GENERAL TERMS AND CONDITIONS
1. general
The following General Terms and Conditions (GTC) apply to all services provided or to be provided by Lenz&Gomez (hereinafter referred to as the personnel service provider) arising from and in connection with temporary employment contracts. Deviating general terms and conditions of the customer (hereinafter: client) do not apply even if the personnel service provider does not expressly object or the client declares that it only wants to conclude on its terms.
2. conclusion of contract
2.1 The contractual relationship is established by the offer of the personnel service provider in accordance with the Temporary Employment Contract and these General Terms and Conditions and the written declaration of acceptance by the client upon signing the Temporary Employment Contract. The Client is aware that the personnel service provider has no obligation to perform if the signed contract document is not returned by the Client (Section 12 (1) of the Temporary Employment Act (hereinafter: AÜG)).
2.2 If the Client intends to entrust the Temporary Worker with the handling of money and/or valuables, it shall conclude a separate agreement with the Personnel Service Provider in advance.
2.3 The personnel service provider is a member of the Gesamtverband der Personaldienstleister e.V. (GVP). The personnel service provider declares that the iGZ-DGB collective agreement (including the industry supplement collective agreements) and supplementary, amending or replacing collective agreements concluded by the GVP as the legal successor to the Interessenverband Deutscher Zeitarbeitsunternehmen e.V. (iGZ) are included in full in the employment contracts it has concluded with the employees deployed by the client, in their respective valid versions.
2.4 The Client warrants that no employee deployed within the scope of the individual employee leasing agreements has left an employment relationship with the Client itself or a company affiliated with the Client within the meaning of Section 18 of the German Stock Corporation Act (AktG) in the last six months prior to the start of deployment specified in the individual employee leasing agreement.
2.5 The Client warrants that no employee deployed under the temporary employment contracts has worked for the Client via another personnel service provider in the last three months and one day. Otherwise, the client shall inform the personnel service provider of the shorter interruption. In this case, previous assignments shall be taken into account when agreeing the duration of the assignment.
2.6 If the personnel service provider provides the client with workers within the meaning of Section 1b sentence 1 AÜG (prohibition of temporary employment in the main construction industry), the client confirms that the company of assignment does not predominantly perform trades within the meaning of Section 1 of the Construction Industry Ordinance. The client is obliged to inform the personnel service provider immediately of any change.
3. labor law relations / chain rental
3.1 The conclusion of this agreement does not establish an employment relationship between the Temporary Worker and the Client. The personnel service provider is the employer of the temporary worker. The personnel service provider assures the client that only employees who are in an employment relationship with the personnel service provider will be provided.
3.2 The Client warrants that it will not subcontract temporary workers either openly (disclosed temporary employment) or covertly (covert temporary employment, e.g. sham contracts) (no chain leasing).
3.3 For the duration of the assignment with the client, the client shall be responsible for exercising the work-related right to issue instructions. The client shall only assign the temporary worker activities that are subject to the scope of activities contractually agreed with the personnel service provider and that correspond to the level of training of the respective temporary worker. In all other respects, the right to issue instructions shall remain with the personnel service provider.
4. duty of care and cooperation of the client / occupational health and safety
4.1 The Client shall assume the duty of care in connection with occupational health and safety measures at the Temporary Worker's place of employment (Section 618 BGB, Section 11 (6) AÜG). In this respect, it shall indemnify the personnel service provider against all claims of the temporary worker and other third parties resulting from the failure to fulfill this obligation or to fulfill it adequately.
4.2 Insofar as the assignment of the leased employees
4.2.1. if official permits are or become necessary, the client undertakes to obtain these before the temporary worker commences employment and to submit the permit to the personnel service provider on request;
4.2.2. occupational health check-ups are required, these shall be carried out by the personnel service provider before the start of the assignment and evidence of these shall be provided to the client;
4.2.3 If follow-up examinations become necessary, the client shall inform the personnel service provider of this in writing. Follow-up examinations shall be carried out by the company doctor responsible for the client or, if no such doctor is available, by a company doctor appointed by the personnel service provider at the expense of the personnel service provider. A different cost allocation can be agreed.
