INFORMATION SHEET FOR DEPOSITORS
General Information on the guarantee of deposits
| Deposits with Bank Winter are guaranteed by: | Einlagensicherung der Banken & Bankiers Gesellschaft m.b.H. (1) |
| Maximum amount guaranteed: | EUR 100,000 per depositor per credit insititution (2) |
| In case you have several deposits with one credit Institution: | All deposits with the same credit Institution will be "added up" and the total amount is subject to the maximum amount of EUR 100,000 (2) |
| In case you have a joint account with one or several other persons: | The maximum amount of EUR 100,00 is applied to each depositor (3) |
| Reimbursement period in case of a default of a credit Institution: | up to 10 business days (until 12/31/2018), afterwards see (4) |
| Currency of reimbursement: | Euro |
| Contact details: | Einlagensicherung der Banken & Bankiers Gesellschaft m.b.H. Börsegasse 11 1010 Vienna Tel.: +43 (1) 533 98 03-0 Fax: +43 (1) 533 98 03-5 office@einlagensicherung.at |
| Further information: | www.einlagensicherung.at |
Further information (for all or several of the points below)
(1) Guarantee facility responsible for the protection of your deposit:
Your deposit is covered by a contractual deposit protection system that is officially certified as a guarantee facility. In the event of an insolvency of your credit institution, your deposits will be reimbursed up to EUR 100,000 or equivalent in foreign currency.
(2) General protection maximum amount:
If a deposit is not available because a credit institution is not able to fulfill its financial obligations, the depositors will be compensated by the deposit guarantee system. The respective sum insured is max. EUR 100,000 or equivalent in foreign currency per credit institution. This means that while calculating this sum, all deposits held at the same credit institution shall be added. If, for example, a depositor has EUR 90,000 in a savings account and EUR 20,000 in a current account, he will only be reimbursed EUR 100,000.
In some cases (when the deposits result from real estate transactions relating to private residential properties, or serve legal social purposes and are linked to particular life events of a depositor such as marriage, divorce, retirement, dismissal, redundancy, invalidity or death, or are based on the payment of insurance benefits or compensation for criminal injuries or wrongful conviction and if the guaranteed event takes place within 12 months after the amount has been credited or from the moment when such deposits become legally transferable) deposits amounting to more than EUR 100,000 are guaranteed up to EUR 500,000 or equivalent in foreign currency. These payments are subject to a request of the depositor that must be made within 12 months after the guaranteed event to the Einlagensicherung der Banken & Bankiers Gesellschaft m.b.H.
(3) Protection maximum amount for joint accounts:
The maximum amount for joint accounts is EUR 100,000 or equivalent in foreign currency per depositor.
In case of joint accounts the share of each depositor in the deposits of the joint account is taken into consideration for the calculation of the reimbursable deposits, insofar as the depositors have transferred such written instructions for the distribution to the credit institution. In case the depositors have not transferred such written instructions, the deposits from the joint account are distributed evenly to the depositors.
Deposits into an account that two or more persons or members can dispose of as members of a partnership or society, an association or a similar union that is not a legal entity, however, are summed up during the calculation of the maximum amount of EUR 100,000 and treated as a deposit by a single depositor. Further information is available at www.einlagensicherung.at.
(4) Reimbursement:
The responsible deposit guarantee facility is the Einlagensicherung der Banken & Bankiers Gesellschaft m.b.H., Börsegasse 11, 1010 Vienna, Tel.: +43 (1) 533 98 03-0, Fax: +43 (1) 533 98 03-5, office@einlagensicherung.at, www.einlagensicherung.at that will reimburse your deposit (up to EUR 100,000 or equivalent in foreign currency) within 20 business days (until 12/31/2018), from 1/1/2019 until 12/31/2020 within 15 business days, from 1/1/2021 until 31/12/2023 within 10 business days and from 31/12/2023 within 7 business days.
If the deposit guarantee facilities can not reimburse the total amount of reimbursable deposits within seven business days following the default event to a depositor during the transition periods, they are obliged to pay an adequate amount of the reimbursable deposits to the depositor to cover the living expenses within 5 days following such request by the depositor. The deposit guarantee facilities have to conduct the payment of the adequate amount based on and following the examination of the depositor's request, the data already available and the data provided from its member credit institutions. The depositor's claim for payment of a sum amounting to the reimbursable deposits decreases in such cases according to the amount already received as the adequate amount for covering living expenses pursuant to section 13 ESEAG.
If you haven’t received reimbursement within these deadlines, you should contact the deposit guarantee system, as the period of validity for claims for reimbursement may have expired after a certain period. Further information is available at www.einlagensicherung.at.
Further important information:
Deposits by private customers and companies are generally covered by deposit guarantee systems. You will find information about exceptions for particular deposits on the respective deposit guarantee system’s website. Your credit institution will also inform you upon request, whether certain products are covered or not. If deposits are covered, the credit institution will confirm this on the account statement.
Reimbursable deposits up to EUR 100,000 will not be paid if during the last 24 months prior to the default event no transaction in connection with this deposit has been conducted and the deposit amounts to less than the administrative costs of the deposit guarantee facility in case of payment.
Reimbursable deposits are not paid out, insofar as there are liabilities of the depositor towards the credit institution that can be offset in accordance with legal or contractual provisions and that were due before or at the latest at the time the default event occurred.
For further information please see our customer information "Deposit Guarantee - Investor Compensation" and the relevant legal provisions of the Austrian Deposit Guarantee and Investor Compensation Act (ESAEG) and the Austrian Banking Act (BWG). In case of request we will provide you with these documents.
Disclosure pursuant to Section 65a of the Austrian Banking Act
1. Information on compliance with Section 5 (1) 6 to 9a and Section 28a (5) 1 to 5 of the Austrian Banking Act (Fit & Proper)
In order to comply with Section 5 (1) 6 to 9a and Section 28a (5) 1 to 5 of the Austrian Banking Act as well as the EBA Guideline on the assessment of the suitability of members of the management body and key function holders (EBA/GL/2012/06) Bank Winter has issued a Fit & Proper Policy. This policy defines the strategy applied in selecting members of the Supervisory Board and the Management Board as well as certain key function holders. Furthermore the suitability criteria, the required documents for the records and arrangements regarding incident related evaluations are defined. The compliance with Section 5 (1) 6 to 9a and Section 28a (5) 1 to 5 of the Austrian Banking Act as well as with the Fit & Proper Policy has been verified and documented by the Fit & Proper Office.
