Terms of Engagement
1.1. The Engagement carried out by Brækhus Advokatfirma DA (“Brækhus”) shall be governed by the Confirmation of Engagement, these Terms of Engagement, the Norwegian Courts of Justice Act and its appurtenant regulations, as well as the Norwegian Bar Association’s Code of Conduct. Other terms may apply where expressly agreed in our correspondence, due diligence reports, legal opinions or other documents.
1.2. These Terms of Engagement will be provided to our client (“You” or the “Client”) and shall be deemed to have been accepted by the Client unless it notifies the counsel in charge of the Engagement within a reasonable period of time of receipt of these Terms. If the Client objects to these Terms of Engagement, Brækhus reserve the right to terminate the Engagement.
1.3. References in these Terms of Engagement to “we”, “us”, “our” are to Brækhus.
2. THE ENGAGEMENT
2.1. The Engagement is described in the Confirmation of Engagement. The Engagement may be amended, expanded or reduced during the course of its performance.
2.2. The Engagement is an agreement between the Client and Brækhus, and not with any individuals at Brækhus or in its group of companies (even if your express or implied intention is that the Engagement shall be performed by specific individual(s)). Unless otherwise agreed, all aspects of a transaction or a business arrangement will be considered to be a single Engagement, regardless of whether it involves several legal entities or private individuals, is dealt with by separate teams at Brækhus, addresses separate legal disciplines or gives rise to separate invoices.
2.3. Any advice provided by Brækhus shall not cover appurtenant legal issues regarding taxation and duties, unless expressly stated in the Confirmation of Engagement or otherwise agreed in writing. If Brækhus has agreed to advise the Client on taxation matters or potential implications thereof, our liability does not cover any taxes payable by the Client.
3. CONFLICT OF INTEREST
3.1. We may be prevented from acting for a Client if there is a conflict of interest in relation to another client. Wherever possible and prior to commencing an Engagement, Brækhus will ascertain whether there are any conflicts of interest or other circumstances that may prevent us from accepting the Engagement. We will also review conflict of interest in ongoing Engagements if new opposing parties are introduced.
4. CLIENT IDENTIFICATION
4.1. Before commencing work on the Engagement, Brækhus is legally obligated to acquire and ascertain information about the Client’s identity and ownership, as well as the nature and purpose of the Engagement and the origin of funds or other assets. The Client may be asked to provide information including evidence of its identity and/or the identity of any other person involved in the matter on its behalf, and, in the case of legal entities, the individuals having ultimate control over them (the beneficial owners), as well as information and documentation showing the origin of funds and other assets.
4.2. Brækhus is obligated to verify the information and for such purposes we may request documents which prove the authenticity thereof and procure information from private or public registers or other external sources. We are obligated to retain all information obtained in the course of our fulfilment of our obligations as described herein.
4.3. The Client acknowledges that Brækhus is legally obligated to report suspicions of money laundering or financing of terrorism to the relevant financial intelligence unit. Brækhus is also prohibited from informing our clients of our suspicions or that we have or will report these. If any suspicions of money laundering or terrorism financing exist, we are required to decline or withdraw from the Engagement.
4.4. The Client acknowledges that Brækhus may be legally obligated to provide information to the relevant tax authorities about your VAT registration number and the value of the Engagement that we have provided to you.
4.5. Brækhus disclaims all liability for any loss or damage incurred by the Client, directly or indirectly, as a consequence of our compliance with the obligations we have considered to be incumbent on us under mandatory law
5.1. There will be a specified counsel in charge for each Engagement with you as a Client. All work shall be performed under the responsibility and supervision of this counsel. Brækhus may perform Engagements in teams to provide you with the required expertise and resources. The counsel in charge shall ensure that the Engagement is performed in an appropriate manner for the Client and, as part of this, assess whether aspects of the Engagement should be performed by a partner, senior lawyer, lawyer, associate, trainee, paralegal or other personnel.
