General Terms and Conditions SW Consultancy e.U.
Validity of the GTC
These General Terms and Conditions (hereinafter referred to as
GTC) are the basis for the business activities of SW Consultancy e.U.,
Peter-Melcher-Straße 14-Top 2, 9524 Villach, Austria, telephone number
+43 676 3400894, e-mail daphne@swconsultancy.eu (hereinafter referred to as “SW Consultancy e.U.) and form an integral part of all SW Consultancy e.U. concluded (brokerage) contracts, agreements, offers, assessments, and other legal declarations with business partners (hereinafter referred to as “client”).
Objection to deviating terms and conditions
By commencing business transactions, the client acknowledges these terms and conditions with approval. Deviating terms and conditions of the client or a third party shall only apply if SW Consultancy e.U. has expressly agreed to their validity in writing.
Subject of the brokerage contract
The basis of the activity
SW Consultancy e.U. is active as a real estate agent. The brokerage activity of SW Consultancy e.U. for a client is carried out based on a brokerage contract (e.g., exclusive brokerage contract, simple brokerage contract,
search order/enquiry), with SW Consultancy e.U., with the brokerage of transactions listed in the Ordinance of the Federal Minister for Economic Affairs on Rules of Conduct and Exercise for Real Estate Agents (“IMV”) or based on another (service) contract. According to the IMV, transactions are in particularly brokerage of purchase, sale, or exchange transactions, of existing contracts (rental and lease agreements) or other rights including timeshare rights and option rights, in each case regarding developed and undeveloped land, apartments, business premises, prefabricated houses and companies as well as company shareholdings.
Conclusion of the contract
A brokerage contract or other assignment can be made expressly (in writing or orally) or conclusively (e.g., by requesting, handing over or sending property data, property documents, plans, arranging a viewing appointment) and shall be deemed to have been granted in particular with the client’s unobjectionable toleration of the activities of SW Consultancy e.U.
Doppelmakler
SW Consultancy e.U. is entitled as a real estate agent by virtue of business use to also act for the other mediated contracting party against payment or free of charge (activity as a double broker).
Reciprocal rights and obligations
Mutual information
SW Consultancy e.U. and the client will make and send each other all necessary and appropriate communications for the respective business or order.
Obligation to cooperate by the client
The client is obliged to provide SW Consultancy e.U. with comprehensive and honest support in its brokerage activities and to provide SW Consultancy e.U.
or the person acting on its behalf with all information necessary for the assessment of the respective transaction and its brokerage. This notification obligation includes the correct and complete provision of all information and facts concerning the object or transaction to be brokered, including its purpose and the intended use of the object. SW Consultancy e.U. must also be informed immediately of any subsequent changes to the client or object or a change in the client’s business intention.
Obtaining permits
The client must obtain all documents or permits that fall within his sphere and are necessary or expedient for the transaction and keep SW Consultancy e.U. continuously informed about the status of the proceedings. If it becomes apparent that a necessary permit or approval cannot be obtained or is no longer applicable, SW Consultancy e.U. must be informed immediately.
Information about conclusion of a transaction
The client must inform SW Consultancy e.U. immediately about the conclusion of a transaction via the brokerage object or an equivalent transaction, as well as its content essential for the calculation of the commission, provided that
SW Consultancy e.U. did not become aware of this directly through the presence of one of its employees and send a copy of the concluded contract to SW Consultancy e.U. upon first request.
SW Consultancy e.U. is entitled to be present at the (notarial) signing of the contract.
Obligations in the case of exclusive brokerage contracts
When concluding an exclusive brokerage assignment, the client is obliged not to commission or use any other broker for the brokerage of the respective transaction for the period of the agreed duration and to inform
SW Consultancy e.U. immediately of those persons (including other brokers) who have contacted the client directly. If, after expiry of the agreed period, there is no mutually agreed extension of the exclusive brokerage assignment, it shall be converted into an indefinite simple brokerage contract that can be terminated in writing at any time.
Subcontracting
SW Consultancy e.U. is entitled to use or commission third parties in their activities and brokerage (sub-brokers, joint and A-meta transactions).
Offers and provision of information; Clarification of known offers
No examination of the information provided by the seller
All information, offers, advertisements, exposés or other communications about objects and business opportunities by SW Consultancy e.U. is carried out to the best of its knowledge and belief and is based on the information and data received and made available by the respective supplier, for the completeness and correctness of which SW Consultancy e.U. assumes no liability.
SW Consultancy e.U. is not obliged to check the accuracy and completeness of the information provided by the seller, but may rely on it, unless the circumstances clearly indicate otherwise.