4.3 The client is obliged to comply with the statutory occupational health and safety and accident prevention regulations. In particular, the client is obliged
4.3.1. in accordance with § 5 ArbSchG, to determine the hazards associated with the temporary worker's work before the temporary worker starts work and to take suitable protective measures in accordance with the state of the art before the temporary worker starts work;
4.3.2. to instruct the temporary worker adequately and appropriately on safety and health protection at the relevant workplace in accordance with §12 ArbSchG before commencing work;
4.3.3. to implement the provisions of the Working Hours Act for the respective assignment at the client's company. The employment of temporary workers for more than 10 hours per working day requires the agreement of the personnel service provider. Work in excess of 10 hours per working day may only be performed if this is permitted by a collective agreement or a works agreement based on a collective agreement of the client pursuant to Section 7 of the Working Hours Act or an official permit, or in an exceptional case within the meaning of Section 14 of the Working Hours Act;
4.3.4. in the case of work on Sundays or public holidays, to provide the personnel service provider with proof of authorization to order work on Sundays or public holidays;
4.3.5. to report an accident at work to the personnel service provider immediately and to provide it with all information required under Section 193 (1) SGB VII. The personnel service provider shall report the accident at work to the responsible accident insurance institution.
4.4 The client shall provide the personnel service provider with documentation that meets the requirements of § 6 ArbSchG immediately after the temporary worker has been assigned.
4.5 The personnel service provider shall be granted the right of access to the employees' workplaces during working hours in consultation with the client in order to fulfill its employer obligations.
4.6 The personnel service provider shall inform and instruct its employees about applicable accident prevention regulations, safety rules and instructions. The client must provide workplace-specific occupational health and safety instructions before the deployed employees commence work. The instruction must be documented by the client and a copy given to the personnel service provider.
4.7 If temporary workers of the personnel service provider refuse to perform work due to missing or inadequate safety equipment or precautions at the client's premises, the client shall be liable for the resulting downtime.
5. rejection/replacement of temporary workers
5.1 The client is entitled to reject a temporary worker by written declaration to the personnel service provider if there is a reason that would entitle the personnel service provider to extraordinary termination of the employment relationship with the temporary worker (Section 626 BGB). The client is obliged to explain the reasons for the rejection in detail. In the event of rejection, the personnel service provider is entitled to assign other temporary workers of equal professional quality to the client.
5.2 If the client determines within the first four hours that a temporary employee of the personnel service provider is not suitable for the intended activity and insists on a replacement, he will not be charged for up to four working hours after prior consultation.
5.3 In addition, the personnel service provider is entitled at any time to replace temporary workers assigned to the client for organizational or legal reasons and to assign temporary workers of equal professional value.
6. notification obligations/adjustment of the clearing rate
6.1 The assignment to a company of the Client other than the one specified in the temporary employment contract, the exchange of employees within the company and the assignment of activities other than those agreed in this contract shall require the consent of the personnel service provider. The client is obliged to inform the personnel service provider in good time in advance if the temporary worker is to be deployed abroad. Changes to the place of assignment and the area of work shall entitle the personnel service provider to change the hourly rate.
6.2 The Client shall inform the personnel service provider immediately of any change in the activity of the leased employees, also against the background of minimum wage obligations under the Posted Workers Act. The parties agree that the personnel service provider is entitled to adjust the agreed hourly rate if the activity performed becomes subject to minimum wage or if the minimum wage increases.
6.3 The Client undertakes to provide the Personnel Service Provider, without being requested to do so, immediately with a copy of any collective agreements that may apply to it in the future and that provide for a deviation from the future maximum duration of 18 months and/or any works agreements that may apply in the future in the Client's company to which the Personnel Service Provider provides employees and that provide for a deviation from the future maximum duration of 18 months on the basis of a collective agreement. This applies in particular if a collective agreement and/or a works agreement stipulates a shorter maximum assignment period than 18 months.
6.4 The client shall inform the personnel service provider if and insofar as it grants temporary workers access to its shared facilities. The client shall inform the personnel service provider immediately of any changes in this regard.
