General Terms & Conditions (GTC)
General Terms of Business of BNP Paribas Real Estate GmbH
Our offers are based on the information provided to us; they are made to the best of our knowledge and belief. They are subject to confirmation and are not binding. They are made with the proviso of possible error or prior sale / prior letting.
2 Passing on of Information or Documents
Our offers and notifications are intended only for the client, are to be treated as confidential and must not be made available to third parties. If the client does pass them on to third parties and if the third party then concludes a main contract that under these General Terms of Business would have been subject to commission, the client undertakes to pay the relevant commission as governed by these terms. This shall be without prejudice to any further claim for damages on the grounds of unauthorized forwarding of information.
3 Intermediate Brokers and Shared Business
We are entitled to engage other persons and to transfer a part of the commission to them. On request, we are ready to disclose whether, to whom and in what amount such payments have been or are being made.
4 Entitlement to Payment of Commission
Our entitlement to the payment of commission arises as soon as a main contract relating to the property we have named is concluded on the basis of our notification or brokerage. This stipulation shall apply accordingly even if our services represent only a contributory factor in the conclusion of a main contract. If a main contract is concluded on terms other than those originally offered or if a contract relating to another property held by the contractual partner regarding whom we provided notification is concluded, this shall not affect our right to commission, provided that the concluded transaction is identical in economic purpose with the one we offered or differs from it only to an insignificant extent. The occurrence of a resolutory condition agreed in the main contract shall be without prejudice to our claim to commission. The same applies if the contract is cancelled by the exercising of a contractual cancellation right, provided that said cancellation right is exercised for reasons for which one of the parties is responsible or which lie within the party’s scope of responsibility. Should the main contract subsequently become void for reasons not within the scope of responsibility of the broker, this shall not prejudice our claim to commission. Our entitlement to the payment of commission arises in particular in the event of purchase instead of leasing, acquisition of business shares instead of property and vice-versa, leasehold instead of purchase, and / or exchange instead of purchase or leasing.
5 Due Date of Commission Claim
Our commission claim becomes due when the main contract is concluded. The commission is payable within 14 days of invoicing, without any deductions. If the main contract is concluded without our participation, the client is under the obligation to inform us immediately concerning the key contents of the main contract. The client also undertakes to provide us with a simple copy of the main contract.
6 Commission Rates
The commission rates for our services as listed below apply between the client and ourselves and are to be paid to us by the client once our claim to commission arises in accordance with Figure 4. The commission rates are subject to value-added tax. The obligation to effect payment shall also apply where (i) the contract of sale is concluded not with the client, but with a company associated with the client or with a company established by the client or one of the client’s associated companies for the specific purpose of concluding the contract of sale, or where (ii) a company associated with the client’s main contract partner or a company associated with said company or established by said company for the specific purpose of concluding the contract of sale becomes a party to the contract of sale.
For the purchase of land, the commission is calculated on the basis of the agreed total purchase price and all related subsidiary amounts, for a value up to 5 million € at the rate of 5 %, for a value over 5 million € and up to 25 million € at the rate of 4 %, and for a value over 25 million € at the rate of 3 %. The obligation to pay the commission shall also arise if the property is sold to a third party exercising its preferential purchase right, instead of to a potential buyer identified by us and/or under a contract of sale brokered by us.
6.2 Heritable Building Right
For the granting or transfer of heritable building rights, the commission is calculated on the basis of the value of the land and of any structures and / or buildings on it, at the following rates: 5 % for a value up to 5 million €, 4 % for a value over 5 million € up to 25 million €, and 3 % for a value over 25 million €.
6.3 Transfer of Company Membership Rights
For the transfer of company shares or other company membership rights, the commission is calculated on the basis of the value of the agreement, at the following rates: 5 % for a value up to 5 million €, 4 % for a value over 5 million € up to 25 million €, and 3 % for a value over 25 million €. The contractual value in the sense of this stipulation is the relevant cumulated value of the unencumbered land and buildings.
If the sale of the land as per the cases mentioned above in Clauses 6.1 to 6.3 is subject to any contractual or other agreements affecting the economic utilisation of the land, such as in particular, but not only, contracts with design / build contractors, general contractors, all building and architects’ measures or services (planning), the economic value of this planning is added to the value of the agreed land price, the value of the heritable building rights or the contractual value of the transfer of company membership rights, as applicable, prior to the calculation of the commission to be paid to us.
