General Terms of Insurance

Transcription

1 General Terms of Insurance Fixed Term Policies (2011 Version) Direct Deliveries/Services (P1) Tied Financial Credits (P3) Acquisitions of Receivables (P9) OeKB Versicherung a brand of Acredia Versicherung AG

2 The English translation of the original German text is provided as a convenience only. Although it was prepared with great care, we cannot guarantee its accuracy or completeness. In the case of dispute, the German source text shall be considered definitive. 1

3 1 Subject of the Insurance Acredia Versicherung AG (Insurer) covers losses of legally founded receivables of the policyholder owed by the contract partners named in the policy from a contract for deliveries/services (P1) or a loan agreement or credit agreement (P3), or a contract for acquisition of receivables (P9), referred to in the following as a covered contract. 2 Kind and Scope of the Insurance (1) The insurance covers the payment duties of the contract partner from the covered contract plus contractual interest agreed up to the due date up to the maximum amount determined in the policy if an insured event pursuant to 6 arises during the term of the insurance. (2) Receivables are Direct delivery or service Tied Financial Credits Acquisition of receivables Cover ratio 1. covered from the time of the delivery/service for P1 policies. Deliveries are considered made upon the time of transfer of risk to the contract partner and services are considered delivered when they are concluded. If delivery or service occurs more than one month before invoicing, cover begins only on the invoice date. 2. covered from the time when payment from the loan or credit contract is made for P3 policies. 3. covered from the time the underlying receivable is purchased for P9 policies. (3) The Insurer s maximum share of the cover (cover ratio) is stated as a percentage in the policy. 2

4 3 Receivables Not Covered The policy does not cover: (1) receivables relating to contracts in connection with goods that fall under the Austrian Act on the Import, Export and Transit of Military Goods (Kriegsmaterialgesetz) or the Austrian Nuclear Energy Security Monitoring Act (Sicherheitskontrollgesetz); (2) receivables in conjunction with contracts that in their conclusion or execution would infringe on the anti-corruption provisions of Austrian law; (3) receivables in conjunction with contracts that in their conclusion or execution would infringe on the provisions of international conventions; (4) losses for which, in line with customary commercial practice, the policyholder typically can obtain insurance except credit insurance from insurance companies domiciled in the European Economic Area; (5) default interest and compound interest; (6) other amounts that would be borne by the policyholder or its agents in the event of orderly fulfilment of the covered contracts by the contract partner or would not benefit the policyholder or its agents; (7) claims for damages and contract penalties; (8) the Austrian value-added tax; (9) losses due to differences in exchange rates; (10) losses directly or indirectly caused by 1. natural catastrophes 2. nuclear energy 3. terrorist attacks 4. war between at least two of the following countries: USA Russian Federation People s Republic of China United Kingdom France; (11) receivables for which any contractually agreed down payment was not received in full for P1 policies; (12) claims from P9 policies for which the policyholder paid the purchase price of the acquired receivable without proof of the delivery/service upon which the receivable is based. 3

5 4 Term and Termination of the Insurance Term Termination Withdrawal (1) The term of the policy (the duration of insurance cover) is specified in the policy. (2) The policyholder has the right to terminate the insurance at any time in writing with waiver of claim. (3) The Insurer has the right to withdraw from the insurance policy if the policyholder has not paid the premium within two weeks of a reminder. Any subsequent payment in no way revokes the effects of the withdrawal. 5 Special Obligations of the Policyholder The policyholder is obligated to (1) always take all preventative measures in order to protect the Insurer against damages and immediately report on all circumstances that could endanger orderly fulfilment of the covered contract in particular if the creditworthiness of the contract partner or security provider worsens; (2) provide information on the details and status of the covered contract at any time, and permit examination of its and its agents and suppliers books and records to the extent necessary for the assessment of the transaction; Other means of securing (3) inform the Insurer without delay of any other complete or partial means of securing the transaction against payment defaults; (4) obtain the approval of the Insurer before a material modification of the terms of the covered contract; material modifications include in particular the prolongation of the dates for the delivery/service by more than three months for P1 policies, prolongation of the period for taking the loan by more than three months for P3 policies, the extension of the payment period or the repayment schedule; a change in securities, 4

6 Notification of default (5) provide prompt notification of default in writing, no later than within two months (the notification period): upon non-performance of an obligation by the contract partner, or after occurrence of an insured event pursuant to 6; Instructions Alternative disposal (6) promptly follow the instructions of the Insurer; (7) dispose as profitably as possible of goods insured under the policy and which it is entitled to dispose of (alternative disposal) for P1 policies, subject to the Insurer s approval; (8) take all measures necessary for enforcement of the covered claims against the contract partner, in particular initiating collection proceedings that result in expenses, in its own name but with the prior agreement of the Insurer; (9) dispose of any available securities as profitably as possible with the prior consent of the Insurer. 5

