General Terms and Conditions of BNP Paribas Real Estate Consult GmbH
1 Introduction
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 Fees
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.
6 Expenses
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.
7 Interest
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.
10 Termination
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 Liability
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 Electronic Communications
13.1 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.
13.2 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).
14 Confidentiality / Intellectual Property / Transmission to Third Parties
14.1 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.
14.2 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.
14.3 The transmission of professional statements from us (general reports, valuation reports, results and the like) to third parties is prohibited.
14.4 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.
14.5 We are obliged to maintain confidentiality regarding the content and the purpose of the mandate and also regarding the results.
14.6 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.
14.7 The client is not authorized to carry out changes to our copyrightprotected professional statements.
14.8 Copies of the written results (general reports, valuation reports) remain our property until fees are paid in full.
15 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.
16 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).
17 Combating Bribery and Corruption
The Client undertakes that, neither itself nor any of its subsidiaries, directors, officers, employees will engage in any activity or conduct in connection with this Agreement that would violate any applicable anti-corruption and anti-bribery laws and regulations. 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.
18 Sanctions and asset freeze / Prevention of Money Laundering / Counterterrorism
The Client declares and guarantees that neither they nor any of their subsidiaries, Directors or Senior Managing Officials is a natural or legal person (“Person”) who is, or is owned or controlled by a Person who is,
(i) the target of any sanctions;
or
(ii) located, registered, domiciled or resident in a Sanctioned Country or territory.
In addition, the Client confirms and guarantees to comply with the legal regulations related to Sanctions regulations and commits not to allow persons or entities targeted by sanctions measures to benefit from the proceeds of the transactions or services provided by us.
The Client confirms and guarantees that the transaction to be carried out or the nature of the business relationship with us has no links to MSC-related operations/investments, the origin of the funds used for this transaction, including the fees to be paid to us, do not originate directly or indirectly from any of the designated MSCs. Major Sanctioned Countries (MSCs) are countries that are subject to comprehensive embargoes or that are considered high-risk countries according to the BNP Paribas Group's criteria and for which the BNP Paribas Group has decided to implement identical enhanced control measures. These are the current MSCs: Cuba, Iran, Syria, North Korea, Crimea/Sevastopol region.
In addition, we must be notified if the service and/or transaction is related to an MSC and the source of funds used for that service and/or transaction, including fees payable to us, originate directly or indirectly from one of the designated MSCs.
Thus, we reserve the right to immediately terminate this contract as of right without notice, in the event that the Client, one of its subsidiaries, Directors, Senior Managing Officials, is subject to Sanctions.
If an interested party, identified by us(counterparty) is subject to a sanction measure, including asset freezing, we have the option to reject the offer received. The Client agrees to this procedure and will not assert any claims against us in this case.
Furthermore, if during the commercial process and after transmitting the offer to the Client, it appears that the counterparty is targeted by a Sanctions measure, the Parties agree to suspend the transaction process with regard to this counterparty.
In the interest of the present clause, “Sanctions” means any economic or financial sanctions or restrictive measures, including particularly asset freeze measures administered or enforced by the United Nations Security Council, the European Union, the French Republic, the United States of America, or any other competent authority regarding Sanctions. “Sanctioned Country” means any country or territory subject to Sanctions prohibiting any relations with that country or territory.
The Client undertakes to provide us with all information and documents requested in the context of identification, anti-money laundering and anti-terrorist financing. We reserve the right to terminate the business relationship extraordinarily in case Client fails to comply with its obligations to cooperate in the identification process, is associated with money laundering/terrorist financing or is affected by sanctions. The Client declares that he will indemnify us against all costs or damages that may arise from such termination.
19 General
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.
20 Closing Remark
The German version is the only legally binding version. The English version is just a courtesy translation and not legally binding.
Diversity plays an integral role at our company, which is why we strive to use inclusive, appreciative language. Given that we are primarily active in the B2B area, we use neutral terms such as “client”, “partner” and “investor”, all of which do not refer to individuals but to companies, institutions and other organisations.