General Business Terms and Conditions of Valmacor Immobilientreuhand GmbH *)

*) please consult final legal note 

General information

(1)    VALMACOR Immobilientreuhand GmbH, Messenhausergasse 14/33, A -1030 Wien (hereinafter referred to as "the broker") is brokering irrespective of his or third parties’ interest rental and purchase agreements between the supplier and the buyer/renter on the other side.

(2)    The broker provides his services in accordance with the legal provisions, in particular the brokerage law (Maklergesetz) BGBl 262/1996, the ordinance of the Federal Ministry for Economic Affairs on rules of conduct and practice for real estate brokers (IMV, BGBl 297/1996), the consumer protection law BGBl 140/1979 (FAGG BGBl. I No. 33/201), as amended, these General Terms and Conditions (hereinafter referred to as "GTC") and a brokerage agreement concluded with the client with the due diligence of a proper entrepreneur.

(3)    Any acceptance of the business transaction shall be deemed unconditional consent to these terms and conditions. Any business action of VALMACOR Immobilientreuhand GmbH is therefore exclusively based on these terms and conditions. Other terms and conditions, contract forms and the like are expressly excluded.

(4)    All property information provided by the real estate agent is based on the information provided by the seller or the property owner and no liability whatsoever shall granted for their completeness and correctness.

(5)    Offers of the broker shall remain free and non-binding until a written declaration of acceptance of the owner is available.

(6)    In the event that a property offered by the broker to the client has already been offered to the client directly by the owner or a third party, the client shall have an obligation to immediately inform the broker thereof in writing about such circumstance, however within 48 hours at the latest upon receipt of the broker 's offer, otherwise a demand for commission of the broker is justified.

(7)    As of the conclusion of the contract the General Terms and Conditions shall apply between the broker and the client and shall supplement the brokerage agreement concluded with the client.

Commission

(1)     The broker is generally taking action for remuneration. Pursuant to §§ 6 and 7 of the Austrian Real Estate Law ( MaklerG ) and the ordinance of the Federal Ministry for Economic Affairs on rules of conduct and practice for real estate brokers ( IMV, BGBl 297/1996 ) the brokerage fee is payable upon conclusion of a mediated legal transaction.

(2)     The commission requirement therefore arises when, after the brokerage agreement has been concluded, the broker performs the agreed upon activity on the basis of this contract and the contract in the brokerage agreement becomes legally effective between the client and the third party. Further more, also the mere naming of a third party’s name justifies a claim for commission.

(3)     If a contract is brokered by which the client or an intermediated third party is entitled the timely limited right to call into legal effectiveness by its sole declaration an agreement ( option agreement ), on conclusion of this option contract, 50% of the agreed upon commission for the brokerage of the main transaction becomes due. The remaining 50% will be due upon the exercise of the option right by the beneficiary. If the brokerage activity aims from the beginning on an option agreement and this option is exercised and the contract becomes effective, the full commission associated with the conclusion of the option contract is due.

(4)     If a contract brokered by the broker is extended or completed within three years, a commission shall also be payable for the new contract. The client is obliged to notify the broker of such additions or extensions within 14 days after conclusion of the new contract

(5)     Irrespective of this, § 15 (1) of the Austrian Real Estate law ( "MaklerG" ) shall apply, pursuant to which the client shall pay a compensation or a replacement for the encountered effort up to the amount of the agreed upon or local customary commission even in case of lack of a brokerage success, if the contract in the brokerage agreement did not become effective for reasons against good trust and faith only because the client failed against the course of the whole negotiation process to sign a legal act without a notable or worthy relevant reason; because with the third party intermediated by the broker a transaction other than an equivalent transaction is concluded, provided that the mediation of the transaction falls within the broker's sphere of activity; because the contract denominated in the brokerage agreement is not concluded with the client, but with another person, because the client divulged the business opportunity revealed by the broker to that person, or the contract is not concluded with that third mediated person but with another person, because the third mediated person divulged the business matter or the business does not become effective, because a legal or contractual pre-purchase, resale or entry right is exercised.

