GENERAL TERMS AND CONDITIONS OF YS REAL ESTATE GMBH
The following General Terms and Conditions (hereinafter referred to as „GTC“) apply to all contracts and legal transactions between YS real estate GmbH, with the business location at Friedrichstraße 90, 10117 Berlin (hereinafter referred to as „Agent“), and the Customer. „Customer“ within the meaning of the GTC is the contractual partner of the Agent; he/she may be the seller or prospective seller or the buyer or prospective buyer of a real estate.
If the term „Main Contract“ is used in the GTC, this refers to the contract by which the real estate which is the subject of the Estate Agency Contract is sold or acquired by the Customer (i.e., in particular, the purchase contract for the real estate, but includes also other contracts leading to the same economic result, see sec. 5 of the GTC). The party who concludes the Main Contract with the Customer (i.e. the buyer or seller of the real estate) is hereinafter referred to as the „Main Contractual Partner“.
Terms and conditions of the Customer that conflict with, deviate from or amend the GTC and which are not expressly recognised by the Agent shall not apply, even if the Agent does not expressly object to them.
§ 1 Conclusion of the Estate Agency Contract
1.1 No written form is required for the conclusion of the contract between the Customer and the Agent (the „Estate Agency Contract“). The Estate Agency Contract can also be legally effective if the Agent offers a property (e.g. on the Internet, in the newspaper or on a notice board), is identified as an agent, specifies his commission claim in the event of success and an interested party turns to him to request services from him (e.g. request for an exposé); in this case, the Estate Agency Contract is concluded orally or by implication.
1.2 In case of a written Estate Agency Contract, the provisions made there shall prevail over the GTC.
§ 2 Agent’s activities for both sides (seller and buyer); mutual obligations
2.1 The Agent may work on behalf of both the seller and the buyer.
2.2 The Agent and the Customer shall attempt to assist the contractual partner in the fulfilment of its obligations by providing information or expertise in order to facilitate a smooth and efficient workflow.
§ 3 Confidentiality; prohibition on disclosure
All information, including the Agent’s property records, is intended exclusively for the Customer. The Customer is prohibited from passing on the evidence of a property and property information to third parties without the prior written consent of the Agent. If the Customer breaches this obligation and the third party or another person to whom the third party has passed on the information concludes the Main Contract, the Customer is obliged to pay the Agent the agreed commission.
§ 4 Duty to disclose prior knowledge; power of attorney of the seller
4.1 If the Agent provides the Customer, who is a prospective buyer, with evidence of a property that is already known to the Customer, the Customer is obliged to reject in writing or in text form the evidence of the Agent without undue delay, but at the latest within 14 days after the evidence was provided to the Customer. In this case, the Customer shall also inform the Agent of how and when he/she gained knowledge of the property.
4.2 If the Customer does not refer to the prior knowledge according to § 4.1 within the period stated there, he/she is not entitled to refer to prior knowledge. In the event that the Main Contract is concluded, he/she shall be obliged to pay the Agent’s commission.
4.3 If the Customer is the seller of a real estate, he/she is obliged, before concluding the Main Contract, to inquire with the Agent (by stating the name and address of the buyer) whether the intended conclusion of the contract was caused by the Agent’s actions. This intends to allow the Agent to check whether the Main Contract has been concluded as a result of his activity (i.e. providing the Customer with the opportunity to conclude a contract or brokerage of a contract).
4.4 If the customer is a seller or potential seller, he hereby grants the broker power of attorney to inspect the land register and official files (in particular building files) and grants the broker all the information and inspection rights vis-à-vis the WEG administrator to which the customer is entitled as the owner of the condominium, in each case with regard to the property covered by the main contract.
§ 5 Commission; substitute and follow-up transactions; reimbursement of expenses
5.1 The Agent’s claim to commission arises as soon as the Main Contract is concluded on the basis of the evidence of the opportunity to conclude the Main Contract or the brokerage of the Main Contract. The commission claim of the Agent is due upon conclusion of the effective Main Contract. This shall also apply if the Main Contract is only concluded after the termination of the Estate Agency Contract but as a result of the Agent’s actions.
5.2 The Agent’s claim to the commission shall not lapse if the Main Contract provided or brokered is subsequently revoked or otherwise cancelled.