5.2. To further personal relations and to enhance our understanding of your business, one of Brækhus’ partners will be designated as the Client’s relationship partner. That partner has overall responsibility for all Engagements performed on your behalf. There will also be a partner responsible for our work on each Engagement. This may be your client relationship partner or another partner.
5.3. The Client acknowledges that any advice provided as part of an Engagement is tailored only on the basis of the circumstances, facts and instructions presented to us by the Client in the particular Engagement. Unless otherwise agreed, Brækhus’ advice is limited to legal matters and we do not provide advice of a commercial, operational or financial nature.
5.4. While we do seek to inform clients and others of legal developments on an ad hoc basis by way of general updates and marketing materials, our Engagement is rendered on the basis of the law at the date of our provision of work under such Engagement. Unless otherwise agreed, Brækhus assume no responsibility and will not be held liable to update its advice pursuant to changes in the law after that date.
5.5. Brækhus does not provide advice in respect of, or based on, the laws of any other jurisdiction than Norway unless we are qualified in another jurisdiction and we have expressly agreed to provide advice in respect of such jurisdiction. Brækhus may provide views on legal matters in jurisdictions other than Norway, though these views are only intended to provide our Clients with the benefit of our general experience and the Client is not entitled to rely on this advice.
5.6. The Client acknowledges that the execution of the Engagement and the fees incurred in conjunction with it is highly dependent on the Client being sufficiently prepared and providing as much and as accurate information as possible.
5.7. By engaging our services, the Client agrees that all communications to and from the opposing party shall be conducted through Brækhus, and the Client shall inform us immediately in the event of any direct communications received from the opposing party or the opposing party’s counsel.
5.8. The Client will receive copies of any important correspondence delivered and received by us during the Engagement.
6. FEES & EXPENSES
6.1. We will calculate our fees in accordance with our Terms of Engagement. Save for any written arrangements to the contrary, we will charge our fees for our time spent on the Engagement based on our hourly charge-out rates. the fees are based on the following factors:
- the amount and the complexity of the factual and legal issues;
- seniority of the personnel involved in the Engagement;
- quantity of any documents to be prepared or reviewed;
- urgency; and
- value or size of the Engagement and the results achieved.
6.2. All fees are exclusive of value added tax, sales tax and similar taxes, which will be charged at the statutory rate applying in the relevant jurisdiction. If the Client is required by applicable law to withhold or deduct any amount from fees or expenses due to Brækhus, it shall pay us an amount equal to that withheld or deducted amount so that the amount received by us always corresponds to that which is due.
6.3. We consider that the Engagement commences as of our first communication, and fees will be calculated from that time.
6.4. The minimum unit of time used is 0,25 hours. Telephone conversations, other than those involving very short messages, will be charged at the minimum amount of 0,25 hours. While travelling, lawyers shall work on the Engagement in accordance with the ordinary hourly charge-out rates wherever possible and, where this is not feasible, travelling time shall be charged at an amount corresponding to half of the applicable hourly charge-out rate, unless otherwise agreed in writing.
6.5. Brækhus may agree to share risk with our clients by entering into alternative fee arrangements whereby a client provides compensation to Brækhus based on a structure such as hybrid charge-out rates, fixed fees, target price, budget box, holdback/success-based fees or other alternatives to hourly charge-out rates. Any estimates provided for the total Engagement should be regarded as indicative and non-binding and should not be understood as a fixed price unless this is expressly agreed in writing.
6.6. In addition to our fees, we will charge the Client any Engagement-related expenses and outlays, such as administrative fees, travel expenses, significant costs associated with copying, postage, dispatching and translation fees as well as any fees and expenses payable to public authorities, etc. We will consult the Client before incurring any significant expenses or outlays.
7.1. Unless otherwise agreed and regardless of whether the Engagement has been concluded, Brækhus will invoice the Client on a monthly basis by delivering an invoice by e-mail or by post. If the Client wish us to invoice through a third-party invoicing system, Brækhus must have access to the terms applying to the system before deciding whether we can accept an invoicing procedure of this kind.
