The following General Terms and Conditions shall be taken into consideration in all legal transactions and shall serve as basis for the disclosure or brokerage services provided by Savills Immobilien Beratungs-GmbH (hereinafter referred to as “Realtor”) for the respective party to the contract with the Realtor (tenant, lessor, buyer, seller/owner, client). In addition and subordinate to these Terms and Conditions, the statutory regulations (Sections 652 et seq. of the German Civil Code (Bürgerliches Gesetzbuch)), the generally accepted commercial principles and the Real Estate License Act (Maklergesetz) shall apply accordingly. The party to the contract with the Realtor shall hereinafter be uniformly referred to as the “Client”.
1. Non-binding Offers / Confidentiality / Compensatory Damages
The offers made to the Client (real estate disclosures) are non-binding, as long as the Realtor has not yet concluded a corresponding contract with the Client.
All offers (real estate disclosures) and notifications related to the property (information) provided by the Realtor are intended exclusively for the Client himself and shall remain strictly confidential; they may not be forwarded or otherwise made available to third parties without the Realtor’s prior written consent.
If a primary contract is concluded with a third party on the disclosure and/or brokerage services due to the unauthorized transmission of an offer and/or notifications related to the property, the Client shall owe the Realtor compensatory damages in the amount of the agreed upon (lost) commission. In particular, this shall also apply if the unauthorized transmission of an offer and/or notifications related to the property or another culpable breach of duty on the part of the Client impedes or otherwise frustrates the success of the disclosure and/or brokerage services and, as a result, a primary contract with a third party is concluded. The commission shall also be payable to the Realtor if the Realtor has authorized the Client to transmit the offers and/or notifications and a primary contract is concluded on the basis of these.
2. Commission / Calculation of Commission
2.1 upon purchase and sale of real estate holdings, shares in a company and similar transactions,
Upon conclusion of a purchase contract, the Client owes a tiered commission based on the value of the contract as follows:
5% of the Contractual Value up to a Contractual Value of EUR 5 m
4% of the Contractual Value that exceeds EUR 5 m, up to and including a Contractual Value in the amount of EUR 20 m
3% of the Contractual Value that exceeds EUR 20 m.
The following shall be considered a “Purchase Contract” in this sense:
a) Contracts on the obligation to transfer a property, a material or nonmaterial share of a property and/or granting and/or transfer of a heritable building right and/or other rights that are equivalent to real property rights or registered perpetual leases (asset deal); and/or
b) Contracts regarding the granting and/or transfer of one or more shares in a company that directly or indirectly holds a property, a material or nonmaterial share in a property, a right equivalent to a property right and/or a registered perpetual lease, and/or another company and/or enterprise (share deal); and/or
c) Any other contract that in some other way implements the intended purchase or sale of property, heritable building right and/or another right that is equivalent to a property right or registered perpetual lease and which is economically comparable to the intended primary contract, such as, e.g., the contribution to a company of a property, heritable building right and/or another right that is equivalent to a property right or registered perpetual lease. The acquisition in the course of a foreclosure shall only be hereby included if agreed upon in a particular case.
“Contractual Value” is the respective contractually agreed upon purchase price and/or the cash value of another possible consideration (ground rent for a building lease, annuities, etc.) pursuant to the German Tax Valuation Act (Bewertungsgesetz), in addition to a possible purchase price or (utilization) compensation for movable inventory, installations and/or equipment and fittings, including possible (ancillary) services that are accorded to the respective vendor or third party by the Purchase Contract or on the basis of the Purchase Contract and/or in the course of the Purchase Contract. The agreed upon purchase price or other compensation shall be added, in addition to all encumbrances, liabilities and/or other negative balances which, together with the respective object of purchase, are assumed from the respective purchaser or third party, regardless of whether these encumbrances, liabilities and/or other negative balances directly encumber the respective object of purchase or (e.g. in a transfer of company shares) represent the liabilities of a company, the shares of which are purchased or sold.
The Contractual Value shall not include the sales tax on the purchase price, notarization and court costs and/or the amount due for real estate transfer tax, which are to be paid by the respective purchaser.
When agreeing on a purchase option, preemptive right and/or option right, the commission paid by the Client shall amount to 1% of the Contractual Value. In addition, upon exercising one of such rights, the Client shall pay the commission pursuant to the preceding a) through c).
