General terms and conditions
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General Terms and Conditions - Arealita Immobilientreuhand und Sachverständigen GmbH
1 Content of the brokerage contract
1.1 These Terms and Conditions take into account the provisions of the Ordinance of the Federal Minister for Economic Affairs on the Rules of Professional Conduct and Practice for Real Estate Agents (IMV), Federal Law Gazette No. 297/1996 as amended, as well as the Real Estate Agents Act, Federal Law Gazette No. 262/1996 as amended. Within the meaning of the aforementioned legal bases, these Terms and Conditions are deemed to be agreed and form an integral part of the contract concluded between Arealita Immobilientreuhand und Sachverständigen GmbH and the client.
1.2 The GTC shall take precedence over these provisions insofar as the following GTC conflict with provisions of the Ordinance of the Federal Minister for Economic Affairs on Professional Conduct and Practice Rules for Real Estate Agents (IMV), Federal Law Gazette No. 297/1996 as amended and the Real Estate Agents Act, Federal Law Gazette No. 262/1996 as amended. The remaining provisions of the IMV and the MaklerG as well as provisions based on individual agreements remain unaffected.
1.3 We and the seller reserve the right of prior sale, rental or leasing. Our offers are subject to change and non-binding.
1.4 The information about a property is provided with the care of a prudent real estate agent. No guarantee is given for the correctness of such details, which are based on information from the persons authorised to dispose of a property. All descriptions, details and statements are taken from sources which we consider to be reliable. However, we have not verified these descriptions, details and statements. All information, descriptions and statements are therefore expressly without any guarantee or liability. It is the sole and exclusive responsibility of the potential buyer or tenant to verify their accuracy and completeness separately in a suitable manner. Any opinions, assumptions, estimates and forecasts are merely examples which do not constitute a basis for assessing the future development and income of the property or the object. The potential purchaser or tenant is strongly advised to check in particular any legal, tax, financial and/or technical conditions and effects of a purchase or rental of the property or object on their own, as we cannot accept any liability for this. We have not carried out any investigation with regard to pollution and potential contamination of land, buildings, water or air or any other environmental factors and we do not accept any liability for this. Potential purchasers or tenants must ascertain or check these circumstances themselves.
1.5 If a property offered by us is already known to the client as being for sale, rent or lease, this must be communicated to us immediately within 48 hours of the offer being made by registered letter or in another comprehensible manner. In the event of the conclusion of a contract on the offered property, a breach of this provision shall give rise to the obligation to pay commission. If the client fails to do so, we shall be deemed to have been commissioned by the client to promote the conclusion of the contract, by whatever means. If the conclusion of the contract is subsequently promoted by any means whatsoever on our part, we shall be entitled to the agreed commission.
§ 2 Real estate agent commissions
2.1 The obligation to pay commission arises with the agreement to conclude a contract on the property offered by us as estate agent and also remains in force if such agreement is cancelled. Pursuant to § 7 of the Austrian Real Estate Brokerage Act (MaklerG), the claim to commission arises with the legal effect (i.e. the agreement of will or any entry into condition) with regard to the brokered transaction. If the conditional contract is dissolved prior to the occurrence of the condition, but the condition would have occurred without premature dissolution, the claim to commission also exists in the case of a condition precedent. After the brokered business partner has been named, the obligation to pay commission arises irrespective of whether the brokered transaction was concluded with or without the broker's intervention and irrespective of when it was concluded.
2.2 The full entitlement to commission arises, also
2.2.1. if the contract is concluded on other terms and conditions that deviate from the offer,
2.2.2. if the contract for another property is concluded with the contractual partner brokered by us. In particular, the claim for commission shall also arise if the brokered transaction is other than a transaction of equivalent purpose and the brokerage of the transaction falls within the scope of our activities as brokers pursuant to § 15 para 1 no. 2 MaklerG. The client shall pay us an amount equal to the agreed commission as compensation and reimbursement for expenses and efforts in the event of the conclusion of a sole brokerage contract, even without any brokerage success attributable to us, if
a. the sole brokerage contract is terminated prematurely by the client in breach of contract without good cause;
b. the transaction has been concluded during the term of the sole brokerage contract through the mediation of another broker commissioned by the client in breach of the contract, or
c. the transaction has been concluded during the term of the sole brokerage mandate in a way other than through the mediation of another broker commissioned by the client.
2.2.3. if and to the extent that a contract concerning a transaction brokered by the broker is extended or supplemented by contracts that are temporally and economically related. The commission claim depends on the extent of the extension or addition.
2.2.3.4 In addition to the specifically stated legal transaction (underlying transaction), our commission also extends to all factually and/or spatially related legal transactions (follow-up transactions). We are entitled to commission for such follow-up transactions, provided they are concluded within three years of the conclusion of the underlying transaction or, if the underlying transaction is not concluded, within three years of the conclusion of the brokerage agreement relating to the underlying transaction.
