denominated in EUR (or in any currency other than PLN) converted in accordance with the average National Bank of Poland exchange rate as at the invoice date.

7.2. Where the remuneration due to GESSEL depends on the number of hours expended by GESSEL lawyers on the given Brief, GESSEL – absent any arrangements to the
contrary – shall enclose with the invoice time sheets detailing the lawyers’ work. The Client may submit reservations or comments to the invoice; if, however, the Client does not voice any reservations or comments promptly, and in any event within 7 (seven) days following receipt of the invoice, Client shall be deemed to have accepted the invoice.

7.3. Absent any arrangements to the contrary with the Client, invoices shall be issued on a monthly basis.

7.4. Unless the Agreement stipulates otherwise, invoices shall be payable within 14 (fourteen) days following their issue.
Payments shall be credited to GESSEL’s bank account, as specified in the VAT invoice. In the event of any delay in payment, GESSEL may charge interest on any outstanding amounts at the statutory rate.

8. Documentation, retention of records

8.1. GESSEL undertakes to store the documentation associated with the Brief for a period of 1 (one) year following completion of work.

8.2. At the Client’s request, GESSEL shall release to the Client the original documents associated with the Brief in GESSEL’s possession.

9. Electronic communications

9.1. GESSEL endeavours to keep its outbound electronic communications, along with any attachments thereto, free of viruses and other defects which may compromise computer hardware and information technology systems. 
The Client should nonetheless take steps to duly secure its own computers and information technology systems against such viruses and defects. GESSEL shall not be liable for any loss or damage afflicting the Client as a result of Client’s receipt or use of electronic communications from GESSEL.

9.2. Where the Client makes documents or information available to GESSEL via websites or online servers (e.g. Dropbox, Google Drive, or servers made available by the Client) or via a virtual data room, GESSEL shall not be liable for any loss or damage afflicting the Client as a result of use of such avenues for making available documents and information.

10. Conflicts of interest

10.1. In accordance with professional codes of ethics, GESSEL’s attorneys and advocates are obligated to avoid conflicts of interest between the various clients represented by GESSEL. GESSEL applies internal verification procedures devised to identify and avoid potential conflicts of interest.

10.2. As qualified by applicable professional codes of ethics, the very fact of provision of legal services to the Client by GESSEL does not restrict GESSEL as regards its provision of legal services to other GESSEL clients.

10.3. The Client acknowledges and accepts that, apart from the interests of the Client, GESSEL also represents the interests of many other clients, some of whom may be counterparties in the Client’s business dealings, debtors or creditors of the Client, or direct competitors of the Client.

10.4. With due heed to applicable professional codes of ethics, a conflict of interest shall be deemed to arise where: (i) the interests of the Client run contrary to the interests of another client in the same case or in a related case or (ii) GESSEL’s knowledge of the Client’s affairs would translate into an undue advantage for another client (“Conflict of Interest”).

10.5. The Parties shall notify one another of all situations which may precipitate a Conflict of Interest between the Client and/or its affiliates and other clients of GESSEL.

10.6. Where a Conflict of Interest does arise, GESSEL – proceeding in accordance with the professional codes of ethics – shall take necessary measures to resolve the situation. A Conflict of Interest situation may be resolved, in particular, by securing the Client’s permission to provide
legal services to another client, the Conflict of Interest notwithstanding, or by terminating the Agreement with the Client.

11. Counteraction of money laundering and financing of terrorism

11.1. In light of art. 2.1 of the legislative Act of 1 March 2018 regarding counteraction of money laundering and financing of terrorism (2020 Journal of Laws No. 971, as amended) (“the AML Act”), as it performs the Agreement and works on the Brief, GESSEL may be subject to certain duties with respect to counteracting money laundering and financing of terrorism, as provided for in the AML Act (“the AML Duties”), in particular as regards identification and assessment of risk and application of certain financial security safeguards – including the duty to identify clients and to verify their identity, to identify politically exposed persons, to identify and verify beneficial owners, to assess business and financial relationships and to obtain information about their purpose and intended nature, and to monitor same.

11.2. For purposes of duly complying with its AML Duties, GESSEL may request that Clients provide information set out in their identification documents (and/or in identification documents of persons acting on their behalf) and make copies of these documents. GESSEL may also request the information specified in Schedule 1 hereto as well as any and all further information necessary for due compliance with the AML Duties in connection with acceptance of the Brief and its completion. GESSEL may suspend acceptance of the Brief and commencement of work thereon until such a time as the requisite information has been received and verified. Where due performance of the AML Duties is impossible, GESSEL may, on the basis of art. 41 of the AML Act, be obliged to refuse to establish a business relationship and/or to terminate any existing relationship, i.e. to refuse execution of the Agreement or to terminate the Agreement and cease work on the Brief.

12. Personal data processing

12.1. Within the scope necessary for completion of the Brief and performance of the Agreement, GESSEL may process personal data appertaining to the Client and to other persons, including such data as has been made available by the Client as well as further data gleaned from other sources. Information about processing of personal data by GESSEL is set out in Schedule 2 hereto; any subsequent updates of this information may be posted directly on GESSEL’s website.

