General Terms and Conditions
(AGB)
1. preamble
(1) GELDBLICK Finanzportal GmbH (hereinafter referred to as the "Broker") brokers, independently of its or third parties' interests, rental and purchase contracts between the seller on the one hand and the buyer on the other hand.
(2) The broker shall render his services in accordance with the statutory provisions, in particular the Brokerage Act BGBl 262/1996, the Ordinance of the Federal Ministry of Economic Affairs on Professional Conduct and Practice Rules for Real Estate Brokers (IMV, BGBl 297/1996), the Consumer Protection Act BGBl 140/1979 and the Distance and Outward Transactions Act (FAGG BGBl. I No. 33/201), as amended from time to time, these General Terms and Conditions of Business (hereinafter "GTC") and a brokerage contract concluded with the client with the due care of a prudent businessman.
(3) Any commencement of business transactions shall be deemed as unconditional consent to these GTC. GELDBLICK Finanzportal GmbH shall therefore act exclusively on the basis of these GTC. Other terms and conditions, contract forms and the like are expressly deemed to be waived.
(4) All property information provided by the broker is based on the information provided by the seller or landlord for whose completeness and correctness no guarantee can be assumed.
(5) Offers made by the broker are subject to change and non-binding until a written declaration of acceptance has been received from the seller.
(6) If a property offered to a customer by the broker has already been offered directly to the customer by the seller or a third party, the customer must inform the broker of this fact in writing and without delay, but no later than 48 hours after receipt of the broker's offer, otherwise a claim for commission by the broker will be justified.
(7) The GTC shall apply from the conclusion of the contract between the broker and the client and shall supplement the brokerage contract concluded with the client.
2. commission
(1) The broker shall in principle act against payment. The brokerage fee pursuant to §§ 6 and 7 MaklerG in conjunction with the IMV shall be due upon conclusion of a brokered legal transaction.
(2) The entitlement to commission therefore arises if, after conclusion of the brokerage contract, the broker performs the agreed activity on the basis of this contract and the transaction mentioned in the brokerage contract between the principal and the third party comes into effect with legal effect. The mere naming of a third party also gives rise to a claim for commission.
(3) If a contract is brokered which grants the client or the brokered third party the temporary right to bring about the relevant transaction by means of a unilateral declaration (option contract), 50% of the commission agreed for the brokerage of the main transaction shall be paid upon conclusion of this option contract. The further 50% shall become due upon exercise of the option right by the beneficiary. If the brokerage activity is aimed at brokering an option contract from the outset and if this is concluded, the full commission shall be due upon conclusion of the option contract.
(4) If a contract brokered by the broker is extended or supplemented within three years, a commission shall also be paid for the new contract. The client is obliged to notify the broker of such additions or extensions within 14 days of the conclusion of the new contract.
(5) Irrespective of the above, § 15 para 1 MaklerG shall apply, according to which the principal shall pay compensation or reimbursement for the administration of efforts up to the amount of the agreed commission or the commission customary in the locality, even if no brokerage success can be attributed to the broker, if the transaction specified in the brokerage contract is not concluded contrary to good faith only because the principal, contrary to the course of negotiations to date, fails to perform a legal act required for the conclusion of the transaction without a noteworthy reason; a transaction other than a transaction of equivalent value is concluded with the third party brokered by the broker, provided that the brokerage of the transaction falls within the scope of the broker's activities; the transaction referred to in the brokerage contract 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 was made known to him by the broker, 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 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 entry is exercised.
(6) Furthermore, such performance shall be deemed to have been agreed in the case of a sole brokerage contract in the event that the sole brokerage contract is terminated prematurely by the client in breach of contract without good cause; the transaction is concluded during the term of the sole brokerage contract in breach of contract through the mediation of another broker commissioned by the client, or the transaction is concluded during the term of the sole brokerage contract in a manner other than through the mediation of another broker commissioned by the client.
(7) The amount of the commission shall be based on the prices valid at the time of the conclusion of the contract and announced in the offer. Extensions of the contract concluded between the client and the seller in economic connection with the brokered property shall affect the amount of the commission claim, provided that these extensions are agreed within six months of the original contract becoming legally effective.
(8) All prices stated are net amounts and are in euros. Value added tax and any additional charges are shown separately.
(9) All payments to be made by the customer under the contract are due within 14 days of the invoice date without deduction. Payments shall only be deemed to have been made when they have been received in the broker's account. The risk of incorrect or delayed transfers shall be borne by the customer.
(10) If the client is in default with the payment of the invoice and has been reminded unsuccessfully by setting a two-week grace period, any discounts granted after the invoice has already been issued shall be obsolete and the originally agreed commission amount shall be due. In case of default of payment the statutory default interest shall be deemed to be agreed and GELDBLICK Finanzportal GmbH shall be entitled to charge reasonable reminder fees according to the Collection Regulation BGBl. No. 141/1996 as amended from time to time. In the case of consumers pursuant to § 1 KSchG, a lump sum of EUR 20 shall be charged for reminder fees.
(11) The retention of payments that are not based on the same contractual relationship or the set-off with counterclaims that have not been legally established is not permitted.
(12) If several principals or on one side of the legal transaction several contracting parties are involved, they shall each be liable jointly and severally.
3. mutual obligations
(1) The client shall be obliged to support the broker in the performance of his brokerage activity in good faith and to refrain from passing on business opportunities communicated to him (§ 3 para 2 MaklerG).