2. Information on compliance with Section 29 of the Austrian Banking Act (Nominations Committee)
The Supervisory Board of Bank Winter & Co. AG has set up a nominations committee, which prepares the succession planning as well as the selection of suitable candidates for the Management Board. The target ratio for the gender which is underrepresented on the Management Board and the Supervisory Board was set at a minimum of 25%. The strategy to achieve this target is to include key position holders – persons who have a significant influence on the orientation of Bank Winter without being a member of the Management Board – such as the compliance officer, the anti-money-laundering officer or the head of internal audit. Including key position holders the ratio for the underrepresented gender is presently 29.4%.
3. Information on compliance with Section 39b and c of the Austrian Banking Act and the annex to Section 39b of the Austrian Banking Act (remuneration policy)
The legal requirements regarding the remuneration policy and practice have been converted into internal guidelines and adapted to the size and the internal organization as well as the type, volume and complexity of the business of Bank Winter. Bank Winter & Co. AG as the superordinate financial institution is responsible for the compliance with the remuneration principles of the entire group. The Supervisory Board of Bank Winter & Co. AG is responsible for approving the remuneration principles of the bank, verifying them regularly and taking care of the implementation. Performance related compensations are based on the evaluation of the performance of the employee, his department and the entire bank. In evaluating the individual performance financial as well as non-financial criteria are taken into consideration. The evaluation must be made in a multiannual context. The entire variable compensation has no effect on the ability of the bank to raise its capital adequacy. An individual contract, according to which the total annual variable components may be higher than the total annual fixed components, has to be approved by the Supervisory board or if applicable by a remuneration committee. Payments related to the early termination of a contract which exceed the total annual fixed compensation have to be approved by the Supervisory Board or if applicable by a remuneration committee.
4. Information on the implementation of the provisions regarding the remuneration committee
The remuneration committee defines the remuneration policy and verifies its implementation. The remuneration committee has set up a remuneration policy complying with the principles of the Capital Requirements Directive III, the CEBS guideline and the relevant regulations of the Austrian Banking Act.
5. Further information
The provisions of Section 64 (1) 18 of the Austrian Banking Act do not apply to Bank Winter, having no relevant branches. The return on assets according to Section 64 (1) 19 of the Austrian Banking Act is published in the notes to the annual financial statements of Bank Winter & Co. AG.
General Terms and Conditions
Version 08 / 2015
Basic rules for business relations between client and Bank Winter & Co. AG (hereinafter named “the bank”). This is a translation of the German Terms and Conditions. In case of discrepancies the German version shall prevail.
GENERAL PROVISIONS
I. BASIC RULES FOR BUSINESS RELATIONSHIPS BETWEEN CUSTOMER AND BANK
A. Scope of application of and modifications of or amendments 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 relationship between the customer and all branch offices of the bank in Austria and abroad. The business relation comprises all individual business relations between the customer and the bank, therewith also all framework agreements for payment services (e.g. account agreements or credit card agreements). Provisions contained in agreements concluded with the customer or in special terms and conditions shall prevail.
(2) The terms “consumer” and “entrepreneur” shall hereinafter have the same meaning as in the Austrian Consumer Protection Act.
2. Modifications of or amendments to the General Terms and Conditions
Section 2 (1) Modifications of or amendments to these GTC agreed between the customer and the bank shall take effect upon expiry of 2 months after the notice to the customer regarding the offered modifications or amendments is accessed, unless the bank has received a written objection from the customer by that time. Such notice to the customer may be effected in any form agreed with the customer. The agreed form of service of the bank’s statements shall also apply to the notice of modifications of or amendments to the GTC. In business relations with an entrepreneur, it shall suffice to hold the offer related to the change available for retrieval in a manner agreed with the entrepreneur.
(2) By means of the notice, the bank shall inform the customer about the fact that the GTC have been amended and shall point out that upon expiry of two months following the access of the notice, his/her acquiescence shall be deemed a consent to the modification or amendment. In addition, the bank shall publish the full version of the new GTC on its web site. The bank shall also provide the customer with these documents in written form in its branch offices or by mail upon request. The bank shall inform the customer of these options in the notice regarding the offered modification or amendment.
(3) In the event of such an intended modification of or amendment to the GTC, customers who are consumers shall have the right to terminate their framework contracts for payment services, in particular the current account maintenance agreement, free of charge and without giving notice before such modification or amendment becomes effective. The bank shall refer to this right in its notification of the modification.
(4) Paragraph (1) and (2) shall also apply to modifications of framework agreements on payment services (in particular of the current account maintenance agreement). The modification of services rendered by the bank and stipulated in such framework agreements as well as of customer fees is regulated in section 43 (business with entrepreneurs) and 45 (business with consumers).
B. Statements
1. Customer orders and instructions
Section 3. (1) Instructions shall be given in writing. Additionally, the customer can issue an order via equipment eventually held ready by the bank for this purpose, to electronically determine signatures.
(2) The bank shall, however, also be entitled to carry out instructions given via telecommunications (in particular over the phone, via cable, telex, telefax or data communication). Subject to the fulfilment of all other prerequisites, the bank shall only be obliged to carry out such orders if the customer has made an agreement to this effect with the bank.
(3) The bank shall be entitled to carry out instructions of any kind given by an entrepreneur within the scope of the business relation on the customer’s account if the bank is, without fault, of the opinion that they originate from the entrepreneur and if the ineffective order cannot be attributed to the bank.
2. Obtaining of confirmations by the bank
Section 4. For security reasons the bank shall be entitled, in particular in case of instructions given via telecommunications, to obtain a confirmation of the order via the same or a different means of communication, as the case may be.
3. Statements
Section 5. (1) The notifications and statements of the bank made via telecommunications shall be effective subject to written confirmation unless otherwise agreed in writing or other banking practices exist in this respect. This shall not apply vis-à-vis consumers.
(2) Statements and information which the bank shall provide or make accessible to the customer, shall be provided or made accessible to the customer on paper (in particular by means of a statement of account), unless accessibility or transmission by electronic means has been agreed with the customer.
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 specific decision rendered by the probate court or a court order specifying the heirs’ entitlement to 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) No authority to sign on an account granted by an entrepreneur for a business account shall terminate upon the death of a customer. In case of any doubt, the accounts of an entrepreneur shall be considered business accounts.
D. Obligations and liability of the bank
1. Information duties
Section 7. (1) Apart from the statutory duties to provide information, the bank shall have no other duties to provide information in addition to that stated in its terms and conditions unless separately agreed. For this reason, the bank shall not be obligated – unless there is a legal or contractual obligation – to inform the customer of imminent price or exchange losses, of the value or worthlessness of objects entrusted to the bank, or of any facts or circumstances likely to affect or jeopardise the value of such objects nor shall the bank be obliged to provide other advice or information to the customer.
(2) The duties to provide information as set out in Sections 26 (1) to (4), 28 (1), 31 and 32 of the Austrian Payment Services Act shall not be applicable vis-à-vis entrepreneurs.
