Hans Leutenegger GmbH - Temporary employment
The term ‘employee’ used in these terms and conditions includes female and male workers. The undifferentiated term is used solely to improve the readability of the terms and conditions.
1. Validity
Unless otherwise agreed in writing in individual cases, the following General Terms and Conditions shall apply exclusively to all services provided or to be provided in connection with the provision of temporary staff and personnel placement by Hans Leutenegger GmbH, Schwarzwaldstr. 3, 79189 Bad Krozingen [hereinafter referred to as the Contractor]. Any terms and conditions of the customer [hereinafter referred to as the client or customer] that deviate from these are deemed to be objected to and are expressly excluded.
2. Conclusion of contract
(a) The contractual relationship shall come into effect through the offer of the contractor in accordance with the employee leasing contract [hereinafter: AÜV] and these terms and conditions and the written declaration of acceptance of the customer with the signing of the AÜV. The customer is aware that the contractor has no service obligations if the signed contract is not returned by the client (§ 12 para. 1 of the German Employee Leasing Act [hereinafter: AÜG]).
(b) If the client intends to allow the temporary employee to handle money and/or valuables, it shall enter into a separate agreement with the contractor in advance.
3. Selection of employees
(a) The contractor shall provide the client with carefully selected employees in accordance with the required professional and technical qualifications.
(b) The customer shall check the suitability of the contractor's employees during the first four hours of work. In the event of justified complaints, the customer shall be entitled to demand the replacement of the employee after consulting with the contractor's branch office.
(c) Insofar as necessary, the contractor shall be entitled to replace the leased employees during the term of the contract, provided that this does not violate the customer's legitimate interests.
(d) The customer is entitled to reject an employee by written declaration to the contractor if there is a reason that would entitle the contractor to terminate the employment relationship with the employee without notice (Section 626 of the German Civil Code (BGB)). The customer is obliged to explain the reasons for the rejection in detail. In the event of rejection, the contractor is entitled to provide the customer with other employees of equivalent professional standing.
4. Legal status of employees
(a) The customer is responsible for assigning and instructing the employees in the work for which they are hired. For the duration of the assignment, the customer has the authority to issue work-related instructions to the employee, to supervise him and to monitor his work.
(b) This does not establish a contractual relationship between the employee and the customer. The contractor is the employee's employer at all times. Unlawful enticement (Section 1 of the German Unfair Competition Act (UWG), Section 826 of the German Civil Code (BGB)) shall be subject to compensation. The contractor's employees may not be made available to third parties.
5. Deployment of employees
(a) The customer shall deploy the employee exclusively at the location and for the activities agreed in the employee leasing contract. The customer shall only allow the employee to use or operate the appropriate tools or machines that correspond to the employee's level of training. Any change in the place of work and/or activity requires the written confirmation of the client, who retains the right of direction.
(b) The employees are bound to the working hours in the customer's company within the framework of the maximum working hours agreed in the AÜV. This applies in consideration of § 3 ArbZG. The customer assures that he will only order and tolerate overtime work to the extent that this is permissible for his company under the Working Hours Act. Any necessary official approval of overtime work is to be obtained by the customer. The customer undertakes to notify the contractor immediately of any exceptional reasons for overtime work. The customer shall ensure that all legal, official and other regulations are observed during the work.
(c) The customer shall not deploy employees to transport money or to collect money and shall expressly indemnify the contractor against all claims in this respect. This shall not apply to separate agreements between the customer and the contractor in accordance with Section 2. (b) above.
6. Prevention from working
(a) If one or more of the leased employees are prevented from performing their work through no fault of the Contractor (e.g. due to illness, accident or termination of the employment relationship), the Contractor shall be released from its performance obligation for the duration of the hindrance. If it is clear that the obstacle to the work will not end before the end of the assignment, the contractor, like the customer, is entitled to terminate the contract or to limit it to the remaining employees by partial termination.
(b) Exceptional circumstances not caused by the contractor entitle the contractor to postpone an order that has been placed or to withdraw from an order that has been placed in whole or in part. Compensation is excluded.
(c) If the customer is affected by an industrial dispute, the contractor is not obliged to provide employees with regard to § 11 para. 5 AÜG. The same applies in the event of impossibility and in cases of force majeure, such as natural disasters and the like. In such cases, the customer shall indemnify the contractor against all and any third-party claims that may be asserted against the contractor in connection with the services to be provided by the employees provided by the contractor. Furthermore, the contractor shall be entitled to withdraw from the temporary employment contract in the aforementioned cases.
(d) If the employee does not start work or does not start work on time, contrary to the agreement, the customer shall inform the contractor immediately. The contractor shall use its best endeavours to provide a replacement at short notice. If this is not possible, the contractor shall be released from the order. If the customer fails to notify the contractor immediately, the customer shall have no claims against the contractor arising from and in connection with the employee not starting work or not starting work on time.