(2) The broker and the principal shall be obliged to give each other the necessary notices. Thus, the broker shall inform both clients as soon as he acts as a dual broker. In any case, he has to pass on potentially important and decision-relevant information that he has at his disposal to the client.
(3) The client is obliged to inform the broker correctly and completely about all facts concerning the object to be brokered or the legal transaction as well as about any changes occurring subsequently. The principal shall inform the broker accordingly if he has already concluded the prospective transaction elsewhere or is no longer interested in it for other reasons. The client must also inform the broker about the conclusion of a transaction brokered by the broker.
(4) The broker undertakes to protect the interests of the client honestly and diligently, also in the event that he acts as a dual broker.
4. data protection
(1) The customer agrees that his data, including connection data, may be stored by the broker. This data will be deleted at the customer's request if the purpose for storing the data no longer applies.
(2) Both parties undertake to treat all information that is not generally known, such as information about the other party, contents of conversations and messages, all attachments and appendices, as strictly confidential and to ensure that they are not made accessible to unauthorised third parties, with the exception of employees and external consultants with access rights, or used for competitive purposes. The respective other party shall be immediately indemnified and held harmless for all damages due to a breach of this confidentiality obligation. The parties exclude any liability and warranty for the completeness and accuracy of the information provided, except in cases of intent or gross negligence.
(3) Otherwise, the detailed data protection provisions apply, which are summarised under www.sunset.immo/datenschutz summarised below.
5. warranty
(1) The broker shall be liable to the customer on the basis of the statutory warranty and liability provisions.
(2) The broker shall be liable for the third party commissioned with individual partial services with the knowledge of the client only for selection negligence.
6. consumer protection
(1) With regard to customers who are consumers, reference is made to the provisions of the KSchG and FAGG, in particular to the right of withdrawal regulated in § 11 FAGG:
The consumer may withdraw from a distance contract or an off-premises contract within 14 days without giving reasons. The withdrawal period for service contracts starts on the day of the conclusion of the contract.
(2) Section 3a KSchG: The consumer may further withdraw from his contract application or from the contract if circumstances relevant for his consent, which the trader has presented as probable in the course of the contract negotiations, do not occur or only occur to a considerably lesser extent without his instigation. Such relevant circumstances are
the expectation of the cooperation or consent of a third party which is necessary for the trader's performance to be provided or for the consumer to use it,
the prospect of tax advantages,
the prospect of public funding and
the prospect of a loan.
3) Withdrawal may be declared within one week. The period shall commence as soon as it is apparent to the consumer that the circumstances referred to in para. 1 do not arise or arise only to a significantly lesser extent and the consumer has received written notification of this right of withdrawal. However, the right of withdrawal shall expire at the latest one month after the complete performance of the contract by both contracting parties, and in the case of banking and insurance contracts with a term exceeding one year, at the latest one month after the conclusion of the contract.
4) The consumer shall not have the right of withdrawal if
he already knew or should have known at the time of the contract negotiations that the relevant circumstances will not occur or will only occur to a significantly lesser extent,
the exclusion of the right of withdrawal has been negotiated in detail or
the entrepreneur agrees to a reasonable adjustment of the contract.
5) Section 3(4) shall apply mutatis mutandis to the declaration of withdrawal. (5) Section 30a KSchG
(a) If a consumer makes a contractual declaration aimed at the acquisition of a tenancy right, other right of use or enjoyment or ownership of a flat, a single-family dwelling or a property suitable for the construction of a single-family dwelling on the same day as he or she first inspected the object of the contract, he or she may withdraw from his or her contractual declaration, provided that the acquisition is intended to meet the urgent housing needs of the consumer or a close relative.
b) The withdrawal may be declared within one week after the consumer's contractual declaration. If a broker has intervened and the declaration of withdrawal is addressed to him, the withdrawal shall also apply to a brokerage contract concluded in the course of the contractual declaration. In all other respects, § 3 para. 4 applies to the declaration of withdrawal.
(c) The period referred to in paragraph 2 shall not begin to run until the consumer has received a duplicate of his contractual statement and written notice of the right of withdrawal. However, the right of withdrawal shall expire no later than one month after the date of the first inspection. Rights of withdrawal to which the consumer is entitled according to other provisions - in particular according to §§ 11 ff. FAGG - shall remain unaffected.
e) The payment of a deposit, a penalty or a down payment before the expiry of the withdrawal period cannot be validly agreed.
7 Choice of law and place of jurisdiction
(1) The parties agree on the exclusive applicability of Austrian law.
(2) For any disputes arising from or in connection with contracts between the customer and the broker, the exclusive jurisdiction of the Commercial Court of Vienna is agreed. For consumers, § 14 KSchG shall apply, i.e. the ordinary place of residence or permanent abode existing at the time of conclusion of the transaction.
(3) However, the broker reserves the right to assert his own claims before any other court, both in Austria and abroad, in whose jurisdiction the client has his registered office, residence, branch office, assets or other domicile.
(4) Place of performance is Vienna, 1st district.
8. final provisions
(1) Amendments to the GTC shall become legally valid for all current and future terms and conditions at the beginning of the month following the notification of the customer, unless the broker has received a written objection from the customer by this time. Unless the client is a consumer pursuant to § 1 KSchG (Consumer Protection Act), the announcement of the GTC on the broker's website at www.sunset.immo
(2) Provided that there is no mandatory statutory provision to the contrary, the GTC shall take precedence over the statutory provision. Should individual provisions of these GTC be invalid or unenforceable, this shall not affect the remainder of the contract. The provision shall be deemed to be replaced by a provision that comes closest to the parties' intention in economic terms.