Inclusion of Ts&Cs
According to Austrian law, Ts&Cs used by a contractual party must be validly agreed on between the parties in order to form part of the contract. This agreement can be express or implied. The implied inclusion in principle requires a noticeable reference to one’s Ts&Cs.
A reference to one’s Ts&Cs on offer documents and/or order documents is sufficient.
A reference to Ts&Cs after the conclusion of the contract, e.g. on invoices, is generally not sufficient for their valid inclusion. However, the Austrian Supreme Court has ruled that in case of a continuing business relationship between the parties, the reference on invoices or delivery notes might be sufficient, if this already used to happen in the past and the other party does not object.
It is not necessary to provide the other party with the actual wording of the Ts&Cs. The contracting party must rather have the possibility of obtaining the terms. It is therefore in principle sufficient if reference is made to a homepage or a google search and if it is stated that the Ts&Cs will be sent upon request.
From an Austrian law perspective, the inclusion of standard terms under the CISG is determined according to the rules for the formation and interpretation of contracts as well.
Regarding the inclusion of Ts&Cs into a contract under the CISG, the Austrian Supreme Court has ruled that it is not necessary to provide the other party with the actual wording of the terms, if the other party is already familiar with them due to previous negotiations. It furthermore stated that – apart from previous negotiations –, practices which the parties have established between themselves and the language of the Ts&Cs, as well as the language in which the reference to the terms is made, can be of relevance when determining their incorporation into the contract.
Battle of Forms
Under Austrian law, the Knock-Out Rule applies.
From an Austrian law perspective, under the CISG, the Knock-Out Rule applies.
CMS Reich-Rohrwig Hainz Rechtsanwälte GmbH