2.3 Our prior consent is required for any disclosure by the client to third parties of properties offered by us or of interested parties named by us and shall not affect the entitlement to commission. If the transaction described in the brokerage contract is not concluded with the principal but with another person, the claim for commission against the principal shall remain unaffected (Section 15 (1) (3) of the Brokerage Act). (The client has informed this person of the opportunity to conclude the transaction that we have made known to him or the transaction is not concluded with the brokered third party but with another person because the brokered third party has made the business opportunity known to this person).
2.4 The claim for commission shall also remain in force if the designated transaction does not come about against good faith only because the client, contrary to the course of negotiations, omits a legal act required for the conclusion of the transaction without a noteworthy reason, or the transaction with the brokered third party does not come about because a statutory or contractual right of first refusal, right of repurchase or right of entry is exercised. Even if the intended legal transaction does not come about, our expenses on the basis of additional orders placed with us by the principal shall be remunerated separately. The client is obliged to pay us the agreed commission as compensation and reimbursement for expenses and efforts, even if we do not achieve a successful brokerage result, insofar as
a. a transaction other than a transaction of equivalent purpose is concluded with the third party brokered by us, provided that the brokerage of the transaction falls within our scope of activity;
b. the transaction brokered by us is not concluded with the principal but with another person because the principal has informed the latter of the opportunity to conclude the transaction that we have made known to him or the transaction is not concluded with the brokered third party but with another person because the brokered third party has made the business opportunity known to the latter, or
c. the transaction is not concluded with the brokered third party because a statutory or contractual right of first refusal, right of repurchase or right of subrogation is exercised.
2.5 A claim for commission shall also arise if we are given an exclusive agency agreement and this is terminated prematurely by the client in breach of contract without good cause or if the transaction is concluded during the term of the exclusive agency agreement in breach of contract without mediation by us or through the mediation of another broker commissioned by the client.
2.6 The commission is due for payment immediately upon receipt of the invoice and is subject to statutory VAT.
§ 3 Liability
In the event of force majeure and slight negligence, our liability is excluded by mutual agreement. In the event of gross negligence, we shall be liable up to the amount of the liability insurance policy available to us for the specific damage, but not exceeding 25% of the value of the transaction volume at the time of the conclusion of the transaction or 1 million euros, whichever is lower. Unless otherwise agreed, the transaction volume of a purchase agreement is calculated according to the market value as per the Real Estate Valuation Act. The transaction volume of a lease agreement is calculated as follows: In the case of a fixed-term tenancy agreement without an early ordinary right of termination on the part of the tenant, the total net rent for the term of the agreement. In the case of a tenancy agreement for an indefinite period of time or a fixed-term tenancy agreement with an early ordinary right of termination by the tenant, the total net rent for the period for which the tenant is bound by the agreement; in the absence of such a minimum commitment by the tenant, the net rent for three calendar years. Claims for damages against the contractor shall become statute-barred within one year of knowledge of the damage. Liability for indirect and consequential damages is generally excluded.
§ 4 Brokerage Transactions
The following applies to cooperation with other real estate agents (fellow real estate agents):
4.1 For colleague transactions for which we are the selling broker, unless otherwise agreed in writing: 50% division of the total commission.
4.2 For colleague transactions for which we are the prospective buyer's agent, unless otherwise agreed in writing: collection of 100% of the buyer's commission by us without further apportionment,
4.3 Passing on of the commission and assignment of the commission claim:
The commission share is to be passed on proportionately after receipt of payment. If one of the brokers involved in the broker colleague transaction does not wish to sue for the commission, he must, however, assign the pro rata commission claim so that his business partner can assert the commission in court in his own name. If the commissioned broker has to enforce the commission claim in court, the business partner is only entitled to his share of the commission if he shares in the collection risk, i.e. the cost risk.
4.4 Trade licence and liability insurance: Arealita Immobilientreuhand und Sachverstäindigen GmbH and the broker colleague confirm to have valid professional licences (trade licences) as real estate brokers with valid professional liability insurance in accordance with the respective legal provisions of their country. If the broker colleague does not have a valid trade licence and no professional liability insurance, any obligation to share commission in favour of the broker colleague shall lapse.
5 Involving other brokers to increase the chances of placement
For the purpose of initiating the legal transaction to be brokered, we reserve the right to use the services of another brokerage firm if this appears expedient to increase the chances of brokerage. Neither the client nor the interested parties referred to us shall incur any additional costs.
§ 6
The interested party is informed that a consumer has the right to withdraw from this contract within 14 days if the brokerage contract is concluded outside the broker's business premises or exclusively via distance selling pursuant to § 11 FAGG. The withdrawal period begins on the day of the conclusion of the contract. The declaration of withdrawal can be made using the withdrawal form provided, but is not bound to any form. (e.g. a letter sent by post, fax or e-mail).