5.3 If no other commission rate is stated in the advertisement or exposé, the commission amounts to 7.14% of the total purchase price stated in the Main Contract, including statutory value-added tax (currently 19%). The total purchase price determining the commission is the purchase price plus any other services the Customer may provide to the Main Contractual Partner (e.g. assumption of land charges (Übernahme von Grundbuchlasten), payment for furnishings (Ablöse für Einrichtungen), etc.). A subsequent reduction of the purchase price under the Main Contract does not affect the commission claim of the Agent.
5.4 The acquisition of a (ideal or real) share (ideeller oder realer Anteil) in the real estate or the granting of inheritable building rights (Erbbaurechte) and the like, as well as the granting of shareholdings, shall also be regarded as a Main Contract causing the Agent’s commission if the contract corresponds economically with the purpose of the Estate Agency Contract. The conclusion of the Main Contract by a natural or legal person (instead of the Customer) who has a close and permanent legal or personal relationship with the Customer shall also be deemed to be a contract causing the Agent’s commission.
5.5 If, instead of the originally intended transaction, the Main Contract for another property is concluded between the Customer and the (intended) Main Contractual Partner or if the property is transferred by way of a compulsory execution (Zuschlag im Rahmen der Zwangsver-steigerung), the Customer shall also be obliged to pay the Agent the agreed commission.
5.6 The obligation to pay the agreed commission also applies if, due to the contact between the Customer and the Main Contractual Partner, further properties of the Main Contractual Partner become known to the Customer within twelve months and the Customer acquires one or more of these properties. If a commission has been agreed with the seller of the property in question, the seller is also obliged to pay the commission to the Agent.
5.7 The Customer is obliged to reimburse the Agent for proven expenses incurred in fulfilling the Estate Agency Contract (e.g. advertisement, Internet appearance, telephone costs, postage costs, property inspections, travel costs) if a Main Contract should not be concluded.
§ 6 Limitation of liability
6.1 The Agent points out that the property information provided by him to the Customer originates from the seller or from a third party commissioned by the seller and has not been checked for accuracy by the Agent. It is the Customer’s responsibility to check the accuracy of this information. The Agent, who merely passes this information on, accepts no liability for its accuracy.
6.2 In the event of a breach of duty, the Agent shall only be liable for damages and reimbursement of expenses in the event of intent, gross negligence and a slightly negligent breach of a material contractual obligation (i.e. a contractual obligation the breach of which would endanger the purpose of the contract and/or the fulfilment of which the customer may rely on because it is the only way to enable proper performance of the contract). In the event of a slightly negligent breach of a material contractual obligation, the liability of the Agent is, however, limited to the typical contractual damage foreseeable at the time of conclusion of the contract. Insofar as the Agent’s liability is limited or excluded, this shall also apply to any liability of his employees or other persons used to perform the Agent’s obligations.
6.3 The exclusions and limitations of liability specified in § 6.2 shall not apply in the event of fraudulent concealment of a defect or in the event of damage resulting from injury to life, health or physical injury.
6.4 The limitation period for Customer’s claims for damages against the Agent is two years. It commences at the point in time at which the action triggering the obligation to pay damages has been committed. If the statutory provisions lead to a shorter limitation period for the Agent, these statutory limitations shall apply. The aforementioned restriction of the limitation period does not apply in case of an intentional or grossly negligent breach of duty or, in case of (slightly negligent) injury to life, health or physical injury or in case of (slightly negligent) breach of a material contractual obligation (contractual obligation, the breach of which would endanger the purpose of the contract and/or the fulfilment of which the Customer may rely upon because it is the only way to enable proper performance of the contract).
§ 7 Communication
7.1 Unless a specific communication channel and, if applicable, precautions against access by third parties have been expressly agreed by a written agreement, the Agent shall fulfil his contractual duty to provide information by transmitting the information by ordinary e-mail or by post. The contact details provided by the Customer in this respect are applicable until notification of a change.
7.2 The Customer is hereby informed that, in particular, communication by e-mail is not protected against access by third parties unless sender and recipient have taken appropriate technical precautions (in particular encryption).
§ 8 Applicable law and place of jurisdiction
8.1 The legal relationship between the Agent and the Customer shall be governed exclusively by German substantive law under exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
8.2 If the Customer is a merchant within the meaning of the German Commercial Code (HGB), the place of jurisdiction shall be the registered office of the Agent. Otherwise, the statutory provisions shall apply.
§ 9 Severability clause
Should individual provisions of the GTC be or become invalid or unenforceable in whole or in part, this shall not affect the validity of the remaining provisions of the GTC.