6.5 Purchasing Option and Pre-Emptive Right
For the arrangement of purchasing options and pre-emptive rights, the commission to be paid is 1 % of the relevant value, which is the total purchase price together with all subsidiary payments.
6.6 Letting and Leasing
- The gross monthly rent is the basic rent plus advance service charges, without VAT.
- For rental agreements with a duration of less than 10 years, the commission to be paid by the client is the equivalent of 2.5 gross monthly rents.
- For rental agreements with a duration of 10 years or more, the commission to be paid by the client is the equivalent of 3 gross monthly rents.
- When options are agreed – regardless of whether the actual exercising of these options is yet certain or not – relating to area or tenancy duration or preliminary rental agreements, irrespective of the agreed fixed duration and above-cited commission rates, the commission to be paid by the client is increased by the equivalent of one further gross monthly rent.
- When a rent with progressive increase is agreed as the gross monthly rent, the level of the commission in accordance with the above stipulations is calculated on the basis of the average monthly rental payment for the entire duration of the rental agreement.
- Periods during which no rent or a reduced rent is to be paid shall not be taken into account.
- The above stipulations apply accordingly on the conclusion of a lease contract.
6.7 Letting and Leasing of Shop Premises / Retail
- The net monthly rent is the basic rent, without service charges, without VAT.
- Regardless of the duration of the lease, the commission to be paid by the client is the equivalent of 3.6 net monthly rents.
- When options and pre-emptive leasing rights are agreed – regardless of whether the actual exercising of these options or rights is yet certain or not – the commission to be paid by the client is increased in each case by the equivalent of one monthly net rent irrespective of the above-cited rate of commission.
- The level of the commission in accordance with the above stipulations is calculated on the basis that the net rent is the average monthly rental payment for the entire duration of the rental agreement or the period of the option. Periods during which no rent or a reduced rent is to be paid are disregarded.
- When key money is paid or compensation payments are made to the owner or other third parties (e.g. compensation for rights and claims, fixtures or furnishings, merchandise), the commission to be paid is increased – irrespective of the above-cited rate of commission by 5 % of the agreed key money or compensation payment.
7 Rendering of Services for Third Parties
We are entitled to work for the other contracting party, too, regardless of whether this is done on a paid or unpaid basis.
Our liability for any damage shall be limited to the amount of the commission payable and incurred pursuant to Clause 6 above. The liability cap does not apply in case of any damage due to gross negligence or wilful intent, or for any damage involving the loss of life, limb or health. We shall assume no liability for the accuracy and completeness of any information or documents submitted to us by clients or their advisors. We shall, however, inform the client of any inaccuracies with regard to such information / such documents which we become aware of within the context of our contractual obligations. Furthermore, we shall not be liable for any damage due to cyberattacks (such as through viruses, Trojan horses etc.) insofar as the appropriate technical and organisational measures were in place at the time of the event. Any liability for loss of profit on our part shall be excluded. The client shall not disclose any reports, other deliverables or work results to third parties without our prior written approval. Our approval may be made conditional on the third party confirming the limitation of liability agreed with the client, as well as on it signing a so-called “declarationof non-reliance” with us beforehand. Any claims for damages expire by limitation 3 years after the claim has arisen.
9 Publication and Advertising
- If the client issues a press release and / or publishes any statement relating to the transaction, we are to be named as advisers in the transaction. If the publication is effected by the client’s main contract partner, the client shall work towards our being so named.
- We are anyway entitled to issue a press release or other statement of our own.
- The client consents to the use of emails within the framework of the business relationship and also to the transmission of advertising; the latter consent may be revoked at any time.
- The client consents to our using the business relationship with the client and / or the subject matter of the contract as a reference.
10 Data Protection
Information on the handling of personal data, in particular about the purposes for which we process customer data, as well as on rights of data subjects and contact persons, can be found in our Data Protection Notice at https://data-privacy.realestate.bnpparibas.
11 Client Identification
The client is aware that, pursuant to the German Anti Money Laundering Act (GwG), we are obliged to identify our clients. This Act also places the client under an obligation to provide us with all the requisite information and documentation and to inform us promptly of any changes which occur in the course of our business relationship. In case the client does not comply with its aforementioned duties of cooperation and identification pursuant to the German Anti Money Laundering Act, we shall be entitled to terminate the business relationship with the client for good cause. This does not affect any claims for commissions which might have arisen.
12 German Energy Pass in Accordance with the German Energy Saving Ordinance (EnEV)
The client undertakes to provide us with a copy of a valid “Energieausweis” (German Energy Pass) not later than the beginning of the marketing. The client warrants to indemnify us in the event that any claims are brought against us regarding incomplete or missing information in connection with the Energieausweis.
