Terms and Conditions
Insurance Broker Contract
This insurance broker contract supersedes all mandates and contracts in force between the contractual parties. The object of this insurance broker contract is the brokering of insurance services for the insurance segments indicated in the annex, which forms an integral component of this contract, by the insurance broker and advisers on insurance matters (hereinafter referred to as “insurance broker” or “broker”), to the insurance customers (hereinafter referred to as “insurance customer” or “customer”) during the contractual period. For this purpose, the insurance customer grants the mandate shown overleaf to the insurance broker, who is simultaneously authorised to terminate mandates granted by the insurance customer to the insurance broker.
- The broker arranges insurance contracts between the insurance company and the customer without consideration for its own or third-party interests, in particular with regard for the interests of the insurance company. Despite the fact that the broker works for both parties to the insurance contract, he must mainly protect the interests of the customer.
- For his work, the broker receives remunerations directly from the respective insurer, unless agreed otherwise in writing. These are commissions pursuant to Art. 30 of the Austrian Brokers Act (MaklerG) and any completion, follow-on, service, sales or portfolio commissions, bonuses, etc. It is hereby agreed, regardless of any prior arrangements, that all advantages of any kind whatsoever that arise from the contractual relationship are due exclusively to the broker.
3. Duties of the insurance broker
- The broker’s duty of care covers the professional informing and counselling of the customer about the insurance protection to be arranged.
- The broker undertakes to arrange the best-possible insurance protection for the customer in accordance with the circumstances of the case in question. The broker’s duty of care is geographically limited to insurance companies with registered offices in Austria, unless expressly agreed otherwise in writing on a case-by-case basis.
- The broker’s duties pursuant to Art. 28 (4) of the Austrian Brokers Act (MaklerG) (disclosure of the legal actions undertaken) and pursuant to Art. 28 (5) of the Austrian Brokers Act (MaklerG) (inspection of the certificate of insurance) are deemed waived in respect of companies.
- The broker assists the customer with processing the insurance relationship before and after the insured event occurs. The obligation pursuant to Art. 28 (6) (2) of the Austrian Brokers Act (MaklerG), namely the observation of all deadlines of importance to the customer, in particular limitation periods and obligation deadlines, are deemed waived. Accordingly, the customer must personally ensure the observation of all periods and deadlines, and cannot derive any liability of the broker therefrom.
- The broker’s duties pursuant to Art. 28 (7) of the Austria Brokers Act (MaklerG) (ongoing checking of the existing insurance contracts and, if necessary, the distribution of suitable proposals for improving the insurance protection) is deemed waived.
4. Duties of the insurance customer
- The customer shall promptly, completely and truthfully provide the broker with all information, documents and data that the broker needs to fulfil his brokerage activities as well as possible. This duty to provide information also covers the immediate and unsolicited communication of any changes of relevance to the insurance cover such as, for example, change of address, the area of activity, any activity carried out abroad, the determination, increase and reduction of sums insured, etc.
- The customer must cooperate on the risk analysis to the best of their ability. In particular, it is the customer’s task to correctly determine the sums insured and to disclose them to the broker. If necessary, the customer must participate in a risk assessment performed by the broker or the insurance company or a company appointed by this insurance company after prior notification and the making of an appointment.
- The customer undertakes to check that each insurance contract transmitted is materially correct and to notify the broker of any errors. The customer further undertakes to take particular note in the conditions provided of the areas “what is insured” and “exclusions from the insurance protection” and to comply with the “obligations of the policyholder” defined in the terms and conditions.
- Should the transactions described in this broker contract not be concluded in good faith solely because the customer omits a legal document required for the conclusion of the transaction, the customer shall compensate the broker by paying a contractual penalty in the amount of the lost commission of the respective insurance contract on the basis of a ten-year insurance term. This also applies mutatis mutandis for instances in which the customer withdraws from a previously signed cancellation request or from a previously signed application to conclude an insurance contract or, after singing an application to conclude an insurance contract, revokes the broker’s mandate and/or terminates this contract.
- The customer must inform the broker immediately upon becoming aware of any damage that has occurred and take all precautions in accordance with his duty to mitigate the damage. The customer also notes that both the statutory conditions of the Insurance Contract Act as well as the individual insurance conditions contain obligations that the customer must observe before or after the insured event occurs.