7 6 Insured Events Acceptance (1) A claim will be accepted upon application of the policyholder when it proves that 1. it fulfilled its contractual duties, 2. the contract partner has not fulfilled, or is unable to fulfil, its contractual obligations, and 3. an economic or political insured event pursuant to para. 2 or 3 arose during the term of the insurance policy. Economic insured events (2) Economic insured events are 1. the expiry of a six-month period after notification of default is reported pursuant to 5 para. 5; 2. the opening of judiciary insolvency proceedings against the assets of the contract partner or dismissal of a motion to open such. Political insured events (3) Political insured events are 1. war or war-like events, except for those circumstances named in 3 para. 10 clause 4; 2. riot or revolution; 3. governmental measures that limit or prevent the transfer or free disposal of the consideration due to the policyholder for more than six months; a risk equivalent to this will be deemed to be the risk of payment default by a public contract partner that lasts more than six months. Public contract partners A contract partner will be regarded as public if it represents the state authority and cannot become insolvent by judicial or administrative act. The six month period begins when the policyholder submits the corresponding notification of default. (4) Whether the conditions for cover have been fulfilled will first be assessed in the decision on the application for acceptance of a claim. Tacit restructuring of missing conditions for cover is excluded. 6

8 7 Exemption from Liability (1) The Insurer is exempt from liability if: 1. the policyholder already knew or must have known at the time of the application for insurance that a) the contract partner had committed breach of contract in conjunction with another contract in the last two years before the application was made, or b) fulfilment by the contract partner is impossible or c) the contract partner is insolvent, or d) an insured event pursuant to 6 has already occurred; 2. the policyholder has failed to provide the Insurer with significant information or provided incorrect information; 3. the policyholder has deliberately or by gross negligence violated a provision of the insurance policy; 4. damages for which the policyholder is responsible have arisen; 5. the policyholder has infringed legal provisions domestically or abroad; 6. the contract partner refuses to pay on the grounds of incomplete performance of the underlying contract in the case of P9 policies. 7. the policyholder makes agreements that disadvantage the Insurer. Agents (2) Acts or omissions of agents and, in the case of P9 insurance, of the seller of the receivable will be attributed to the policyholder. (3) If a reason for exemption from liability arises or appears only after a claim has been accepted, the acceptance is revoked. (4) The Insurer cannot invoke the contractually agreed exemption from liability if the policyholder proves that it was not at fault for the breach of the obligations of conduct and had no influence on the occurrence of the insured event or on the amount of the payment to be made by the Insurer. 7

9 8 Calculation of the Claim Payment (1) In the event of a claim, the Insurer shall reimburse up to the amount from which the policyholder would have benefited in the event of orderly fulfilment of the covered contract. (2) For the calculation of the claim payment, the balance of the receivables without interest owed by the contract partner in contract currency at the time of the notification of default or the prior occurrence of the insured event is used as a basis. (3) Receivables not covered will be deducted. (4) Conversions of balances of receivables in foreign currency are done at the reference rate published by the European Central Bank on the date of the application for acceptance of the claim, but at a rate not higher than that specified in the policy. (5) If the resulting amount exceeds the policy limit, it is reduced to the policy limit. Cover percentage (6) The remaining amount is multiplied pursuant to para. 2 to arrive at the balance (cover percentage). (7) Contractual interest is then added in proportion to the cover percentage. (8) All payments received and credits issued after the notification of default or the prior occurrence of the insured event, regardless of their declared function, will be deducted to the extent of the cover percentage. (9) In the case of P1 policies, revenues from alternative disposal, minus the costs necessary for this, will be deducted. (10) Receivables for which there is exemption from liability pursuant to 7 will be deducted. Claim payment Repayment percentage and cost reimbursement percentage (11) The remaining amount multiplied by the cover ratio pursuant to 2 para. 3 results in the claim payment. (12) The cover percentage multiplied by the cover ratio results in the percentage at which repayments are made (repayment percentage) and collection expenses are reimbursed (cost reimbursement percentage). 8

10 9 Due Date of the Claim Payment The claim payment for receivables that become due contractually before acceptance of the claim is due for payment upon acceptance of the claim; for other receivables it becomes due at the time of their contractual due date, but not before occurance of the insured event. Any acceleration clause agreed with the contract partner is not valid against the Insurer. 10 Special Obligations of the Policyholder after Acceptance of a Claim The policyholder is obligated to Assignment Alternative disposal Repayment provisions (1) assign its receivables to the Insurer to the extent of the acceptance of the claim prior to claim payment, and take all legal steps required for this purpose. Any security must be transferred to the same extent; transferred security must have the same rank as before the transfer; (2) dispose of the goods forming the basis for acceptance at its disposal in the best possible manner with the Insurer s consent (alternative disposal) and assign its receivables from the alternative disposal to the extent of the acceptance of the claim in the case of P1 policies. Upon request these goods must be pledged to the Insurer; (3) transfer to the Insurer all payments received in the amount of the repayment percentage regardless of their declared function and before deducting commissions or bank fees. This also includes other income, such as default interest paid for the time after claim payment has been made or, in the case of P1 policies, additional revenue from alternative disposal, minus the costs necessary for this. 9