13 Dispute Resolution Procedures for Consumers Pursuant to VSBG
The general office for the settlement of consumer disputes (“Allgemeine Verbraucherschlichtungsstelle”) at the Zentrum für Schlichtung e.V., Strassburger Strasse 8 in 77694 Kehl am Rhein, Germany, is available at www.verbraucher-schlichter.de in accordance with the German act on alternative dispute resolution for consumer disputes (VSBG). In the event of a dispute with a consumer, we shall not submit to the alternative resolution of such dispute in accordance with the German act on alternative dispute resolution for consumer disputes (VSBG).
14 Applicable Law / Place of Jurisdiction
The business relationship with the client shall be solely governed by the laws of the Federal Republic of Germany. The place of jurisdiction for independent businesspeople is Düsseldorf.
15 Partial Invalidity
If any provision in our General Terms of Business shall be entirely or partly invalid, this shall not affect the validity of all the other provisions in our General Terms of Business. Any provision that is invalid or null and void shall be replaced by the appropriate statutory provision.
16 Combating Bribery and Corruption
As part of the BNP Paribas Group we are strongly committed to fighting bribery and corruption. We therefore not only comply with the German anti-bribery and corruption regulations, but also with the French Sapin II standard, which is intended to ensure alignment with international compliance standards (Foreign Corrupt Practices Acts – “FCPA” – in the USA and UK Bribery Act, OECD Convention against Bribery of Foreign Public Officials in International Business Transactions, etc.). We reserve the right to terminate the business relationship if the client should be targeted for bribery or corruption in accordance with the above standards.
General Terms and Conditions of BNP Paribas Real Estate Consult GmbH
These general terms and conditions (hereinafter ‘terms of business’) are applicable to contracts concluded between BNP Paribas Real Estate Consult GmbH (hereinafter ‘we’, ‘our’, ‘us’, ‘our company’) and any client in respect of general consulting services and valuation services provided by us, unless otherwise agreed expressly and in writing.
2 Scope of Services / Performance / Warranty
2.1 The scope of services and the time schedule arise from the mandate.
2.2 We shall carry out the mandate in accordance with the professional standards of the Royal Institution of Chartered Surveyors (Rules of Conduct for Members) in the respectively relevant version.
2.3 If it becomes apparent during the execution of the mandate that services need to be varied and extended, we and the client will agree in writing on the modified scope of services and on the amended fee for the services before any further action is undertaken by us. If no agreement is reached and if, in view of the amendment, it is unreasonable for the client to adhere to the mandate. The client may terminate the mandate. If the client terminates the mandate, we shall be entitled to demand a reasonable remuneration; however we must allow the setting-off of expenses saved as a result of the cancellation of the mandate by the client. As far as we need to appoint a third party to fulfil all or part of the services, we will agree on this with the client in advance.
2.4 If the client does not give notice of defects within 14 days of the receipt of the results, this shall be considered equivalent to acceptance. We will indicate the consequences of failing to comply with this period of notice when delivering the results (general reports, valuation reports etc.)
2.5 As far as the performance is defective, the client may at first solely demand cure. In the event that this cure fails, the client is obliged to give further 14 days of grace in writing for us to remedy the defects. If we fail to comply with the request for subsequent performance or if we fail to remedy the defects within the given time, the client is entitled to withdraw from the contract or to reduce fees accordingly. As far as the client is also entitled to claim damages, No. 11 of the terms of business applies.
2.6 Obvious mistakes, such as mistakes in writing, arithmetic errors and formal deficiencies contained in any professional statement by us (general reports, valuation reports and the like), can be corrected by us also vis-à-vis third parties at any time. Incorrectness capable of calling into question the result of the services provided by us can also be withdrawn vis-à-vis third parties. In all the cases mentioned above, we shall hear the client in advance.
3 Valuation Services
Unless otherwise agreed, the valuation services we provide are carried out in accordance with the “Royal Institution of Chartered Surveyors (RICS) Valuation Standards” in the currently valid version. The valuations are prepared by an external values who as a Chartered Surveyor meets the prerequisites of the “RICS Valuation Standards”. The standards are available for the client to consult at our business premises.
4 Conditions of Performance in Particular in Respect of Valuation Services
4.1 All of our conclusions regarding the condition and the state of repair of the building and the condition of the property are based solely on the information supplied to us by the client and verified for reasonability by us or which we have obtained from our inquiries and from the property inspection.