13. Confidentiality

13.1. GESSEL ensures confidentiality with respect to all information obtained in connection with provision of services to the Client in accordance with art. 3 of the legislative Act of 6 July 1982 regarding attorneys (2010 Journal of Laws No. 10, item 65, as amended), art. 6 of the legislative Act of 26 May 1982 – the Advocates’ Profession Law (1982 Journal of Laws No. 16, item 124, as amended), and with the ethical duty to maintain professional secrecy incumbent upon attorneys and advocates.

13.2. Absent prior written permission by GESSEL, the Client may not use or make available to any third parties the advice provided by GESSEL or the documents drawn up by GESSEL in performance of the Brief, including the Agreement and these Conditions, for any purpose other than as directly connected with the Brief. The Client may make the advice provided by GESSEL and the documents drawn up by GESSEL in performance of the Brief available to other advisors providing services to the Client in connection with the object of the Brief who, in light of applicable codes of professional conduct, are obligated to maintain professional secrecy and whom the Client has obligated to maintain confidentiality with respect to such advice and documents within the scope defined in these Conditions.

13.3. The Client agrees that GESSEL may – in its information materials, in particular on its website, in offers, and in submissions to rankings of law firms – release information
about GESSEL’s provision of legal services to the Client, provided always that any such information does not constitute business secrets of the Client and (i) is available in the public realm or (ii) is of the sort customarily presented by law firms in their information materials.
GESSEL is authorised to use the Client’s logo in such information materials, including GESSEL’s website.

14. Liability

14.1. Liability of GESSEL is regulated by the legislative Act of 23 April 1964 – the Polish Civil Code (1964 Journal of Laws No. 16, item 93, as amended), subject to the reservation that – unless the Agreement stipulates otherwise – GESSEL’s liability shall be limited to two times (2 x) the amount of the remuneration received for the services from which the harm in question arose, and subject to the reservation that GESSEL shall be liable without limitation for harm occasioned through deliberate fault.

14.2. In no event shall the amount of GESSEL’s liability exceed the guarantee amount specified in the professional civil liability in provision of legal services insurance agreement to which GESSEL is a party.

14.3. GESSEL shall not be liable for the outcome of the case or for the achievement of any specific result or objective.

14.4. GESSEL shall not be liable for any lost profits (lucrum cessans).

14.5. GESSEL shall be liable only vis a vis the Client who is party to the Agreement. Unless the Agreement stipulates otherwise, GESSEL shall not be liable vis a vis any third parties, including any affiliates of the Client and/or members of the Client’s equity group.

14.6. The Client shall indemnify GESSEL and GESSEL’s partners, lawyers, cooperating persons, and employees (“the Indemnified Persons”) against third party claims (including the costs of defending against such claims) connected with, or arising from, performance of the Brief, including claims connected with, or arising from, acts in law effectuated for and to the benefit of the Client, unless the given claim results from culpable breach of the Agreement or of these Conditions by GESSEL or by the Indemnified Person. For the avoidance of doubts, the obligation to indemnify incumbent upon the Client pursuant to this section 12.6 shall include, in particular, the obligation to indemnify GESSEL and the Indemnified Persons from any duty to provide benefits and to ensure that no creditor seeks any provision of benefits from GESSEL or from the Indemnified Persons.

15. Binding force and duration of the Agreement and of the Conditions

15.1. The Agreement along with these Conditions shall be binding upon the Client and GESSEL from the moment of the Agreement’s execution until termination or expiration of the Agreement.

15.2. GESSEL may amend these Conditions. In such an event, GESSEL shall be obligated to make the amended text of the Conditions available to the Client, in particular by  posting it on GESSEL’s website and notifying the Client of this fact; the amended Conditions shall be binding as between the Parties if the Client does not terminate the Agreement within 1 (one) month following delivery of the amended Conditions to the Client.

15.3. Each Party may terminate the Agreement at any time and for any reason by serving written notice, subject to the reservation that the Client shall be obligated to remit the fees due to GESSEL and to reimburse any expenses incurred by GESSEL.

15.4. If the Agreement is terminated, GESSEL shall take all necessary measures to safeguard the interests of the Client in the matter concerned. If requested by the Client, GESSEL shall advise the Client on its selection of other counsel to whom all the documents previously presented to GESSEL shall then be forwarded.

15.5. If, in the course of the cooperation, the Client had granted powers of attorney to GESSEL lawyers, termination or expiration of the Agreement shall, unless the Parties agree otherwise, be tantamount to termination or expiration of any such powers of attorney. The foregoing shall be without prejudice to the laws regulating the effects of termination of powers of attorney for purposes of court proceedings.

16. Final provisions

16.1. Provision of legal services by GESSEL proceeds in accordance with Polish law.

16.2. Any disputes which may arise between the Parties in connection with provision of legal services by GESSEL shall be subject to final adjudication before the Polish general courts competent for the registered seat of GESSEL.

 

Schedule I – AML FORM

Schedule II – INFORMATION RE PERSONAL DATA PROCESSING IN CONNECTION WITH PROVISION OF SERVICES