11 11 Reimbursement of Costs (1) Costs that arise for the policyholder in conjunction with collection measures pursuant to 5 are reimbursed at the cost reimbursement percentage if a claim has already been accepted or covered receivables were paid in full before acceptance of such and these measures were taken on instruction or with the agreement of the Insurer. (2) The costs named in 66 para. 1 and para. 2 of the Austrian Insurance Contract Act will not be reimbursed by the Insurer in any case. 12 Premiums, Fees, and Insurance Tax Premium Risk period (1) The premium is specified in the policy and calculated based on the policy limit, taking into account the premium rate and the risk period. The risk period arises from the contractually agreed conditions. It will be measured in complete, rounded quarters for calculation of the premium. The risk period will be not less than one quarter in the case of sight letters of credit, and not less than two quarters otherwise. (2) The premium becomes due immediately after prescription. (3) Should the Insurer agree to a change in the scope of cover or a substantial prolongation of the contract period, the premium will be recalculated. (4) In the event of a premium refund, a lump sum fee for expenses in the amount of five percent will be retained. Insurance tax (5) Any due insurance tax is to be borne by the policyholder. 13 Default Interest If amounts owed to the Insurer are not paid when due, default interest pursuant to section 352 of the Austrian Company Code (Unternehmensgesetzbuch) can be charged. 10

12 14 Assignment of Claims to Third Parties In the event of assignment of the claims of the policyholder from the insurance policy to third parties, all duties of the policyholder towards the Insurer remain intact without change. 15 Recourse to Courts, Prescription Prescription Recourse to courts (1) An application for acceptance of a claim is to be made within three years of occurance of the first insured event pursuant to 6, otherwise claims of the policyholder or third party become time-barred. (2) In the event that the Insurer did not decide on the claims pursuant to the application, the policyholder is to assert its claims in court within six months of receipt of the correspondence in which it was informed of the decision, otherwise, its claims lapse; the Insurer is not obligated to give separate notice of the legal consequences. 16 Final Provisions (1) All declarations, reports, and information concerning the insurance policy between the policyholder and the Insurer are to be transmitted in writing, by fax, or by means of electronic communication approved in business correspondence. (2) Insofar as there are no deviating provisions in the insurance policy, the regulations of the Austrian Insurance Contract Act are additionally applicable. (3) The insurance policy is governed by Austrian law. The place of performance and exclusive legal venue is Vienna. 11

13 Information pursuant to 9a of the Supervision of Insurance Companies Act (VAG) 1. Insurer Name: Acredia Versicherung AG Registered office: Himmelpfortgasse 29, 1010 Vienna, Austria Legal form: public limited company (Aktiengesellschaft) 2. Law applicable to the insurance policy Austrian law, excluding conflicting rules and the UN Convention on Contracts for the International Sale of Goods (see 16 of the General Terms of Insurance) 3. Competent supervisory body Financial Market Authority (FMA), Department of Insurance Supervision, Otto-Wagner-Platz 5, 1090 Vienna, Austria, 4. Term of the insurance policy see 4 of the General Terms of Insurance 5. remium payment methods and premium payment period see 12 of the General Terms of Insurance 6. Policyholder s right of withdrawal 5b of the Insurance Contract Act (VersVG) (1) If the policyholder personally issues his contractual acceptance to the insurer or his representative, then the insurer or his representative must immediately deliver a copy of this contractual acceptance to the policyholder. (2) The policyholder can withdraw from the contract within two weeks provided that he 1. ehas not received a copy of his contractual acceptance contrary to para. 1, 2. has not received the terms of the policy including the provisions concerning the assessment of the premium, provided that this is not stipulated in the application, and the provisions concerning expected amendments to the premium before issuing his contractual acceptance, or 3. has not received the notifications designated in 9a and 18b of the Supervision of Insurance Companies Act (VAG) and, provided that the communication was made by an insurance intermediary in the form of an insurance agent, has not received the notifications designated in 137f para. 7 to 8 and 137g of the Trade Regulation Act (GewO) from 1994, observing 137h of the Trade Regulation Act (GewO) from (3) It is the insurer s responsibility to provide evidence that the documents mentioned in para. 2 nos. 1 and 2 were issued on time and that the obligations to notify mentioned in para. 2 no. 3 were fulfilled on time. (4) The deadline for withdrawal in accordance with para. 2 begins only if the obligations to notify mentioned in para. 2 no. 3 were fulfilled, the policy certificate and the terms of the policy were issued to the policyholder, and the policyholder has been instructed on his right of withdrawal. (5) The withdrawal must be made in writing in order for it to be legally valid; it is sufficient if the declaration is sent within the deadline period. The right of withdrawal expires at the latest one month after receipt of the policy certificate, including any instruction on the right of withdrawal. If the insurer has granted provisional cover, the insurer is owed the premium corresponding to the duration of the term. (6) The right of withdrawal does not apply if the term of the policy is less than six months. (Version: 1 August 2014) 12

14 OeKB Versicherung a brand of Acredia Versicherung AG Austria, 1010 Vienna, Weihburggasse 30 Tel , Fax Austria, 4020 Linz, Robert-Stolz-Straße 7 Tel , Fax