4.2 During the property inspection, we do not carry out a measured survey of the property, nor do we undertake functional testing of technical or any other installations in the property. All the valuer’s observations made during the property inspection are based on a visual inspection only.
4.3 We do not carry out investigations involving the destruction or removal of construction elements. Any remarks relating to covered building elements or building materials are based solely on information provided to us or result from intuitive analysis or assumptions.
4.4 We do not make any professional investigations of building defects or damage. Without verification, it is assumed that the property does not contain any materials, any elements and that the site does not have any form of contamination, that would affect the long-term use of the subject property or have any influence on the health of residents and users.
4.5 No examination is conducted of compliance with rules under public laws (including approvals, acceptances, specially imposed conditions or the like) or with civil law terms concerning the utilisation of the land and the structure on it.
4.6 We assume without verification that all charges and other financial liabilities subject to public law that could affect the value have been charged and been met in full at the date of valuation.
4.7 Without verification, it is assumed that the subject property was appro-priately insured both in terms of the potential damages that might occur and for the sum of likely damages.
4.8 In accordance with the consistent ruling of German Courts, statements and information made or provided by civil servants or civil representatives may not be considered as being legally binding. Thus, if such statements are taken into account, the application of such statements in the valuation report is without guarantee.
4.9 For the purpose of this valuation, it is assumed that the current or a comparable use will last during the remaining economic lifetime of the physical structure as expressed by the capitalisation rate.
4.10 We presume stable economic and political conditions.
4.11 Rights, charges and restrictions are taken into consideration only to the extent that they have an identifiable influence needing particularly to be taken into account on the investment value of the subject property.
4.12 We will rely on the information supplied as being correct and complete. Unless other information is available, we shall assume the absence of unusually onerous restrictions, covenants or other encumbrances. If supplied with legal documentation, we will consider it, but will not take responsibility for the legal interpretation of it. Unless otherwise agreed, we will not obtain information from the Land Registry.
4.13 We do not make any statements on the creditworthiness of tenants. Unless informed to the contrary by the client, we will assume that there are no significant arrears and that the tenant is able to meet his obligations under the lease agreement or under other agreements.
4.14 In the case that we are instructed to provide an indication of current reinstatement costs, this indication is to be seen as providing initial orientation only.
5.1 The fees and the basis of the fees for our services are set out in the contract.
5.2 VAT is to be paid by the client at the legally applicable rate in addition to the fees and disbursements invoiced (together “payment”).
5.3 Payment is due and payable without allowance within 14 days after the invoice date. In the case of an ongoing instruction or a duration of more than three months, we shall be entitled to submit interim bills.
5.4 In the case that valuations are undertaken for loan security purposes, our claim for payment will arise irrespective of the loan being used or of the conditions of the loan agreement being met, unless the parties have agreed otherwise.
5.5 If there is a change in the stated purpose for which our services are being commissioned and hence liability increases (see No.11 of the business terms), we reserve the right to charge an additional fee specified in compliance with §§ 315 et seq. of the German Civil Code (BGB).
5.6 In the event that the client withdraws from the contract prior to the completion of the services commissioned, the fees charged by us for the services carried out prior to the withdrawal shall be calculated by us in accordance with reasonably exercised discretion pursuant to § 315 of the German Civil Code (BGB) based on the accounting standards as set out in § 649 of the German Civil Code (BGB). In the case that we have already sent the client a draft of the written results (general reports, valuation reports), the client is obliged to pay us the complete fee originally agreed.
If, for the purpose of performing the mandate, we incur expenses that in the circumstances may reasonably be considered necessary, the client is obliged to reimburse these expenses. The client is obliged to make reimbursement of actual travelling expenses and subsistence costs calculated on expenditure and car mileage allowance pursuant to Part 9 of the pay-as-you earn income tax guidelines (Lohnsteuerrichtlinien Abschnitt 9) in the respectively relevant version.
If the client defaults in payment, we shall be entitled to claim default interest for the period of default at the statutory default rate of interest set out in § 288 of the German Civil Code (BGB) in the respectively relevant version.
8 Set-Off / Retention
Set-off and the right of retention are permissible only if the counterclaims are undisputed or have been declared final and absolute. The client ho ever may refuse the performance owed by him because of counterclaims that are part of the same contractual relationship and owed to him.
