I. Basic Rules for Business Relations between Customer and Bank
A. Scope of application of and changes to these General Terms and Conditions
1. Scope of application
Section 1. (1) These General Terms and Conditions (hereinafter referred to as GTC) shall apply to the overall business relation between the customer and all branch offices of the bank in Austria and abroad. The business relation shall encompass all individual business transactions between the customer and the bank and therefore also all master agreements for payment services (e.g. current account agreement or credit card agreement). Provisions of agreements concluded with the customer or of special terms and conditions shall prevail.
(2) In these GTC, the terms "consumer" and "entrepreneur" shall have the meaning assigned to them in the Austrian Consumer Protection Act (Konsumentenschutzgesetz).
2. Changes to the General Terms and Conditions and the master agreements for payment services
Section 2. (1) Changes to these General Terms and Conditions shall be offered to the customer by the bank not later than two months before they are proposed to take effect, also indicating the provisions concerned. The customer's consent will be deemed to be given unless the bank has received an objection from the customer prior to the proposed entry into effect. The bank shall inform the customer of this consequence in the offer of change. In addition, the bank shall publish a comparison of the provisions concerned by the change to the GTC as well as the complete version of the new GTC on its website and shall provide such comparison to the customer at the latter's request. The bank shall indicate this, too, in the offer of change. A customer who is a consumer must be informed of the offer of change. In business dealings with an entrepreneur it shall suffice to keep the offer of change available for retrieval in a manner agreed with the entrepreneur.
(2) In case of any intended change to the GTC, the customer who is a consumer shall be entitled to terminate his/her master agreements for payment services (in particular the current account agreement) without notice and free of charge prior to such modification or amendment taking effect. This will be indicated by the bank in its notice of change.
(3) Paragraphs (1) and (2) shall also apply to such changes to the master agreements for payment services (including without limitation the current account agreement) as do not concern the performance to be rendered by the bank or the fees. Changes to the performance to be rendered by the bank (including credit interest) and to the fees charged to the customer (including debit interest) from those stipulated in such master agreements are regulated separately in sections 43 to 47a.
1. Customer orders and instructions
Section 3. (1) Customer orders and instructions shall be given in writing. The customer may also give orders or instructions by using a device for electronic signature capturing which may possibly be kept available by the bank for this purpose.
(2) The bank shall also be entitled to carry out orders and instructions given via telecommunications (in particular over the phone or via telefax or data communication). All other prerequisites being fulfilled, the bank shall only be obliged to carry out such orders if the customer has reached a corresponding agreement with the bank.
(3) The bank shall have the right to carry out, for the entrepreneur's account, any orders received in whatever form within the scope of the business relation with an entrepreneur if the bank is, without fault, of the opinion that the orders originate from the customer and provided that the invalidity of an order cannot be attributed to the bank. This shall not apply to orders relating to payment services.
2. Obtaining of confirmations by the bank
Section 4. For security reasons the bank shall be entitled, in particular in case of orders placed via telecommunications, to obtain advance confirmation of the order via the same or a different means of communication, as the case may be.
3. Notices of the bank
Section 5. (1) The notifications and notices of the bank made via telecommunications shall be effective subject to written confirmation unless otherwise agreed in writing or unless other banking practices exist in this respect. This shall not apply vis-à-vis consumers.
(2) The customer shall receive notices and information which the bank is required to provide or make available to the customer on paper, provided, however, that the bank may also use statements of account to provide such notices or information.
C. Right of disposal upon the death of a customer
Section 6. (1) As soon as it receives notice of the death of a customer the bank shall permit dispositions on the basis of a special decision rendered by the probate court or the court's decision on the inheritance. In case of joint accounts/joint securities accounts, dispositions made by an account holder holding individual authority to dispose of the account shall not be affected by this provision.
(2) An authority to sign for an account granted by an entrepreneur for a business account shall not terminate upon the death of a customer. In case of doubt, the accounts of an entrepreneur shall be considered business accounts.
D. Obligations and liability of the bank
1. Information requirements
Section 7. (1) Apart from the statutory obligations to provide information, the bank shall have no other duties to provide information in addition to those stated in its terms and conditions, unless separately agreed. Unless so required by legal provisions or the terms of any agreement, the bank is therefore not obliged to inform the customer on any imminent losses in prices or exchange rates, on the value or loss of value of any objects entrusted to the bank, or on any facts or circumstances likely to affect or jeopardise the value of such objects nor otherwise to provide advice or information to the customer.
(2)The obligations to inform provided for in sections 26 (1) to (4), 28 (1), 31 and 32 of the Austrian Payment Services Act (Zahlungsdienste-Gesetz) shall not apply if the customer is an entrepreneur.
2. Carrying out of orders
Section 8. (1) The bank shall carry out an order which, due to its nature, requires the assistance of a third party, by calling in a third party in its own name. If the bank selects the third party it shall be liable for diligent selection.
(2) The bank shall be obliged to assign claims vis-à-vis the third party, if any, to the customer upon his/her request.