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 obligated to assign claims vis-à-vis the third party, if any, to the customer upon his/her request.
(3) Further to Section 8, the bank shall also be liable for payment services within the European Economic Area (EEA) in Euro or in any other currency of an EEA Member State vis-à-vis consumers (but not entrepreneurs) for the due execution of the transfer until receipt by the beneficiary’s payment service provider (Section 39a of these GTC).
Section 9. cancelled
E. Obligations to co-operate and liability of the customer
1. Introduction
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, service address advised by him/her or nationality.
(2) If the customer fails to notify changes in the address, written communications of the bank shall 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 or of changes of any power of representation advised to it, including an authority to operate and sign on 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 until written notification of cancellation of the same or of a change in its current scope, unless the bank had knowledge of such cancellation or change or was not aware thereof due to gross negligence. The same shall, in particular, also apply if the cancellation or change in the power of representation is registered 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, a dissolution of the same shall be immediately notified to the bank.
3. Clarity of orders
Section 14. (1) The customer shall ensure that his/her orders/instructions 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, above all, apply if the carrying out of the order is extremely urgent or subject to certain periods and deadlines.
4. Due care and diligence in using means of telecommunication; Payment instruments
Section 15. (1) When using a payment instrument which, in accordance with an agreement, may be used for giving instructions to the bank, the customer shall take all reasonable precautions in order to protect the personalised security features against unauthorised access and shall inform the bank or an entity specified by the bank without delay of the loss, theft, misuse or otherwise unauthorised use of the payment instrument as soon as he/she becomes aware of it. Other obligations and special terms and conditions shall not be affected thereby. Entrepreneurs shall be liable for any losses arising for the bank from failure to use due care and diligence, with no limit of amount, regardless of the type of intentional act or negligence for which the entrepreneur is responsible.
(2) The bank shall be entitled to block payment instruments issued to the customer if
• objective reasons justify such action in connection with the security of the payment Instrument; or
• there is a suspicion of unauthorised or fraudulent use of the payment Instrument; or
• there is a significantly increased risk that the customer will not meet his/her payment obligations in connection with a credit line linked to the payment instrument.
The bank shall – to the extent that notification of such blocking or of the reasons for such blocking would not infringe a court order or an order issued by an administrative authority, or be contrary to Austrian or Community law or objective security considerations – inform the customer of such blocking and the reasons for it by using one of the methods of communication agreed with the customer, where possible, before the payment instrument is blocked and at latest immediately afterwards.
(3) The provisions of this Section also apply for instruments that can be used for the issuance of an order to the bank apart from payment services.
5. Raising of objections
Section 16. (1) The customer shall immediately verify statements of the bank which do not relate to payment services (such as confirmations of orders concerning financial instruments, communications on the carrying out of the same, confirmations of transactions; statements of account, closing statements and any other statements concerning lending and foreign currency business; 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 statements within a period of 2 months, the statements of the bank stated shall be deemed approved. The bank shall in each case inform the customer about the significance of his/her behaviour at the beginning of the period.
(2) In the event of a debit entry being made in the customer’s current account on the basis of an unauthorised or incorrectly executed payment transaction, the customer may in any case request a correction by the bank if he/she informs the bank to this effect without delay after becoming aware of an unauthorised or incorrectly executed payment transaction, but not later than 13 months after the date of the debit entry. The time limits shall not apply if the bank has failed to provide the customer with, or make available to him/her, the information on the relevant payment transaction which is to be provided pursuant to Section 39 (9) of these GTC. This provision shall not preclude other claims of the customer for correction.
(3) With entrepreneurs, this period pursuant to paragraph (2) shall be reduced from 13 months to 3 months.
6. Notification in case of non receipt of communications
Section 17. cancelled
7. Translations
Section 18. Any foreign-language instrument 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. The place of performance for both parties shall be the office of that branch of the bank with which the transaction was concluded. § 6 Consumer Protection Act applies to the fulfilment of monetary debts by consumers.
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 in case of legal actions taken by a consumer or against a consumer as provided for by law at the time of conclusion of an Agreement, 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 of business relationships with entrepreneurs
Section 22 Unless an agreement has been concluded for a specific period, the bank and the customer may terminate their entire business relationship or individual parts thereof (including credit agreements and framework agreements for payment services, particularly current account maintenance agreements) at any time subject to a reasonable period of notice. Charges paid in advance shall not be refunded.
2. Ordinary termination of business relationships with consumers
Section 23 (1) The consumer may terminate a framework contract for payment services, in particular a current account maintenance agreement, free of charge at any time, subject to a notice period of 1 month. The right to terminate a framework contract for payment services, in particular a current account maintenance agreement, free of charge and without notice if the bank proposes a modification of or amendment to the GTC or a framework agreement for payment services pursuant to Section 2 shall remain unaffected by this provision.
(2) The consumer may terminate credit agreements concluded for an indefinite period free of charge at any time subject to a period of notice of 1 month. The consumer may terminate all other agreements concluded with the bank for an indefinite period at any time with a reasonable notice period.
(3) The bank may terminate framework contracts for payment services, particularly current account maintenance agreements and credit agreements concluded for an indefinite period, subject to a notice period of 2 months. Such termination shall be communicated on paper or on another durable medium as agreed.
(4)The bank may terminate all other agreements concluded for an indefinite period at any time with a reasonable notice period.
3. Termination for important reason
Section 24. (1) The bank and the customer shall be entitled to terminate their entire business relationship or individual parts thereof at any time with immediate effect for important reason, notwithstanding any agreement specifying a fixed period.
(2) Important reasons entitling the bank to terminate the business relationship are, 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 incorrect information about his/her financial situation or other essential facts or circumstances, or violates other essential agreement provisions; or
• the customer fails or is unable to fulfil an obligation to provide or increase collateral.
4. Legal consequences
Section 25. (1) Upon termination of the entire business relationship or individual parts thereof the amounts owed thereunder will immediately become due and payable. In addition, the customer shall be obliged to release the bank from all liabilities assumed for him/her.
(2) In addition, 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 credited amounts, subject to collection. 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) In the event of the termination of the entire business relationship or individual parts thereof, the bank shall reimburse charges for payment services paid in advance for a specific period to customers who are consumers on a pro-rated basis.
(4) These General Terms and Conditions shall continue to apply even after termination of the business relation until complete settlement.
H. Right to deny payment
Section 26. (1) The bank may deny payment of the credit amount for objectively justified reasons.
(2) Objectively justified reasons in the meaning of paragraph one shall be deemed to exist when, following the conclusion of the agreement,
• conditions arise which indicate a deterioration of the borrower’s financial situation or a devaluation of the pledged collateral to an extent that would jeopardise the repayment of the loan or the payment of interest even if the collateral were to be liquidated; or
• the bank has an objectively justified reason to believe that the credit amount is being used by the borrower in a way that violates the agreement or law.