9 Conflicts of Interest
9.1 We implement conflict management procedures to prevent us from acting for one client in a matter where there is or could be a conflict with the interests of another client for whom we are acting. If the client is aware or becomes aware of a possible conflict of this type, the client is obliged to indicate this conflict to us immediately. In the case that a conflict of this nature arises, we will decide, taking into account the existent law, requirements set by the relevant authorities and the material interests of the clients involved, whether we can continue to act for both parties (e.g. by the use of different teams working separately and apart, so-called “Chinese Walls”) for one party only or for neither. In the case that we do not believe that a potential or actual conflict of interest can be managed appropriately, we will inform the client without undue delay and consult with him. Should the client have any queries on this matter, he may contact his contact person at our company at any time.
9.2 If during the performance of the mandate a conflict occurs resulting in the termination of the contract, we shall be entitled to demand a reasonable portion of the agreed remuneration for the (partial) performance already effected by us.
The client’s right to give notice of termination according to § 649 of the German Civil Code (BGB) is excluded. But the client may terminate the contract for cause without notice for a compelling reason.
11.1 Claims for damages irrespective of the nature of the breach of duty, including torts, are excluded, unless the damages caused by us are caused by intent or gross negligence.
11.2 If there is a fundamental breach of contract, we shall be liable for all negligence, but our liability shall be limited to foreseeable damages and to damages that are specific for such kind of contract, however not exceeding an aggregate total of 100,000 € per appraised property and in the case of more than 10 properties appraised within the same mandate not exceeding an aggregate total of 1 million €. The client cannot claim indirect and consequential damages, such as lost profits, unless we gave a guarantee of quality, given only to protect the client against such damages or the damages have been foreseeable.
11.3 We may not invoke the limitations of liability and exclusions of liability under 11.1 and 11.2 of the business terms if we have acted fraudulently, given a guarantee of quality or if claims pursuant to the Product Liability Act (Produkthaftungsgesetz) as well as damages from injury to life, body or health are concerned.
11.4 One single case of damage is deemed to be obtained in relation to a uniform damage resulting from several breaches of duty. The single case of damage comprises all consequences of a breach of duty regardless of their date of origin. Doing or refraining from an act that is based on the same or on similar source of defects shall be deemed to be one single breach of duty if the relevant issues are related legally or in business terms.
11.5 To the extent to which our liability is excluded or limited, this also applies to salary earners, employees, agents and persons engaged by us to perform our obligation.
11.6 Any contractual liability on our part shall expire if the claimant has not asserted the claim against us within six months after becoming aware of the facts giving rise to the claim.
11.7 Contractual damage claims against us, except for claims for damages caused by intent, become statute barred one year after the client accepted the performance.
11.8 Not with standing the limitations of liability according to 11.1 to 11.7 of the business terms, any contractual liability on our part is limited to an aggregate total of 5 million € for each contractual relationship. This does not apply for damages caused by intent or gross negligence or for damages pursuant to the Product Liability Act (Produkthaftungsgesetz) or for damages from injury to life, body or health.
The client is entitled to ask us for higher liability coverage at any time. If the client asks for higher liability coverage, we will agree, but only in return for reimbursement of the expenses that we incur for the purpose of providing higher liability coverage (concurrent performance).
12 Data Protection
For information about the handling of your personal data, in particular about the purposes for which we process your data, your rights as a data subject and contacts, please see our Data Protection Notice at https://data-privacy.realestate.bnpparibas.
13 Money Laundering Regulations
The client is aware that in accordance with existing law we are obliged to undertake reporting, report keeping and identification procedures.We may be required to verify certain data of our clients. We ask the client to assist us in complying with such requirements. If such information is necessary, the client is obliged to provide the information without undue delay to enable us to adhere to the law.
14 Electronic Communications
14.1 We may communicate with the client by electronic mail, sometimes attaching electronic data, unless the client has instructed us expressly and in writing to use some other means of communication. If such instructions are given by the client, the client must pay us the additional costs plus a reasonable addition to cover overheads.
14.2 In the case that the client does not instruct us to use any other means of communication rather than electronic mail, both parties accept the inherent risks (including the security risks of interception or unauthorized access to such communications, the risks of corruption of such communications and the risks of viruses or other harmful devices).
15 Confidentiality / Intellectual Property / Transmission to Third Parties
15.1 We shall not use data, information, materials, drawings, articles and/or know-how provided to us by the client for the purpose of carrying out the mandate for any purposes that are not associated with the mandate. We are obliged to keep the information confidential unless the information is publicly available or we are obliged to disclose information under any valid law.
