1. General
1.1. These General Terms and Conditions shall form an integral part of the brokerage contract concluded by you (client or interested party; hereinafter "you" or "the client") with us (hereinafter "ÖRAG" or "we") and shall apply insofar as no deviating agreements have been made in the relevant contract.
1.2. Deviating, contradictory or additional contractual terms and conditions, in particular terms and conditions of the client, shall not become part of the contract under any circumstances. They shall be rejected and shall not apply even if we are aware of them, even if we do not again object to their application in individual cases, in particular when performing or accepting contractual performance.
1.3. These General Terms and Conditions shall not apply to such cases in which the client seeking to find a rental apartment is not the initial principal ("Erstauftraggeber" according to § 17a MaklerG) of ÖRAG. In these cases, a brokerage contract is also not entered into by ÖRAG and the client seeking to find a rental apartment.
2. Operation as a real estate agent
2.1. We act as a real estate agent. The basis for our activity is the contract with our client (sole brokerage contract or simple brokerage contract).
2.2. In principle, we act as a "dual agent" for both contracting parties.
2.3. Our letters and offers, including the property information stated therein, are subject to change without notice; we reserve the right to sell, rent or lease the property in the meantime.
2.4. The transmission of information on an object to the client constitutes an invitation to make an offer to the lessor or seller to rent or purchase the object.
2.5. The information provided to the client on an object shall generally be based on the object data provided by the respective landlord or seller. ÖRAG shall not be liable for the completeness and accuracy of this data.
3. Obligations of the client
3.1. The client is obligated to support our activities in good faith and to inform us immediately and completely about all facts concerning the object or legal transaction to be brokered.
3.2. Furthermore, the client shall be obliged to treat as confidential and not to disclose to third parties any closing opportunities disclosed by us.
3.3. The client shall be obliged to take all steps necessary for the validity of the legal transaction to be brokered by us and to obtain any approvals.
4. Brokerage commission / commission agreement for cases of lack of successful brokerage.
4.1. As a real estate broker, ÖRAG shall be entitled to a brokerage commission in accordance with §§ 6, 7 MaklerG in the event of successful brokerage of a business opportunity; in particular, the commission obligation shall arise upon conclusion of the brokered business (use of the brokered business opportunity) as well as upon conclusion of a transaction with the same purpose as defined in § 6 para. 3 MaklerG. In the absence of any other agreement, a reasonable brokerage commission in line with local practice shall be due.
4.2. The client shall also pay us an amount corresponding to the brokerage commission if (§ 15 Abs 1 MaklerG)
4.2.1. the brokered transaction is not concluded contrary to good faith only because the client, contrary to the previous course of negotiations, fails to perform a legal act required for the conclusion of the transaction without a noteworthy reason (no. 1); or
4.2.2. a transaction is concluded with the brokered interested party other than a transaction for the same purpose, the brokerage of which falls within the scope of our activities (no. 2); or
4.2.3. the brokered transaction concerning an object offered by us is not concluded with the client but with a person to whom the client has disclosed the possibility of concluding the transaction made known to him by us or is not concluded with the interested party named by us but with another person to whom the possibility of concluding this contract was made known by the same interested party (no. 3); or
4.2.4. is not concluded with the mediated third party because a statutory or contractual right of first refusal, right of repurchase or right of entry is exercised (no. 4).
4.3. In the case of a sole brokerage contract, the client shall furthermore pay us an amount corresponding to the brokerage commission if (§ 15 Abs 2 MaklerG)
4.3.1. the sole brokerage contract is terminated prematurely by the client in breach of contract without good cause (no. 1); or
4.3.2. the transaction is concluded during the term of the exclusive brokerage agreement through the mediation of another broker commissioned by the client in breach of the agreement (no. 2); or
4.3.3. the transaction was concluded during the term of the exclusive brokerage agreement in a manner other than through the mediation of another broker commissioned by the client (no. 3).
4.4. Only for entrepreneurs: If an offered object is already known to the client as being for sale or rent, this must be communicated to us immediately, otherwise the offer made by us shall be deemed to have been accepted.
4.5. If the client rents or purchases one or more additional premises within the relevant building or the building complex consisting of several parts within 12 months from the conclusion of a purchase agreement brokered by us or the commencement of a rental relationship brokered by us, irrespective of whether these additional premises are connected to the originally brokered premises, this additional rental/purchase agreement or such extension of the existing rental agreement shall also be subject to the commission obligation concluded with the client on the brokerage of the original premises. In this case, the client shall owe an amount corresponding to the brokerage commission to the extent of the extension or additional rental or additional purchase. The client is obliged to inform us immediately about such contract conclusions/extensions.