Section 9. Beyond what is provided for in Section 8, the bank, as regards payment services rendered within the European Economic Area (EEA) in euro or in any other currency of an EEA Member State, shall furthermore be liable vis-à-vis consumers (but not entrepreneurs) for the due execution of the transfer until receipt by the payee's payment service provider (Section 39a of these GTC).
E. Customer's duty to co-operate and customer's liability
Section 10. In his/her dealings with the bank the customer shall, in particular, observe the obligations to co-operate stated below. Any violation thereof shall lead to an obligation to pay damages on the part of the customer or to a reduction in his/her claims for damages vis-à-vis the bank.
2. Notification of important changes
a) Name or address
Section 11. (1) The customer shall immediately notify the bank in writing of any changes in his/her name, company name, address or the service address advised by him/her.
(2)If the customer fails to notify changes in the address, written communications of the bank will be deemed received if they were sent to the address most recently advised to the bank by the customer.
b) Power of representation
Section 12. (1) The customer shall immediately notify the bank in writing of any cancellation of or changes to any power of representation advised to it, including an authority to dispose of and sign for an account (Sections 31 and 32), and shall provide appropriate documentary evidence in this regard.
(2) Any power of representation advised to the bank shall continue to be effective in its current scope until written notification of cancellation of or a change to the same has been received, unless the bank had knowledge of such cancellation or change or was not aware thereof due to gross negligence. This shall, in particular, also apply if the cancellation of or change to the power of representation is recorded in a public register and was duly published.
c) Capacity to enter into legal transactions; dissolution of the company
Section 13. The bank shall immediately be notified in writing of any loss of or reduction in the customer's capacity to enter into legal transactions. If the customer is a company or legal entity, the dissolution of the same shall also be advised to the bank immediately.
3. Clarity of orders
Section 14. (1) The customer shall ensure that his/her orders to the bank are clear and unambiguous. Modifications, confirmations or reminders shall expressly be marked as such.
(2) If the customer wishes to give special instructions to the bank regarding the carrying out of orders, he/she shall inform the bank thereof separately and explicitly, and in case of orders given by means of forms, the instructions shall be given separately, i.e. not on the form. This shall apply especially where there is particular urgency for the order to be carried out or where the order is subject to certain periods and deadlines.
4. Due care and diligence in using means of telecommunication; payment instruments
Section 15. If the customer gives orders/instructions or other notices via telecommunication, he/she shall take reasonable precautions in order to avoid transmission errors and abuse. This provision shall not apply to orders and notices given by the customer in relation to payment services.
Section 15a. (1) W hen using payment instruments which have been agreed to be usable for placing orders with the bank, the customer shall take all reasonable precautions to protect the personalised security features against unauthorised access, and shall notify the bank, or the body specified by the bank, without undue delay on becoming aware of any loss, theft, misappropriation, or any other unauthorised use of the payment instrument. In case of any form of fault on their part, customers who are entrepreneurs shall be liable, without limitation as to amount, for any losses sustained by the bank due to violations of these duties of care and diligence.
(2) The bank shall be authorised to block payment instruments issued to the customer
- if this is justified by objective reasons in connection with the security of the payment instrument, or
- if unauthorised or fraudulent use of the payment instrument is suspected, or
- in case of a significantly increased risk of the customer being unable to meet his/her payment obligations in connection with a credit line associated with the payment instrument.
Unless notice of the blocking or of the reasons for such blocking would violate an order issued by a court or an administrative authority and/or would compromise Austrian or Community legislation or objectively justified security reasons, the bank shall notify the customer of such blocking and of the reasons for it in a manner of communication agreed with the customer, where possible, before the payment instrument is blocked, but in any event immediately thereafter.
(3) The provisions of this clause shall also apply to instruments which have been agreed to be usable for placing orders with the bank outside the payment services.
5. Raising of objections
Section 16. (1) The customer shall verify notices of the bank not relating to payment services (such as confirmations of orders placed in relation to financial instruments and communications about the carrying out of the same and confirmations of trades; account statements, closing statements and any other accounts relating to lending and foreign currency transactions; securities account statements and/or statements of securities) as to their completeness and correctness and shall raise objections, if any, without delay. If the bank receives no written objections to such notices within a period of two months, the stated notices of the bank will be deemed approved. The bank shall in each case inform the customer about the significance of his/her objection or non-objection at the beginning of the period.
(2) In case of debit entries having been made to the customer's current account as a result of unauthorised or incorrectly executed payment transactions, the customer can obtain rectification from the bank in any event provided that on becoming aware of any unauthorised or incorrectly executed payment transaction he/she has notified the bank without undue delay, but no later than 13 months after the debit date. The time limits shall not apply if the bank has failed to provide or make available to the customer the information regarding the relevant payment transaction that is provided for in Section 39 (9) of these terms and conditions. Other claims for rectification that the customer may have are not excluded by this provision.