15.2 The client ensures that the professional statements given by us during the mandate (general reports, valuation reports, results and the like) are used only for his own purposes and only for purposes connected with the mandate.
15.3 The transmission of professional statements from us (general reports, valuation reports, results and the like) to third parties is prohibited.
15.4 With regard to any publication of professional statements from us or abstracts from such professional statements, No. 15.3 of the business terms shall apply mutatis mutandis.
15.5 We are obliged to maintain confidentiality regarding the content and the purpose of the mandate and also regarding the results.
15.6 We hold the unrestricted copyright to the instructed services. Our professional statements may be used only by the client and only for the agreed purpose.
15.7 The client is not authorized to carry out changes to our copyrightprotected professional statements.
15.8 Copies of the written results (general reports, valuation reports) remain our property until fees are paid in full.
16 Third Parties Rights and Assignment
The effectiveness of the assignment of transferable claims to third parties depends on the prior approval of the contracting party. § 354 a) of the German code of commercial law (Handelsgesetzbuch) is unaffected.
17 Dispute Resolution Procedures for Consumers Pursuant to VSBG
The general office for the settlement of consumer disputes (“Allgemeine Verbraucherschlichtungsstelle”) at the Zentrum für Schlichtung e.V., Strassburger Strasse 8 in 77694 Kehl am Rhein, Germany, is available to you at www.verbraucher-schlichter.de in accordance with the German act on alternative dispute resolution for consumer disputes (VSBG). In the event of a dispute with a consumer, we shall not submit to the alternative resolution of such dispute in accordance with the German act on alternative dispute resolution for consumer disputes (VSBG).
The contract, the execution of the contract and any claims arising from the contract shall be governed solely by German Law if domestic parties are involved. Any dispute arising out of or in connection with the services shall be submitted to the exclusive jurisdiction of the Court of Frankfurt am Main, Germany.
19 Closing Remark
The German version is the only legally binding version. The English version is just a courtesy translation and not legally binding.
General Terms and Conditions for the Provision of Consultancy, Planning and Other Services by BNP Paribas Real Estate GmbH, department
1 Subject Matter and Reaching of the Contract
1.1 Our present General Terms and Conditions underlie the provision of services (Dienstvertrag) and performance of works (Werkvertrag),that is, the fulfilment by us of a specified task and / or the provision by us of certain consultancy and support services.
1.2 A contract – the provisions of which will prevail over the content of these General Terms and Conditions – will be reached by its being signed by both the client and ourselves, no later, however, than at the time of the services being provided.
1.3 Additional conditions for the services to be provided may result from documents that may be made available by us and become constituent parts of the respective contract as annexes and contractual documents. An annex (if any) will be made a constituent part of the contract by reference (for instance in a contractual document).
2 Prices and Conditions of Payment
2.1 Payment for the services will be due either according to the progress of a respective phase / module or currently during the period of provision of such services or upon termination of such services, as may have been agreed.
2.2 With respect to services provided on a time-basis, the working and travelling hours accrued as well as waiting periods (if any) will be invoiced on the basis of the remuneration classes and rates current at the time. Other expenses, including, but not limited to, accommodation and travel expenses, will be invoiced additionally. Unless the parties have agreed otherwise, invoicing will be effected according to the progress of a respective phase / module or upon provision of the relevant service.
2.3 All invoices will be due and payable 14 days after the date of the invoice. If we have not received payment 30 days following the due date, we will be entitled to demand interest on arrears at a rate permitted by law. The sales tax will be invoiced at the rate current at the time of service provision. In the event that, within the contractual term, the sales tax rate should be modified, the periods to which different sales tax rates apply will be deemed to have been separately agreed upon. The client will not be entitled to offset any amounts due to him against our claims, unless his counter-claim is undisputed or has been declared legally valid.
3 Deployment of Personnel
We will be entitled to charge sub-contractors with the provision of the services or parts thereof.
4 Acceptance of Works Performed
The client will accept any works performed as per agreement immediately upon delivery. Insignificant deviations from the performance characteristics and acceptance criteria agreed upon will not entitle the client to refuse acceptance. Our obligation to correct any faults asper the provisions of the present General Terms and Conditions will remain unaffected.
5.1 The warranty period for works performed will be twelve months, unless another period has been agreed upon. If the client is a consumer, at least the legal warranty period will apply as well as with respect to a structure or a work the success of which consists in the provision of planning or supervising services for a structure.
5.2 With respect to works performed, we warranty that the contractual features of performance will be met and that these meet the scope of performance agreed upon. The warranty period will start upon acceptance.