(3) The bank shall inform consumers of such intentions immediately on paper or on another durable medium, and shall cite the reasons that led to these intentions. The reasons shall not be cited if doing so would jeopardise public safety or order.
II. BANK INFORMATION
Section 27. General information about the financial situation of an enterprise which is customary in banking practice will only be provided in a non-binding manner and, vis-à-vis entrepreneurs, only in writing unless an obligation to provide such information exists.
III. OPENING AND KEEPING OF ACCOUNTS AND SECURITIES ACCOUNTS
A. Scope of application
Section 28. Unless otherwise provided, the following regulations regarding accounts shall also apply to securities accounts.
B. Opening of accounts
Section 29. When opening an account, the future account holder shall prove his/her identity. Accounts shall be kept under the name of the account holder or the company name together with an account number.
C. Specimen signature
Section 30. Persons who are to be authorised to operate or sign on an account or custodian account shall deposit their signature with the bank. Based on the signatures deposited, the bank shall permit written disposition within the scope of the account relationship.
D. Authority to operate and sign
1. Authority to operate
Section 31 Only the account holder shall be entitled to make dispositions regarding the account. Only persons whose power of representation is provided for by law or persons who hold an explicit written power of attorney to operate the account shall be entitled to represent the account holder. They are obliged to prove their identity and power of representation.
In the case of powers of attorney issued as a precaution, whose effectiveness (in particular when a person becomes legally incapacitated) has been recorded in the Austrian Central Register of Powers of Representation, a general power of attorney to operate the accounts of the grantor of the power of attorney shall suffice.
2. Authority to sign
Section 32. (1) The account holder may expressly and in writing grant third parties authority to sign on an account. The person who is authorised to sign shall provide the bank with proof of his/her identity. The person authorised to sign shall be entitled only to make and revoke dispositions within the drawing limit of the account.
(2) The authority to sign on a securities account also includes the power to buy and sell securities within the scope of the coverage available and in accordance with the investment objective of the security account holder pursuant to the Austrian Securities Supervision Act.
E. Special types of accounts
1. Sub-account
Section 33. An account may also include sub-accounts. Even if they are given sub-account names the account holder shall be exclusively entitled and obligated vis-à-vis the bank in connection with the same.
2. Escrow account
Section 34. In case of escrow accounts the escrow agent shall be exclusively entitled and obligated vis-à-vis the bank as account holder.
3. Joint account
Section 35. (1) An account may also be opened for several account holders (joint account). Dispositions regarding the account, in particular the closing thereof and the granting of authority to sign, may only be made by all account holders jointly. Every account holder may be represented by an authorised representative in the individual case.
(2) The account holders shall be liable jointly and severally for obligations arising out of the account.
(3) Unless expressly agreed otherwise every joint account holder shall have individual power to make dispositions within the drawing limit of the account. Such authority also includes the power to buy and sell securities within the scope of the coverage available, the joint investment objective and joint readiness to assume risks of all security deposit holders ascertained in accordance with the Austrian Securities Supervision Act. The authority will, however, be terminated by the express objection of another account holder. In such case the joint account holders shall only be authorised to act jointly.
(4) Authorisations to sign may be revoked by each individual joint account holder.
Section 36. cancelled
4. Foreign currency account
Section 37. (1) If the bank keeps a foreign currency account for the customer, transfers in the respective foreign currency shall be credited to such account unless a different transfer instruction has been given. If no foreign currency account exists the bank shall be entitled to credit foreign currency amounts in national currency, unless expressly instructed to the contrary by the customer. The amount shall be converted at the conversion rate of the day on which the amount in foreign currency is at the bank’s disposal and may be used by it.
(2) Holders of credit balances in foreign currency shall bear any and all financial and legal consequences and damages affecting the total credit balance in the respective currency held by the bank in Austria and abroad which were caused by measures or events for which the bank is not responsible pro rata up to their respective credit balances.
F. Balancing of accounts and statements of securities
Section 38. (1) Unless otherwise agreed the bank shall balance the account on a quarterly basis. Interest accrued in and charges due for the respective quarter shall be included in the closing balance, which shall subsequently continue to carry interest (“compound interest”). Statements of securities shall be prepared once a year.
(2) The statement of account including the closing statements shall be kept available for the customer at the account-keeping branch office of the bank.
IV. GIRO TRANSACTIONS
A. Transfer instructions
Section 39 (1) When transfers are to be made to a payee whose account is maintained at a payment service provider within Austria, other member states of the European Economic Area (EEA) or Switzerland, the customer has to specify the payee by indicating the payee’s International Bank Account Number (IBAN).
If the payee’s payment service provider is domiciled in an EEA member state other than Austria or in Switzerland, the BIC of the payee’s payment service provider shall be specified in addition to the IBAN until 31 January 2016.
(2) For transfer instructions in favour of a payee whose account is maintained at a payment service provider outside the EEA and Switzerland, the customer shall specify the payee by indicating:
• the payee’s IBAN and the BIC of the payee’s payment service provider or
• the payee’s name and account number and either the name, bank routing code or BIC of the payee’s payment service provider.
(3) The IBAN and BIC specified by the customer pursuant to paragraphs (1) and (2) are the unique identifier of the payee on the basis of which the transfer instruction is executed. If the customer specifies details of the payee in addition to the IBAN and BIC, such as the payee’s name, such details are not part of the unique identifier; they serve only documentation purposes and will be disregarded by the bank when it executes the transfer instruction.
(4) The designated purpose stated in the transfer instruction shall in any case be irrelevant to the bank.
(5) Acceptance of a transfer instruction by the bank alone shall not lead to any rights of a third party vis-à-vis the bank.
(6) The bank shall only be obliged to execute a transfer instruction if sufficient funds to cover the total amount are available on the customer’s account (credit balance, credit line granted).
(7) Transfer instructions received by the bank (Section 39a) cannot be revoked unilaterally by the customer. If a transfer instruction is agreed to be executed at a later date, the transfer instruction shall become irrevocable upon expiry of the business day preceding the date of execution.
(8) If the bank refuses to execute a transfer instruction, it shall inform the customer as soon as possible, but in any case within the periods specified in Section 39a (3), of such refusal and of how the transfer instruction can be corrected in order to enable the bank to execute it in the future. A reason for such refusal shall only be stated if this would not constitute an infringement of Austrian or Community law or an infringement of a court order or an order issued by an administrative authority.
Transfer instructions refused by the bank in a justified manner shall not trigger the periods agreed for execution in Section 39a of these GTC.
