General terms and conditions for Brockhoff GmbH (hereafter ‘Brockhoff’)
1. Scope of application
A brokerage agreement between Brockhoff and the customer comes into effect via agreement by letter, fax or email (‘in writing’ for the purposes of these General Terms and Conditions) or with the usage of brokerage services such as those provided by Brockhoff. The commercial relationship between Brockhoff and the customer shall be governed by the following General Terms and Conditions in the version valid at the time services are provided. Any general terms and conditions of the customer shall be binding for Brockhoff only after it has given its express written approval.
2. Brockhoff’s services
All due care is taken in the provision of Brockhoff’s services, which are based on the information provided. Brockhoff shall accept no liability for the accuracy or completeness of its services except in cases of malice or gross negligence. All quotations are subject to confirmation and are non-binding. The right to error, interim sale and interim rental is reserved.
3. Customer’s prior awareness
In the event that the customer is already aware of any property referred to them by Brockhoff, the customer must immediately – within 5 days – inform Brockhoff in writing. The notification must include the date and time at which the customer became aware of the property and the source of the information regarding the property.
4. Disclosure of information
4.1 All activity performed by Brockhoff, especially its quotations, documents and written or oral information (‘Information’) is intended solely for the customer concerned. The Information provided must always be treated in confidence. Only with the Brockhoff’s prior written approval (‘Consent’) may the Information be passed on to any third party.
4.2 In the event that a customer of Brockhoff discloses Information either wholly or in part and the disclosure is followed by the formation of a prime contract, then the disclosing customer shall be wholly liable for the payment of commission. The commission due to Brockhoff shall be equal to the sum it would have earned had the customer itself concluded the prime contract. This shall neither exclude nor limit the right to claim further compensation or bring other claims based on the unauthorised disclosure of confidential information.
5. Commission trigger and due date
5.1 Commission shall become payable if a prime contract is formed as a result of referral or brokerage by Brockhoff. This shall also apply if the prime contract is formed after the ending of the brokerage agreement. For commission to become payable requires only that Brockhoff’s brokerage has played a contributory role.
5.2 Should the prime contract be formed subject to conditions other than those originally offered, the right to commission shall remain unaffected provided that the transaction thus provided for is commercially and financially identical to that originally referred by Brockhoff or in its commercial and financial effect differs only immaterially from the referral (commercial and financial congruence).
5.3 Commercial and financial congruence shall especially occur through the acquisition of shares in a property company (share deal) instead of the acquisition of the property (asset deal) as well as through an agreement for purchase instead of rental, leasehold instead of purchase, or exchange instead of purchase or rental, or vice versa in each case. The same shall apply if the customer’s prime contract comes into force via another property of a contractual partner referred by Brockhoff. Commercial and financial congruence shall also exist if a prime contract is formed not with the customer but with a person associated with the customer in the sense intended by § 138 of the Insolvency Code [Insolvenzordnung – InsO].
5.4 The onset of a condition subsequent agreed in the prime contract shall not affect the right to commission. The same shall apply if the prime contract is terminated through the exercise of a statutory or contractual right of withdrawal or if the prime contract is rescinded via mutual agreement. The right to commission shall in any instance of subsequent invalidity of the prime contract remain unaffected, unless the invalidity us due to a culpable dereliction of duty by Brockhoff.
5.5 Commission shall be due in full within 14 days of invoicing.
5.6 In the event that the prime contract is formed without the involvement of Brockhoff, the customer shall for the purposes of calculating commission immediately provide information as to the material content of the contract. The customer shall at first request provide Brockhoff with a simple copy of the prime contract.
5.7 Multiple clients shall be jointly liable for the payment of commission.
6. Commission amount
For the services provided by Brockhoff, the following commission rates shall apply. These rates do not include sales tax, which is to be applied at the statutory rate.