7. General obligations of the contractor
The contractor is obliged to fulfil all employer obligations. This means, in particular, complying with all labour, social and wage tax regulations, as well as making the appropriate payments in a proper and timely manner.
8. General obligations of the customer / occupational safety
(a) When using the contractor's employees, the customer shall comply with the statutory provisions of occupational safety and health law (in particular working hours and occupational safety) applicable to his business. The customer is responsible for assigning the work and providing technical and safety training in accordance with the applicable legal provisions (Sections 3, 11 and 12 of the German Temporary Employment Act (AÜG), Section 12 of the German Occupational Safety and Health Act (ArbSchG), Section 4 of the German Social Accident Insurance's Regulation for the Safety and Health Protection at Work (BGV A1)). The customer must supervise the employees and monitor their work.
(b) Pursuant to § 618 BGB and § 11, para. 6 AÜG, the customer shall comply with the accident prevention and occupational safety regulations applicable to the employee's respective activity, as well as the generally recognised safety and occupational health rules, and shall instruct the contractor's employees regarding the hazards arising from their activities and the measures for averting them prior to employment.
(c) The customer must provide the contractor's employees with the necessary personal and specific protective equipment and, when carrying out orders that coincide with the work of other companies in terms of time and location, must coordinate with them to the extent necessary to avoid mutual endangerment.
(d) The customer is obliged to carry out any necessary occupational health check-up of the employee free of charge and to inform the contractor of this. The customer grants the contractor a right of access to the respective place of employment of the employees so that the contractor can satisfy himself that the accident prevention and occupational safety regulations are being observed. (e) Insofar as official permits are or become necessary for the employment of the employees, the customer is obliged to obtain these before the employee is deployed and to present the permit to the contractor upon request.
(f) The customer shall indemnify the contractor against all claims by the employee and other third parties, insofar as these should result from a failure to perform or insufficient performance of the obligations mentioned under (a) to (e) above, and shall also be liable for any resulting downtime.
9. Occupational accident
In the event of occupational accidents to the contractor's employees, the customer is obliged to immediately create an accident report in accordance with § 193 SGB VII and to send it to the contractor for forwarding to the employers‘ liability insurance association. The customer must forward a copy of this report to his employers’ liability insurance association. Upon request, the customer shall provide the contractor with a written damage report on the course of the accident within five working days of the occurrence of the damage.
10. AGG
As part of his legal duty of care and the AGG, the customer shall take appropriate preventive measures to protect the contractor's employees from discrimination on the grounds of race or ethnic origin, gender, religion or belief, disability, age or sexual identity with regard to their employment.
11. Liability
(a) The contractor is only responsible for the proper selection of the leased employees. He is not obliged to check the accuracy of the employees' work papers, in particular their certificates, or to obtain police clearance certificates.
(b) The contractor is not liable, in particular, for the success of the employees' work and not for damage caused by them to the equipment or to the work assigned to them. He is also not liable for damage caused by employees merely in the course of their work.
(c) Otherwise, the liability of the contractor, his legal representatives and agents is limited to intent and gross negligence. This applies to both statutory and contractual liability, in particular in the event of default, impossibility, inability, breach of duty or in cases of unauthorised action. In the event of intent or gross negligence on the part of simple vicarious agents, the contractor shall only be liable for foreseeable damage.
(d) The liability of the contractor is completely excluded if the employee is entrusted with the custody of money, securities or other valuables.
(e) In addition, the customer shall indemnify the contractor against all claims by third parties that may arise in connection with the performance and execution of the work assigned to the employee by the customer. The contractor shall notify the customer in writing of any claims asserted by third parties.
(f) Should the customer fail to fulfil its inspection and notification obligations with regard to the employee's industry, comparative pay, company agreements, etc., it shall indemnify the contractor against all claims by the employee for equal treatment that have arisen to date and that may arise in the future, as well as against all other damages arising from the breach of duty. The contractor undertakes to invoke relevant preclusion periods vis-à-vis any claimants.
12. Confidentiality
The parties undertake to treat as confidential all trade and business secrets of which they become aware during the cooperation. This applies in particular to all business matters of which they become aware during the performance of their activities, which by their very nature are confidential or require confidentiality and are marked as confidential in writing. The confidentiality obligation shall continue to apply for one year after the end of the contractual relationship to the extent permitted by law.
13. Settlement of accounts
(a) Invoicing shall be carried out weekly, but at least once a month, on the basis of the documented hours worked. The hourly rate agreed in the employee leasing contract plus statutory VAT shall be used for the calculation. The agreed hourly rates are based on the collective bargaining provisions and remuneration valid at the time of the conclusion of the contract. Should these change, the Contractor reserves the right to adjust the hourly rates.
