General Terms and Conditions for the Exclusive Sales Order
§ 1 General, scope of application
(1) The following General Terms and Conditions (hereinafter referred to as “GTC”) apply to the provision of brokerage services between us, the
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(hereinafter referred to as the “Contractor“) and our customers (hereinafter referred to as the “Client“, collectively also referred to as the “Parties“). The GTC apply to both consumers and entrepreneurs, unless a differentiation is made in the respective clause. A consumer pursuant to § 13 BGB is any natural person who enters into a legal transaction for purposes that are predominantly neither commercial nor self-employed. An entrepreneur pursuant to § 14 BGB is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of his commercial or self-employed professional activity.
(2) All agreements made between the Client and the Contractor in connection with the contract result in particular from these GTC, the Contractor’s written order confirmation and the Contractor’s declaration of acceptance.
(3) The version of the GTC valid at the time of conclusion of the contract shall be authoritative.
(4) The Contractor does not accept any deviating terms and conditions of the Client. This also applies if the contractor does not expressly object to their inclusion.
(5) These GTC shall also apply to future business relations with entrepreneurs without the contractor having to refer to them again. If the contractor uses conflicting or supplementary general terms and conditions, their validity is hereby objected to; they shall only become part of the contract if the contractor has expressly agreed to them.
§ 2 Subject matter of the contract
(1) The object of the contract is the exclusive commissioning of the contractor with the identification of corresponding interested parties for the respective real estate object and/or the mediation of the conclusion of a main contract. The main contract is a purchase contract. The Client assures that he is authorised by any co-owners and other persons entitled to dispose of the property to issue this brokerage order.
(2) If a contract other than the intended contract or a contract for another property belonging to the client is concluded with a proven interested party, which is essentially identical to the intended contract, a broker’s commission shall be deemed to be tacitly agreed for this and the broker’s activity shall be deemed to have contributed to the conclusion of the contract in this respect.
(3) For the duration of the contract, the client is obliged not to commission any other broker and to prohibit any activity of other brokers with regard to the real estate object. Any interested party approaching the client directly shall be referred to the broker (qualified sole commission).
(4) The contractor does not assume any guarantee for the actual conclusion of a main contract within the meaning of para. 1.
§ 3 Conclusion of contract
(1) The Client can conclude a contract by telephone, by e-mail or by filling in the online contact form and clicking on the checkboxes GTC (“I hereby confirm that I have read the General Terms and Conditions of Business and Use and accept them.”), Cancellation Policy (“I agree and expressly request that you begin with the execution of the commissioned service before the end of the cancellation period. I am aware that I lose my right of withdrawal upon complete fulfilment of the contract by you.”) and data protection (“I have taken note of the data protection statement. I agree that my personal data may be collected and stored electronically for the purpose of registration and creation of a user account. I can revoke my consent given in this regard at any time for the future by sending an e-mail to email@example.com.”) and by clicking on the button “EXPOSÉ JETZT ANFORDERN” to send a non-binding request to contact the contractor.
(2) The contractor shall contact the customer by telephone or by e-mail.
(3) Upon the Client’s request via the online contact form and subsequent clarification of the subject matter of the contract within the meaning of § 2 (1), the Contractor shall submit an exposé as a binding offer to conclude a brokerage contract (hereinafter “Exposé”) in text form (by e-mail).
(4) The brokerage contract between the parties shall only be concluded when the Principal accepts the Contractor’s Exposé in text form (by e-mail).
(5) If a written brokerage contract is concluded between the contractor and the client, the client bindingly declares with his signature that he wishes to place the order with the contractor.
(6) The contract shall be concluded exclusively in German.
(7) The Client shall ensure that the e-mail address provided by him for the purpose of processing enquiries is correct, so that e-mails sent by the Contractor can be received at this address. In particular, when using SPAM filters, the Client must ensure that all e-mails sent by the Contractor or by third parties commissioned by the Contractor to process enquiries can be delivered.
§ 4 Right of withdrawal
(1) If the Client is a consumer, the Client shall be entitled to a fourteen-day right of revocation in accordance with the statutory provisions.
(2) Further information on the right of revocation can be found in the Contractor’s instructions on revocation.
§ 5 Rights and Duties of the Contractor
(1) The contractor may only involve further sales partners with the express prior consent of the principal in writing or text form (a letter sent by post or by e-mail).
(2) The contractor is entitled to also act for the purchaser against payment if he limits this activity to proof and informs the purchaser in writing beforehand. Any double activity obliges the contractor to strict impartiality.
(3) The contractor is obliged to inform the purchaser without delay of all circumstances which may be of importance for the purchaser’s decision. The contractor shall inform the principal at regular intervals about the status of his efforts. However, the contractor is only obliged to conduct its own investigations if this is agreed separately.
(4) The contractor undertakes to carry out the order with the diligence of a prudent businessman.
(5) Furthermore, the contractor is obliged to maintain secrecy with regard to the knowledge gained about the real estate object and the client within the scope of this order, unless the client releases the contractor (in writing) from this secrecy.
