General terms and conditions (01.02.2011)

§ 1 General Provisions

(1) The subject of the agreement is the valuer's task as defined above in writing.

(2) KENSTONE shall not acknowledge any deviating General Business Conditions of the applicant (AG), unless KENSTONE has acknowledged their applicability in writing before being commissioned.

(3) For its valuer's reports, KENSTONE shall rely on the documents provided to it by AG, the contents of which are being presumed correct, and on its market experience. To ascertain the value of property, KENSTONE shall also gather information about land prices, building costs, rents and leases and about revenues, management costs and prices of comparable real property.

(4) KENSTONE shall not check as to whether a permit has been issued for any building to be surveyed, unless AG has submitted to it the pertinent building permit for that purpose.

(5) Within the framework of the valuer's commission, it shall not be verified whether the building has been constructed in detail in accordance with any permit submitted and the generally acknowledged technical standards, or free of defects.

(6) KENSTONE shall verify whether any operating licences required have been granted and that the real property has been approved for its use as valued. This verification, however, shall be entirely based on the documents submitted by AG. The latter is therefore obliged to provide KENSTONE with all documents relevant to the verification. KENSTONE shall check whether the documents submitted by AG and an inspection of the property reveal any danger signs of subsidence or flooding, whether the property is free from any signs of archaeological monuments and a worrying groundwater level, and finally whether there are any signs of encumbrances of the development site. For these enquiries, KENSTONE shall examine the documents submitted by AG and inspect the property. Unless there are any different indications, it shall be presumed in the valuer's report that the development site is stable and free from encumbrances, and that there is no danger of subsidence damage or flooding, that there are no archaeological monuments and no worrying groundwater level. This also applies accordingly to any possible danger due to undetected dud bombs.

(7) Unless any different indications are found in the documents submitted by AG or upon inspection of the property, it shall furthermore be presumed in the valuer's report that no health or environment hazards emanate from the building material used for the property and that all relevant guideline values have been complied with.

(8) KENSTONE is not obliged to inspect the register of building charges/encumbrances [""Baulastenregister""]. For the preparation of the valuer's report, KENSTONE shall therefore take any existing building charges/encumbrances into account only if AG has submitted an extract from the register of building charges/encumbrances to it. To the extent that AG has not submitted any relevant documents on the development of the property to KENSTONE (especially any notices in connection with development measures and costs, and supporting documents for the payment of any development costs), KENSTONE will presume in its valuation that no development measures are eminent and that all local improvement assessments have been paid.

(9) In a valuer's report, the following shall not be the subject of the commission: destructive testing of components or extraction of samples and their analyses, an examination of the static or of the sufficiency of fire proofing, heat and sound insulations and also of the functioning of all technical installations of the building. Nor are any examinations of the development site, measurements of the breathing air, sound-level measurements, contamination or asbestos measurements carried out. For heating systems, the exhaust stream is not analysed.

(10) The subject of the valuer's report is not the exact quantification or qualification of construction deficiencies and defects, and vermin infestation; for this purpose, special appraisers would have to be instructed (e.g. publicly commissioned appraisers for construction deficiencies and defects).

(11) However, if KENSTONE notes within the scope of preparation of the valuer's report that there are reasonable grounds for suspicion in that respect, or that further individual examinations are required regarding value-relevant criteria, it will make a corresponding reference in the valuer's report. For any construction deficiencies and defects detected within the scope of preparation of the report, a lump-sum deduction will be made in the report. The same must not necessarily correspond to the costs of repair; the latter can only be quantified after corresponding offers, i.e. on previous examination and an invitation to tender. The value established in the valuer's report shall invariably apply to the condition of the property without the above-mentioned impairments, unless those have been specifically taken into account in the valuer's report.

§ 2 Mutual rights and obligations

(1) The commission shall be discharged with impartiality and to the best of the valuers' knowledge and belief in accordance with the provisions of the German Valuation Ordinance [""Immobilienwertermittlungsverordnung ImmoWertV""] or, for calculations of long-term open market value and mortgage lending value, in accordance with the Pfandbrief Act [""Pfandbriefgesetz""] and the Ordinance on Mortgage Lending Valuation [""Beleihungswerter¬mittlungs¬ver¬ordnung""]. KENSTONE shall not be bound by the instructions of AG in preparing the valuer's report if this endangers an independent preparation of the report. The report shall be prepared by suitable qualified specialists.

(2) KENSTONE shall be entitled to carry out the trips and inspections required for the discharge of its commission and also to make the required photographs, drawings etc. or to have them made, without a specific consent being required from AG. By being commissioned, KENSTONE is at the same time authorised at its discretion to obtain information from, as well as make investigations and carry out surveys with involved parties, authorities and third persons. For this purpose, KENSTONE shall be granted a specific authority on request.

