General terms and conditions for landlords (GTC)
These general terms and conditions (GTC) govern the legal relationship between clients (landlords) and eugen GmbH (broker) for the rental of real estate. The term landlord is understood to include all providers of real estate (such as properties, parts of properties, land, parts of land, apartments, houses, offices, storage areas, retail areas, etc.) for rental, such as private and commercial owners (including project developers), but also authorized representatives, such as property managers or real estate agents. The present General Terms and Conditions take into account the current legal situation as standardized by the MaklerG, the ImmobilienmaklerVO (IMV), furthermore ABGB, KSchG and the Special Code of Conduct for Real Estate Agents. If the brokerage contract contains more specific provisions, these shall take precedence over the GTC.
2. Scope of application
eugen GmbH acts in the interest of the landlords (clients) and therefore only considers the interests of the landlords (clients). For interested parties, the mediation activity is accordingly commission-free.
3. Providing information
Landlords shall provide eugen GmbH with all information required for the brokerage in a truthful, complete and up-to-date manner and – if available – hand over documents or grant the power of attorney required to obtain the documents and information. Furthermore, landlords undertake to inform eugen GmbH immediately of all circumstances that affect the performance of the brokerage activity. eugen GmbH is not liable for errors or misstatements (especially in the advertisements placed by eugen GmbH), which are culpably caused by the landlords (for example, through the transmission of false information, documents, etc.). All changes to the rental conditions must be coordinated with eugen GmbH.
4. Conclusion of the brokerage contract
Landlords conclude a separate brokerage contract with eugen GmbH for the rental of the property(ies) specified therein, with the contractual objects listed below. Concluded framework agreements or brokerage contracts can supplement the GTC listed here, provided that the landlords are not consumers within the meaning of the KSchG.
Clients assure that they are authorized by the owners to fully commission the rental of the named object, to act on their behalf and to conclude the brokerage contract.
The subject matter of the order results from the brokerage order.
The eugen GmbH will carry out the following work using the available possibilities for the marketing of the mentioned objects:
- On-site appointment for the preparation of photos (exterior photos of the object and interior photos of the apartment)
- Exposé creation
- Marketing via real estate portals (willhaben.at, immoscout24.at), via eugen.immo as well as via social media sites (Facebook, Instagram, TikTok or LinkedIn); After the advertisement(s) has/have been published, landlords can view all related activities in the login area of the owner dashboard.
- Prospect management and coordination of viewings
- Viewings: Organization and execution of individual viewings with prospective tenants (on all days of the week); appointments for viewings must be made possible by the landlords, provided that no important, justified interests speak against this in individual cases. In particular, access for viewings must be guaranteed.
- Qualification: Obtaining proof of creditworthiness from prospective tenants
- Proposing tenants and accompanying the conclusion of the rental agreement by means of an electronic rental agreement signature with a qualified electronic signature or “real” signatures in the original.
Tenant proposals presented by eugen GmbH must be confirmed or rejected within three working days (Monday to Friday).
It is clarified that the provision of rental agreements (sample or draft rental agreements) is not included in the scope of services of eugen GmbH. Rental agreements must be provided by landlords. Landlords undertake to make all necessary preparations (e.g. providing a draft lease agreement) so that the conclusion of the contract between them and the interested parties mediated by eugen GmbH proceeds quickly and smoothly. eugen GmbH shall not be subject to any inspection, warning or notification obligations in connection with the rental agreements provided, but it shall point out any defects or errors detected.
5. Intellectual property
The use of the services of eugen GmbH and thus the information provided is permitted exclusively for the purpose of the respective fulfillment of the contract. All rights such as copyrights, trademark rights and other intellectual property rights are the sole property of eugen GmbH. eugen GmbH grants landlords the non-exclusive, non-transferable and revocable right to save or print out individual activities in the owner dashboard for personal purposes. However, landlords are prohibited from editing, modifying, publishing and passing on any data to third parties.