§ 6 Rights and Duties of the Principal
(1) The principal undertakes to inform the agent without delay of all circumstances affecting the performance of the brokerage activity. This applies in particular with regard to any other sale, disposal, letting or leasing as well as abandonment of the intention to sell.
(2) The client undertakes to provide the agent with all necessary information and to hand over documents relating to the real estate object which are of importance for the agent’s activities. This also applies with regard to a later abandonment or change of the intention to sell.
(3) The Principal undertakes not to commission any further estate agents and to prohibit any further active estate agents from continuing their efforts. The principal is obliged to refer any interested party approaching him to the agent (qualified sole mandate).
(4) The Principal undertakes to support the Contractor’s efforts to prove or sell the property, in particular by providing and handing over all information and documents available to him which support the sale. The Principal authorises the Agent to use this information and documentation, including photos and views of the real estate object, vis-à-vis prospective buyers and for advertising purposes.
(5) The Principal hereby authorises the Agent to inspect the land register and the land files, the insurance documents, building permit documents and all other official files in which the real estate object is documented, as well as to obtain information from the property management. Furthermore, the Principal undertakes to provide the Contractor with copies of the necessary documents, such as existing tenancy agreements, for the duration of this assignment and to grant the Contractor and interested parties access to the real estate property.
(6) If the contractor provides evidence of a prospective buyer who is already known to the principal, it is incumbent on the principal to reject the contractor’s evidence in writing or text form (by letter or e-mail). The Principal shall be obliged to enquire with the Contractor prior to the conclusion of the main contract whether the Contractor has proven or arranged the conclusion of the main contract. If the principal violates this obligation, he cannot hold against the contractor that he did not have timely knowledge of the brokerage activity of the contractor.
(7) The principal is obliged to notify the agent immediately of the conclusion of a principal contract and to provide the agent with a complete copy of the principal contract upon first request.
(8) The principal is obliged to treat all information received within the scope of the brokerage contract as confidential and in particular not to pass it on to third parties.
§ 7 Commission and terms of payment
(1) In the event of the sale of a real estate object, the principal undertakes to pay the agent a commission of 3 % (including the applicable statutory value-added tax) of the total economic value of the main contract, including all related ancillary agreements of the total purchase price, unless otherwise agreed between the parties. The contractor is also entitled to demand a commission from the buyer of the real estate object for the same brokerage service.
(2) The commission shall be calculated on the basis of the purchase price plus any further services (such as the assumption of land register encumbrances, acquisition of facilities, etc.). The subsequent reduction of the purchase price does not affect the commission claim of the contractor.
(3) The Agent’s claim to commission shall arise and be due upon conclusion of the fully effective notarial main contract with the contractual partner proven or brokered by the Agent. The brokerage activity of the agent shall also be deemed to be causative or contributory if the conclusion of the main contract only comes about after the completion of the brokerage contract, but in a direct temporal connection due to the activity of the agent.
(4) The purchase 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. The conclusion of a contract by a natural or legal person who has a close and lasting legal or personal relationship with the buyer shall also be deemed to be a principal contract giving rise to commission.
(5) For consumers the following shall apply in addition: If the buyer of a flat or a single-family house is a consumer and if the contractor has also been promised a commission by the principal of the flat or the single-family house, an agreement pursuant to paragraph 2 shall only be effective if the buyer and the principal are obliged to pay a commission of the same amount to the contractor. If the contractor agrees with one party to the main contract that he will act for that party free of charge, he may also not have the other party promise him a commission. A waiver shall also be effective in favour of the respective other party to the contractor’s contract.
(6) The following shall apply additionally to consumers: If, in the case of para. 6, only a brokerage agreement was concluded with the principal, an agreement obliging the purchaser to pay or reimburse the commission shall only be effective if the principal remains obligated to pay the commission in at least the same amount. The claim against the buyer shall only become due when the principal has fulfilled his obligation to pay the commission and he or the agent provides proof thereof.
(7) For consumers, the following shall apply in addition: In other respects, in the cases of para. 6, the purchase of flats within the meaning of condominium ownership pursuant to § 1 para. 2 WEG, heritable building rights within the meaning of § 30 WEG, permanent residential rights within the meaning of § 31 para. 1 sentence 1 WEG, co-ownership rights within the meaning of § 31 para. 1 sentence 1 WEG, or the purchase of a property within the meaning of § 31 para. 1 sentence 1 WEG shall be sufficient to establish the claim to commission. WEG, co-ownership rights to a plot of land in connection with a regulation of use of residential premises within the meaning of section 1010 of the Civil Code and/or of single-family houses which mainly serve the residential purposes of a single household or in which there is only one other flat of minor importance (so-called granny flat), as well as heritable building rights thereto. The purchase of undeveloped land is not covered.
§ 8 Offsetting and rights of retention
(1) The principal is only entitled to set-off rights if his counterclaims have been legally established or are undisputed and synallagmatically linked to the principal claim of the contractor or have been recognised by the contractor.