5. Liability of the insurance broker
- The liability of the broker and its vicarious agents is limited to malicious intent and gross negligence for the duration of the entire business relationship. In respect of consumers (Art. 1 of the Austrian Consumer Protection Act – KschG), the exclusion of liability only applies to other than personal injury. The broker is liable – where the customer is not to be treated as a consumer (Art. 1 of the Austrian Consumer Protection Act – KSchG) – solely for the positive damage, but not for the lost profit or pure financial losses. In any case, the liability of the broker is, except in the case of intent, limited to the amounts indicated in Art. 137c of the Austrian Industrial Code (GewO) as amended. The version of 31 October 2013, Art. 137c of the Austrian Industrial Code (GewO) provides for a maximum liability in the amount of €1,250,000 for each individual claim and of €1,850,000 for all claims in a year. The reversal of the burden of proof pursuant to Sec. 1298 of the Austrian Civil Code (ABGB) is ruled out, except in respect of consumers (Art. 1 of the Austrian Consumer Protection Act (KSchG)); the customer must therefore provide proof of all further prerequisites for a claim to compensation vis à vis the broker as well as to the existence of gross negligence on the part of the broker.
- The broker is not liable for losses resulting from the determination of the sum insured – which is the customer’s responsibility – or for the decision as to whether a risk should be insured.
- The broker is not liable for insurance contracts concluded without the cooperation of the broker or for risks and classes that are not crossed/marked or indicated in the list of insurance classes.
- The customer acknowledges that an application signed by him or for him by the broker does not effect the provision of insurance cover, which requires acceptance by the insurance company. The customer further acknowledges that there may be period of time between the signing of the insurance application and its acceptance by the insurance company during which no cover exists. No liability on the part of the broker may be derived from this fact. If the customer requires temporary cover for uncovered periods, he must send a written request to the broker.
- The broker is not required to forward information about premium arrears and associated warnings to the customer as the customer also receives this information from the insurance company. Therefore, no liability on the part of the broker may be derived from this.
- The customer confirms that no verbal side agreements will be entered into with the broker and/or its employees, in particular that no verbal promises will be made about the extent of cover provided by insurance contracts. The prerequisite for a relationship of liability between the broker and the customer is the existence of a written brokerage contract. No liability on the part of the broker may be derived from verbally placed orders – except from a consumer (Art. 1 of the Austrian Consumer Protection Act (KSchG)).
- The activity and resulting obligations of the broker refer solely to the written insurance classes described in the annex. Any activity of the broker beyond this requires the placing of a further written order by the customer. It is explicitly clarified that classes that are not crossed/marked are not covered by the broker’s duty of care or duty of consultation.
- Claims for compensation brought against the broker expire 6 months after the claimant knew or should have known about the loss and the liable party (relative limitation), but not later than 3 years after the occurrence of the loss (absolute limitation). A period of 3 years from the respective points in time mentioned above is agreed in respect of consumers (Art. 1 of the Austrian Consumer Protection Act (KSchG)), both for the relative and for the absolute limitation.
6. Deliveries, electronic correspondence, electronic data processing
- The address most recently notified to the broker is deemed to be the delivery address of the customer.
- The customer acknowledges that occasionally occurring, technically unavoidable errors when sending emails may result in data being lost, falsified or disclosed. The broker will be liable for these consequences only if he is at fault. The receipt of emails does not effect provisional cover and has no impact on the acceptance of a contract offer.
- The customer agrees to the addition of all his original documents (adviser logs, notes, applications, policies, etc.) in the electronic data processing system of the broker. The customer recognises scanned copies as originals.
- The customer consents to the recording of conversations (including telephone calls) on sound carriers for documentation purposes, especially when the customer requests insurance protection, reports a claim, etc.
All draft insurance contracts or parts thereof prepared by the broker are protected by copyright. These drafts may be used on the condition that the broker receives a normal market commission from the insurance contracts brokered by him which are based on such drafts or parts thereof. The unauthorised utilisation, duplication, distribution of transfer to third parties is prohibited.
If the customer continues misusing the draft insurance contracts or parts thereof, in particular following conversion or cancellation of these insurance contracts originally brokered by the broker without the broker being entitled to commission, the customer shall owe the broker compensation in the amount of the commission that the broker would have received until expiry of the insurance contract originally brokered by him.