By submitting the (property) documents or contents (including photos, texts, plans), landlords irrevocably grant eugen GmbH the non-exclusive right to use the (property) documents or contents in all currently known or future ways without any restrictions in terms of time, material or space. The lessor irrevocably grants eugen GmbH the non-exclusive right to use the (object) documents or contents in all currently known or future forms of exploitation without any temporal, material or spatial restrictions, in particular to reproduce, distribute, rent and lend them, to transmit or broadcast them by wire or wireless means, to perform, present and make them available, as well as to transfer all rights to the (object) documents or contents to third parties against payment or free of charge or to grant sublicenses, whereby third parties may use the (object) documents and contents to the same extent. Furthermore, eugen GmbH is entitled to process the (object) documents or contents itself or through third parties and to exploit the processing to the same extent or to pass it on to third parties.
Landlords are fully responsible for the content they transmit. eugen GmbH does not check the content for completeness, accuracy, legality, timeliness, quality and suitability for a particular purpose, but it will point out identified defects or errors. Landlords therefore declare and warrant to eugen GmbH that they are the sole owners of all rights to the content they transmit, or are otherwise entitled (e.g. through effective permission from the rights holders) to transmit the content and to grant the rights of use and exploitation in accordance with the above paragraphs. Should third parties nevertheless assert rights to the data transmitted by landlords against eugen GmbH, the landlords undertake to indemnify and hold eugen GmbH harmless against any claims upon first request, insofar as they have culpably violated the rights of third parties.
Landlords undertake not to transmit any data that violates the rights of third parties or violates the law.
Landlords undertake to comply with data protection law and therefore to handle the data provided to them with care. In particular, according to the EU General Data Protection Regulation (GDPR) and the Data Protection Act (DPA), landlords are prohibited from disclosing personal data to third parties without a legal basis, from providing third parties with information about the data received, or from using the data for purposes that are not related to the rental of the rental property in question. Furthermore, all personal data must be stored securely and protected by appropriate technical and organizational measures and finally deleted when it is no longer required for the selection of interested parties or the rental relationship.
6. Information provided
The eugen GmbH only mediates interested parties to landlords through mutual transmission or presentation of the information provided by the interested parties or landlords. The eugen GmbH expressly assumes no responsibility for the accuracy of the information transmitted or presented; a liability of eugen GmbH is therefore excluded, but it will point out identified defects or errors. The information provided by the interested parties is not checked by eugen GmbH, this is the sole responsibility of the landlords. Therefore, eugen GmbH is not liable for any damages that may occur to the landlords during the application process and the viewing appointment due to incorrect or faulty data of interested parties. These claims are to be asserted by the landlords directly against the respective interested parties. This applies to consumers only in accordance with the liability limitations in point 8.
According to the current state of technology, communication via the Internet cannot be guaranteed to be error-free and/or available at all times, so that overloads or longer response times must be expected. In this respect, eugen GmbH is not liable for the constant and uninterrupted availability of the owner dashboard.
7. Unauthorized conclusion of leases
Landlords are not entitled to negotiate the conclusion of the legal transaction with interested parties who have become aware of the business opportunity through eugen GmbH, unless they are willing to pay the agreed commission.
The information about a property is provided with the care of proper real estate agents. eugen GmbH has no influence on the information provided by third parties. Landlords are obligated to disclose all circumstances that are essential for the brokerage of the property. This includes all defects of the object known to them as well as other essential or value-determining circumstances. For financial losses, eugen GmbH’s liability for damages in consumer business is limited to cases of intent and gross negligence. Excluded from this are damages due to the violation of essential contractual obligations, damages to life and limb or death or liability under the PHG. In all other cases, the statutory liability provisions shall apply. If the lessor is an entrepreneur, eugen GmbH is only liable in case of intent and gross negligence, except in case of damage to life and limb or death. In this case, the liability of eugen GmbH is limited to an insurance sum of € 100,000.
eugen GmbH recommends to consult experts for the contract review as well as for the review of the economic efficiency and the fiscal effects if necessary. eugen GmbH does not provide legal advice and does not give legal information.
The claim for commission arises according to § 7 MaklerG with legal effect (i.e. agreement of will or possible entry into conditions) of the brokered transaction and is – unless in individual cases a later due date has been agreed – due immediately. The claim for payment of the commission arises at this point in time irrespective of the invoicing. The amount of the commission claim shall be notified to consumers prior to conclusion of the contract in accordance with a separate overview of ancillary costs in the brokerage contract. It is noted that the mediation activity for interested parties is free of commission.