(9) Information on executed transfer instructions (reference, amount, currency, charges, interest rate, exchange rate, value date of the debit entry) and other payments debited to the customer’s account, under a direct debit authorisation mandate in particular, shall be provided to the customer who is a consumer – unless already shown for the relevant transaction in the statement of account – on the customer’s request on a monthly basis.
B. Execution deadlines
Section 39a (1) Payment orders received by the bank after the deadlines specified for the respective type of payment or on a day which is not a business day are deemed received on the following business day. The bank will inform the customer thereof timely before the conclusion of and when concluding an account maintenance agreement and of every change of the deadlines on paper (or, if agreed upon with the customer, on another durable medium). A business day is any day on which the bank is open for business as required for the execution of payment transactions.
(2) If the customer making a payment order and the bank agree that the execution of a payment order should commence on a specific date or at the end of a specific period or on the day on which the customer provides the bank with the relevant amount of money, the agreed date shall be deemed the date of receipt.
If the agreed date is not a business day, the payment order shall be treated as received on the following business day.
(3) The bank shall ensure that after the time of the receipt, the payment service provider of the payee receives the amount of the payment transaction not later than at the end of the subsequent business day (in the case of payment transactions submitted in paper form, at the end of the second subsequent business day). This paragraph shall only apply to payment transactions in Euro within the European Economic Area (EEA).
(4) The execution period specified in paragraph (3) shall not exceed 4 days in case of payment transactions made within the European Economic Area that are not denominated in Euro but in another currency of an EEA Member State.
C. Credit entries and right to cancel
Section 40.(1) In case of a validly existing account maintenance agreement, the bank shall be obliged and irrevocably entitled to accept amounts of money on behalf of the customer and credit the same to his/her account. Even after termination of the account maintenance agreement the bank shall be entitled to accept of money on behalf of the customer to the extent obligations of the customer exist in connection with the account. The instruction to provide a customer with an amount of money shall be carried out by the bank by crediting the amount to the account of the payee unless otherwise indicated in the instruction. In case the customer’s account indicated in the payment order is not kept in the same currency as the payment order, the credit shall be concluded following the exchange into the currency of the account kept, at the conversion rate of the day the amount indicated in the payment order is available to the bank and can be realized by the bank.
(2) Information on credit transfers to the customer’s account (reference, amount, currency, charges, interest, exchange rate, value date of the credit entry) shall be provided to the customer who is a consumer – unless already shown for the relevant transaction in the statement of account – on a monthly basis afterwards in paper form or on another agreed upon durable data carrier.
(3) The bank shall be entitled to deduct its charges for the credit transfer from the amount to be credited. The bank shall state the amounts of the credit transfer and of deducted charges separately.
(4) The bank shall be entitled to cancel any credit entries made due to an error on its part at any time. In other cases, the bank will only cancel the credit entry if the ineffectiveness of the transfer instruction is clearly proven to it. The right to cancellation shall not be eliminated by a balancing of the account which took place in the meantime. If the right to cancellation exists, the bank may deny disposal of the amounts credited.
D. Credit entry subject to collection
Section 41. (1) If the bank credits amounts which it has to collect on behalf of the customer (in particular, within the scope of collecting cheques, bills of exchange and other securities, direct debits, etc.) or which are to be transferred to the customer’s account, to the customer’s account before the amount to be collected or transferred is received by the bank, the credit entry is only made subject to actual receipt of the credited amount by the bank. This shall also apply if the amount to be collected should be payable at the bank.
(2) Due to this reservation, the bank shall be entitled to reverse the credit entry by means of a simple entry if the collection or the credit transfer has failed or if it is to be expecteddue to the economic situation of a debtor, intervention by a public authority or for other reasons that the bank will not obtain the unrestricted right of disposition of the amount transferred.
(3) The reservation may also be exercised if the amount credited was collected abroad or transferred from abroad and the bank is redebited the amount by a third party pursuant to foreign law or on the basis of an agreement entered into with foreign banks.
(4) If the reservation is in force, the bank shall also be entitled to deny the customer the right to dispose of the credited amounts. The reservation will not be eliminated by the balancing of accounts.
E. Debit entries
Section 42. (1) In the event of transfer instructions, debit entries shall only be considered a confirmation that the instruction has been carried out if the debit entry was not reversed within two banking days (see Section 39a (1) of these GTC).
(2) Cheques and other payment instructions as well as debit entries are deemed collected/cashed/honoured if the debit entry has not been cancelled on the debited account of the customer within two business days unless the bank has informed the presenter or paid him/her the amount in cash already prior thereto.
F. Direct debit authorisations
Section 42a. (1) The customer agrees to his/her account being debited with amounts collected from his/her account at the bank by third parties via SEPA direct debit mandates who were authorised by him/her. Such consent may be revoked by the customer in writing at any time. Any such revocation shall be effective from the business day following its receipt by the bank.
(2) If the bank, at the time the account was debited, had the customer’s instruction to pay amounts collected from the customer’s account (“SEPA-Mandate”) by a third party specified in the instruction, the bank shall comply with the request of a customer who is a consumer to reverse the entry by which the collected amount was debited to his/her account with the same value date. The bank shall receive the customer’s request for reversal of the debit entry within 8 weeks after the date of the debit entry. Entrepreneurs shall not be entitled to make such a request.
(3) If the bank, at the time the account was debited, did not have a direct debit authorisation from the customer (SEPA-Mandate), the bank shall duly comply with the customer’s request (payor), received by it within 8 weeks from the date the account was debited, to reverse the debit entry in the account, in case it concerned a SEPA-Core debit note. SEPA B2B-debit notes are final and shall not be reversed at the request of the customer (payor) within 8 weeks after the date of the debit entry.
(4) A justified request by a customer to reverse a debit entry shall be met within 10 business days.
V. CHARGES AND REIMBURSEMENT OF EXPENSES AND SERVICES
A. Changes in charges and changes in services
1. Changes in charges and changes in services for entrepreneurs
Section 43. (1) The bank shall be entitled in business with entrepreneurs to change, at its reasonable discretion, the charges for permanent services which are payable by the bank or the customer (including debit interest and credit interest on current accounts and other accounts, account maintenance fees, etc.) by taking into account all relevant circumstances (in particular, changes in the legal framework, changes in money markets or capital markets, changes in funding costs, changes in staff expenses and non-staff expenses, changes in the Consumer Price Index, etc.). The same also applies for changes of further services of the bank, occurring due to changes of legal requirements, banking security, technical developments or a substantially decreased degree of efficiency of a service, essentially affecting cost recovery.
