DISCLAIMER (non-binding translation): The following English text is an unofficial translation of the German “Allgemeine Geschäftsbedingungen”. It is provided for information purposes only. In the event of any discrepancy, solely the German version is legally binding.
These General Terms and Conditions (AGB) govern the legal relationship between principals (sellers and interested parties) and Trident Immobilien GmbH (broker) in the brokerage of real estate. They take into account the current legal situation as stipulated by the Real Estate Broker Act (MaklerG), the Real Estate Broker Ordinance (IMV), the Austrian Civil Code (ABGB), the Consumer Protection Act (KSchG), the Distance and Off-Premises Contracts Act (FAGG) and the Special Professional Rules for Real Estate Brokers. A summary of the provisions essential to brokerage activities can be accessed at www.trident.co.at. If the brokerage agreement contains more specific provisions, these shall take precedence over the AGB.
Unless excluded in an individual case, the broker will act in the interests of both parties (seller and interested party) and will therefore take into account the interests of both principals.
The seller must provide the broker with all information required for the brokerage and—where available—hand over documents or grant the authority necessary to obtain such documents and information. All changes to the terms of sale must be coordinated with the broker.
Property offers made by the broker are subject to change and non-binding. The interested party has no claim to the seller’s acceptance of his offer even if it fully corresponds to the property offer. Unless expressly agreed otherwise, the broker is not authorised to conclude contracts. The interested party is not entitled to make use of the broker’s information if he withdraws from the brokerage agreement while exercising a right of withdrawal. The seller is not entitled to negotiate the conclusion of the transaction with an interested party who became aware of the opportunity through the broker if the broker notifies him that the interested party is withdrawing from the brokerage agreement and the seller is unwilling to assume the purchaser’s or tenant’s commission.
Information about a property is provided with the care of a diligent real estate broker. The broker has no influence over information supplied by third parties. The principal is obliged to disclose all circumstances essential to the brokerage of the property, including all defects known to him and other material or value-determining factors. In consumer transactions, the broker’s liability for financial loss is limited to cases of intent or gross negligence, except for damages arising from the breach of essential contractual obligations, bodily injury or death. In all other cases, statutory liability provisions apply. If the principal is an entrepreneur, the broker is liable only for intent and grossly gross negligence, except for bodily injury or death, and liability is limited to an insured sum of € 2,000,000. The broker will advise both contracting parties objectively and neutrally. Because the broker normally acts for both parties, we recommend consulting experts for contract review and for assessing economic efficiency and tax implications if necessary.
If the principal is already aware of a property offered by the broker as a business opportunity, he must notify the broker of this in writing without delay, enclosing appropriate evidence.
The right to commission arises under § 7 MaklerG when the brokered transaction becomes legally effective (i.e., when agreement is reached or any condition is fulfilled) and—unless a later due date has been agreed—becomes due immediately, independent of invoicing. The amount of the commission is communicated to the consumer before conclusion of the contract. Naming the business partner suffices for brokerage. The commission claim lapses only if the principal proves that the transaction is not executed for reasons not attributable to him, that enforcement of the obligation to perform fails or is unreasonable for reasons not attributable to the principal. Any commission reduction must be agreed in writing and is conditional on payment of the reduced amount being credited to the broker’s account within one week; otherwise, the full amount becomes due. In the event of culpable payment default, the broker may charge default interest at the permissible rate (4 % for consumers, otherwise 9.2 % above the base rate under § 456 UGB) and, if legal assistance is used, collection costs under RATG, provided they are necessary and proportionate. The broker is also entitled to commission if a transaction of equivalent purpose is concluded or the contract is concluded under other conditions. In such cases, the commission permissible under the IMV for that transaction is deemed agreed. For a follow-up transaction within three years, the broker is entitled to a supplementary commission (e.g., a later purchase following an initial lease). This applies even if the broker was not involved in the follow-up transaction. For extensions of fixed-term leases, the IMV supplementary commission rates apply. If an option contract is brokered, 50 % of the applicable maximum commission is payable upon granting the option right and credited upon exercise. If the interested party opts for an option contract instead of a lease or purchase, the broker is entitled to 50 % of the agreed commission upon the option contract’s legal effectiveness. If the permissible commission is not exhausted, the broker may agree 50 % of the legally allowable buyer’s commission as option commission; the balance is due upon exercise. The parties agree that the broker is entitled to the agreed commission if the transaction fails because the principal, contrary to prior negotiations, omits an act required for completion without good reason (withdrawal in bad faith). This obligation also applies if another, non-equivalent transaction is concluded with the party introduced by the broker, or if the specified transaction is concluded with another person due to disclosure by the principal or the introduced party, or if a statutory or contractual pre-emption, repurchase or entry right is exercised. It also applies if an exclusive brokerage agreement is terminated prematurely without good cause or the transaction is concluded during the exclusive period through another broker or by other means. In consumer transactions, this provision applies only if additionally agreed in writing in the brokerage contract.
The broker reserves the right to broker the property through a joint transaction (Gemeinschaftsgeschäft). No additional costs arise for the principal.
Right of withdrawal for consumers: If the interested party is a consumer within the meaning of the KSchG, various withdrawal rights apply. The consumer is fully informed of these rights in the separate information statement attached to and delivered with these AGB.
Place of performance is Vienna. In business transactions with entrepreneurs and in consumer transactions where, at the time of action, the consumer has neither residence nor habitual abode in Austria and is not employed in Austria, the court competent for Vienna’s 4th district has jurisdiction. Austrian law applies, excluding conflict-of-law rules and the UN Convention on Contracts for the International Sale of Goods; for consumers, this choice applies only insofar as mandatory provisions of the law of their habitual residence are not displaced.
For entrepreneurs, the following also applies: Should individual provisions of these AGB be wholly or partly invalid, this does not affect the validity of the remaining provisions or contracts concluded on their basis. The invalid provision shall, in contracts with entrepreneurs, be replaced by a provision that most closely reflects the purpose and intent of the invalid provision.