General Terms & Conditions 

Intro

​

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 NIKO.PEPELIDIS-Real Estate (hereinafter referred to as “Consultant”) for the respective party to the contract with the Consultant (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 Consultant 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 Consultant 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 Consultant 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 Consultant’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 Consultant 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 Consultant if the Consultant has authorized the Client to transmit the offers and/or notifications and a primary contract is concluded on the basis of these.

2. Fees

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 shall pay to the Consultant a remuneration/ commission/ success fee (the “Success Fee”) in accordance with the following terms:  
 

2.1.1. The Success Fee shall amount graduated according to the Purchase contractual value as follows:

 

5,0 percent (5%) of the Purchse Contractual Value up to and including a contract value of €5,0 million.

4,0 percent  (4%) of the Purchase Contractual Value exceeding €5,0 million up to and including a contract value of €20 million.

3,0 percent (3%) of the Purchase Contractual Value exceeding €20 million.

​

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. 

​

"Purchase Contractual Value" shall mean the respective contractually agreed purchase price and/or the present value of any other consideration (ground rent, capital annuities, etc.) calculated in accordance with the German Tax Valuation Act (Bewertungsgesetz), together with any purchase price or (usage) consideration for movable inventory, operating equipment and/or operating and business equipment including any (ancillary) benefits accruing to the respective transferor or third party by virtue of the purchase contract or on the basis of the purchase contract and/or on the occasion of the purchase contract. Furthermore, all encumbrances, liabilities, obligations and/or other negative balances assumed by the respective purchaser or third party together with the respective object of purchase shall be added positively to the contractually agreed purchase price or other consideration; it is irrelevant whether these encumbrances, liabilities, obligations and/or negative balances directly encumber the respective object of purchase or (e.g. in the case of the transfer of shares in a company) represent liabilities of a company in which shares are acquired or sold. The Purchase Contractual value does not include the value-added tax on the purchase price to be paid by the respective purchaser, notarization and court costs and/or the amount of any land transfer tax payable.

2.2 Upon renting and leasing

​

Upon conclusion of rental or lease contracts, the Client shall pay to the Consultant a remuneration/ commission/ success fee (the “Success Fee”) in accordance with the following terms:  

 

a. for contracts on retail spaces (sales, storage, personnel areas or similar), 3,0 percent (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 1,0 percent (1%) of the agreed upon rent for possible Rental Term Options.

 

b. for contracts on office spaces, industrial areas (distribution, warehouse, factory, wholesale, production areas or similar), as well as hospitality, health care, sports & entertainment, land, 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 percent (1%) 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, hotel buildings, 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 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. Invoicing / Entitlement to Fees / Due Date

The conclusion of the consultancy agreement results in entitlement to the agreed upon success fee/commission; such fee is due and payable upon conclusion of the primary Purchase or Rental/Lease 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 success fee. 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 success fee/commission. In the case of a condition precedent, the claim to the agreed upon success fee/commission shall first be due and payable upon occurrence of the condition. Entitlement to success fee/commission shall also remain unaffected if there is a time period of up to twelve months between the last service provided by the Consultant 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 Consultant is free to demonstrate and substantiate the continuing causality of his original Consulting and Brokerage services for the conclusion of the primary contract. The success fee/commission agreed upon and earned pursuant to no. 5 is subject to VAT at the applicable statutory rate (currently 19%). The success fee/commission is due and payable with no deductions within 14 calendar days after invoicing.

​

4. Entitlement to commission also exists
 

a. if the primary 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 primary contract with the contractual partner procured by the Consultant 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 Consultant 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. 5 and which are based on the Consulting and Brokerage primary contract concluded between the Consultant and the Client;

 

d. if, instead of the initially intended transaction between the parties to the primary contract, another transaction (rental/ lease or purchase contract) materializes.

 

e. The respective success fee/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 Consultant, the Client must refer to the Consultant’s services. Promptly and without being solicited, the Consultant 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 Consultant 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 Consultant, the Client must ensure that the introduction of the designated contractual partner is the result of the Consultant’s agency. The Client is obligated to inform the Consultant 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 Consultant, the Client is obligated to promptly provide information to the Consultant on the fundamental content of the contract, in particular the content necessary for the calculation of the commission claim and, upon request of the Consultant, 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 Consultant 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 Consultant 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 Consultant is available for sale, rent or lease or can be closed, he must inform the Consultant 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 Consultant, 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 Consultant 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 Consultant’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 Consultant are based on information and notifications from third parties. The Consultant 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 Consultant. Otherwise, the Consultant 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 Consultant 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 Consultant.

​

8. Data Protection

The Client agrees in advance that the Consultant 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 Consultant 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 Consultant. 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 Consultant’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 law of the Federal Republic of Germany shall apply.

Place of performance is the headquarters of the Consultant. The exclusive place of jurisdiction is Munich 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 German translation, the English version of these General Terms and Conditions of NIKO.PEPELIDIS-Real Estate shall take priority over the German version of these General Terms and Conditions.

​

​

​

​

​