(2) Changes in services provided by the bank in customer charges going beyond paragraph (1), the introduction of new services for valuable consideration as well as new charges for previously agreed services shall require the consent of the customer. Unless the customer previously gave his/her express consent, such changes shall become effective 2 months after the bank has notified the customer of the change unless the bank receives a written objection from the customer by then. In the notification the bank shall draw the customer’s attention to the requested change and to the fact that in the absence of any response from the customers, he/she will be deemed to have consented to the change upon expiry of the specified period. The bank may make the notification of the requested change accessible to the entrepreneur in a manner agreed with the entrepreneur.
2. Changes in charges and changes in services for consumers other than payment services
Section 44. (1) In the absence of other arrangements, the charges (except interest) agreed with consumers for permanent services rendered by the bank other than payment services (e.g. safe rental fees, account maintenance charges for accounts not used for the settlement of payment services, securities’ account custody fees) shall be adjusted (increased or reduced) annually, with effect from 1 April of every year, to the development of the national Consumer Price Index 2010 (VPI) published by Statistik Austria or of an index replacing it in compliance with the procedure pursuant to paragraph (2), rounded off to a full cent. The adjustment of fees occurs to the extent that corresponds to the change of the VPI-index number of December of the year announced prior to the adjustment compared to the VPI-index number of December of the year of the last adjustment. Such adjusted fees form the basis for the adjustment of fees in the following years. If the charges are not increased for whatever reason despite a rise in the Consumer Price Index, the right to increase the charges in subsequent years shall thereby not be forfeited. Charges shall be adjusted not earlier than upon expiry of 2 months after the agreement was concluded.
(2) Any changes in the bank’s services agreed upon in the course of continuing obligations with consumers shall require the consent of the customer. Unless the customer previously gave his/her express consent, such changes shall become effective 2 month after the bank has notified the customer of the change requested by the bank unless the bank receives a written objection from the customer by then. In the notification the bank shall draw the customer’s attention to the requested change and to the fact that in the absence of any response from the customer, he/she will be deemed to have consented to the change upon expiry of the specified period. The feasibility of such changes in services is restricted to objectively justified cases; an objective justification exists in particular, if the change is necessary due to legal or regulatory measures, enhances the bank’s security or the process of the business relation with the customer, is required to implement technical developments, services agreed upon can not be rendered cost-effectively or services are solely required by few customers due to a change in customer needs.
(3) The provisions of this Section 44 shall not apply to changes in charges and services agreed in contracts for payment services, which are subject to the provisions in Section 45.
3. Changes of charges and changes in services in a framework contract for payment services with consumers
Section 45. (1) Changes in the charges (including debit interest and credit interest, unless the change is due to a tie of the interest rate to a reference rate) agreed in a framework contract for payment services (in particular a current account maintenance agreement) and the introduction of new charges shall require the consent of the customer. Unless the customer previously gave his/her express consent, such changes shall become effective 2 months from the point in time the bank has notified the customer of the change requested by the bank unless the bank receives a written objection from the customer by then. In the notification the bank shall draw the customer’s attention to the requested change and to the fact that in the absence of any response from the customer, he/she will be deemed to have consented to the change upon expiry of the specified period. The customer shall have the right to terminate his/her framework contract free of charge, and without giving notice, before the change becomes effective. The bank shall inform the customer on this right in its notification.
(2) Using the procedure of paragraph (1), adjustments of charges agreed upon with customers to the extent of the development of the Austrian Consumer Price Index 2010 (VPI) or an index replacing the VPI are concluded (increased or decreased), rounded off to a full cent. The adjustment shall be effected annually, with effect from 1. April each year. The adjustment of fees is measured by the average of the VPI-index numbers of the penultimate calendar year before the offer of change to the average of the VPI-index numbers of the last calendar year before the offer of change. If the bank does not adjust the charges during a calendar year, this right shall thereby not be forfeited. If this adjustment is not concluded in a year or several successing years, the adjustments can be effected with effect from the next concluded change in charges. In this case the adjustment is effected to the extent that corresponds to the change of the VPI-index number announced for the average of the year prior to the adjustment to the VPI-index number that formed the basis for the last adjustment conducted.
(3) Changes of permanent services rendered by the bank and agreed upon with consumers shall require the consent of the customer. Unless the customer previously gave his/her express consent, such changes shall become effective 2 months after the bank has notified the customer of the change requested by the bank unless the bank receives a written objection from the customer by then. In the notification the bank shall draw the customer’s attention to the requested change and to the fact that in the absence of any response from the customer, he/she will be deemed to have consented to the change upon expiry of the specified period. The feasibility of such changes in services is restricted to objectively justified cases; an objective justification exists in particular, if the change is necessary due to legal or regulatory measures, enhances the bank’s security or the process of the business relation with the customer, is required to implement technical developments, services agreed upon can not be rendered cost-effectively or services are solely required by few customers due to a change in customer needs.
B. Changes in debit interest and credit interest rates agreed upon with consumers
Section 45a. (1) In cases an adjustment clause ties the interest rate to a reference interest rate (e.g. EURIBOR), changes become effective immediately without prior notification of the customer. The consumer shall be informed on the effective changes of the interest rate in the following calendar year the latest.
(2) In case no adjustment clause for interest rates is agreed upon regarding an account used for the settlement of payment services, the bank shall offer the customer the change of interest rates 2 months prior to the becoming effective of the change, the latest, with notice. Unless the customer previously gave his/her express consent, such changes shall become effective 2 months after the bank has notified the customer of the change requested by the bank unless the bank receives a written objection from the customer by then. In the notification the bank shall draw the customer’s attention to the requested change and to the fact that in the absence of any response from the customer, he/she will be deemed to have consented to the change upon expiry of the specified period. The customer has the right to immediately terminate the framework without any charge until the coming into effect of the changes. The bank shall inform the customer in the notification of this right. A change in interest rates pursuant to paragraph (2) shall only be concluded if objectively justified, taking into consideration all circumstances. Objectively justified are changes in interest rates due to changes in legal, supervisory or monetary policy (key interest rate of the European Central Bank) framework conditions. The change of interest rates shall not exceed 0,5%-Points in a single change offer.
C. Reimbursement of expenses by entrepreneurs
Section 46. The customer who is an entrepreneur shall bear all necessary and useful expenses, disbursements and costs, in particular stamp duties and legal transaction charges, taxes, postage, cost of insurance, legal counsel, collection, consultancy services in business administration matters, telecommunications as well as provision, administration and utilisation or release of collateral incurred in connection with the business relation between him/her and the bank.
The bank shall be entitled to charge such expenses as a lump-sum amount without specifying the individual amounts unless the customer expressly demands itemisation of the individual amounts.
VI. Collateral
A. Provision and increasing of collateral
Section 47. cancelled.