§ 3 Co-operation by AG

(1) AG undertakes to support KENSTONE in the discharge of its commission. AG shall in particular enable KENSTONE to obtain the required documents and shall make all documents and information available to KENSTONE which it needs to discharge its commission, free of charges and without undue delay.

(2) KENSTONE shall be advised by AG of all issues and circumstances that may be relevant to the preparation of the valuer's report without specific request and as soon as possible. AG shall ensure the possibility of a close inspection of the property for KENSTONE.

(3) For reports on the present open market value, AG shall determine the date of valuation if it is to lie before the date of inspection, otherwise the date of inspection of the property shall be regarded as the date of valuation.

§ 4 Calling in assistants

KENSTONE is entitled at its discretion to call in suitable assistants for the discharge of its commission at its own cost.

§ 5 Calling in specialised experts and further appraisers

For the calling in of further appraisers or specialised experts, the consent of AG is required. KENSTONE shall not be liable for the activity and the results of specialised experts or further appraisers called in. The utilisation of the results produced by such further appraisers is without guarantee.

§ 6 Date agreements

Date agreements shall only be binding upon confirmation in writing. Should AG fail to comply with its obligation to submit documents required for the valuer's report or should it fail to enable timely inspection of the property, the dates agreed shall be reasonably extended. The same shall apply if the content of the commission should change during the processing period.

§ 7 Duties to observe secrecy

(1) The valuers of KENSTONE are under a duty to observe secrecy within the scope of § 203 para. 2 no. 5 German Penal Code [""Strafgesetzbuch""] regarding personal or business secrets that have been confided or advised to them within the scope of their function as valuers. This duty to observe secrecy covers all facts that are not common knowledge. Objective findings from the valuation activities may be used by KENSTONE in neutral form for its other valuation activities, provided that no inference is possible to AG and this does not impair any other interests warranting protection of AG.

(2) Otherwise, the valuers are authorised to disclose information only to the extent that they are under a legal obligation to do so, or if AG expressly releases them from their duty of secrecy.

§ 8 Valuer's duty to furnish information

On request, the valuers shall inform AG of the progress of activities, the expenses incurred or to be expected and of the prospective completion date.

§ 9 Remuneration

(1) If a remuneration is not agreed in No. I above, the following shall apply:

Remuneration shall be payable on basis of an individual agreement of both AG and KENSTONE, plus VAT.

In addition to this remuneration, KENSTONE shall be entitled to a refund of its travelling expenses and outlays.

(2) KENSTONE shall be entitled even without a specific agreement to request reasonable advances on its remuneration and outlays from AG. Until receipt of the advances, KENSTONE shall be entitled to suspend its activities for the valuer's report temporarily. Any dates agreed shall be extended accordingly.

(3) In addition to the remuneration and outlays, the statutory VAT shall be payable at the prevailing rate.

§ 10 Payments

(1) Invoices, also invoices of advances, shall be due and payable on receipt by AG. If no payment is made within 14 days after receipt of the invoice, partial invoice or invoice of advance, interest shall be payable on the invoice amount at a rate of 5 % p.a. above the base interest rate as provided for in § 247 German Civil Code [""BGB""]. This does not preclude the assertion of further default-induced loss.

(2) A set-off against claims of KENSTONE shall only be possible by uncontested claims or claims recognised by declaratory judgement. If AG is an entrepreneur within the meaning of § 310 para. 1 German Civil Code [""BGB""], it cannot assert a right of retention, unless such right arises from the same contractual relationship.

§ 11 Liability, Insurance Policies

(1) KENSTONE is only liable for damage resulting from incorrect valuations, irrespective of whether the basis of the claim is of a contractual or legal nature, when it, or it’s agents acting on Kenstone’s behalf, cause the damage intentionally, or through gross negligence, or - only in cases affecting life, bodily injury or health - through ordinary negligence. This also applies to damage arising during the preparation of a valuation or after its completion.

(2) In all other cases – in particular financial losses – KENSTONE cannot be held liable in the event of ordinary negligence, unless the case involves: the breach of an explicitly stated contractual obligation which would jeopardise the fulfilment of the contract's purpose; or, the breach of an obligation whose fulfilment represents a prerequisite for the contract’s proper conduct and whose fulfilment is relied upon by the Client or by a Third Party who is in effect covered by the contract’s stipulations.

(3) In the event that a culpable breach of its contractual obligations renders KENSTONE liable, regardless of the breach’s legal foundation, KENSTONE - in the case of wilful intent or gross negligence - is obliged to fully compensate the Client for all damage caused. In all other cases, liability is limited to the amount specified in section (5), unless the case involves damage claims resulting from injury to life, the body and/or to health. This excludes liability for financial losses that cannot typically be anticipated upon the conclusion of the contract.