7.2 Each invoice will be accompanied by a specification to the extent this has been agreed. Accrued fees not exceeding NOK 5,000 (excluding VAT) will normally be deferred until the following month.
7.3. Brækhus may request the Client to provide a retainer before we commence work on the Engagement. The retainer will be used to settle future invoices. The re-invoicing of expenses may result in VAT on the expense in question.
7.4. The payment due date for all invoices is 14 days net. Invoices shall be paid no later than the due date. If there are issues raised regarding a particular invoice, any undisputed amounts shall be paid by the due date.
7.5. If the due date for payment cannot be met, Brækhus may:
- charge interest on overdue amounts from the due date until payment has been received in accordance with the Norwegian Act relating to Interest on Overdue Payments and claim any costs incurred due to debt collection and recovery;
- terminate the performance of any work in relation to the Client’s Engagement, including the Engagement concerned as well as other Engagements; and/or
- exercise a right of retention for any received case documents and files, etc.
7.6. If the Client declares bankruptcy or debt settlement proceedings are commenced, claims belonging to Brækhus with respect to the Client shall fall due for payment simultaneously, regardless of any other due date that may have been agreed prior to such an event. In the event of bankruptcy or claims brought by the Client against Brækhus, Brækhus shall be entitled to offset any amounts that the Client may have in his Client account with Brækhus.
8.1. We will treat any information that you disclose to us in an appropriate manner and in accordance with the Norwegian Bar Association’s Code of Conduct and our statutory confidentiality obligations. Unless otherwise agreed, our lawyers shall be entitled to disclose information to other employees in the Brækhus group of companies or other entities insofar as this is considered necessary for the performance of the Engagement, the fulfilment of our statutory obligations or is otherwise required in order for Brækhus to handle a dispute. If third-party advisers are engaged, we shall be entitled to provide them with material and other information that we consider may be relevant.
9.1. In order to render our performance of the Engagement more effective, we may communicate electronically via the internet and e-mail and use electronic tools and solutions such as SMS, virtual data rooms, GrooveHQ, Microsoft Teams, Slack, etc.).
9.2. Communication will generally be unencrypted except when required by law or by the Client through written notification. Brækhus shall not be held liable for any losses incurred by the Client arising from the use of electronic communication (whether encrypted or unencrypted), including breaches relating to electronic communication, viruses and communications sent in error, etc.
9.3. As our virus/spam filters may occasionally filter out legitimate e-mails, we encourage the Client to confirm the delivery of any important emails, for example, by ensuring receipt of a response, or by other means of communication.
9.4. As an additional service to all our Clients, we offer automatic inclusion on our mailing list where you can receive newsletters and invitations to seminars and courses etc. If you do not wish to receive these communications, please contact us at email@example.com.
10. DOCUMENT MANAGEMENT
10.1. We will retain relevant documents associated with the Engagement electronically or in paper format for as long as we deem it expedient, subject to the minimum period as required by law. We assume that the Client has original versions or copies of communications received from us, and we shall not be liable in any way with regard to the storage of such communications.
10.2. After the conclusion or termination of an Engagement, we will, in physical form or electronically, store all relevant documents and all relevant work results generated in the Engagement for a period we consider appropriate for the particular type of Engagement, however under no circumstances for a period of time shorter than that required by law.
12. EXTERNAL ADVISERS
12.1. Depending on the Engagement, the Client may want to consider whether it is necessary or advisable to engage other advisers besides Brækhus in connection with the Engagement, e.g. for audit assistance, appraisals or other assistance.
12.2. If either Brækhus or the Client engages the services of other advisers (e.g. auditors, appraisers, consultants, foreign lawyers, etc.) in connection with the Engagement, these advisers shall be considered independent in relation to us, and we assume no responsibility or liability for recommending them to you or for any advice provided by them (regardless of whether they report to us or their advice or other services are routed through us). We do not accept liability for fees or expenses charged by such advisers, whether paid by us and charged to you as disbursements or whether forwarded to you for payment. Any authority to instruct advisers includes authority to accept a limitation of liability on the Client’s behalf.