Liability of the seller for false information
If the client culpably provides incorrect or incomplete information to
SW Consultancy e.U., he shall be liable to SW Consultancy e.U. for any damages and frustrated expenses incurred as a result.
Non-binding Offers
The range of brokerage properties posted by SW Consultancy e.U. on its website and in other media does not yet constitute a binding offer to conclude a (purchase or rental) contract, but an invitation to interested parties to contact and submit an offer, and is subject to change and non-binding until an acceptance of the offer has been accepted by the seller or other mediated third parties (seller, Landlord) and has been received by the client (interested party). We expressly reserve the right to make changes or prior sales. An offeror is bound by his offer declaration for the statutory or expressly specified duration.
Duty to provide information regarding known objects
If the client (interested party) is already aware of a business opportunity proven, brokered, or made known by SW Consultancy e.U. or of the object in question or the transfer, he is obliged to inform SW Consultancy e.U. of this immediately in writing (at the latest within 48 hours of transmission of the information from which this was recognizable). Otherwise, the brokerage is recognized as subject to commission.
Disclosure of information and confidentiality
confidentiality
The client undertakes to treat all information made available to him confidentially and not to pass it on to third parties, not to other real estate service and brokerage companies. Any disclosure by the client to third parties of the business opportunities or objects communicated by
SW Consultancy e.U. and information thereon or interested parties named to SW Consultancy e.U. requires the prior written consent of SW Consultancy e.U. and does not affect the claim to commission (cf. point 6.10. lit c. below).
Liability for disclosure
In the event of a breach of this obligation, the client (interested party) will be liable for commission or subsidiary damages with regard to any receipt of commission and SW Consultancy e.U. will be held completely harmless and indemnified in this regard.
Commissions and remuneration
Brokerage commission and its amount
The activities of SW Consultancy e.U. are subject to a fee. The client is obliged to pay a commission if the transaction to be brokered is concluded with a third party based on the contractual merit-making activity of SW Consultancy e.U. (see point 6.2.). Unless otherwise expressly agreed in writing in individual cases, for example in any special commission agreement with the client (e.g., in the specification for the respective object or in the purchase offer form), the maximum commission rates listed in the IMV for the respective transaction plus 20% VAT shall be deemed to have been agreed as commission for the brokerage activities of SW Consultancy e.U.
Commission claims
The commission claim of SW Consultancy e.U. against the client on the basis of its meritorious activity (see point 6.3.) arises with the conclusion of the transaction to be brokered by corresponding agreement of the parties involved
(e.g. accepted purchase offer, rental offer) and regardless of the time of the conclusion of the transaction and/or further participation by SW Consultancy e.U. in the execution of the business.
Meritability of the broker
The meritorious activity of SW Consultancy e.U. shall also be deemed to exist in the case of mere naming or proof of the business opportunity or, if
SW Consultancy e.U. has contributed to the conclusion of the transaction in a manner other than by naming (e.g. by other intermediary activity with regard to an object or transaction), whereby it is sufficient that the proof or the mediation or naming is one of the causes of the have been a business deal.
Other Brokerage activities
The full commission claim of SW Consultancy e.U. also arises if the transaction is concluded based on meritorious activity of SW Consultancy e.U.
under conditions other than those originally offered or stated in the brokerage contract, if the transaction is based on another property of SW Consultancy e.U. named seller, or if a transaction other than the one originally offered is concluded.
Brokerage of an option contract
The commission claim also arises if an option contract is concluded instead of the transaction originally to be brokered, in which case half of the agreed or due commission is due upon conclusion of the option contract and the other half upon exercise of the option right.
Condition Precedent
The right to commission also exists if a transaction concluded with a condition precedent is dissolved before the condition occurs, if the condition would probably have occurred without the premature termination.
Resolutive Condition and Withdrawal
If the brokered and concluded transaction is dissolved by the occurrence of a resolutive condition, this shall have no effect on the commission claim. The same shall apply in the event of withdrawal or non-execution of the transaction by a party liable to pay commission,
if this is done for reasons for which the withdrawing contracting parties are responsible or is otherwise justified in the person or sphere of this contracting party. In the event of unilateral unjustified withdrawal, the withdrawing party
must reimburse SW Consultancy e.U. not only for its own commission but also for the entire damage incurred as a result, including any loss of commission agreed with the other party (§7 para 2 MaklerG remains unaffected).
Subsequent expansion
If a transaction brokered by SW Consultancy e.U. is expanded or supplemented within three years of its conclusion, a commission claim of SW Consultancy e.U. occurs, whereby the respective increase or extension amount is the basis of assessment for the commission.
