Standard Terms of Business
This English translation of our Standard Terms of Business is provided for your convenience. In case of any discrepancy or dispute, the original German version prevails.
1. Principles of our brokerage services
The Winters & Hirsch Real Estate Advisory GmbH & Co. KG specialises in opportunity identification and/or brokerage of real estate. All broker appointments are handled with utmost care in the interest of our clients and in accordance with the principles of a prudent businessman. The services provided by us are governed by Sections 652 ff. German Civil Code [BGB], Section 34c German Trade, Commerce and Industry Regulation Act, and German Real Estate Agents and Property Developers Ordinance [MaBV].
The present Standard Terms of Business govern the mutual rights and duties arising from the brokerage agreement.
We are entitled to provide services, paid or unpaid, to the respective other party to the intended main contract also.
2. Property particulars – statements, non-binding offer
The statements contained in our property particulars are based on information received by third parties, particularly seller/landlord. We do our utmost to obtain complete and correct information. We cannot, however, assume any liability for correctness and completeness.
The opportunities identified by us are non-binding and subject to prior sale.
3. Confidentiality of offer
Our offers and communications are intended only for the client (the party obliged to pay commission) or the party directly addressed by us, and must not be disclosed to third parties. Should a main contract be concluded due to unauthorised disclosure, the client (the party obliged to pay commission) or party addressed is to pay a contract penalty in the amount of the commission stated in the property particulars or the amount agreed.
4. Prior knowledge
If the client (the party obliged to pay commission) has prior knowledge of a contract opportunity identified by us, they are under obligation to immediately notify us of the fact and their source in writing, within eight days at the latest, and produce evidence on request. In case of violation, clause no. 5 para. 3 applies. Until evidence of prior knowledge has been produced, our opportunity identification is deemed causal for the conclusion of the main contract.
5. Obligation of cooperation and notification
The client (the party obliged to pay commission) is to refer to our involvement as broker in the course of direct negotiations and immediately inform us about the content of such negotiations. We are entitled to be present at closing; time and place are to be communicated in to us writing well in advance. The client (the party obliged to pay commission) shall provide us with a copy of the concluded main contract.
Should the client (the party obliged to pay commission) abandon their intention to conclude a contract, or should the mandate given to us become otherwise redundant, the client shall immediately inform us in writing.
Should the client (the party obliged to pay commission) violate their duty to inform, we are entitled to reinbursement for expenses incurred in connection with advertising, insertions, property particulars, travel, postage, photocopies, etc. in the amount of five percent of the agreed commission and – in case where the violation causes the loss of claim for commission – a further lump sum in the amount of 20 percent of the agreed commission for our time and lost profits. The client (the party obliged to pay commission) has the right to prove lesser damage.
6. Commission rate
Our brokerage services are subject to contingent fees at the rate stated in the respective property particulars. Our commissions are subject to VAT at the applicable rate.
7. Establishment of claim for commission
Our claim for commission is established as soon as our opportunity identification and/or brokerage services have resulted in the conclusion of the intended main contract. It is sufficient if the services rendered by us are concurrently causative.
The claim for commission is also established if the main contract is concluded at a later point in time, or on different terms, so far as a similar economic outcome is produced for the client (the party obliged to pay commission).
8. Due date of payment of commission
The commission is earned and due for payment in full on the day of conclusion of the main contract. Payment is to be made into the bank account stated in our invoice. If the client (the party obliged to pay commission) is late with their payment, the commission is subject to default interest at a rate of eight percent above base rate, according to statutory regulations. If the client is a consumer, the default interest rate is five percent above base rate. We reserve the right to claim further interest or damages.
9. Compensation for damages
Claims for compensation for damages against us are excluded unless they are based on willful or grossly negligent behaviour. The statuet of limitation for claims for damages is three years beginning with the arising of the claim.
10. Place of performance, place of jurisdiction, applicable law
Place of performance and jurisdiction for brokerage agreements with legal entities is Berlin. Any contractual relationship with our client is governed solely by the laws of the Federal Republic of Germany.
11. Final provisions
Deviations or alterations to these Standard Terms of Business are subject to our written approval.
Any brokerage agreement entered into by us is based solely on our Standard Terms of Business even if standard terms of business otherwise worded are not contradicted; such are ineffective and will become subject matter of a brokerage agreement only upon our express written acknowledgement.
Should any provision of our Standard Terms of Business be ineffective, the effectiveness of the other provisions and the brokerage agreement remain unaffected. Both parties shall replace such ineffective provision, or a gap, by such provision as comes closest to the economic purpose orginally intended.
Winters & Hirsch Real Estate Advisory GmbH & Co. KG
Effective: April 2016