6.1 For prime contracts whose purpose is the purchase of land (developed or undeveloped) or the acquisition of rights similar to land rights, commission shall be based on the agreed total purchase price including associated ancillary payments (e.g. assumed liabilities and obligations). For the purchase or transfer of a lease, commission shall be based on the value of the land and the value of existing structures and buildings. For the transfer of company shares or other company rights, commission shall be based on the value of the contract including any ancillary payments as referred to above. For contractual or other agreements that affect the realisable commercial value of the land (e.g. for building contractor services or engineering and architectural services [i.e. project development]) the commercial value of such services shall, for the purposes of calculating commission, be added to the value already assessed. Based on the basic value as calculated using the aforementioned formulations, the rate of commission for values up to and including £5 million shall be 5%. For prime contracts of higher value the rate of commission shall be 3%.
6.2 For the agreement of purchase rights and rights of first refusal, the commission shall be 1% of the calculated value and is payable to Brockhoff by the customer. The value shall be calculated on the basis of the total purchase price and all associated ancillary payments.
6.3 For prime contracts whose purpose is letting, leasing or the formation of a leasing contract, commission shall be calculated on the following basis:
– For contracts with a duration of less than 3 years, the commission shall be 2 x net cold rent.
– For contracts with a duration of 3 to under 5 years, the commission shall be 3 x net cold rent.
– For contracts with a duration of 5 years or longer, the commission shall be 4 x net cold rent.
Not included in these rates are contracts for retail areas, especially shops, for five years or longer, for which the commission shall be 3% of the ten-year rental sum (net cold rent).
– For the agreement of options regarding space or duration or for pre-rental agreements regardless of the agreed fixed term and of the aforementioned commission rates, commission shall, where the person entitled to the exercise option is liable to pay commission, increase by an additional net cold rent.
– For the agreement of a graduated rent as the monthly rent, commission shall be based on the average monthly net cold rent as calculated using the total duration of the rental contract.
– Where commission is based on the average monthly net cold rent, periods during which no rent or reduced rent is paid shall not be taken into account. This shall not apply for the calculation of the contract’s duration.
– Where the contractual parties agree a compensation payment or similar payment for the conclusion of a contract or where such payment is to be made to a third party, commission shall be 3% of this amount.
– The above provisions for the calculation of commission amounts shall apply accordingly to prime contracts for permanent residency rights and permanent usage rights.
7. Dual agency
Brockhoff reserves the right to act for the other party to the prime contract either for a fee or for free.
8.1 Brockhoff shall not be held liable for slightly negligent breaches of duty, provided such breaches do not involve loss of life, bodily injury or impairment of health or guarantees or claims brought under the Product Liability Act [Produkthaftungsgesetz – ProdHaftG]. Also unaffected shall be liability for breaches of obligations whose fulfilment facilitates the orderly performance of the contract and on adherence to which the customer ought regularly be able to rely. In the event that Brockhoff becomes liable to merchants in the sense intended by § 14 of the Commercial Code [Bürgerliches Gesetzbuch – BGB], liability shall be limited to paying compensation for foreseeable loss or damage typical for this type of contract. These limitations on liability shall apply accordingly for breaches of duty committed by agents of Brockhoff.
8.2 The customer’s right to bring compensation claims shall expire within 3 years of claim onset and within 5 years of the ending of the brokerage agreement.
8.3 In the event of the customer becoming liable to Brockhoff, the latter can demand compensation for material costs and time costs. Compensation for time costs shall be calculated in accordance with the remuneration of sworn surveyors. The right to bring further claims remains unaffected.
9. Customer identification
Under the terms of the Money Laundering Act [Geldwäschegesetz – GwG], Brockhoff is compelled to verify customers’ identify. The customer shall provide Brockhoff with the necessary information and documents and shall provide immediate notification of any changes that arise during the course of the commercial relationship.
10. Performance and jurisdiction
The place of performance for all obligations is the head office of Brockhoff (Essen). The exclusive jurisdiction for all disputes shall be the head office of Brockhoff (Essen) if the customer is a merchant or public law entity. This shall also apply if the customer is not subject to any general jurisdiction in Germany.
11. Partial ineffectiveness
Should any of these provisions prove to be invalid or impracticable, the validity of the remaining provisions shall be unaffected. An invalid or impracticable provision shall be regarded as being replaced by a provision that comes as close as possible to meeting the parties’ intended commercial purpose. The same shall apply for gaps in the provisions.