6. Notification in case of non-receipt of communications
Section 17. The customer shall notify the bank immediately if he/she does not receive regular communications from the bank (such as closing statements or statements of securities) or other communications or mail from the bank which the customer would have had to expect in his/her circumstances within the period of time normally to be expected with respect to the agreed form of transmission. This shall not apply to communications or mail relating to payment services.
Section 18. Any foreign-language instruments shall be presented to the bank also in a German translation of a court-appointed and certified interpreter if the bank so requires.
F. Place of performance; choice of law; legal venue
1. Place of performance
Section 19. When transacting business with entrepreneurs, the place of performance for both parties shall be the offices of that branch of the bank with which the transaction was concluded.
2. Choice of law
Section 20. All legal relations between the customer and the bank shall be subject to Austrian law.
3. Legal venue
Section 21. (1) Legal actions of an entrepreneur against the bank may only be taken in the court having subject-matter jurisdiction at the place of the bank's registered office. This shall also be the legal venue in case of legal actions of the bank against an entrepreneur, with the bank being entitled to assert its rights in every court having local jurisdiction and jurisdiction over the subject matter.
(2) The general legal venue in Austria provided for by law in case of legal actions of a consumer or against a consumer regarding agreements with a bank shall remain the same even if the consumer, after conclusion of the agreement, transfers his/her domicile abroad and Austrian court decisions are enforceable in that country.
G. Termination of the business relation
1. Ordinary termination in the business relation with an entrepreneur
Section 22. Unless the agreement has been concluded for a definite period of time the bank and the customer shall be entitled to terminate the entire business relation or individual parts thereof (also loan agreements and master agreements for payment services such as current account agreements in particular) at any time observing an adequate period of notice. Fees that have been paid in advance shall not be refunded.
2. Ordinary termination in the business relation with a consumer
Section 22a. (1) The customer shall be entitled to terminate a master agreement for payment services, in particular the current account agreement, free of charge at any time as of the last day of the current month, it being understood that any notice of termination issued on the last business day of a month shall only take effect as of the first business day of the following month. The right to terminate a master agreement for payment services, in particular the current account agreement, free of charge and without notice due to modifications of or amendments to the GTC or a master agreement for payment services, in particular the current account agreement (Section 2), that have been proposed by the bank shall remain unaffected.
(2) Customers may terminate loan agreements concluded for an indefinite period of time at any time free of charge subject to a notice period of one month. Notice of termination must be communicated on paper or on another durable medium agreed.
(3) All other contracts or agreements concluded with the bank for an indefinite period of time may be terminated by the customer at any time subject to an adequate notice period.
(4) The bank shall be entitled to terminate any master agreements for payment services (in particular current account agreements) and loan agreements which have been concluded for an indefinite period of time by giving two months' notice.
(5) All other contracts or agreements concluded for an indefinite period of time may be terminated by the bank at any time subject to an adequate notice period.
3. Termination for important reason
Section 23. (1) The bank and the customer shall be entitled to terminate the entire business relation or individual parts thereof at any time with immediate effect for important reason.
(2) Important reasons for termination by the bank are given in particular, if
- the financial situation of the customer or of a co-debtor deteriorates or is put at risk and the fulfilment of obligations vis-à-vis the bank is jeopardised as a result thereof,
- the customer furnishes information about his/her financial situation or other facts and circumstances which is incorrect in important aspects, or
- the customer has failed or is unable to fulfil an obligation to provide or increase collateral.
4. Legal consequences
Section 24. (1) Upon termination of the entire business relation or individual parts thereof the amounts owed thereunder will immediatel become due and payable. In addition, the customer shall be obliged to release the bank from all liabilities assumed for him/her.
(2) Furthermore, the bank shall be entitled to terminate all liabilities assumed for the customer and to settle the same on behalf of the customer as well as to immediately redebit any amounts that may have been credited subject to receipt of the funds. Claims arising from securities, in particular bills of exchange or cheques, may be asserted by the bank until potential debit balances, if any, are covered.
(3) Upon termination of the entire business relation or of individual business transactions, the bank shall refund to the customer who is a consumer proportionally such charges for payment services as have been paid for a certain period in advance.
(4) The GTC shall apply even after the termination of the business relation, until complete settlement.
H. Right to refuse payout
Section 25. (1) The bank shall be entitled to refuse payout of the loan amount for objectively justified reasons.
(2) Objectively justified reasons within the meaning of paragraph 1 will be deemed present if, after conclusion of the contract,
- circumstances arise which show the financial situation of the customer to have deteriorated, or stipulated collateral to have suffered a loss in value, to such a degree that repayment of the loan or payment of interest is jeopardised even if collateral were to be realised, or
- the bank comes to harbour the objectively justified suspicion that the loan amount is or will be used by the borrower in a manner contrary to contractual agreement or the law.
(3) The bank shall communicate any such intention, and the reasons therefor, to the consumer on paper or on another durable medium without delay. No reasons shall be provided where public security or order would be jeopardised thereby.