(b) If the employee's daily or weekly working hours exceed the regular daily or weekly working hours applicable at the customer's premises, the contractor shall charge overtime surcharges in accordance with the agreement reached in the employee leasing contract. The same shall apply to the calculation of holiday, shift, night work and other surcharges provided for in the collective agreement.
(c) Unless otherwise expressly agreed in writing, the agreed rates do not include the costs of providing tools and other equipment. These are to be provided by the customer free of charge.
(d) The invoice is based on a record of activities, which is submitted to the customer at the end of each week for approval. The customer is obliged to confirm the hours on the activity reports submitted to him by the employees or the contractor. If the activity reports cannot be submitted to an authorised representative of the customer for approval at the place of work, the employees are entitled to provide confirmation instead. Objections regarding hours certified by employees must be asserted in writing to the contractor within five days of the invoice date and must be verifiably substantiated.
(e) In the event that the customer does not submit any time sheets for billing purposes, the contractor is entitled, in the event of a dispute, to calculate a daily working time for the employee that corresponds to the maximum daily working time of employees according to the Working Hours Act in the currently valid version (Section 3 ArbZG). In such cases, the customer reserves the right to prove that the employee's working hours were shorter.
(f) The invoices of the contractor are created on the basis of the confirmed activity reports and are due for payment within the agreed payment period after the invoice date without deduction.
(g) If payment is not made by the due date, the customer shall be in default even without a reminder and shall owe the contractor default interest at a rate of 5% above the respective base interest rate of the Deutsche Bundesbank or the financing instrument of the European Central Bank replacing it, whereby the right to claim higher damages remains reserved. The date of receipt of payment by the contractor is decisive.
(h) Should the customer fall into arrears with the invoice settlement, the contractor is also entitled to withdraw its employees without notice.
(i) The customer is not entitled to offset against claims of the contractor or to assert a right of retention, unless the counterclaim asserted by the customer is undisputed or has been legally established.
(j) The employees provided by the contractor are not authorised to accept payments. In particular, the customer may not grant them any wage or other advance payments. Such payments will not be recognised by the contractor and may not be offset under any circumstances.
14. Agency
(a) A commission-based placement exists if the client or a company legally or economically associated with it enters into an employment relationship with the contractor's employee during the term of the employee leasing contract. A placement also exists if the customer or a company legally or economically associated with it enters into an employment relationship with the employee within 6 (six) months of the end of the lease. In this case, the customer reserves the right to prove that the employment relationship was not entered into as a result of the previous temporary employment.
(b) A commissionable placement also exists if the client or a company legally or economically associated with it enters into an employment relationship with the applicant immediately after the contractor has established contact with the applicant, without a previous temporary employment.
(c) The decisive factor for the point in time of the establishment of the employment relationship between the customer and the employee is not the point in time of the commencement of work, but the point in time of the conclusion of the employment contract. The customer is obliged to inform the contractor whether and when an employment contract was concluded. If, in the event of a dispute, the contractor provides prima facie evidence that an employment relationship between the customer and the employee is suspected, the customer bears the burden of proof that no employment relationship has been entered into.
(d) In the cases mentioned under (a) to (c), the customer shall pay a commission to the contractor. Fixed-term employment relationships are subject to commission to the same extent as permanent employment relationships.
(e) The basis for calculating the commission is the gross monthly salary agreed between the customer and the employee, but at least the gross monthly salary agreed between the contractor and the employee. In the event of interruptions in the assignment, the start of the last assignment before the establishment of the employment relationship is decisive. If the employee works for the customer on the basis of a freelance contract or a contract with a self-employed person, the provisions shall apply mutatis mutandis, with the proviso that the monthly fee agreed between the customer and the employee shall form the basis for the calculation instead of the gross monthly salary.
(f) The commission shall be payable within 15 days of receipt of the invoice plus statutory VAT.
15. Contract term and termination
(a) The provisions of the respective AÜV shall apply with regard to the contract term and notice periods for the supply of temporary staff.
(b) Irrespective of the notice periods agreed in the AÜV, the Contractor is in particular entitled to terminate this agreement without notice if an application has been made to open insolvency proceedings against the Customer's assets, insolvency proceedings have been opened or rejected due to insufficient assets, or if such proceedings are imminent, or if the Customer fails to settle a due invoice even after a reminder has been issued and a deadline has been set.
(c) Termination by the customer is only effective if it is declared to the contractor. The employees provided by the contractor are not authorised to accept declarations of termination.
16. Adjustments
In the event that after the conclusion of a contract legal or collective provisions for the equal treatment of temporary employees (so-called ‘equal pay’ or ‘industry surcharge’) should come into force with effect for the term of a contract, the parties will discuss together with regard to the remuneration regulated in this contract whether there is a legally mandatory need for adjustment and, if necessary, agree any necessary adjustments by mutual agreement.
Bad Krozingen, January 2017
Terms and Conditions of the Hans Leutenegger GmbH