Terms and Conditions
I. General Part, Offer, Conclusion of Contract and Agency Order
1.1 These General Terms and Conditions (hereafter referred to as the “Terms and Conditions”), as amended, apply to the entire business relationship (purchase, sale and exchange, rent and lease) between the customer and Monte e Mare Immobilien OG, Lendstrasse 1, 6365 Kirchberg iT, FN 477043 i LG Innsbruck (hereafter referred to as “broker”). The broker will operate solely on the basis of these terms and conditions. Any admission of the business transaction is considered as unconditional approval to these terms and conditions. Other terms and conditions, contract forms, etc. of the client (AG) are deemed to be waived. Deviations from the present GTC are only binding if they have been expressly agreed in writing between the customer and the broker before or during the conclusion of the contract.
1.2 For any conditions other than those specified in these terms and conditions or deviations expressly acknowledged in writing by the broker, without prejudice to any broker’s commission claim based on any other legal basis, a contract will not be concluded.
1.3 Amendments to the GTC shall be valid from the beginning of the month following the customer’s agreement, legal validity for all current and future business relationships, unless by this time a written objection of the customer to the broker arrives. As an understanding in this sense, the announcement of the terms and conditions on the website of the broker.
1.4 The contractual relationship is subject to these GTC and the relevant statutory provisions, in particular the brokerage law according to BGBl 1996/262 in the currently valid version, the Ordinance of the Federal Minister of Economic Affairs on Conditions of Use and Practice for Real Estate Brokers (IMV, BGBl 297/1996 in the current version) and the Consumer Protection Act BGBl 1979/140, as amended.
1.5 Insofar as no mandatory statutory regulation (in particular KSchG) precludes the general terms and conditions of the legal regulation. Should individual provisions of these terms and conditions be invalid, ineffective or unenforceable, this has no effect on the remaining provisions. The ineffective or unenforceable provision shall be deemed replaced by a provision which comes closest to the party’s intention in economic terms.
1.6 The broker reserves the right to make use of the services of other authorized real estate agents, if this appears expedient to increase the chances of brokering; this does not give rise to any additional costs for the client or the interested party supplied to it. In general, the broker is authorized to transfer his obligations or the entire contract with a debt-discharging effect to a third party and is liable in these cases only for the selection fault. With regard to consumer transactions, the broker is authorized at his own risk to commission other companies with the provision of services from the contractual relationship.
1.7 Verbal collateral agreements are – with the exception of consumers under the KSchG statements and assurances – not effective. All statements to the broker by the donor or the interested party about meaningful contents can be legally valid only in written form.
1.8 The contract is concluded exclusively on the basis of these terms and conditions and the terms shown in the offer. The conclusion of the contract requires no written confirmation from the customer or the broker.
1.9 Offers by the broker to prospective buyers are always non-binding and non-binding, esp. An interim other utilization (inter-sale, rental or leasing) by the broker or the issuer himself is reserved.
1.10 The agency contract forms the basis of the activity of the broker. A client is obliged to assist the broker in its brokerage activities. The client is obliged in particular
a. to inform the broker correctly and completely about all facts concerning the object to be brokered,
b. to maintain complete secrecy about the opportunity to conclude a transaction to be brokered by the broker;
c. to obtain all authorizations required for the validity of the legal transaction to be brokered and to provide written information to the broker at any time regarding the status of the relevant proceedings. If the client violates the above obligations, he will be liable for damages to the broker, this also applies to a lost profit of the broker. The client acknowledges and agrees that all offers are made on the basis of the information provided to the broker by the other client and any liability of the broker for the accuracy and completeness of this information is excluded.