5. Cooperation with other brokers
5.1. In order to speed up the fulfilment of the order to mediate a legal transaction, we shall be entitled to use the services of other authorized brokers at our discretion if this appears expedient to increase the chances of mediation.
6. Cancellation and withdrawal rights for consumers within the meaning of the Consumer Protection Act (KSchG).
6.1. Clients who are consumers within the meaning of Directive 2011/83/EU have the right to withdraw from a contract concluded with us by means of distance selling (§ 3 Z 2 KSchG) or outside business premises (§ 3 Z 1 KSchG) without stating reasons in accordance with the following points.
6.1.1. The period for withdrawal is 14 days and begins with the day of the conclusion of the contract.
6.1.2. In order to exercise his right of withdrawal, the client must inform us of his decision to withdraw from this contract by means of a clear declaration by mail (ÖRAG Immobilien Vermittlung GmbH, Bankgasse 1, 1010 Vienna) or by e-mail (office@oerag.at). For this purpose, the sample revocation form provided may be used, which is, however, not mandatory.
6.1.3. In order to comply with the revocation period, it shall be sufficient for the client to send the notification of the exercise of the right of revocation before the expiry of the revocation period.
6.1.4. In the event of withdrawal from the contract with ÖRAG, the performance of which ÖRAG has already commenced on the basis of a corresponding request by the consumer prior to the expiry of the withdrawal period (§ 10 FAGG), the consumer shall be obligated to pay ÖRAG an amount which, in comparison to the contractually agreed total price (brokerage commission), corresponds proportionately to the services rendered by the entrepreneur up to the point of withdrawal (§ 16 FAGG).
6.1.5. The right of withdrawal shall not apply if we - on the basis of an express request by the client as well as a confirmation by the client of its knowledge of the loss of the right of withdrawal in case of complete performance of the contract - have started to perform the order before the expiry of the 14-day withdrawal period and have completely fulfilled the order (e.g. by naming the business opportunity). If our service has already been partially performed before the declaration of withdrawal, the client shall be obliged to pay a pro rata commission.
6.2. If the client makes a contractual declaration aimed at the acquisition of a tenancy right, other right of use or ownership of an apartment, a single-family house or a property suitable for the construction of a single-family house on the same day on which he has inspected the contractual object for the first time, he may withdraw from his contractual declaration pursuant to § 30a of the Consumer Protection Act (KSchG), provided that the acquisition is intended to meet the urgent housing needs of the client or a close relative. The withdrawal can be declared within one week after the contract declaration of the client. If the declaration of withdrawal is addressed to us, the withdrawal shall also apply to a brokerage contract concluded in the course of the contractual declaration. The one-week period shall commence upon receipt of a duplicate of the consumer's contractual declaration and a written instruction on the right of withdrawal. However, the right of withdrawal shall expire no later than one month after the day of the first inspection.
6.3. According to § 3a of the Consumer Protection Act (KSchG), the client may withdraw from the contract (application) if circumstances relevant for his consent, which we have presented as probable in the course of the contract negotiations, do not occur or only occur to a significantly lesser extent without his instigation. Relevant circumstances in this sense are (i) the expectation of the cooperation or consent of a third party required for our performance to be rendered, (ii) the prospect of tax benefits, and (iii) the prospect of a loan. The withdrawal may be declared within one week after the non-occurrence or significantly lower occurrence of one of the aforementioned circumstances becomes apparent and as soon as he has received written notification of this right of withdrawal. However, the right of withdrawal shall expire no later than one month after the complete fulfilment of the contract by both contracting parties.
7. Liability
7.1. ÖRAG and third parties acting on behalf of ÖRAG shall not be liable to the client and third parties attributable to the client for damages caused by slight negligence.
7.2. ÖRAG shall not be liable for loss of profit, damages caused by delay, consequential and indirect damages.
7.3. Any liability for faulty advice or mediation shall be limited to the amount of the insured sum of the respectively applicable pecuniary loss liability insurance available for the specific case of damage. This does not apply to personal injury and grossly culpable damage.
8. Place of Jurisdiction / Applicable Law
8.1. For all disputes arising from or in connection with contractual relations between us and our client, the exclusive jurisdiction of the competent court in Vienna, Austria, is agreed. We reserve the right, however, to also assert claims against the client at his general place of jurisdiction. Mandatory places of jurisdiction, which are applicable e.g. due to the possible consumer status of the client, shall remain unaffected.
8.2. Austrian substantive law shall apply exclusively, to the exclusion of conflict-of-law rules, in particular those of private international law and the UN Convention on Contracts for the International Sale of Goods (UN-K/CISG).
9. Final provisions
9.1. The invalidity of one or more provisions of these General Terms and Conditions or a related contractual relationship shall not affect the validity of the remaining provisions.
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