(2) If the client is an entrepreneur, the client’s right of retention is excluded unless the client’s counterclaim originates from the same contractual relationship and is undisputed or legally established. Written notification to the contractor is required to assert the right.
§ 9 Section Money Laundering
(1) Pursuant to section 3 sub-section 1 nos. 1 and 3 AMLA, the contractor is obliged to comply with the general identification obligations of section 2 sub-section 1 no. 14, sub-section 2 also in conjunction with sub-section 3 AMLA when carrying out his professional activities. Paragraph 3 GwG.
(2) The identification of the principal contracting parties or their beneficial owners shall take place pursuant to Section 11 AMLA by presenting an official identification document (identity card, passport, etc. or register extracts and other conclusive documents) and by making copies as soon as the buyer expresses a serious interest in the performance of the principal contract and the parties to the purchase contract are sufficiently identified.
(3) Pursuant to Section 11(3) AMLA, identification is not necessary if the person to be identified has already been identified on a previous occasion and the data established during this identification are still accurate.
(4) The records, copies and other supporting documents shall be kept for five (5) years pursuant to Section 8 (4) AMLA, unless other statutory provisions on record-keeping and retention obligations provide for a longer period. In any case, the records and other evidence must be destroyed at the latest after ten years
§ 10 Term and Termination
(1) Unless otherwise agreed between the parties, the contractual relationship shall have a fixed term of six (6) months. During this period, the brokerage agreement may not be terminated without notice. It shall be extended by one (1) further month in each case if it is not terminated by one party subject to a notice period of one (1) month. The contractual relationship shall end at the latest after nine (9) full months after commissioning without the need for termination.
(2) Each party has the right to terminate the brokerage contract for good cause without observing a notice period. Good cause shall be deemed to exist in particular if the contractor substantially neglects to safeguard the interests of the principal despite a warning or if the principal violates the exclusive commission despite a warning.
(3) Any termination must be in writing or in text form (by letter or e-mail) to be effective.
§ 11 Liability of the contractor
(1) With regard to the services rendered by the contractor and the correctness of the content of the transmitted data of the real estate object, the contractor, his legal representatives and his vicarious agents shall only be liable in case of intent or gross negligence.
(2) In the event of a breach of material contractual obligations, liability shall also exist in the event of simple negligence, but shall be limited to the foreseeable damage typical for the contract. Material contractual obligations are those obligations which the brokerage contract imposes on the contractor according to its content in order to achieve the purpose of the contract, the fulfilment of which makes the proper execution of the brokerage contract possible in the first place and on the observance of which the client may regularly rely (so-called cardinal obligations).
(3) Claims for damages arising from injury to life, body or health as well as under the Product Liability Act shall remain unaffected by the above limitations.
(4) In particular, the contractor shall not be liable for the creditworthiness of the proven interested parties.
(5) Any further liability of the contractor is excluded.
§ 12 Data protection and copyrights
(1) The contractor collects and stores the client’s data necessary for the business transaction. When processing the Client’s personal data, the Contractor shall observe the statutory provisions. The contractor is entitled to transfer this data to third parties commissioned with the execution of the brokerage contract, insofar as this is necessary for the fulfilment of the brokerage contract. Further details can be found in the data protection declaration available in the online offer of the contractor.
(2) Upon request, the client shall receive information about the personal data stored about him at any time.
(3) If and insofar as the Contractor processes personal data of the Client on behalf of the Client within the scope of the provision of services, the Parties shall conclude a customary agreement on the processing of data on behalf of the Client in accordance with Art. 28 DS-GVO prior to the commencement of the processing.
(4) In all other respects, the statutory data protection provisions shall apply, in particular the General Data Protection Regulation (DS-GVO), the new version of the Federal Data Protection Act (BDSG-neu) and the Telemedia Act (TMG).
§ 13 Dispute resolution
(1) The following applies to consumers: The European Commission provides a platform for online dispute resolution (OS) on the Internet at the following link: https://ec.europa.eu/consumers/odr/. This platform serves as a contact point for the out-of-court settlement of disputes arising from contractual relationships (online purchase or service contracts) involving a consumer.
(2) The contractor is neither obliged nor willing to participate in a dispute resolution procedure before a consumer arbitration board/universal arbitration board.
§ 14 Final Provisions
(1) These GTC and the contractual relationship between the Principal and the Contractor shall be governed by the law of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
(2) If the Principal is a consumer and has no general place of jurisdiction in Germany or in another EU member state, the exclusive place of jurisdiction for all disputes arising from this brokerage contract shall be the Contractor’s place of business in Bochum.
(3) If the client is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction – including international jurisdiction – for all disputes arising directly or indirectly from the contractual relationship shall be the contractor’s place of business in Bochum. The same shall apply if the Client is an entrepreneur within the meaning of § 14 of the German Civil Code (BGB). However, the Contractor shall also be entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these GTC or a prior individual agreement or at the Client’s general place of jurisdiction. Overriding statutory provisions, in particular on exclusive jurisdiction, shall remain unaffected.