II. Commission claim
2.1 The customer is obligated to pay a commission in all cases mentioned in § 6 Maklergesetz. In particular, this obligation exists in the event that the business to be brokered comes about through the contractual meritorious activity of the broker with a third party. For this applies:
a. Any announcement of the objects offered by the broker or the designated parties to third parties requires the prior consent of the broker.
b. If a contract for an object offered by the broker is concluded not with the addressee of the offer, but with a person who has disclosed to the addressee the possibility of concluding the transaction as disclosed by the broker, the obligation to pay the commission by that person exists.
c. If a contract for an object offered by the broker is not concluded with the prospective buyer nominated by the broker, but with another person who has been informed of the possibility of concluding the contract by the same prospect, then this addressee of the offer or the naming is liable Broker for the broker thereby escaping tarifmäßig commission (§ 15 Abs.1, Z3).
d. Similarly, the addressee is liable for the collectively agreed commission, if the conclusion of the contract in good faith only does not come about because the addressee, contrary to the previous course of negotiations, does not require a legal act necessary for the conclusion of the transaction without noteworthy reason (§ 15 Abs.1, Z1) ,
e. If a contract for an object offered by the broker does not take place with the prospective buyer nominated by the broker but on equal terms with a person who concludes the contract instead of the prospective buyer named by the broker in the exercise of their due legal or contractual pre-emptive , Repurchase or entry right (§15 Abs.1 Z4), there is also the obligation to pay a commission.
f. Similarly, the addressee is liable for the collectively agreed commission of the broker, if with the broker mediated interested parties other than a purpose equivalent business comes off, provided that the brokerage of the business falls within the scope of the broker (§ 15 Abs.1, Z2). The commission claim for which the broker is entitled pursuant to § 6 (3) in the case of the conclusion of a purpose-equivalent transaction remains unaffected by this provision.
2.2 The right to commission of the broker arises with the legal validity of the brokered transaction, i.e. the agreement (production and agreement of will) for the conclusion of a contract for the object offered by the broker or with the nominated prospective customer. It does not matter whether this agreement was concluded with or without the intervention of the broker or at what time, and whether the contract was concluded on the terms offered or on other terms.
2.3 Should a customer have been offered an object offered to him by the broker directly by the lender or another third party as negotiable, rented or leased, the customer must notify the broker immediately, but at the latest within 48 hours (access ) from receipt of the offer of the broker verifiable and to inform in writing about this circumstance, otherwise the offer is considered accepted. If there is disagreement over this circumstance, the customer bears the burden of proof. A breach of this provision in the case of the conclusion of a valid contract for the offered object justifies a commission claim of the broker.
2.4 The commission claim of the broker is omitted for the reasons stated in § 7 para 2 brokerage law. However, in the case of a condition precedent, the broker’s commission entitlement also exists if the contingent contract is terminated before the condition occurs, but the condition would have occurred without premature termination.
2.5 The amount of the commission claim is based on the actual economic consideration. Extensions of the contract concluded between the customer and the broker in the economic context, but not limitations of this contract, have an effect on the broker’s commission claim, provided that such extensions are agreed within six months after the legal validity of the original contract.
2.6 Special Provisions Regarding the Broker’s Claim for Provisions in the Case of an Exclusive Merchandise Contract: In the case of an exclusive brokerage contract, the client shall be liable to the broker for the collectively agreed commission in the event that:
a. the exclusive agency contract is terminated prematurely by the client without good cause,
b. the transaction was concluded in breach of contract through the brokerage of another broker commissioned by the client during the duration of the exclusive brokerage contract, or
c. the transaction has come about during the duration of the exclusive brokerage contract other than through the brokerage of another broker commissioned by the client.
III. terms of payment
3.1 The amount of the commission depends on the prices valid at the time of the conclusion of the contract and announced in the offer.
3.2 All payments to be made by the customer are due within 10 days of the invoice date without deduction.
3.3 The customer must immediately notify the broker in writing of changes to his name, his paying agent, a change of authorized representative bodies as well as changes of legal form, company name, company name or commercial register number. If no notification of change has been received, documents shall be deemed to have been received by the customer if they have been sent to the address last given by him or, if he is not a consumer within the meaning of the KSchG, to the paying agent.
3.4 All prices are in Euro. Sales tax and any additional fees and charges are shown separately.
3.5 In the event of doubt, payments by the customer will be credited to the oldest debt regardless of any other declaration of dedication by the customer, unless the customer is a consumer within the meaning of the KSchG. The credit is first charged, then on interest and finally on the open capital.
3.6 Payments are deemed to have been made only when they have reached the broker’s account. The risk of incorrect or delayed transfers is borne by the customer.