(6)     Furthermore, such a performance is also deemed to have been agreed upon in the case of an exclusive brokerage agreement if such agreement is terminated by the client prematurely and in violation of the applicable terms and conditions of the brokerage agreement without a reason for any breach; The transaction was concluded during the validity of the exclusive brokerage agreement by the brokerage of another broker engaged by the client or the business concluded during the validity of the exclusive brokerage agreement in a different way than by brokering another broker engaged by the client.

(7)    The amount of the commission shall be based on the prices valid at the time of conclusion of the brokerage agreement and listed in the offer. In the economic context of the mediated object, extensions of the contract concluded between the client and the subcontractor will have an effect on the amount of the commission claim, as long as these extensions are agreed within six months after the legal validity of the original contract.

(8)     All prices are net prices and are listed in Euros. VAT and any additional fees are stated separately.

(9)     All payments to be made by the client are due within 14 days after the date of invoice without deduction. Payments shall only be deemed to have been made if they are credited to the broker's bank account. The risk of incorrect or delayed transfers is for the client’s account.

(10)    If the customer is in delay with the payment of the invoice and if he has been unsuccessfully provided with a two-week grace period, then any discounts granted after accounting become obsolete and the originally agreed commission rate is due. In case of default of payment, the statutory interest on arrears shall be deemed to be agreed and VALMACOR shall be entitled to charge appropriate reminder fees in accordance with the Collection Act, Federal Law Gazette No. 141/1996, as amended. In the case of consumers pursuant to § 1 KSchG, a lump sum of EUR 20 will be charged as reminder fees.

(11)    The withholding of payments which are not based on the same contractual relationship or set-off against claims which are not legally final is prohibited.

(12)    If several contracting entities or several contracting parties are involved on one side of the legal transaction, they are liable to the undivided hand.

Mutual Obligations

(1)     The client is obligated to assist the broker in the performance of his mediation activities and to refrain from passing on any business opportunities ( § 3 Abs 2 MaklerG ).

(2)     Broker and clients are obliged to provide each other with the necessary information. Thus, the broker has an obligation to inform both clients, as soon as he acts as a double broker. He has an obligation to inform the client in any event in respect of any potential relevant important and decisive information, which he disposes of.

(3)     The client is obliged to inform the broker correctly and completely of all facts concerning the objects to be conveyed or the legal business to include any subsequent changes. The client has to inform the broker accordingly if he has otherwise concluded the planned business or is – for other reasons - no longer interested. The client must also inform the broker about the conclusion of a transaction brokered by the broker.

(4)     The broker undertakes to uphold the interests of the clients honestly and diligently, even if he acts as a double broker.

Data Protection

(1)    The customer agrees that his data will also be stored by the broker, with the creation of connection data. These data are immediately deleted as soon as the purpose required for storage is lost.

Warranty

(1)    The broker is liable to the customer in accordance with the legal warranty and liability provisions.

(2)     The liability of the broker is limited to gross negligence or intentional behavior. The liability of the broker for each injurious event is limited to EUR 10.000 against the whole injured parties and to EUR 2.000 against the individual. Within the scope of the KSchG, this restriction applies only in the case of slight negligence and not for personal injury.

(3)    The broker is only liable for the fault of the third party engaged with partly performances with the knowledge of the client for the fault of choice.

Consumer Protection

(1)    With respect to customers who are consumers, the provisions of the KSchG and the FAGG, in particular the right to rescind the contract as set out in Section 11 of the FAGG, shall be pointed out:

(a)    The consumer may withdraw from a distance contract or a contract concluded outside the business premises within 14 days without giving reasons.

(b)    The term of rescission begins with service contracts with the date of conclusion of the contract.

(2)     Section 3a of the Consumer Protection Act (KSchG):

(a)    The consumer may rescind his contract application or the contract if without his causing for his consent relevant circumstances, which the contractor has found probable in the course of the negotiations are not occurring or only occurring to a minor extent.