13. INTELLECTUAL PROPERTY RIGHTS
13.1. Intellectual property rights in respect of documents and other work results generated by Brækhus during the course of the Engagement shall vest in us.
13.2. Information collected and processed during the course of the Engagement may be used for generic data processing. During such processing, Brækhus shall remove all trails leading back to the Client, Client circumstances and other relationships of importance to the Client.
13.3. Contingent on the timely payment of any fees and expenses owed, the Client acquires a right to use the results of the Engagement free of charge for the purposes for which they are provided. Unless otherwise agreed, no document or other work result generated by us may be generally circulated or used for marketing purposes.
14. FEEDBACK & COMPLAINTS
14.1 Brækhus place great emphasis on Client satisfaction. If, for any reason, you are dissatisfied with our performance of the Engagement and wish to make a complaint, we ask you to contact the counsel in charge of the Engagement or the Client’s relationship partner as soon as possible. If you wish to file a claim against us, we ask you to describe the grounds for the claim in writing and to specify your anticipated loss, if any.
14.2. Unless otherwise prescribed by mandatory law, no claim may be made more than twelve months after the date the relevant circumstances were known to you or could have become known to you after reasonable enquiries.
14.3. The Client may direct any complaints concerning legal fees or violations of the Norwegian Bar Association’s Code of Conduct to the Norwegian Bar Association’s regional Disciplinary Council. As a main rule, complaints must be submitted to the Disciplinary Council within six months after the complainant was or should have been aware of the circumstances that the complaint is based on.
14.4. The Norwegian Bar Association’s Code of Conduct and further information may be obtained by contacting the secretariat of the Norwegian Bar Association or by visiting its website: www.advokatforeningen.no.
14.5. The Client acknowledges and agrees that in relation to the Engagement our relationship is solely with you. If Brækhus has agreed that a third party may rely on the advice provided by Brækhus and assumed liability for such advice, this will not alter or give rise to any further liability on the part of Brækhus under these Terms of Engagement and we will only be liable to such third party to the extent we would be liable to the Client. If we agree that a third party may rely on the advice provided by Brækhus, such reliance shall not give rise to a client relationship between Brækhus and the third party. Any monies paid to a third party as a result of liability will reduce Brækhus liability to the Client correspondingly and vice versa.
15. LIMITATION OF LIABILITY
15.1. Unless otherwise required by mandatory Norwegian law, partners, board members or employees of Brækhus shall have no personal liability in connection with the Engagement or otherwise. In accordance with the Courts of Justice Act Section 232 and Brækhus’ partnership agreement, at least one of our partners is jointly and severally liable with Brækhus. The remaining partners have no joint responsibility for any liability that Brækhus may incur while acting as legal representative for the Client.
15.2. The Client acknowledges that Brækhus does not guarantee any outcome by providing advice as part of the Engagement. We accept no liability arising from the failure to meet any deadline(s) or to complete any Engagement for the Client within a proposed time schedule, nor do we accept liability if, due to events beyond our control, we are unable to start or continue work on an Engagement. Brækhus cannot be held liable for the outcome of a litigated matter and will not assume responsibility for any losses incurred as a result of losing a litigated matter such as the opposing party’s legal fees. The Client acknowledges that it is responsible for the payment of any fees or expenses due to Brækhus, regardless of the outcome of a litigated matter.
15.3. Brækhus’ and its partners, board members or employees shall neither separately nor jointly be liable for losses exceeding 10 times the fees invoiced for the Engagement. This limitation shall apply to multiple instances of loss or damage if they have been caused by a single act or omission or the same type of act or omission.
15.4. Brækhus and its partners, board members or employees shall not be liable for indirect loss or consequential loss, including lost earnings, operating losses, loss of data, loss of goodwill, anticipated savings or benefits or similar consequential loss.
