International Property Advisers
These Standard Terms and Conditions of Business constitute an integrated part of all contracts between GVA Real-Consult Immobilientreuhand GmbH (hereinafter “Agent“) and the Client. These Terms and Conditions are herewith explicitly agreed and form the basis of and apply to all contracts of GVA Real-Consult Immobilientreuhand GmbH. Alongside the terms of the Maklergesetz (Federal Act on the legal relationship of agents, hereinafter “MaklerG”) and the Immobilienmakler-Verordnung (real-estate-agent regulation) in the version as in force at the time of closing of the contract (hereinafter “Agent agreement”).
1. Offers of the Agent
1.1. Offers of the Agent are without engagement and non-binding; the right to prior sale, prior lease or prior rent is explicitly reserved.
1.2. Statements regarding a property are given to the best of the Agent’s knowledge with the diligence of a prudent real-estate-expert. The Agent does not guarantee or warrant for the correctness of his statements when they are based on the Information obtained from third parties.
2. Information by the Client
2.1. The Client has to support the Agent in the exercise of his work in a sincere way. The Client is liable to give the Agent all necessary information, in particular concerning a change of his intent to close a contract.
2.2. The Client is obliged to refrain from disclosure of communicated transaction opportunities to third parties. Any disclosure of properties offered or of interested parties named by the Agent by the Client to third parties requires the previous written consent by the Agent and leaves the entitlement to the commission intact.
2.3. If the offered property is already known to the Client as to be purchasable, lease- or rentable, the Client has to notify the Agent of his knowledge without delay at the longest within 48 hours from the time the offer was disclosed by registered letter or by any other timely traceable and comprehensible modality. A breach of this obligation creates the entitlement of the Agent to his commission if a contract concerning the offered property is closed.
3. Exclusive Agent Agreement
3.1. If an Exclusive Agent Agreement is commissioned the Agent commits himself to act according to his abilities.
3.2. The Agent commits himself to disclose the interested parties which have contacted him directly within the duration of the Exclusive Agent Agreement.
4. Dual Agent
4.1. The Client has agreed that the Agent may act as a Dual Agent, which is an Agent who is acting on behalf of both parties.
5. Commission of Agent
5.1. The Commission (broker’s fee) is earned when the Agent discloses the name of an interested party irrespective of the fact that the transaction was concluded with or without any further performance of the Agent and irrespective of the point in time the transaction was concluded.
5.2. In accordance with § 7 MaklerG the title of commission comes into existence when the transaction is concluded in a legally effective way. In accordance with § 6 Abs. 3 MaklerG the agent is furthermore entitled to a commission, if instead of the brokered transaction a in transaction is concluded that is in its purpose economic similar.
5.3. The Agent is furthermore entitled to the total commission, if a transaction is concluded which achieves the same purpose, in particular if the contract contains different or from the offer differing clauses, or if the transaction pertains other properties of the interested party named by the Agent, or if the transaction is concluded with a different kind of contract, or if the closed contract is expanded or supplemented through one or more further contracts within a period of 3 years after closing.
5.4. Explicitly agreed upon is the applicability of § 15 MaklerG. In accordance with § 15 MaklerG the Agent is also entitled to the commission if
5.4.1. against good faith the transaction which is specified in the contract can not be concluded because the Client refrains in contradiction to the previous course of the negotiations from conducting a legal act which is necessary to conclude the transaction;
5.4.2. instead of a transaction that is in its purpose economic similar a other transaction is concluded with the interested party which has been named by the Agent, and the brokerage of this transaction is part of the range of activity of the Agent;
5.4.3. the transaction which is specified in the agent agreement is not concluded with the Client but with a different person because the Client has disclosed the possibility of the transaction which was brokered by the Agent or the transaction is not concluded with the interested party which was named by the Agent but instead with a different person because the interested party has disclosed the opportunity of the transaction;
5.4.4. the transaction is not concluded with the interested party because a statutory or contractual purchase option, repurchase option or joining option is executed.
5.5. In accordance with § 15 MaklerG the Agent is also entitled to the commission if an Exclusive Agent Agreement is commissioned and if
5.5.1. the Exclusive Agent Agreement is dissolved by the Client prematurely without important cause;
5.5.2. during the period of the Exclusive Agent Agreement the transaction was concluded in contrary to the Exclusive Agent Agreement through the brokerage of another Agent which was commissioned by the Client;
5.5.3. during the period of the Exclusive Agent Agreement the transaction was concluded through a different way as the brokerage of another Agent which was commissioned by the Client.
5.6. It is understood that “commission” defines as remuneration without legal VAT and therefore VAT has to added. The commission is due without any deduction of expenses immediately after receipt of the invoice. In the event of default of payment the Agent is entitled to demand interest in the amount of 8 % over the current base lending rate in Austria.
6. Expenditures of the Agent
Expenditures of the Agent because of additional assignments which were commissioned by the Client are to be remunerated separately from the original transaction and are to be remunerated even if the original transaction has not been concluded.
The Agent is entitled to call upon other Agents in order to arrange the transaction, if it seems to be beneficial for the enhancement of the chances of placement. Through this neither the Client nor the interested party shall encore any additional costs.
8. Liability of the Agent
8.1. The Agent shall be liable for positive damage only. The Agent shall not be liable for any other damage. The liability for any other damage in particular for indirect damage, consequential damage caused by a defect and loss of profit is explicitly excluded.
8.2. The Agent shall be liable for intent and gross negligence, but not for slight negligence. The liability for slight negligence is excluded in respect to a Client which is entrepreneur in terms of the UGB (Austrian Commercial Code).
8.3. The liability of the Agent is limited for each event of damage or loss with the insurance sum of maximum EUR 100,000.–. If the Client is not entrepreneur in terms of the UGB, this limitation applies only to the liability for slight negligence.
8.4. The maximum amount agreed under section 8.3. includes all kinds of claim, damages and demands which may be claimed against the Agent due to default performances. The amount does not include the reclamation of the commission which was paid to the Agent. Possible excess insurance does not reduce the liability.
8.5. The maximum amount agreed under section 8.3. relates to one insured event. If there are two or more concurrent injured parties (Clients) the maximum amount agreed under section 8.3. is reduced for each injured party according to the proportion of the amounts claimed by the injured parties to each other.
8.6. The Agent is not liable for the performance of third parties (in particular surveyors) which were commissioned by the Agent. The Agent shall only be liable for a default in the selection of these third parties (Auswahlverschulden).
8.7. The Agent is only liable to the Client. The Agent is not liable to third parties. The Client is obliged to inform third parties which come into contact with the performance of the Agent through conduct of the Client that the Agent is not liable to them.
8.8. The limitation of the liability in accordance to sections 7.1. to 7.7. also apply for all employees of the Agent.
9. Periods of limitation and preclusion
As far as statutory periods of limitation or statutory periods of preclusion are not shorter, all kinds of claim, damages and demands against the Agent become barred by limitation (with the exception of warranty claims, if the Client is not entrepreneur according to the UGB) within six months (if the Client is entrepreneur according to the UGB) or within one year (if the Client is not entrepreneur according to the UGB) from the point in time in which the Client has gained knowledge of the damage and the person who caused the damage or of the event on which the claim is based.
10.1. Changes and supplements to this contract have to be in writing; this applies also to the change of this requirement. Changes and supplements to this contract can only be agreed with the company-officers which are authorised to represent the Agent.
10.2. Place of fulfilment and jurisdiction is Vienna, Austria. For all disputes between the contracting parties Austrian law with the exception of reference rules and the exception of UN-Law on International Sale of Goods is applicable.