(b)    Relevant circumstances within the meaning of paragraph 1 are:

(i)    the expectation in respect of the co-participation or consent of a third party which is necessary, in order to enable the entrepreneur to perform or the consumer to use it,

(ii)   the prospect of tax advantages,

(iii)  the prospect of public funding and

(iv)  the prospect of a loan.

(c)    The withdrawal may be declared within one week. The period shall begin to run as soon as it is recognizable for the consumere that the circumstances referred to in paragraph 1 do not occur, or only to a far lesser extent, and that he has received written information on this right of withdrawal. The right of withdrawal expires, however, at the latest one month after the full performance of the contract by both contracting parties, in the case of banking and insurance contracts with a contract duration exceeding one year at the latest one month after the contract has been concluded.

(d)    The right of withdrawal shall not be attributable to the consumer if:

(i)   He had already known or had to know that the relevant circumstances would not occur, or only to a much lesser extent,

(ii)  the exclusion of the right of withdrawal has been negotiated in detail; or

(iii)  the contractor agreed to an appropriate adjustment of the contract.

(e)    Section 3 (4) applies mutatis mutandis to the declaration of rescission.

(3)    Section 30a KSchG

(a)    If a consumer makes a contractual declaration with respect to an acquisition of a rental right, or to another using right or ownership on an apartment, on a single family house or on a property suitable for the construction of a single family house on the same day, on which he has viewed the contractual object, he may withdraw from his contract declaration, provided that the acquisition is intended to cover the urgent needs of the consumer or of a close relative.

(b)   The rescission may be declared within one week after the consumer has declared the contract. If a broker is involved and the withdrawal declaration is addressed to the broker, the cancellation also applies to an eventual brokerage agreement concluded in the course of the contract. In addition, § 3 para. 4 applies to the declaration of rescission.

(c)    The time limit of paragraph 2 begins to run as soon as the consumer has received a duplicate of his contract declaration and a written instruction on the right to rescind the contract. The right of withdrawal expires, however, at the latest one month after the date of the first viewing. The right of withdrawal, which the consumer is entitled to under other provisions - in particular pursuant to §§ 11 ff. FAGG - remain unaffected.

(d)    The payment of a deposit, a refund or a deposit before expiry of the withdrawal period cannot be validly agreed upon.

Law and jurisdiction

(1)    The parties agree on the exclusive applicability of Austrian law.

(2)    The exclusive jurisdiction of the commercial court of Vienna shall be agreed for any disputes arising out of or in connection with contracts between the client and the broker. § 14 KSchG applies to consumers, so that the permanent place of residence or permanent residence at the time of conclusion of the transaction shall apply. 

(3)    The broker, however, reserves the right to assert his own claims also at any other court, both in Austria and abroad, in whose territory the client has its registered office, place of residence, establishment, property or other residence.

(4)    The place of performance is Vienna, 3rd district, Landstraße.

Final provisions

(1)    Amendments to the General Terms and Conditions shall be valid at the beginning of the month following to the month of communication to the client and apply to all present and future businesses, unless a written objection of the client has been received by the broker before effectiveness. As information in this sense also applies - unless it is a consumer according to § 1 KSchG - the announcement of the terms and conditions on the broker's website at www.VALMACOR.at.

(2)    Unless statutory provisions are contrary to this, the General Terms and Conditions of Business shall prevail. Should individual provisions of these terms and conditions be invalid or unenforceable, this shall not affect the remaining contract. The provision is replaced by a provision that comes as closest as possible to economic interests.

*) important legal note:

his is a translation made on best knowledge only for information purposes from German into English of the applicable General Business Terms and Conditions of Valmacor Immobilientreuhand GmbH.  

In case of any eventual differences between the German and the English Version, the German version of the General Business Terms and Conditions of Valmacor Immobilientreuhand Gmbh shall prevail. 

February 2017