1. Change in the risk
Section 48. (1) If circumstances in business relationships with entrepreneurs occur or become known subsequently which justify an increased risk assessment (endangerment of the fulfilment of the obligations resulting from the business relation) of the claims vis-à-vis the customer, the bank shall be entitled to demand the provision or increase of collateral within a reasonable period of time. This shall, in particular, be the case if the economic situation of the customer or a co-debtorhas deteriorated or threatens to deteriorate or if the collateral available has deteriorated in value or threatens to deteriorate. The extent of the provision of collateral shall correspond to the extent of the risk increase.
(2) This shall also apply if no collateral was demanded at the time the claims came into existence.
B. Bank’s lien
1. Scope and coming into existence
Section 49. (1) The customer shall grant the bank a lien on any items and rights which come into the possession of the bank.
(2) The lien shall, in particular, also exist on all distrainable claims of the customer vis-à-vis the bank, such as under credit balances. If securities are subject to the lien, the lien shall also extend to the interest and dividend coupons pertaining to such securities.
Section 50. (1) The lien shall secure the bank’s claims vis-à-vis the customer under the business relationship including with joint accounts, even if the claims are conditional or limited as to time or not yet due.
(2) The lien shall come into existence upon the bank’s taking possession of the item to the extent claims pursuant to paragraph (1) exist; otherwise at any future point in time when such claims arise.
2. Exemptions from the lien
Section 51. (1) The lien shall not include items and rights which have been assigned by the customer to the execution of a certain instruction prior to coming into existence of the lien, such as amounts designated for the cashing of a certain cheque or honouring of a certain bill of exchange as well as for the carrying out of a certain transfer. This shall, however, apply only as long as the assignment is effective.
(2) Notwithstanding the existing lien the bank will carry out dispositions of the customer regarding credit balances on current accounts in favour of third parties as long as the customer has not received a notification by the bank of the assertion of the lien. Distraint of the credit balance shall not be considered a disposition by the customer.
(3) The lien shall not include assets which the customer has disclosed in writing to the bank as escrow assets prior to the coming into existence of the lien or which have come into the possession of the bank without the customer’s will.
C. Release of collateral
Section 52. Upon the customer’s request the bank will release collateral to the extent it has no justified interest in keeping it as security.
D. Realisation of collateral
1. Sale
Section 53. Collateral having a market price or stock exchange price shall be realised by the bank in compliance with the relevant statutory provisions by selling them at such price in the open market.
Section 54. The bank shall have assessed collateral having no market price or stock exchange price by an expert. The bank shall notify the customer of the result of the assessment and at the same time ask the customer to nominate a party interested in purchasing the same within a reasonable period of time who will pay not less than the assessed value as purchase price to the bank within such period. If the customer fails to nominate an interested party within such period or if the purchase price is not paid by the interested party nominated, the bank shall irrevocably be entitled to sell the collateral in the name of the customer for not less than the assessed value. The proceeds from the sale shall be used for redemption of the secured claims, with the customer being entitled to the surplus, if any.
2. Realisation and out-of-court auction
Section 55. The bank shall also be entitled to realise the collateral by enforcement or – to the extent it has no market price or stock exchange price – to sell it at an out-of-court auction.
3. Collection
Section 56. (1) The bank shall be entitled to terminate and collect the claims provided to it as collateral (including securities) at the time the secured claim becomes due. Prior thereto it shall be entitled to collect the claim serving as collateral when it becomes due. In case of an imminent loss in value of the claim serving as collateral the bank shall be entitled to terminate the same already prior to the same becoming due. To the extent possible the customer shall be informed thereof in advance. Amounts collected prior to the due date of the secured claim shall serve as pledge instead of the claim collected.
(2) The provisions under paragraph (1) shall not apply to wage and salary claims of consumers which have been provided as security for claims not yet due.
4. Admissibility of realisation
Section 57. Even if the purchaser does not immediately pay the purchase price in cash, the bank shall be entitled to realise the collateral nevertheless if no or no equivalent offer for immediate payment in cash has been made and payment at a later point in time is secured.
E. Right of retention
Section 58. The bank shall be entitled to retain services to be rendered by it to the customer due to claims arising out of the business relationship even if they are not based on the same legal relationship. Sections 50 and 51 shall apply accordingly.
VII. Offsetting and Crediting
A. Offsetting
1. by the bank
Section 59. (1) The bank shall be entitled to offset all of the customer’s claims to the extent they are distrainable against all liabilities of the customer vis-à-vis the bank.
(2) Notwithstanding the existing right to offset the bank shall carry out dispositions of the customer in favour of third parties regarding credit balances on current accounts as long as the customer has not received an offsetting statement. Distraint of the credit balance shall not be considered a disposition by the customer.
2. by the customer
Section 60. The customer shall only be entitled to offset his/her liabilities if the bank is insolvent or if the claim of the customer is related to his/her liability or has been ascertained by court decision or recognised by the bank.
B. Credit
Section 61. Notwithstanding the provisions of Section 1416 ABGB (Austrian General Civil Code) the bank may initially credit payments to claims due to the bank to the extent no collateral has been provided for the same or if the value of the collateral provided does not cover the claims. In this respect it is irrelevant at what time the individual claims have become due. This shall also apply to a current account relationship.
Special Types of Business Transactions
I. TRADE IN SECURITIES AND OTHER ASSETS
A. Scope of application
Section 62. The terms and conditions under Sections 63 to 67 shall apply to securities and other assets even if they are not certificated.
B. Carrying out of instructions
Section 63 (1) In principle, the bank carries out customer instructions for the purchase and sale of securities as commission agent.
(2) However, if the bank agrees on a fixed price with the customer, it concludes a purchase agreement.
(3) The customer hereby gives his/her consent to the bank’s execution policy, on the basis of which the bank – in the absence of other instructions – will execute the customer’s orders. The bank shall inform the customer of any material changes in the execution policy.
(4) The bank may also carry out orders for the purchase and sale of securities in part if the market situation does not allow that the same be carried out in full.
C. Market practice at the place of execution of an order
Section 64 The statutory provisions and market practice applicable at the place of execution shall apply to the execution of an order.
D. Date of carrying out instructions
Section 65. If an instruction which is to be carried out on the same day has not been received early enough to be carried out that day within the scope of ordinary workflow, it shall be scheduled to be carried out on the next trading day.
E. Insufficient coverage
Section 66. (1) The bank shall be entitled to refrain from carrying out transactions in securities in whole or in part if no sufficient coverage is available.
(2) However, the bank shall be entitled to execute such securities transactions if it is unable to note that the customer wants the order to be carried out only under the condition that coverage is available.
(3) If the customer does not provide coverage despite demand the bank shall be entitled to enter into a closing transaction for account of the customer at the best possible price.
F. Transactions abroad
Section 67 If a customer is credited for securities held abroad the customer’s claim vis-à-vis the bank equals the share in the overall portfolio of securities of the same type maintained abroad which is held by the bank for account of its customers in compliance with the relevant statutory provisions and market practices.