In this case, the client is obliged to inform SW Consultancy e.U. immediately of such an addition/expansion of the business.
Obligation to pay commission in the event of a delayed conclusion
The full commission claim also arises if, within three years of the end of the brokerage order, a business transaction is concluded by a client for an object brokered by SW Consultancy e.U. or with a contractual partner brokered by SW Consultancy e.U.
Commission by missing brokerage success
SW Consultancy e.U. is also entitled to commission or compensation for expenses and effort in the amount of the commission agreed for the event of success, if necessary calculated on the basis of a possibly higher actual (purchase) price, if necessary (§15 para 1 MaklerG)
a. contrary to good faith, the transaction specified in the brokerage contract is
not concluded only because the client, contrary to the previous course of
negotiations, fails to take a legal act necessary for the conclusion of the
transaction without any significant reason.
b. With the third party mediated by SW Consultancy e.U., a transaction other
than an equivalent transaction is concluded, provided that the brokerage of
the transaction falls within the scope of activity of SW Consultancy e.U.
- the transaction specified in the brokerage contract is not concluded with the
client, but with another person, because the client has informed the client of
the possibility of concluding the contract announced to him by
SW Consultancy e.U. or the transaction is not concluded with the mediated
third party, but with another person, because the mediated third party has
made the business opportunity known to him, or
- the transaction is not concluded with the mediated third party because a
legal or contractual right of first refusal, repurchase or entry is exercised.
Commission in the event of a lack of brokerage success in the case of exclusive brokerage contracts
In the event of the issuance of an exclusive brokerage order, the
commission/compensation obligation pursuant to point 6.10 shall also be deemed to have been agreed mutatis mutandis if (Section 15 (2) Brokerage Act).
- the exclusive brokerage contract is terminated prematurely by the client in breach of contract without good cause.
- the transaction has been concluded in breach of contract during the duration of the exclusive brokerage contract through the mediation of another broker commissioned by the client, or
- the transaction has been concluded during the duration of the exclusive brokerage contract in a manner other than through the mediation of another broker commissioned by the client.
Remuneration of extra contracts
Assignments placed by clients that are not brokerage contracts within the meaning of the Brokerage Act must always be remunerated separately and independently of a brokerage contract and any transaction to be brokered and the related commission obligation. Unless otherwise agreed, a customary local fee shall apply.
Due date of commission, interest on arrears, set-off
Due date of the commission
as a rule, in deviation from § 10 MaklerG, a brokerage commission is only due with the conclusion of the corresponding written (notarial) contract for the transaction, but no later than 90 days after the legal validity of this transaction (§7 para 1 MaklerG), whichever occurs first, in any case with invoicing. Other claims for commission, or remuneration, in particular in the event of a lack of brokerage success or the brokered transaction, shall become due immediately upon their occurrence.
Consequences of default
In the event of default, SW Consultancy e.U. is entitled to demand 5% interest on arrears as well as reminder fees incurred at a flat rate of € 20 per own reminder and, in addition, any necessary and expedient (extra-) judicial debt collection and collection costs from the client.
Set-off restriction
The client is not entitled to offset his own counterclaims against claims of
SW Consultancy e.U. Excluded from this are counterclaims by consumers in the event of the insolvency of SW Consultancy e.U. or if its counterclaim is legally related to the liability of SW Consultancy e.U., or if this has been established by a court or acknowledged by SW Consultancy e.U.
Joint and several liability
Several clients or persons involved in the brokered transaction on one side owe the entire commission agreed for the transaction to the undivided hand.
Net amounts
Unless expressly stated otherwise, all amounts, commissions and fees are net amounts and do not include any statutory value added tax.
Disclaimer
No liability for information provided by third parties and indirect damage caused by third parties
SW Consultancy e.U. assumes no liability for the topicality, correctness, completeness, and quality of information that SW Consultancy e.U. have been made available by the respective client, and the incorrectness or incompleteness of which is not recognizable (cf. point 4.1. above), or which are provided free of charge by SW Consultancy e.U., insofar as their incorrectness or incompleteness is not expressly known (§ 1300 ABGB).
Furthermore, SW Consultancy e.U. is not liable for indirect damages, consequential damages, loss of profit, pure financial losses, loss of interest and damages arising from claims by third parties or against third parties who are not contractual partners.
Limitation of liability according to the degree of fault
In addition, liability on the part of SW Consultancy e.U. in the event of slight negligence is excluded in any case. If the client is a consumer, the liability of
SW Consultancy e.U. is limited to cases of intent and gross negligence, regardless of the reason for the invoice.
If the client is an entrepreneur, the liability of SW Consultancy e.U. is limited to cases of intent and blatant gross negligence, regardless of the legal grounds.