7. personnel selection / personnel deployment / strike
7.1 The personnel selection shall be carried out by the personnel service provider on the basis of the requirement profiles agreed in the textual notification of requirements.
7.2 The personnel service provider undertakes to select suitable personnel for the intended work. In the case of requested qualifications for which a recognized training occupation exists, the personnel service provider undertakes to select and provide the client only with personnel who have successfully completed this vocational training. Any deviations must be agreed in writing.
7.3 The personnel service provider shall ensure that the employees deployed, unless they are nationals of an EEA state or Switzerland, are authorized to take up employment on the basis of regulations under immigration law. Upon request by the Client, the personnel service provider shall provide corresponding proof.
7.4 The personnel service provider shall be entitled to replace employees deployed by the client with other employees at any time, provided that they meet the agreed requirement profiles. The client must be informed of this immediately.
7.5 The client is entitled to a replacement of the temporary worker if the latter is not suitable for the intended activity. The lack of suitability must be proven accordingly. The client is also entitled to this claim if there are reasons that would entitle him to extraordinary termination in the case of his own employer position (§ 626 BGB). If the client is of the opinion that there is a claim for replacement within the meaning of this paragraph and therefore wishes to terminate the assignment of the employee concerned, it must inform the personnel service provider of this immediately and give reasons for the replacement.
7.6 If the temporary worker does not commence work at the client's premises or does not commence work on time, the client shall inform the personnel service provider of this immediately. If the client fails to notify the temporary worker immediately, the client shall not be entitled to any claims against the personnel service provider arising from or in connection with the temporary worker's failure to commence work or to commence work on time.
7.7 If the client's business is on strike, the client may not deploy any temporary workers in the business, contrary to the provision in Section 11 (5) AÜG. In addition, the prohibition of deployment for strikes initiated by member unions of the DGB collective bargaining association also applies to employees already deployed before the start of the industrial action. Accordingly, the temporary worker will not be deployed in companies or parts of companies that are duly on strike within the scope of the strike call. The client shall ensure that no temporary workers are deployed as far as the deployment ban extends. In this respect, the personnel service provider is not obliged to provide employees. The parties to the industrial action may deviate from the above provisions in individual cases and agree on the use of temporary workers (e.g. in emergency service agreements). Section 11 (5) sentence 2 AÜG shall apply in this respect. The client shall inform the personnel service provider immediately of an ongoing or planned strike.
8. billing / price adjustment
8.1 All rates quoted by the personnel service provider are net rates. The personnel service provider shall invoice the client at the end of the assignment - on a weekly basis if the assignment continues - stating the statutory VAT, unless the parties expressly agree a different invoicing method.
8.2 Invoicing shall be based on the actual hours worked, whereby at least the agreed working hours shall be invoiced. The hours worked by each leased employee shall be documented by means of activity reports, which shall be completed weekly for each leased employee and signed by an authorized representative of the client after a factual check. The leased employees must use the instruments provided by the client (time sheet/electronic working time recording), insofar as these are available.
8.3 The client is obliged to enable a prompt issue of the activity report. The activity reports must show the start and end of the daily working hours including breaks. Overtime must be shown separately.
8.4 The invoice amounts are due immediately - without deduction - upon receipt by the client of the invoice issued by the personnel service provider. The client shall be in default if the invoice amount is not received in the personnel service provider's business account within 10 calendar days of receipt of the invoice. A prior reminder is not required (Section 286 (2) BGB). § Section 288 BGB (default interest) shall apply.
8.5 The temporary workers assigned by the personnel service provider are not authorized to accept advances or payments on the statements issued by the personnel service provider. Payments to the temporary worker shall not have the effect of fulfillment.
8.6 If the Client is (partially) in arrears with the payment of remuneration, the remuneration for all hours not yet invoiced, the completion of which the Client has already confirmed by signing a certificate of activity, shall be due immediately. The personnel service provider shall be entitled to refuse performance in the event of non-performance by the client.
8.7 In the event of default in payment by the Client, the personnel service provider shall be entitled to demand default interest of 9 percentage points above the base interest rate in accordance with Section 288 (2) BGB. In this case, the Client reserves the right to prove that the personnel service provider has not incurred any damage or has not incurred damage to this extent.