G. Transactions in stocks
Section 68. In case of transactions in stocks the physical securities of which are not being traded yet the bank shall neither be liable for the issuance of the securities on the part of the joint-stock company nor for the possibility of exercising the shareholders rights prior to the issuance of the securities.
II.SAFEKEEPING OF SECURITIES AND OTHER VALUABLES
A. Safekeeping of securities
Section 69. (1) The bank shall be entitled to place securities deposited with it in the safekeeping deposit of the beneficiary.
(2) The bank is hereby expressly authorised to keep securities issued in Austria abroad and securities issued abroad in Austria. Likewise it shall be authorised to cause registered securities issued abroad to be registered in the name of the domestic depositary or in that of the nominee of the foreign depositary (“nominee”).
(3) Vis-à-vis an entrepreneur the bank shall only be liable for diligent selection of the third-party depositary.
B. Redemption of securities, renewal of coupons, drawing, calling
Section 70. (1) The bank shall ensure detachment of due interest coupons, profit participation coupons and dividend coupons and collect their countervalue. The bank shall procure new interest coupons, profit participation coupons and dividend coupons without specific instruction.
(2) Drawings, callings and other comparable measures in respect of the securities held in safekeeping shall be monitored by the bank insofar as they are published in the official gazette “Amtsblatt zur Wiener Zeitung” or in “Mercur, Authentischer Verlosungsanzeiger”. The bank shall redeem drawn and called securities as well as interest coupons, profit participation coupons and dividend coupons.
(3) In case of securities deposited with a third-party depositary the same shall assume the obligations described in paragraphs (1) and (2) above. In case of securities held abroad the bank shall not be obliged to inform the customer about the numbers of the securities credited and in particular of securities redeemable by drawings. The bank shall then determine by drawing what customers are to be allotted the securities drawn. If, however, numbers of securities redeemable by drawings are advised, they shall only be relevant to the drawing and redemption and only for as long as this is the practice abroad. If, according to the practice abroad, the collection amounts of the drawn securities would have to be distributed pro-rata and if in doing so it would not be possible to represent the remaining parts for individual customers in securities, the customers whose securities are to be redeemed shall be determined by means of a drawing.
C. The bank’s obligation to examine
Section 71. The bank shall examine whether Austrian securities are affected by public notification procedures, payment stops and the like on the basis of the Austrian documents available to it once, namely on the occasion of delivery of the securities to the bank. Also the examination regarding invalidation procedures for securities lost or stolen shall be carried out upon delivery.
D. Notification of conversion or other measures
Section 72. In case of conversion, capital increase, capital reduction, merger, exercise or realisation of subscription rights, request for payment, grouping, change, exchange/conversion offer, coupon increase or other important measures regarding securities the bank shall, to the extent a respective notification has been published in the official gazette “Amtsblatt zur Wiener Zeitung” or communicated in time by the issuing house or the foreign depositary, try to notify the customer thereof. If the customer fails to provide instructions in time the bank shall act to the best of its knowledge by taking into account the customer’s interests and, in particular, realise rights which would otherwise forfeit at the latest point in time possible.
III. TRADE IN FOREIGN CURRENCIES AND FOREIGN BANKNOTES
A. Procedure
Section 73. The bank shall conclude a purchase agreement with the customer on foreign currencies and foreign banknotes. If it is agreed that the bank acts as commission agent for the customer, the provisions on commission transactions contained in the section on trade in securities shall apply accordingly. In case the bank contracts in its own name no express notification pursuant to Section 405 UGB (Austrian Commercial Code) shall be required.
B. Forward transactions
Section 74. (1) In case of forward transactions the bank shall be entitled to demand from the customer at a reasonable date before the due date evidence on the fact that the amount owed by the customer will be received in the agreed account in time. If such evidence is not provided or if due to other circumstances it is obvious that the customer will not fulfill his obligations, the bank shall be entitled to conclude a closing transaction at the best possible price already prior to the agreed due date.
(2) Even without prior agreement the bank shall be entitled to demand coverage for the risk of loss if according to the opinion of an expert such risk has increased or if the asset situation of the customer has deteriorated. Unless otherwise agreed, coverage shall be provided in cash. The bank shall hold a lien on the assets deposited as coverage. If the customer fails to provide coverage the bank shall be entitled to conclude a closing transaction at the best possible price.
(3) If the bank concludes a closing transaction pursuant to paragraph 1 or 2, any resulting price difference shall be debited or credited to the customer, respectively. Any and all expenses incurred in connection therewith shall be borne by the customer.
IV. FOREIGN CURRENCY LOANS
Section 75. Foreign currency loans shall be paid back in the currency in which they were granted by the bank. Payments made in other currencies shall be considered security payments unless the bank informs the customer that they will be used for redemption of the loan. The bank shall also be entitled to convert an outstanding debit balance in a foreign currency into Austrian currency upon notification of the customer, if
• pursuant to statutory or other circumstances for which the bank is not responsible, refinancing in the foreign currency is not possible anymore; or
• if the entire loan is due for repayment and is not repaid despite a reminder; or
• the credit risk in business relationships with entrepreneurs increases due to exchange rate movements in the foreign currency and if the bank does not receive sufficient security within a reasonable period of time.
V. COLLECTION AND DISCOUNT BUSINESS, BILL OF EXCHANGE AND CHEQUE OPERATIONS
A. Scope of application
Section 76. These terms and conditions shall apply to bills of exchange, cheques and other collection documents (such as commercial instructions and certificates of obligation).
B. Collection or negotiation of documents
Section 77. In principle, such documents shall be accepted by the bank for collection unless negotiation (discounting) of the same has been agreed upon.
C. Timeliness of orders
Section 78. Orders for collection shall be received so much in advance that they may be carried out in the ordinary course of business without making use of special means of express handling.
D. Rights and obligations of the bank
Section 79. In case of discounting the bank shall be entitled in the cases referred to in Sections 41 (2) and (3) to debit the seller with the full nominal amount plus all expenses incurred by the bank; in case of documents denominated in foreign currency the customer shall also bear the exchange risk.
Section 80. In the events stated above as well as in case of redebits of “subject to collection” credits (Section 41) the claims under securities law for payment of the full amount plus ancillary expenses vis-à-vis the customer and any party obligated under the document shall remain with the bank until coverage of the debit balance which results from such redebit.
Section 81. The bank may demand from the customer that the claim on which the document or acquisition of the same by the customer is based as well as all present and future rights arising from the underlying transactions including the collateral pertaining thereto be transferred. The bank shall only be obliged to cash documents which are due for payment with it, if it has received an order from the customer in time and if sufficient coverage is ensured.