Exception to the limitation of liability
Excluded from this general limitation of liability are damages resulting from injury to life, limb, health or claims under the Product Liability Act.
Limitation on a case-by-case basis and amount, statute of limitations
Without restriction of the above limitation of liability, any claims for damages shall be limited to compensation for adequate foreseeable damage, but in any case, in the amount of the value of the (brokerage) fee agreed for the event of success. Any claims shall become statute-barred within 3 years from the occurrence of the claim, at the latest 3 years from the termination of the contract.
No guarantee of success
SW Consultancy e.U. assumes no liability, guarantee, or guarantee for the success of a brokerage or for the fact that a transaction taken over for brokerage will be successfully concluded, or for the proper contractual processing and execution of a brokered transaction or its fulfilment, nor for the fact that there are no comparable cheaper properties or financing options on the market.
No liability for third parties
SW Consultancy e.U. is only liable for damages caused by third parties called in by SW Consultancye e.U. for mediation (external experts, sub-brokers) in the event of selection fault.
Valuations
Valuations made by SW Consultancy e.U. within the framework of the brokerage contract or in accordance with a separate agreement of the value or offer price of properties are based on the assessment based on comparative values and the unaudited information and information provided by the client and cannot replace the appraisal of a court-certified expert.
The client acknowledges that the real estate market is exposed to many external influences and is subject to constant change, and therefore reserves the right to make changes to the assessment. SW Consultancy e.U. assumes no liability or guarantee that the client will achieve the estimated price in the event of actual marketing.
Statute of limitations/preclusion
Unless a shorter limitation or preclusive period applies by law or contract, all claims against SW Consultancy e.U. shall lapse if they have not been asserted in court within one year of the claimant’s knowledge of the damage and the damaging party or of the event giving rise to the claim or if they have not been expressly acknowledged in writing by SW Consultancy e.U.
Provisions concerning the website of SW Consultancy e.U.
Copyright
content and structure of the websites operated by SW Consultancy e.U. are protected by copyright. The duplication of information or data, in particular the use of texts, text parts or images is not permitted and requires the prior written consent of SW Consultancy e.U. also property data, documents, checklists or other leaflets in connection with the offer of and the brokerage activities of SW Consultancy e.U. need the written consent of SW Consultancy e.U.
Prohibition of disclosure to third parties
The user of the website of SW Consultancy e.U. is not permitted to pass on any information, in particular about objects and sellers, which he receives on the basis of the data posted on the website of SW Consultancy (rental and purchase marketplace) and/or the dispatch of real estate exposés, to third parties and/or to use it for other purposes, in particular commercial purposes. The information received is exclusively for personal interest in the mediation and must be treated as highly confidential.
Limitation offers
SW Consultancy e.U. reserves the right, at its own discretion, to display a limited selection of available objects or products on its pages on the Internet, in particular if the number of existing offers is particularly high; in connection with such a selection at its own discretion, SW Consultancy e.U. assumes no obligations or liabilities.
Liability for links and websites of third parties
Links to websites of other companies are designed in such a way that the user can clearly see when he leaves the website SW Consultancy e.U. No liability is assumed for the content of third-party websites to which reference is made by means of links, as well as for errors resulting from defective data transmission.
Final provisions, law, place of jurisdiction
Amends of Terms and Conditions
SW Consultancy reserves the right to amend the GTC for future business at any time. The current terms and conditions at the time of the conclusion of the contract, as published on the websites of SW Consultancy e.U., apply.
No verbal collateral agreements, written form requirement
Verbal agreements were not made. All agreements between the parties must be made in writing to be effective; this also applies to changes and additions as well as to the cancellation of this written form clause itself. The use of e-mails or faxes is sufficient to comply with the written form. Proof of receipt is the responsibility of the client.
Severability clause
Should any provision of these terms and conditions be or become invalid or unenforceable, the remaining provisions shall remain unaffected. In this case, the contracting parties undertake to make a provision that comes as close as possible to the economic content of the invalid or unenforceable provision.
Place of performance
Villach shall be deemed to have been agreed as the place of performance for all obligations arising from the contracts concluded with SW Consultancy e.U.
Choice of law
Austrian law shall apply exclusively to the exclusion of the conflict of law rules.
Jurisdiction
Insofar as there is no mandatory place of jurisdiction for the client, for example within the meaning of §14 KSchG, the
exclusive jurisdiction of the court with subject-matter jurisdiction for 9524 Villach, Austria, is agreed for all disputes arising from or in connection with the business relationship between the client and SW Consultancy e.U. (§104 JN).