8.8 The personnel service provider is entitled to adjust the temporary employment remuneration agreed in the temporary employment contract at its reasonable discretion if there are changes in the cost situation. Reasonable discretion requires that the adjustment only takes into account the new cost situation, e.g. due to an increase in remuneration in the iGZ-DGB collective agreement or in the supplementary, amending or replacing collective agreements concluded by the GVP as the legal successor to the iGZ (see Section 2.3), due to the validity of a new industry supplement collective agreement that has come into force or is not yet applicable, or due to changes in equal pay. The above also applies if the activity performed becomes subject to minimum wage or if the minimum wage increases.
9. exclusion of set-off / right of retention
The Client is not entitled to offset claims of the personnel service provider or to assert a right of retention unless the counterclaim asserted by the Client is undisputed or legally established.
10 Warranty/ Liability
10.1 The personnel service provider shall ensure that the employees deployed have the necessary qualifications. At the request of the client, the personnel service provider shall provide proof of qualification.
10.2 In view of the fact that the temporary workers carry out their work under the direction and supervision of the client, the personnel service provider shall not be liable for any damage caused by them in the course of or in connection with their work. The Client shall indemnify the personnel service provider against any claims that third parties may raise in connection with the performance and execution of the activities assigned to the temporary workers.
10.3 Otherwise, the liability of the personnel service provider and its legal representatives and vicarious agents shall be limited to intent and gross negligence. This limitation of liability shall not apply to damages resulting from injury to life, limb or health. This applies to both statutory and contractual liability, in particular in the event of default, impossibility, inability, breach of duty or tort. In particular, the personnel service provider shall not be liable for the work results of the temporary workers or damage caused by them in the course of or in connection with their work or incurred by the client due to unpunctuality or absence of the temporary workers.
10.4 The Client shall indemnify the Personnel Service Provider against all claims arising for the Personnel Service Provider from a breach by the Client of the assurances and obligations arising from this contract (e.g. inspection and notification obligations). The personnel service provider undertakes to invoke the relevant preclusion periods vis-à-vis any claimants.
11. takeover of temporary employees / placement commission
11.1 A placement is deemed to have taken place if the client or a company legally or economically affiliated with the client enters into an employment relationship with the temporary worker of the personnel service provider during the term of the temporary employment contract. A placement is also deemed to have taken place if the client or a company legally or economically affiliated with the client enters into an employment relationship with the temporary worker within 6 months of the end of the assignment, but no more than 12 months after the start of the assignment. In this case, the client reserves the right to prove that the employment relationship was not concluded on the basis of the previous assignment.
11.2 A placement also exists if the client or a company legally or economically affiliated with the client enters into an employment relationship directly after the personnel service provider has established contact with the applicant without a prior assignment.
11.3 The date on which the employment relationship between the Client and the Temporary Worker is established is not the date on which the Temporary Worker commences work, but the date on which the employment contract is concluded.
11.4 The client is obliged to inform the personnel service provider whether and when an employment contract was concluded. If, in the event of a dispute, the personnel service provider presents evidence of the existence of an employment relationship between the client and the temporary worker, the client shall bear the burden of proof that an employment relationship was not entered into.
11.5 In the cases of clauses 11.1. and 11.2. the client shall pay a commission to the personnel service provider. Temporary employment relationships are subject to commission to the same extent as permanent employment relationships. The amount of the agency commission is 2.5 gross monthly salaries if the temporary employee is taken on directly without prior assignment. Otherwise, the agency commission amounts to 2 gross monthly salaries in the case of a takeover within the first 3 months after the start of the temporary assignment, 1.5 gross monthly salaries in the case of a takeover within the 4th to 6th month after the start of the temporary assignment, 1 gross monthly salary in the case of a takeover within the 7th to 9th month and 0.5 gross monthly salaries in the case of a takeover within the 10th to 12th month after the start of the temporary assignment.
