I. General part
(1) These general terms and conditions (hereinafter referred to as “GTC”) in the currently valid version apply to the entire business relationship between the customer and MONREAL Immobilienmanagement GmbH, based in 1040 Vienna, Schwindgasse 6 / 1st floor (hereinafter referred to as the “broker”).
(2) Any existing general terms and conditions or other standardized contractual conditions of any kind of the customer are superseded and replaced by these GTC. Terms and conditions that deviate from these are not applicable even if documents or declarations from the respective contractual partner refer to them.
(3) Deviations from these GTC are only binding if they were expressly agreed in writing before or during the conclusion of the contract.
(4) No contract is concluded under conditions other than those set out in these GTC or deviations expressly recognized in writing by the broker, without prejudice to any commission claim of the broker based on another legal basis.
(5) Changes to the General Terms and Conditions become legally valid for all current and future business relationships at the beginning of the month following notification to the customer, unless the broker receives a written objection from the customer by this time. The publication of the General Terms and Conditions on the broker’s website at www.monreal.at is also deemed to be notification in this sense.
(6) The contractual relationship is subject to these General Terms and Conditions and the relevant statutory provisions, in particular the Brokerage Act BGBl 1996/262 in its current version, the Ordinance of the Federal Minister for Economic Affairs on the Professional and Practice Rules for Real Estate Agents (IMV, BGBl 297/1996 in its current version) and the Consumer Protection Act BGBl 1979/140 in its current version.
(7) Unless there is a mandatory statutory provision to the contrary, the General Terms and Conditions take precedence over the statutory provision. Should individual provisions of the General Terms and Conditions be invalid or unenforceable, this will have no effect on the remaining provisions. The invalid or unenforceable provision is deemed to be replaced by a provision that comes closest to the parties’ will in economic terms.
(8) The broker reserves the right to use other real estate agents to fulfill the contract, provided that the amount of commission is not affected by this. In general, the broker is authorized to transfer his duties or the entire contract to a third party with a debt-discharging effect and is only liable for faulty selection in these cases. In consumer transactions, the broker is authorized, at his own risk, to commission other companies to provide services from the contractual relationship.
(9) Oral side agreements are not valid – with the exception of statements and assurances made to consumers.
II. Offer and conclusion of contract
(1) The contract is concluded exclusively on the basis of these general terms and conditions and the conditions set out in the offer. No written confirmation from the customer or the broker is required to conclude the contract.
(2) Offers from the broker are subject to change and non-binding. In particular, the broker or the seller reserves the right to use the property for other purposes (intermediate sale, rental or leasing) in the meantime.
III. Right to commission
(1) The customer is obliged to pay a commission in all cases mentioned in Section 6 of the Brokerage Act. This obligation applies in particular in the event that the transaction to be brokered is concluded through the broker’s contractually remunerated activity with a third party.
(2) The right to commission arises when the brokered transaction becomes legally effective.
(3) If a customer has already been offered a property offered to him by the broker directly by the seller or another third party (as for sale, rent or lease), the customer must inform the broker of this immediately, but no later than within 48 hours (access) of receiving the broker’s offer, in a verifiable and written manner. If there is disagreement about this, the burden of proof lies with the customer. A violation of this provision gives the broker a right to commission in the event of a valid contract being concluded for the property offered.
(4) The broker’s entitlement to commission is void for the reasons stated in Section 7 Paragraph 2 of the Brokerage Act. In the case of a suspensive condition, the broker’s entitlement to commission still exists even if the conditional contract is terminated before the condition occurs, but the condition would have occurred without early termination.
(5) The broker’s entitlement to commission arises when the brokered property and business partner are named, regardless of whether the brokered contract is concluded with or without the broker’s intervention and regardless of when it was concluded.
(6) The amount of the commission claim is based on the actual economic consideration. Extensions to the contract concluded between the customer and the seller that are economically related to the brokered property, but not restrictions on this contract, affect the amount of the broker’s entitlement to commission, provided that these extensions are agreed within six months of the original contract becoming legally effective.
IV. Payment conditions
(1) The amount of the commission is based on the prices applicable at the time the contract is concluded and announced in the offer.
(2) All payments to be made by the customer under the contract are due within 14 days of the invoice date without deduction.
(3) The customer must immediately notify the broker in writing of any changes to his name, his paying agent, a change of authorized representative bodies and changes to the legal form, company name, company name or company registration number. If no notification of a change has been made in this regard, documents are deemed to have been received by the customer if they were sent to the address last provided by him or – if he is not a consumer – to the paying agent.