For the mediation, the naming of the mediated business partners is sufficient.
The entitlement to commission shall only lapse if landlords prove that the legal transaction is not executed for reasons for which they are not responsible, or that the enforcement of the claim to the maintenance of the legal transaction fails for reasons for which landlords are not responsible or is unreasonable.
The agreement of a commission reduction shall always be made in writing and under the condition that the payment of the reduced amount is credited to the account of eugen GmbH within one week from the agreement at the latest. Otherwise the full amount shall be due.
In addition, eugen GmbH is entitled in the case of culpable delay in payment to charge interest on arrears in the respective permissible amount (4% for consumers, otherwise 9.2% above the respective prime rate in accordance with § 456 UGB) and in the event of recourse to legal assistance for debt collection, the costs according to RATG, provided that these were actually necessary for the appropriate prosecution and the collection costs are in a reasonable proportion to the debt pursued. eugen GmbH shall also be entitled to commission if the transaction to be brokered under the contract is not concluded, but a transaction of equivalent value is concluded, or if the contract is concluded under conditions other than those originally envisaged. In such cases, the commission shall be deemed to be agreed upon which is permissible for this transaction according to the provisions of the IMV.
In the event of a follow-up transaction within three years, eugen GmbH is entitled to any difference in the form of a supplementary commission. This applies, for example, if a property initially rented is subsequently sold to tenants or another legal transaction (lease or purchase) is concluded between the contracting parties (landlord and tenant). The claim to commission from the subsequent transaction shall also exist if eugen GmbH did not earn any income from this subsequent transacti
The parties to the contract (landlord and landlady and eugen GmbH) agree that eugen GmbH shall be entitled to an amount equal to the agreed commission even if the legal transaction is not concluded because the landlords, contrary to the previous course of negotiations, fail to perform a legal act required for the conclusion of the legal transaction without a noteworthy reason (revocation against good faith). This payment obligation shall also apply if a transaction other than a transaction with the same purpose is concluded with the third party mediated by eugen GmbH or if the transaction specified in the mediation order is not concluded with the landlords but with another person because the landlords have informed the latter of the possibility of conclusion announced to them by eugen GmbH or if the transaction is not concluded with the mediated third party but with another person, but with another person, because the mediated third person has informed him of the business opportunity, or the transaction is not concluded with the mediated third person, because a legal or contractual right of first refusal, repurchase or entry is exercised. The obligation to pay is also agreed in the event that the exclusive agency agreement is terminated prematurely without good cause, the transaction is concluded during the term of the exclusive agency agreement in breach of the agreement through the mediation of other agents commissioned by the landlords, or the transaction is concluded during the term of the exclusive agency agreement in a manner other than through the mediation of other agents commissioned by the landlords. In consumer business, this provision shall apply if this has been additionally agreed in writing in the brokerage contract.
10. Joint business
The eugen GmbH reserves the right to arrange the object by way of a joint business. In this case, no further costs will be incurred by the landlord.
11. Jurisdiction and choice of law
The place of performance shall be Vienna. In the case of business transactions as well as in the case of consumer transactions where consumers have neither their domicile or habitual residence in Austria nor are employed in Austria at the time the action is brought, the court having jurisdiction for the 1st district in Vienna in terms of subject matter and value shall have jurisdiction for any disputes arising from the brokerage contract. The contracting parties agree on the application of Austrian law, excluding the conflict of laws rules of private international law and the UN Convention on Contracts for the International Sale of Goods. In the case of consumers, this choice of law shall only apply to the extent that mandatory provisions of the law of the state in which they have their habitual residence are not displaced.
12. Salvatory clause
The following shall also apply to entrepreneurs: Should individual provisions of these GTC be invalid in whole or in part, this shall not affect the validity of the remaining provisions and the contracts concluded on the basis thereof. In the case of contracts with entrepreneurs, the wholly or partially invalid provision shall be replaced by a provision that comes as close as possible to the meaning and purpose of the invalid provision.
Status: November 2022