If the broker is to become active prematurely before the expiry of this fourteen-day withdrawal period (e.g. transmission of detailed information, arrangement of a viewing appointment), an express request by the interested party is required, who thus loses his right of withdrawal - if the contract is fulfilled in full within this period.
Due to a deviating business usage, the naming of the business opportunity is sufficient as complete fulfilment of the contract by the real estate agent, in particular if no further activities of the real estate agent are desired or made possible by the interested party. In this case, the brokerage contract can no longer be revoked and is the basis for a claim to commission if a legal transaction is subsequently concluded concerning a business opportunity named by the real estate broker. In the event of a withdrawal pursuant to Section 11 FAGG, the consumer is certainly obliged not to make use of the information obtained.
There is no obligation to pay the brokerage commission until the brokered transaction (purchase contract, rental contract) has been concluded.
Sample cancellation form:
To
Arealita Immobilientreuhand und Sachverständigen GmbH
Kaiserjägerstraße 30
A-6020 Innsbruck / Tyrol
immobilien@arealita.at
Name of interested party:
Address:
Telephone:
Email:
I hereby revoke the brokerage contract concluded by me on (date).
§ 7 Choice of law
It is agreed that Austrian law shall apply to the exclusion of the conflict of laws rules.
§ 8 Legal and negotiating language
The German language is agreed as the legal and negotiating language.
§ 9 Jurisdiction clause
The exclusive place of jurisdiction - depending on the amount in dispute - shall be the competent courts in Innsbruck (does not apply to mandatory places of jurisdiction for consumer transactions).
§ 10 Final provisions
Additions and amendments to this contract must be made in writing. This shall also apply to any waiver of this formal requirement.
Should any of the provisions of these GTC become invalid because they violate mandatory law, in particular consumer protection provisions, the remaining provisions shall not be affected thereby and shall remain in full force and effect.
Status: Innsbruck, on 17.12.2020
General Terms and Conditions Expert Mag. Bernhard Großruck
You are in the area of the General Terms and Conditions of the sworn and court-certified expert Mag. Bernhard Großruck.
§ 1 Scope of application
The Terms and Conditions of Contract shall apply to contracts between the expert (hereinafter referred to as "SV") and the Client concerning expert opinions, consultations, inspections and other assignments, unless otherwise expressly agreed in writing.
§ 2 Subject matter of the contract
The SV shall carry out the assignment given to him/her under his/her personal responsibility. The use of auxiliary staff under his supervision is permissible.
§ 3 Early termination of the contract
3.1 The SV may be obliged by the Code of Professional Conduct to refuse an expert's report due to conflicts of interest. This may also only become apparent during the preparation of the expert opinion. In this case, the SV shall not be entitled to remuneration, except in cases where the client has concealed information which would have been recognisable to the client with regard to a possible conflict of interest.
3.2 If the contractual relationship ends prematurely for any reason, the SV shall be entitled to remuneration for the work performed up to that point, unless the premature termination of the activity is due to the sole fault of the SV.
3.3 If the Client is responsible for the premature termination of the contractual relationship, the SV shall receive, in addition to the above-mentioned remuneration, lump-sum damages of 35% of the remuneration agreed for the services not yet performed, subject to further claims.
3.4 If the Client is in default of acceptance of the service offered by the SV or if the Client fails to cooperate as required, the SV shall be entitled to terminate the contract without notice. His claims shall be determined in accordance with the above-mentioned provisions. This shall not affect the SV's right to compensation for any additional expenses incurred by it as a result of the Client's delay or failure to cooperate and for any damage caused, even if the SV does not exercise its right of termination.
4 Duty of Cooperation of the Client
4.1 In order to establish possible bias, the Client shall be obliged to inform the SV of all parties directly or indirectly involved in the dispute, as well as the potential recipients of the expert opinion, without being asked to do so.
4.2 The Client undertakes to provide the SV with all necessary support free of charge and in particular to supply the information required within the scope of the subject matter of the contract. To this end, the Client shall appoint a contact person who shall be responsible for coordinating appointments between the SV and the Client's employees and for obtaining documents. At the request of the SV, the Client shall provide adequate working facilities at the sites where the findings are made.
4.3 The Client shall refrain from providing specific information regarding such comparable objects which the Expert cannot disclose for data protection reasons.
4.4 The Client shall ensure that all documents necessary for the execution of the contract are submitted to the SV in good time, even without the SV's special request, and that the SV is informed of all events and circumstances that may be of importance for the execution of the contract. This includes, in particular, any other expert reports on the same matter as well as the value of the object of the report. This also applies to the documents, processes and circumstances that only become known during the report.
4.5 At the request of the SV, the Client shall confirm the completeness of the documents submitted and the information and explanations given in a written statement.