(4) KENSTONE is not liable for services and statements given regarding the field of market and opinion research, for suggestions or for non-binding or estimated information.

(5) In order to ensure the coverage of possible claims for damages arising from the contract, KENSTONE has obtained financial loss liability insurance. The insured sum totals €10 million for each individual claim and €20 million for all claims within a policy period of one year. In addition to the above, KENSTONE maintains insurance policies covering bodily injury and property damage totalling €15 million.

(6) Upon the Client’s request, liability may be extended on an individual basis. In this case, the Client shall cover the additional insurance costs.

§ 12 Termination

(1) The agreement may be terminated by either party for good cause only. The notice of termination must be made in writing. For a termination by KENSTONE, good cause shall be deemed given, among others, if AG has failed to provide access to documents required for the preparation of the valuer's report despite a request to do so and an additional respite granted (which shall also apply to the submission of the building permit and the extract from the register of building charges/encumbrances [""Baulastenregister""]), has violated other duties to co-operate, has refused to give its consent required for the preparation of the valuer's report (in particular the consent to call in a needed specialised expert), or has impeded the KENSTONE valuers' activity.

(2) If the agreement ends through a termination by KENSTONE, the latter shall be entitled to part of the remuneration corresponding to the work performed, plus VAT and refund of all travelling expenses and outlays not included in the remuneration. As a lump-sum fee for the corresponding remuneration, KENSTONE may request payment of 35 % of the agreed remuneration. AG shall be entitled to provide proof that the part of remuneration corresponding to the work performed is lower. Instead of the lump-sum fee, KENSTONE may precisely calculate the part of remuneration corresponding to the work performed and charge it.

(3) In the event of a termination by AG, KENSTONE shall remain entitled to request payment of the agreed remuneration plus VAT and any travelling expenses and outlays already incurred. It must, however, permit those expenses to be offset which it saves as a result of the cancellation of the agreement, or that which it gains or maliciously omits to gain by otherwise applying the labour of the valuer employed by it.

§ 13 Place of jurisdiction and place of performance

(1) Place of performance for all services under this agreement shall be Eschborn, if AG is an entrepreneur within the meaning of § 14 German Civil Code [""BGB""].

(2) Place of jurisdiction shall be Frankfurt am Main, if AG is a businessperson, a legal entity under public law, or a special fund under public law, has transferred its residence or habitual place of abode from the scope of the German Code of Civil Procedure [""Zivilprozessordnung""] after conclusion of the agreement, or if its place of abode or residence is unknown on commencement of an action.

§ 14 Final provisions

Any amendments, supplements and ancillary agreements to this agreement must be made in writing. This also applies to the written form requirement set forth in this clause. Should any or several provisions of this agreement be ineffective, the effectiveness of the agreement as a whole and the effectiveness of the other provisions shall remain unaffected. The ineffective provision shall be replaced by an effective provision which comes closest to the intended purpose."

Data protection references

§ 1 Processing purposes

For the purposes of performing contractually agreed calculation, valuation and report services, person-specific data has to be processed (legal basis Art. 6 Para. 1 letter b GDPR). This covers for example the assessment of documents handed over by the contracting partner and the gathering and processing of external data (e.g. approvals, excerpts from registeries et. al.) and data which is gathered by KENSTONE in the course of its own investigations (e.g. in the course of a site visit to a property to be valued). Passing on your data to 3rd. parties only takes place if this is nessecary for these purposes and to service providers who, on our behalf, based on our instructions, process the data. We save person-specific data for 10 years following the conclusion of the order.

§ 2 The rights of those affected

You can demand information regarding the data relating to you which we have stored and you have the right to recieve the data you provided in a standard format which is readable by machine. In addition you can, in justified cases, demand the deletion, correction or limitation to the processing of your data or appeal against data-processing. If you have submitted an approval for the processing of the person-specific data affecting you, then you can revoke your approval at any time with future effect.

§ 3 Contact person

The body responsible for data processing is KENSTONE GmbH, Helfmann-Park 5, D-65760 Eschborn, Email:, Tel.: +49(0)30 2653 - 2069. To exercise your rights, you can refer to our data protection officer:

Data protection officer of KENSTONE GmbH

Commerzbank AG

GS-OS Physical Security & Data Protection

Hafenstrasse 51 (DLZ 5) 18. Floor

D-60327 Frankfurt am Main

You still have the right to complain to the data protection authority responsible for you or us (for KENSTONE GmbH this is the data protection supervisory authority of the Federal State of Hesse).