2.2 Renting and leasing
Upon conclusion of rental or lease contracts, the commission shall amount to,
a) for contracts on retail spaces (sales, storage, personnel areas or similar), 3% of the agreed upon rent for the entire Fixed Term (for a maximum of 10 years), but at least a minimum of 3.0 months’ rent, plus 1% of the agreed upon rent for possible Rental Term Options;
b) for contracts on office spaces, industrial areas (distribution, warehouse, factory, production areas or similar), as well as wholesale or other spaces (with the exception of retail spaces), at least 3.0 months’ rent, including the agreed upon advance payments or flat fees for ancillary and operating expenses; as of a Fixed Term of at least five and less than ten years, 3.5 times the aforementioned month’s rent; as of a Fixed Term of at least ten and less than fifteen years, 4.0 times the aforementioned month’s rent; and as of a Fixed Term of fifteen years or longer, 4.5 times the aforementioned month’s rent; in each case, plus 1.0 times the aforementioned month’s rent for each agreed upon Rental Term Option.
“Fixed Term” is the contractually agreed upon period of time, during which the rental or lease contract may not be terminated subject to the contractual period of notice; in this respect, possible extensions to the contract due to option rights or similar shall be excluded. “Rental Term Option” is the period of time, by which the rental or lease contract can be extended due to an option right of one or both parties, regardless of whether the exercise of this option right is still uncertain.
When agreeing upon a rental or preemptive rental right or concluding a preemptive rental contract or an equivalent right related to a lease, the commission to be paid by the Client for contracts on retail spaces amounts to 1.0% of the rent for the (rented or preemptive) rental area for the entire Fixed Term (for a maximum of ten years), but at least 1.0 month’s rent; and for contracts on office spaces, industrial, wholesale or other areas, 1.0 month’s rent, including the agreed upon advance payments or flat fees for ancillary and operating expenses, regardless of whether the exercise of this right is still uncertain.
In agreeing upon compensation or redemption payments to the renter or the lessor or third parties for the redemption of rights, claims, fixtures and furnishings, merchandise, etc., the commission increases by 5% of the agreed upon amount.
In agreeing upon a tiered rental or lease payment, the commission is calculated on basis of the average monthly amount during the entire Fixed Term of the contract.
3. Entitlement to Commission / Due Date
The conclusion of the brokerage contract results in entitlement to the agreed upon commission; such commission is due and payable upon conclusion of the primary contract. Circumstances that impede the effective conclusion of the primary contract, for which the Client is not responsible, or initial circumstances that constitute the invalidity of the primary contract ab initio (initial impossibility, rescission) shall exclude entitlement to commission. Circumstances that merely eliminate the obligation to perform arising from the concluded contract (withdrawal) or that result in subsequent invalidity (resolutory condition) shall not affect entitlement to the agreed upon commission. In the case of a condition precedent, the claim to the agreed upon commission shall first be due and payable upon occurrence of the condition.
Entitlement to commission shall also remain unaffected if there is a time period of up to twelve months between the last service provided by the Realtor or another realtor and the conclusion of the primary contract upon which this is based (concurrently causative). In case of a subsequent cancellation or interruption in contractual negotiations, the Realtor is free to demonstrate and substantiate the continuing causality of his original brokerage services for the conclusion of the primary contract.
The commission agreed upon and earned pursuant to no. 2 shall include the added sales tax in the respective applicable statutory amount (currently 19%).
The commission is due and payable with no deductions within 14 calendar days after invoicing.
4. Substitute and Subsequent Transactions
Entitlement to commission also exists
a) if the contract is concluded on the basis of conditions that differ from those in the offer, e.g., in case of a price variation of not more than 25%;
b) if the contract with the contractual partner procured by the Realtor is concluded with respect to another property or with respect to a transaction that is equivalent to the originally intended transaction in terms of its purpose or economic value;
c) if and to the extent that a contract regarding a transaction procured by the Realtor is expanded or amended by way of contracts that coincide temporally and economically, or if the Client and a third party conclude additional contractual agreements, which correspond to the contracts in the aforementioned no. 2 and which are based on the brokerage contract concluded between the Realtor and the Client;
d) if, instead of the initially intended transaction between the parties to the primary contract, another transaction (rental or purchase contract) materializes.
The respective commission claim is based on the content of the substitute or subsequent transaction or on the scope of the extension or amendment.
5. Obligations of the Client / Previous Knowledge
If the Client engages in direct negotiations on the basis of the disclosure and/or brokerage services of the Realtor, the Client must refer to the Realtor’s services. Promptly and without being solicited, the Realtor must be informed of the content of these negotiations in written form. If the Client refrains from pursuing his contractual, purchase or rental intentions, he is obligated to promptly inform the Realtor of this in writing.
Before the intended conclusion of the primary contract, by way of inquiry and by stating the name and address of the designated contractual partner to the Realtor, the Client must ensure that the introduction of the designated contractual partner is the result of the Realtor’s agency. The Client is obligated to inform the Realtor in a timely manner of the place and time of the intended conclusion of the primary contract.