8. Confidentiality – Data protection
We explicitly acknowledge that personal data will be processed in the sense of the GDPR in the course of performing the order or with the fulfilment of the contractual obligations of the abovementioned insurance broker, and that these will also be forwarded to third parties (solicitors, insurance companies, etc.) in the course of fulfilling the contractual obligations.
The abovementioned insurance broker will also be authorised to grant permission for the use of our data (excluding sensitive data in the sense of Art. 9 GDPR).
We authorise the aforementioned insurance broker to carry out all declarations and/or actions in connection with electronic communication in accordance with Art. 5a of the Austrian Insurance Contracts Act (VersVG), in particular to agree to and revoke electronic communication.
In particular, the authorised party is also authorised to make all declarations and/or undertake all actions in connection with the agreement of formal requirements, above all of written formal agreements in the sense of Art. 5a (2) and Art 15a (2) of the Austrian Insurance Brokers Act (VersVG).
– Consent to the processing of health data:
We hereby explicitly consent to the abovementioned insurance broker recording and processing our health data, such as, for example, our full health history, for the purposes of fulfilling the contact (e.g. to assess and conclude the insurance protection).
We also explicitly consent to the abovementioned insurance broker also forwarding the processed data to third parties, in particular to insurance companies, for the purposes of fulfilling this contract.
We acknowledge that we may revoke this consent at any time.
– We also explicitly acknowledge that in the event of the revocation of the consent to data processing (in full or partially/class-related), the insurance broker may no longer work for us in the corresponding areas and thus also accept no liability for the corresponding areas from the moment of receipt of the revocation. The revocation has NO impact on the remainder of the agreement or the unaffected classes.
– Consent for the abovementioned broker to send and transmit informational and advertising material:
The abovementioned insurance broker processes the personal contact data within the scope of the contractual relationship. Apart from using these data for processing the contract, the abovementioned insurance broker would also like to send informational and advertising material via these contact data (email, home address, fax, telephone).
We hereby explicitly consent to informational and advertising material being sent to us at our disclosed contact addresses. We would like to remain informed about the latest products and services of the abovementioned insurance broker by fax, email, telephone, text message or post.
We acknowledge that we may revoke this consent at any time.
9. Duration and termination
- The insurance broker contract comes into force on the date of signing, is concluded for an unlimited period and may be terminated by either contractual party at any time in writing without a period of notice. The contract termination simultaneously serves as revocation/cancellation of the mandate and vice versa.
- After contract termination or revocation of the mandate, the customer will immediately, but not later than after 6 months, appoint an insurance expert to undertake a comprehensive review of his insurance agendas, create risk analyses and check the scope of cover. As the broker permanently loses the possibility to correct any past consulting errors upon termination of the business relationship, the absolute limitation period is shortened to 6 months, this period commencing with the termination of the business relationship.
- Following termination of this insurance broker contract and following revocation of the mandate, the broker remains authorised to gather information from all insurance companies for the purpose of protecting and verifying his claims to commission.
10. Final provisions
- Amendments and/or supplements to this contract must be made in writing in order to be valid; this also applies to any waiver of the written form requirement. This provision does not apply in respect of consumers (Art. 1 of the Austrian Consumer Protection Act (KSchG)).
- The contractual parties agree that the provisions of this insurance broker contract shall remain valid if the broker or customer changes its legal form or a change is made to the legal entity in any other way.
- The possible invalidity of individual provisions or sections of this insurance broker contract shall not affect the validity of the remaining provisions.
- Regardless of when the authorisation is signed, this insurance broker contract shall be generally valid for all contractual relationships regardless of when the broker’s support activity commenced. This insurance broker contract therefore also applies for the activities of the broker undertaken by the broker prior to signing the mandate. The extent of liability defined by this insurance broker contract also applies in particular to those brokerage activities that were performed by partners, bodies, cooperation partners or employees of the broker.
- The place of performance is the place of business of the broker. Only the materially competent court at the place of business of the broker is to be called up on to rule on disputes, insofar as no mandatory statutory regulations conflict with this in individual cases.
- The provisions of this insurance broker contract shall also apply in the event of revocation or cancellation of the mandate shown overleaf as well as beyond the loss of mandate or the end of the contract in the event of contract termination pursuant to point 9. This applies in particular to the scope of liability.
- The application of Austrian law is agreed, with the exception of international conflict of law rules.
- This contract has been drawn up in duplicate.