§ 1 General
(1) These General Terms and Conditions (GTC) apply to all contracts and legal transactions between the contracting party (hereinafter "Client") and the brokerage company (hereinafter "Broker" or "Agent"). These GTC shall apply exclusively; terms and conditions that conflict with or deviate from these GTC shall not be recognised unless their validity is expressly agreed to in writing.
(2) The Client can be both the provider of a property (e.g. seller, landlord, lessor) and the party interested in a property (e.g. buyer, tenant, lessee).
(3) Where reference is made to a main contract, this refers to a purchase, rental or lease agreement. A brokerage contract, on the other hand, is the contract concluded between the Client and the Broker for a brokerage service or the provision of evidence of the opportunity to conclude a main contract.
§ 2 Conclusion of contract
(1) In principle, the written form is not required for the conclusion of a brokerage contract; it can also be concluded verbally or by implication. An interest on the part of the Client shall be deemed to exist if the Client makes use of brokerage services, e.g. by requesting an exposé. This offer can be accepted by the Broker either by express declaration or by carrying out the documentation or brokerage activities.
(2) This shall not apply to brokerage contracts in accordance with the German Real Estate Brokerage Act (Wohnungsvermittlungsgesetz) or brokerage contracts to provide evidence of the opportunity to conclude a purchase contract for a flat or a single-family house (Section 656a BGB). Such a brokerage contract is concluded by written agreement or by confirmation in writing of the use of the brokerage services.
§ 3 Subject matter of the contract - Exclusion of liability for the information provided by the owner
(1) The subject matter of the contract is the brokerage of a property for sale, rent or lease.
(2) The Broker points out that the property information passed on by him originates from the owner, seller, landlord or lessor or from a third party commissioned by the latter and has not been checked for accuracy by the Broker. All information in the property certificate and the real estate exposé is therefore subject to change and non-binding. It is the responsibility of the Client to check the accuracy of this information. The Broker does not assume any liability for the accuracy, completeness or up-to-dateness of this information, unless the Broker is aware that the property information provided is incorrect, implausible or questionable. In this case, the Broker shall have limited liability for the property information provided in accordance with Art. 9 (1) and (2).
§ 4 Rights and obligations of the Broker
(1) The Broker shall also be authorised to act for the Client's contractual partner subject to commission, i.e. he may act for both the Seller and the Buyer. The right to intermediate sale / letting / leasing is expressly reserved. Excluded from this is the brokerage of residential property for rental purposes within the meaning of § 1 of the German Residential Property Brokerage Act (WohnungsVermittlungsGesetz). In the case of a tenancy agreement to be brokered, the Broker may only act either for the Landlord or only for the Tenant subject to commission.
(2) The Broker shall fulfil the contract with the diligence of a prudent businessman. He shall keep the Client informed of the status of his endeavours.
(3) All facts that come to the Broker's knowledge in connection with the agreement must be treated confidentially.
§ 5 Rights and obligations of the Client
(1) The Client undertakes to inform the Broker immediately of all circumstances affecting the performance of the brokerage activity. This applies in particular if the Broker no longer needs to be active.
(2) Before concluding the main contract, the Client is obliged to enquire with the Broker whether the Broker has verified or brokered the conclusion of the contract. If the Client breaches this obligation, he may not claim against the Broker that he was not aware of the brokerage activity in good time.
(3) The Client is obliged to inform the Broker immediately of the conclusion of a main contract and to provide the Broker with a complete copy of the main contract upon first request.
(4) The Client is obliged to treat all information obtained within the scope of this contract as confidential and in particular not to pass it on to third parties. If the Client passes on confidential offer data to third parties, in particular about properties offered to him or about prospective buyers or real estate exposés, he shall be in breach of his contractual obligations. If the main contract is concluded as a result of the disclosure, the Client shall be liable for compensation in the amount of the agreed commission unless he can prove that no damage or only minor damage was incurred.
(5) Real estate Brokers are obliged under the Prevention of Money Laundering Act to carry out a money laundering check. The Client undertakes to provide the Broker with the necessary information and documents for this purpose.
§ 6 Prices - Brokerage/commission
(1) The Client undertakes to pay a commission to the Broker. The type and amount of the commission claim arise
• for the provider of a property from the brokerage contract;
• for the buyer of a property from the real estate exposé.
(2) The Broker's entitlement to commission shall not lapse if the proven or brokered main contract is subsequently cancelled or rescinded or cancelled by mutual agreement. Similarly, the subsequent reduction of the purchase price or rent shall not affect the Broker's commission claim.
(3) The Broker's commission claim shall be due upon conclusion of the fully effective main contract with the contractual partner identified or brokered by the Broker. This shall also apply if the main contract is only concluded after the brokerage contract has ended, but as a result of the Broker's activities.
(4) In particular, the sale of a real or non-material share in the property or the granting of heritable building rights and similar, as well as the transfer of company rights, shall also be deemed to be a main contract giving rise to commission if this corresponds economically to the purpose stated in the brokerage agreement or is equivalent to it in terms of content.