3.7 The retention of payments that are not based on the same contractual relationship, or set-off against counterclaims that have not been legally established or have not been recognized by the broker is inadmissible. This set-off and retention ban does not apply to consumers within the meaning of § 1 KSchG.
3.8 If the customer defaults on a payment, the broker is entitled to charge the customer default interest of 8% per annum, the actual necessary and appropriate reminder and collection expenses, whereby the broker can also use third parties, as well as incurred reasonable legal fees according to the Lawyers Act in current version. The assertion of any further damage remains expressly reserved to the broker.
3.9 If the customer defaults on the payment of a not insignificant amount of the invoice and was reminded unsuccessfully by setting a grace period of two weeks, discounts granted after the completion of the accounting are obsolete and the originally agreed commission amount (before invoicing) is due.
IV. Warranty, liability
4.1 All information and information referring to the conveyed object are passed on under consideration of the care of a proper estate agent. However, the broker does not guarantee the accuracy of this information or information.
4.2 The broker is liable to the customer due to the statutory warranty and liability provisions. The liability for a certain condition of the mediated object is excluded, as long as it is not a property of the object expressly promised to the customer.
4.3 The broker assumes no liability for the legal design and content of the contract concluded on the object. If the customer so wishes, the broker will be happy to establish contact with a lawyer entrusted with the matter. Any legal costs incurred are to be paid by the customer.
4.4 As a result of any faulty service, the broker is only liable for gross negligence or willful misconduct. Excluded are personal injury from consumers. A further liability of the broker, in particular for consequential damages, is completely excluded to entrepreneurs, to consumers only in case of slight negligence, in particular no liability for any kind of defectiveness of the offered service, the force majeure or other by the broker the circumstances for which it is responsible.
4.5 The liability of the broker is limited to the amount of the legally stipulated liability for any damage-causing event against the entirety of the injured party as well as against the individual. Insofar as the contractual relationship is subject to the KSchG, this amount restriction only applies in the case of slight negligence, but not for personal injury.
4.6 The broker is not liable for damages caused by the customer due to non-compliance with the contract concluded between him and the broker and its components and in particular by non-compliance with these terms and conditions.
4.7 The broker is not liable for delays or obstacles to performance that are based on circumstances outside his area of responsibility. In particular, the broker is in no way liable for damages caused by the actions of third parties (in the case of consumer contracts this does not apply to vicarious agents within the meaning of § 1313a ABGB), force majeure, actions of the customer or by other causes beyond the broker’s sphere.
4.8 The substitute obligation of the broker for all personal and property damages, which the addressee or prospective customer in the context of the inspection of an object offered by the broker, in particular also a building site, develops, is impossible. This applies regardless of whether the obligation to maintain the object or the construction work carried out by the broker, on its behalf or by third parties or on their behalf. This disclaimer of liability also applies to third parties, in particular to those persons who participate in a survey with the will or the addressee
V. Consumer protection, data protection
5.1 For transactions with customers who are consumers within the meaning of the KSchG, reference is made to the provisions of the KSchG, in particular the right of withdrawal regulated in §§ 3 and 30a. This is handed over by the broker in its mediation activity to the consumer in writing.
5.2 Insofar as the KSchG in its current version provides for mandatory provisions that contradict these terms and conditions, the corresponding provisions of the KSchG shall prevail over those of these GTC.
5.3 When storing and processing customer data, the broker will observe the relevant statutory data protection provisions in the currently valid version.
5.4 The customer agrees that his data in connection with the execution of the contract in compliance with statutory provisions and the creation of connection data, stored by the broker. Connection data is deleted immediately if the purpose required for storage is removed. The customer further expressly agrees that his data will be used for marketing purposes by the broker. This declaration of consent can be revoked by the customer in writing at any time.
VI. Place of fulfillment, place of jurisdiction, choice of law
6.1 Place of performance is the registered office of the broker in 6365 Kirchberg. For consumers, the provision of § 14 KSchG applies.
6.2 For all disputes resulting from or in connection with contracts or agreements between the customer and the broker Kitzbühel and the exclusive jurisdiction of the district court Kitzbühel are agreed as far as permissible as the exclusive place of jurisdiction.
6.3 The parties agree to the exclusive applicability of Austrian law.