5.3 We will remedy any warranty-covered deficiencies of which we have been notified in writing by the client. In the event that we should not succeed in remedying a deficiency within a reasonable period, even after such period having been reasonably extended, the client – to the extent that the value or suitability of the work concerned is restricted – may demand either a reduction of the price or cancellation of the contract. Withdrawal from the contract will, however, be excluded in the case of minor deficiencies or deviations. As for the rest, Item 7 (Liability) will apply inasmuch as any deficiency is not of only insignificant nature.
5.4 There will be no claim for warranty or reduction of compensation with respect to services provided.
6 Proprietary Rights
6.1 Materials (work results) are written documents or other copyright protected works in written, machine-readable or other forms of representation, including, but not limited to, documentation, protocols, drawings, concepts, calculations, models and similar works. We will be entitled to keep copies of such materials created during the provision of our services, with respect to which we will acquire the irrevocable, nonexclusive, worldwide, free-of-charge right to use and perform such materials internally and externally, in particular the right to reproduce, display, exhibit, distribute, and create derived works from such materials, as well as the right to grant such rights to any third parties. To the extent that any work results should be created during the provision of any services or have already existed prior to such provision, in which we or any third parties have all rights of ownership and usage, the client will be provided with copies of such specified materials and the irrevocable, non-exclusive, worldwide, free-of-charge right to use, perform, reproduce, display, exhibit and distribute copies of such work results within his enterprise – subject to the condition precedent of full payment for all services provided by us under the contract.
6.2 Any changes to and modifications of materials provided by the client will be marked by the client as ‘edited’ in the respective document provided in connection with the order. The client will furnish us with the declaration of consent of the owner of the rights in the materials provided prior to editing.
6.3 The client will indemnify us and our affiliated companies and sub-contractors against any liability with respect to third party claims arising from any unauthorized provision of materials for processing as per the preceding paragraph.
7 Performance of the Contract, Terms, Deadlines
7.1 We will use out best efforts to adhere to the deadlines bindingly fixed by us in writing for the fulfilment of individual work tasks. We will, however, not be liable for any delays and missed deadlines resulting from any events of force majeure or from a failure to cooperate, or delayed cooperation, on the part of the client or of any third parties who have not been directly contracted by us as agents. In the events of any delays or missed deadlines, the client will collaborate with us in adjusting the previously fixed deadlines to the actual development, with due regard for the interests of both parties.
7.2 Proper performance of the contract is conditional on the client fulfilling his duty to cooperate in due time. Should the client fail to do so and should such failure result in any delays and / or extra expenditures, we may – without prejudice to any further legal rights – ask for an adjustment of the time schedule and stipulated prices. In addition, we may grant the client a reasonable grace period for fulfilling his duty to cooperate, upon the expiration of which we will be entitled to terminate the contract. The contract will, however, not be terminated automatically upon the expiration of such a grace period.
7.3 If the client should wish the provision of any additional services after conclusion of this contract, we will discuss such services and the resulting time and cost issues with the client. We will not be obligated to include any such additional services in the contract. We will, however, use our best efforts to meet the client’s requirements within the scope of our capacities, provided that the client consents to the delays and cost increases resulting from such additional services.
8 Use of the Documents as a Reference and for Advertising Purposes
8.1 The client agrees that we may use materials (especially photographs) as references and for advertising purposes.
9.1 We agree to keep confidential all information, documents and knowledge obtained in connection with the processing of this contract. The confidentiality obligation does not extend to such information which has to be disclosed due to statutory or administrative provisions or is publicly known or has been received from a third party in a legally permitted way.
9.2 Upon written request by the client at any time, all documents and information received by us, including all data files or copies made or stored on data carriers, will be returned to the client or be destroyed.
9.3 The duty to return / destroy the confidential information does not apply to confidential information which is automatically stored by data backup systems and to which systematic access is not possible. Legal retention requirements shall remain unaffected as well.
9.4 This confidentiality obligation shall survive the termination of the contract by one year.
10.1 Unless otherwise agreed in the respective contract and / or as per agreement in the respective contract, the client or we ourselves may terminate a contract for cause by notifying the other party in writing, if the other party fails to fulfil its contractual obligations – even upon having been granted a reasonably extended period for fulfilment. Withdrawal from the contract will, however, be excluded in the case of a nonessential breach of the contract.
10.2 In the event of contract termination for convenience by the client, he will be obligated to pay for the services provided up to such termination and to reimburse to us any other expenses and receivables due to us as per the provisions of the contract or any legal provisions.