(5) If the Client is looking for a flat within the meaning of Section 2 (1a) of the German Residential Property Brokerage Act, the claim to commission shall only arise if the Broker obtains the order to offer the flat from the landlord or another authorised party solely on the basis of the brokerage agreement with the Client.
(6) If the main contract is a purchase contract for a flat or a single-family house, if the Broker has concluded a brokerage contract with both parties and if the buyer is a consumer within the meaning of Section 13 of the German Civil Code (BGB), both parties shall be obliged to pay the commission in the same amount.
§ 7 Reimbursement of expenses
(1) The Client shall be obliged to reimburse the Broker for the verifiable expenses incurred in the fulfilment of the contract (e.g. real estate exposé, other brochures, advertisements, posting on the Internet, telephone costs, postage costs, property viewings, travel costs, costs of an expert, signs and other expenses incurred) if a contract is not concluded for reasons for which the Client is responsible and in cases in which the Broker was able to terminate this brokerage contract for good cause.
(2) Notwithstanding the above, expenses incurred in brokering or providing evidence of the opportunity to conclude rental agreements for residential premises shall only be reimbursable if the proven expenses exceed one month's rent or if the rental agreement is not concluded.
§ 8 Term of contract - Cancellation
(1) Unless otherwise agreed in text form, the term of the contract shall be 3 months and shall not commence until all preparatory work necessary for marketing has been completed ( compilation of the pictures, preparation of the floor plans, visits to the authorities, etc.). However, if the Client is looking for a property, the term shall commence upon acceptance of the contract.
(2) Subject to deviating agreements on a specific contract term or modalities of ordinary termination, the contract can be cancelled at any time and by either party with a notice period of one month to the end of the month. The brokerage agreement shall be extended by three months in each case if it is not cancelled in text form one month before expiry. The right to terminate without notice for good cause remains unaffected.
(3) Cancellation of the contract must be in writing to be effective.
§ 9 Limitations of liability
(1) The Broker shall only be liable for intent and gross negligence in accordance with the statutory provisions, except in the event of a breach of material contractual obligations, injury to life, limb or health or in the event of any claims under the Product Liability Act. Essential contractual obligations are those whose fulfilment is necessary to achieve the purpose of the contract. In the event of only slightly negligent breach of material rights or obligations arising from the content and purpose of the contract, the Broker's liability shall be limited to the foreseeable damage typical of the contract.
(2) This limitation of liability shall also apply in the event of fault on the part of auxiliary persons acting on behalf of the Broker.
(3) The Broker is not obliged to make enquiries about the creditworthiness of the brokered contracting party. The Broker's liability for the creditworthiness of the procured contracting party shall be limited in accordance with paragraphs 1 and 2 if the Broker is aware of circumstances regarding the contracting party's financial situation which might endanger the fulfilment of the main contract and the Broker fails to inform the Client of these circumstances.
(4) A valuation carried out by the Broker is not an expert determination of the market value of the property, but an estimate of the most likely purchase price to be realised if the property were sold in an average condition on the valuation date after a reasonable marketing period in the ordinary course of business. The estimate is based on the property information available to the Broker at the time of the valuation, comparable purchase prices and asking prices for comparable real estate in the region. The Broker shall carry out the valuation exclusively on the basis of information provided by the Client and data made available to him by third parties. He is not obliged to check the accuracy and completeness of the data provided to him by the Client and third parties, and is therefore only liable in the event of incorrectness of the underlying data if he, his representative or his auxiliary personnel were aware of the incorrectness of the data at the time the service was provided.
§ 10 Data protection - Right of cancellation - Consumer arbitration
(1) The Broker shall process the personal data of the Client or any existing employees exclusively in accordance with Regulation (EU) 2016/679 of the European Parliament and of the Council of 7 April 2016 (General Data Protection Regulation) and the German Federal Data Protection Act. The personal data will be processed exclusively for the purpose of executing the contract. Insofar as the Client is a trader with employees, the following applies: The Client undertakes to provide its employees with the necessary information from the Broker in accordance with Art. 13 and 14 GDPR within one month but before the Broker's first communication to the employee. This information from the Broker can be found in the
"Information on the processing of personal data".
(2) If the Client is a consumer, he/she is entitled to a statutory right of cancellation, about which he/she will be informed following these GTC.
(3) The Broker shall not participate in dispute resolution proceedings before a consumer arbitration board pursuant to Art. 36 of the German Consumer Dispute Resolution Act (VSBG).
§ 11 Place of jurisdiction - Place of fulfilment
(1) If the Client and the Broker are merchants within the meaning of the German Commercial Code, the place of fulfilment for all obligations and claims arising from the contractual relationship and the place of jurisdiction shall be the Broker's registered office.
(2) Unless otherwise stated in the order confirmation, the business location of the Broker shall be the place of fulfilment.
§ 12 Binding nature of the contract - Severability clause
(1) The contract shall remain binding in its remaining parts even if individual provisions are legally invalid. This shall not apply if adherence to the contract would represent an unreasonable hardship for one of the parties.
(2) Should one or more of the above provisions be invalid, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by the statutory provision that comes closest to the content of the invalid provision.