If the contract is concluded without the participation of the Realtor, the Client is obligated to promptly provide information to the Realtor on the fundamental content of the contract, in particular the content necessary for the calculation of the commission claim and, upon request of the Realtor, to promptly provide a simple copy of the contract. In case of a persistent violation of these obligations (e.g., ineffective expiration of two time limits), in addition to the agreed upon commission, the Client is obligated to pay the Realtor a contractual penalty in the amount of 5% of the resulting net commission claim, which is due and payable within 14 calendar days after the Realtor submits a demand. In case of written acknowledgement of the agreed upon commission claim before the payment deadline through payment of such within 14 calendar days after invoicing, the agreed upon contractual penalty shall become invalid.
If the Client already knows that the property or transaction offered by the Realtor is available for sale, rent or lease or can be closed, he must inform the Realtor of this immediately in writing, at the latest within six calendar days after receipt of the information (prior knowledge) and he must state the source of this information. If a valid contract is concluded with regard to the property or business offered by the Realtor, any violation of the fulfillment of this duty to inform justifies liability for damages in the amount of 80% of the agreed upon or intended commission pursuant to no. 2.
6. Dual Agency / Agency for Third Parties
The Realtor is also entitled to act as an agent for the other contractual party or for third parties for a fee or free of charge, unless there is a conflict of interest in the course of acting on behalf of the other contractual party in relation to the Client. The Realtor’s commission claim in relation to the Client shall hereby remain unaffected.
7. Exclusion of Liability and Limitation of Liability / Statute of Limitations
The information provided and documents submitted by the Realtor are based on information and notifications from third parties. The Realtor is not liable for the correctness and completeness of this information or documentation (e.g., energy performance certificate) or for the absence of information or documentation (e.g., energy performance certificate) that the Client did not give to the Realtor.
Otherwise, the Realtor is liable only for intent or gross negligence, as well as for negligent breach of significant contractual obligations. Significant contractual obligations are those, the fulfillment of which initially allows the proper execution of the brokerage contract and the adherence to which the Client relied upon and should have been able to rely upon. Otherwise, liability is also excluded in this respect.
In cases of negligence, the liability of the Realtor or his assistants is limited to foreseeable and typical damages. Such claims for damages are subject to a statute of limitations of three years after emergence of the claim and knowledge of all circumstances that justify the claim, regardless of this knowledge, at the latest within five years as of the point in time of the incidence of damage.
The preceding provisions for the exclusion and limitation of liability shall not apply in case of culpable injury to life, limb or health or in case of conduct with the intent to deceive on the part of the Realtor.
8. Data Protection
The Client agrees in advance that the Realtor may collect, process, use and transmit to possible interested parties the personal and/or property-related data that arise from the brokerage contract and/or its execution, with the stipulation that this data shall remain confidential. The Client and the Realtor pledge to only use the personal or company-related data, with which they are respectively entrusted, for the performance of their own business purposes and to observe the regulations of the German Data Protection Act (Bundesdatenschutzgesetz) – even after completion of the contractual relationship. The Client is obligated to promptly delete personal or company-related data upon conclusion of the primary contract and after execution of the brokerage contract and, without being solicited, to return any data carriers that may have been provided by the Realtor.
The existing statutory obligations to preserve business records shall hereby remain unaffected.
9. Final Provisions
The general terms and conditions, if any, of the Client are not applicable.
The exercise of rights of retention is only admissible with respect to claims under the particular brokerage contract. The Client may only offset the Realtor’s claims with uncontested claims or claims that have been established to be legally binding.
Notice of termination and other legal declarations must be made in written form.
No verbal collateral agreements exist. Amendments and supplements to these General Terms and Conditions or the brokerage contract must be made in written form in order to be valid. This shall also apply to the revocation of written form or the requirement for written form.
The (substantive) law of the Federal Republic of Germany shall apply.
Place of performance is the headquarters of the Realtor. The exclusive place of jurisdiction is Frankfurt am Main if the Client is a businessperson or a legal entity under public law.
If individual provisions of these General Terms and Conditions are or become invalid or impracticable, the remaining provisions of these General Terms and Conditions shall hereby remain unaffected. In place of the invalid or impracticable provision, the parties pledge to agree upon a valid provision that most closely corresponds to the legal and economic intention and purpose of the invalid or impracticable provision. The same shall apply to resolving any loopholes in these General Terms and Conditions.
In case of doubt and/or if discrepancies or uncertainties should arise in the English translation, the German version of these General Terms and Conditions of Savills Immobilien Beratungs-GmbH shall take priority over the English version of these General Terms and Conditions.