4.6 The Client undertakes to forward only complete final versions of the expert opinion. In particular, he shall not forward drafts or parts of the report without consulting the SV. The Client shall only be entitled to claim damages from the SV or vicarious agents on the grounds of tort, breach of contract or culpa in contrahendo if the SV has acted wilfully or with gross negligence. The Client must prove the fault of the SV.
§ 5 Liability
5.1 SV shall only be liable if and insofar as such damage was foreseeable at the time the contract was concluded or the damaging event occurred, taking into account all known or grossly culpable unknown circumstances.
5.2 The SV shall not be liable for damage caused by the Client's failure to cooperate or to submit the necessary documents. Insofar as the SV is liable in this respect, the liability shall be limited to the contract value of the partial performance in the execution of which the damage was caused.
5.3 No liability shall be assumed for indirect or consequential damages. Any liability towards third parties is excluded. This contract shall not create any obligations in favour of third parties. This shall not apply to the recipients of the expert's report named to the SV at the time of commissioning. Liability towards them shall be the same as towards the Client.
5.4 The expert opinion is only valid in its entirety. Interim results cannot be considered singularly.
5.5 SV shall not be liable for consequential damage caused by defects. All claims for damages shall in principle become time-barred six months after handover of the service. These provisions shall also apply in particular to damage caused by delay.
§ 6 Remuneration
6.1 The expert's fee is regulated in the Fee Claims Act (GebAG 1975 as amended, available in the Federal Legal Information System http://www.ris.bka.gv.at/). Deviating lump sum agreements remain unaffected.
6.2 The fee is agreed plus the statutory value added tax.
6.3 The fee rates for services to be charged on a time basis are based on an eight-hour day with five working days per week. Travel time shall be considered working time.
6.4 The SV may demand reasonable advances on remuneration and reimbursement of expenses and make delivery of its performance conditional on full satisfaction of its claims.
6.5 Additional services after the preparation of an expert opinion, such as expert opinion discussions during tax audits, negotiations, discussions with the client are charged at € 250 per hour plus 20% VAT, plus cash expenses and time missed according to the Fee Claims Act (GebAG 1975 as amended, available in the Federal Legal Information System http://www.ris.bka.gv.at/ ). Preparations for expert opinion discussions during tax audits, negotiations, etc. are charged at a minimum of 4 hours at € 250 per hour plus 20% VAT.
6.6 All invoices shall be payable without deduction 10 days after the invoice date, provided that the invoice was posted no later than the following day. The date on which payment is credited to SV's bank account shall be decisive for the timeliness of payment. Offsetting or assertion of rights of retention against due fee claims of the Contractor shall only be permitted if the Client's claim is undisputed or legally enforceable
§ 7 Completion
Completion details are always understood to be within a reasonable period of time after the existence of a written order, even in the case of absolute dates. Payment of an agreed advance on costs and the availability of all relevant documents (e.g. information from the municipality, property management, etc.) as conditions.
§ 8 Transmission of expert reports
The transmission of expert opinions and enclosures is done digitally, written copies are charged according to the Fee Claims Act.
§ 9
The consumer is informed that if the brokerage contract is concluded outside the business premises of the entrepreneur or exclusively via distance selling pursuant to § 11 FAGG, a consumer has the right to withdraw from this contract within 14 days. The withdrawal period begins on the day of the conclusion of the contract. The declaration of withdrawal can be made using the withdrawal form provided, but is not bound to any form. (e.g. a letter sent by post, fax or e-mail).
If the trader is to act prematurely before the expiry of this fourteen-day withdrawal period (e.g. transmission of detailed information, arrangement of an inspection appointment), an explicit request by the consumer is required, who thus - in case of complete fulfilment of the contract within this period - loses his right of withdrawal.
In the event of a withdrawal pursuant to Section 11 FAGG, the consumer shall be obliged not to make use of the information obtained.
Sample cancellation form:
To
SV Mag. Bernhard Großruck
Kaiserjägerstraße 30
A-6020 Innsbruck / Tyrol
immobilien@arealita.at
Name of interested party:
Address:
Telephone:
Email:
I hereby revoke the appraisal order concluded by me on (date).
§ 10 Choice of law
It is agreed that Austrian law shall apply.
§ 11 Legal and negotiating language
The German language is agreed as the legal and negotiating language.
§ 12 Jurisdiction clause
The exclusive place of jurisdiction - depending on the amount in dispute - shall be the competent courts in Innsbruck (does not apply to consumers).
§ 13 Final provisions
Additions and amendments to this contract must be made in writing. This shall also apply to any waiver of this formal requirement.
Should any of the provisions of these GTC become invalid because they violate mandatory law, in particular consumer protection provisions, the remaining provisions shall not be affected thereby and shall remain in full force and effect.
Status: Innsbruck, on 17.12.2020