11.1 We will be liable with respect to any breach of essential contractual obligations as per legal provisions, inasmuch as such have not been, or are not, modified by contractual provisions to the extent legally permitted.
11.2 We will likewise be liable for any breach of secondary contractual obligations owing to gross negligence or intent. Any liability for a breach of secondary contractual obligations based on slight negligence will be excluded.
11.3 To the extent that liability is mandatorily prescribed by law, such liability will not be excluded or restricted by contractual arrangements.
11.4 In all other cases, our liability for indirect and consequential damage will be excluded and / or restricted to the remedy of any damage typical of the contract that could be reasonably foreseen at the time of occurrence of the damaging event.
11.5 To provide coverage for any reasonably foreseeable damage, we will maintain an adequate insurance policy with an insured sum of 7.5 million €. Our liability will in all cases be restricted to the above amount, as long as insurance coverage in such amount is maintained.
11.6 Should the client provide us with views or additional material concerning the object for use, the client assures that we are free to use the photographic material and that such material is free of third party rights. The client assures that he will indemnify us accordingly should he be sued for copyright or personality right infringement in connection with the aforementioned material.
11.7 We will not be liable with respect to any claim that has not been asserted in writing by the client within 6 months from the date when he has become aware of the basis of such claim.
11.8 Data communication as per the current state of the art cannot be guaranteed to be without errors and / or to be available without interruption. In this respect, we are not responsible for the continuous or uninterrupted availability of the website.
12 Other Rights and Obligations of the Parties
The client and we ourselves agree that
12.1 neither party is prevented from concluding similar contracts with any third parties;
12.2 each party will reasonably enable the other party to fulfil its obligations prior to taking any legal action on the grounds of non-fulfilment of any contractual obligation;
12.3 any claims arising from the contract are subject to a limitation period of three years – unless otherwise stipulated in Item 5 (Warranty) of the present General Terms and Conditions and unless a longer period is mandatorily prescribed by law;
12.4 with the exception of any payment obligations, neither party will be responsible for non-fulfilment of its obligations for reasons beyond such party’s sphere of influence, unless responsibility of the party concerned with regard to such reasons has been expressly agreed upon;
12.5 the assignment of any rights under a contract, with the exception of any claims for payment due to us, will require our previous written consent, unless such assignment is made within the client’s enterprise or to the client’s legal successor, provided that such consent must not be refused but for good cause;
12.6 the client will not be entitled to market any services and / or works under the contract, whether in whole or in part, or provide and / or deliver such in any other manner.
13 Data Protection
For information about the handling of your personal data, in particular about the purposes for which we process your data, your rights as a data subject and contacts, please see our Data Protection Notice at https://data-privacy.realestate.bnpparibas.
14 Client Identification
The client is aware that, pursuant to the German Anti Money Laundering Act (GwG), we are obliged to identify our clients. This Act also places the client under an obligation to provide us with all the requisite information and documentation and to inform us promptly of any changes which occur in the course of our business relationship.
15 Scope of Application / Governing Law / Miscellaneous
15.1 The client’s General Terms and Conditions (if any), to the extent that such are in contradiction with the present General Terms and Conditions and / or other contractual agreements, will not be accepted by us.
15.2 The general office for the settlement of consumer disputes (“Allgemeine Verbraucherschlichtungsstelle”) at the Zentrum für Schlichtung e.V., Strassburger Strasse 8 in 77694 Kehl am Rhein, Germany, is available to you at www.verbraucher-schlichter.de in accordance with the German act on alternative dispute resolution for consumer disputes (VSBG). In the event of a dispute with a consumer, we shall not submit to the alternative resolution of such dispute in accordance with the German act on alternative dispute resolution for consumer disputes (VSBG).
15.3 The legal relationship between us and the client will be exclusively governed by the law of the Federal Republic of Germany – including any non-contractual basis of a claim. The exclusive place of jurisdiction is Düsseldorf, Germany.
15.4 Any other modifications of, or amendments to, a contract will require the written consent of both parties. This also applies to any modification of, or deviation from, the written form stipulation.
15.5 Should any of the terms and conditions or parts of the contract be or become ineffective or unenforceable, the validity of the remaining terms and conditions and parts will not be affected. In this case, the parties agree to replace such ineffective or unenforceable provision by a provision that from an economic and legal point of view, and considering the parties’ legitimate interests, comes as close as possible to what the parties would have agreed upon had they been aware of such ineffectiveness or unenforceability.