15.5. The limitations of liability contained in Clause 15.3 and 15.4 shall not apply where Brækhus has exhibited gross negligence or acted with wilful intent, in which case our liability shall be limited in accordance with our insurance coverage of NOK 500 million per claim.
15.6. In the event that a loss is covered by an insurance coverage maintained by or for the Client, any contract or indemnity to which it is a party or a beneficiary or other form of reimbursement of losses, Brækhus’ liability shall be reduced accordingly. Where Brækhus or our insurers are required to pay compensation to the Client, the Client shall as a condition for such compensation, transfer the right of recourse against third parties to us or our insurers by way of assignment or subrogation.
15.7. The Client shall indemnify Brækhus and our partners, board members or employees for any loss that we may suffer as a result of actions or omissions on the part of the Client or the Client’s representatives.
16.1. The Client may terminate the Engagement at any time by requesting thatBrækhus ceases to act on its behalf, though you are still responsible for paying any fees for work rendered or expenses incurred under the Engagement. The Engagement will otherwise be considered fulfilled when Brækhus have completed work under such Engagement in accordance with the Client’s instructions. Where an Engagement is terminated, unless prevented by law, we will take reasonable measures to preserve your interests for a transitional period.
16.2. The Client acknowledges that Brækhus may decline or withdraw from an Engagement in accordance with the Norwegian Bar Association’s Code of Conduct or due to a conflict of interest, failure to pay our fees or expenses or to supply instructions or statutory obligations pertaining to money laundering, financing of terrorism or international sanctions. Termination of an Engagement in accordance with this Clause does not affect the Client’s obligation to pay for work rendered or expenses incurred under the Engagement.
17.1. Brækhus reserves the right to use publicly available information concerning a Client (including a Client’s logo) or an Engagement for marketing purposes, e.g. by referring to the Engagement in our proposals, on our website or in qualification statements. If the Client does not condone such use, we request that written notification be provided to the counsel in charge. If we wish to utilise information that is not publicly available for other purposes than those specified in Clause 17.2, we will first seek to obtain your consent.
17.2. We reserve the right to use Engagements from the Client as reference engagements in international surveys of legal firms such as Legal 500 or Chambers and Partners and in connection with other promotional work. Where we have reason to believe that the Client may object to being used as a reference, we will seek its consent in advance.
18.1. We reserve the right to amend our Terms of Engagement at any time. The latest version of the Terms of Engagement can be found on our website: www.braekhus.no. Amendments to the Terms of Engagement will become effective only in relation to Engagements initiated after the amended version is posted on our website. A copy of the most recent version of these Terms of Engagement will be forwarded to the Client upon request. These Terms of Engagement cannot be changed or terminated orally and shall not be deemed to be waived or modified except by express written agreement. No consent to, or waiver of, a breach (whether express or implied) by Brækhus, as applicable, will constitute a consent to, waiver of, or relief of liability from any other, separate, or subsequent breach by the Client.
19. DIFFERENT LANGUAGE VERSIONS
19.1. These Terms of Engagement have been prepared in both Norwegian and English. The Norwegian version applies to clients domiciled in Norway. The English version applies all other clients. English terms used in these Terms of Engagement are to be construed solely on the basis of Norwegian legal tradition and laws, not on the basis of any other country’s legal tradition or laws.
20. GOVERNING LAW & JURISDICTION
20.1. The Engagement, these Terms of Engagement and all issues concerning them or any matter on which we have advised the Client shall be governed by and construed in accordance with Norwegian substantive law, without regard to its conflict of law principles.
20.2. Any dispute, controversy or claim that may arise out of or in connection with the Engagement or these Terms of Engagement or the breach, termination or invalidity thereof or any matter on which we have advised or failed to advise a Client shall be submitted to the Oslo District Court as the exclusive legal venue for bringing suit, provided that Brækhus reserves the right to bring an action in the Client’s ordinary court of domicile.