11.6 The basis for calculating the placement commission is the gross monthly salary agreed between the Client and the Temporary Worker, but at least the gross monthly salary agreed between the Temporary Employment Agency and the Temporary Worker. The client shall provide the personnel service provider with a copy of the signed employment contract. In the event of interruptions in the assignment, the start of the last assignment prior to the establishment of the employment relationship shall be decisive. The placement commission is payable plus statutory VAT. The commission is payable 14 days after receipt of the invoice.
11.7 If the employee works for the client on the basis of a freelance contract or a contract with a self-employed person, the provisions shall apply accordingly with the proviso that the monthly fee agreed between the client and the employee shall form the basis of the calculation instead of the gross monthly salary.
11.8 The above provisions shall also apply if the employee is placed in a training relationship with the client. In this case, the basis for calculating the placement commission shall be the gross training allowance agreed between the client and the temporary worker, but at least the gross monthly salary last agreed between the personnel service provider and the temporary worker.
12. contract term/ termination
12.1 Insofar as the temporary employment contract was not concluded for a fixed term, it shall run for an indefinite period. In the first week of the temporary worker's assignment, the client is entitled to terminate the contractual relationship with one working day's notice. Otherwise, both parties have the right to terminate the agreement with three working days' notice to the end of a calendar week, unless the parties agree otherwise.
12.2 This shall not affect the right to extraordinary termination. Both contracting parties shall have an extraordinary right of termination with one month's notice to the end of the month if the AÜG is fundamentally amended. In particular, the personnel service provider shall be entitled to terminate this agreement without notice if
12.2.1. insolvency proceedings have been applied for against the client's assets, insolvency proceedings have been opened or dismissed for lack of assets or such proceedings are imminent.
12.2.2. the client fails to settle an invoice due even after a reminder has been issued and a deadline set.
12.2.3. the Client breaches the warranties and obligations within the meaning of Clause 10.4.
12.2.4. the client does not accept a price adjustment in accordance with Clause 8.8.
12.3 Termination of this agreement by the Client shall only be effective if it is declared to the personnel service provider in text form. The temporary employees provided by the personnel service provider are not authorized to accept notices of termination.
13. confidentiality/data protection
13.1 The contracting parties undertake to treat all information that becomes known to them during the cooperation, including all personal data of the temporary workers provided, as strictly confidential. The same applies to all knowledge gained about internal business processes and procedures of the contracting parties. This does not apply to all data and information that is in the public domain or generally known.
13.2 The contracting parties undertake to treat the information, data and knowledge obtained with the utmost care. They shall take such precautions as are necessary to protect the information and data, but at least those precautions with which they protect particularly sensitive information about their own company. They further undertake to process the information and data received exclusively for the purposes of the agreed service provision and not to use it for any other purpose, nor to forward it to third parties or make it accessible to them.
13.3 The contracting parties also undertake to comply with the requirements of data protection laws. The respective employees shall be obliged to maintain data secrecy.
13.4 The obligations set out in this clause shall continue to apply even after termination of the cooperation between the parties. The Client undertakes to delete the information and data of which it has become aware immediately after termination, provided that there are no statutory retention obligations to the contrary. Data carriers received from the personnel service provider must be returned or destroyed.
14. final provisions / severability clause
14.1 Amendments and supplements to the agreement between the parties must be made in writing to be effective. This shall also apply to any amendment to the written form requirement itself. Instead of the written form, the electronic form (§ 126a BGB) may also be used. The temporary workers provided by the personnel service provider are not entitled to agree amendments, supplements or ancillary agreements to the temporary employment contract with the client.
14.2 The place of jurisdiction for all disputes arising from and in connection with the contractual relationship between the personnel service provider and the client shall be the registered office of the respective branch of the personnel service provider that has concluded this temporary employment contract, provided that the client is a merchant. The personnel service provider may also assert its claims before the courts of the client's general place of jurisdiction.
14.3 The law of the Federal Republic of Germany shall apply exclusively to all legal relationships between the personnel service provider and the client.
14.4 The personnel service provider declares that it will not participate in a procedure for alternative dispute resolution in consumer matters in accordance with the Act on Alternative Dispute Resolution in Consumer Matters.
14.5 Should a provision of these General Terms and Conditions or the employee leasing agreements concluded on this basis be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a provision that comes closest to the economic purpose.