(4) All prices quoted are in euros. Sales tax and any additional fees and charges are shown separately.
(5) In case of doubt, payments made by the customer himself will be credited to the oldest debt, regardless of any declarations to the contrary by the customer (if he is not a consumer within the meaning of the Consumer Protection Act). The credit is first applied to costs, then to interest and finally to the outstanding capital.
(6) Payments are only deemed to have been made when they have been received in the broker’s account. The customer bears the risk of incorrect or delayed transfers.
(7) The retention of payments that are not based on the same contractual relationship or the offsetting of counterclaims that have not been legally established or have not been recognized by the broker is not permitted. This prohibition on offsetting and retention does not apply to consumers within the meaning of Section 1 of the Consumer Protection Act.
(8) If the customer defaults on a payment, the broker is entitled to charge the customer default interest of 9% per annum, the actually incurred necessary and appropriate reminder and collection costs, whereby the broker can also use third parties, as well as the incurred appropriate lawyer’s fees in accordance with the Lawyers’ Tariff Act in the current version. The broker expressly reserves the right to assert any further damages.
(9) The customer is advised that the broker is entitled to hand over the pursuit of his claim to a debt collection agency or a lawyer after the first reminder stage.
(10) If the customer defaults on payment of a not inconsiderable amount of the invoice and has been reminded unsuccessfully with a two-week grace period, any discounts granted after the invoice has already been issued are obsolete and the amount of commission originally agreed (before the invoice was issued) is due.
V. Warranty, liability
(1) All information and details relating to the brokered property are passed on with due care of a proper real estate agent. No guarantee is given for the accuracy of this information or details.
(2) The broker is otherwise liable to the customer based on the statutory warranty and liability provisions. Liability for a specific quality of the brokered property is excluded unless this is a property of the property expressly promised to the customer.
(3) The broker assumes no liability for the legal design and content of the contract concluded for the property. If the customer so wishes, the broker will be happy to put him in touch with a lawyer entrusted with the matter. Any legal advice costs incurred are to be paid by the customer.
(4) As a result of any faulty service, the broker is only liable in the event of gross negligence or willful misconduct. Personal injuries to consumers are excluded from this. Any further liability of the broker, in particular for consequential damages, is excluded in full towards entrepreneurs and only in the case of slight negligence towards consumers. In particular, no liability is accepted for any kind of deficiency in the service offered that is due to force majeure or other circumstances for which the broker is not responsible.
(5) The broker’s liability is limited to EUR 10,000.00 for each event causing damage to the entire group of injured parties and to EUR 2,000.00 for individuals. Insofar as the contractual relationship is subject to the Consumer Protection Act, this amount limit only applies in the case of slight negligence and not for personal injury.
(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 due to non-compliance with these General Terms and Conditions.
(7) The broker is not liable for delays or hindrances to performance that are due to 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 Section 1313a ABGB), force majeure, actions of the customer or other causes outside the broker’s sphere of influence.
VI. Consumer protection
(1) With regard to customers who are consumers, reference is made to the provisions of the Consumer Protection Act, in particular the right of withdrawal regulated in Sections 3 and 30a.
(2) If the Consumer Protection Act in its current version provides for mandatory provisions that contradict these General Terms and Conditions, the corresponding provisions take precedence over those of these General Terms and Conditions.
(3) In particular, the place of jurisdiction for consumer transactions is the court of the consumer’s place of residence, habitual residence or place of employment. In this case, the place of jurisdiction regulated in point 8.2 is merely an elective place of jurisdiction.
VII. Data protection
(1) When storing and processing customer data, the broker will observe the relevant statutory data protection provisions in the currently valid version.
(2) The customer agrees that his data may be stored by the broker in connection with the execution of the contract in compliance with statutory provisions, including by creating connection data. Connection data will be deleted immediately if the purpose for which it was stored no longer applies.
(3) The customer expressly agrees that his data may be used by the broker for marketing purposes. This declaration of consent can be revoked at any time.
VIII. Place of performance, choice of law, place of jurisdiction
(1) The place of performance is Vienna, Innere Stadt. Section 14 of the Consumer Protection Act applies to consumers.
(2) For all disputes arising from or in connection with contracts between the customer and the broker, Vienna is agreed as the exclusive place of jurisdiction and the exclusive jurisdiction of the Vienna Commercial Court, as far as permissible.
(3) The parties agree that Austrian law shall apply exclusively.