General Terms and Conditions (GTC)

1. Relationship under labour law
1.1 The conclusion of an Employee Leasing Agreement (hereinafter referred to as “ELA”) shall not found any relationship between the temporary employee and client under labour law. The employer is the contractor. 
1.2 The client is authorised to exercise its right of instruction during the term of employment. The client shall only assign the temporary employee duties falling under the scope which has been contractually agreed with the contractor and which correspond to the training of the temporary employee in question. Furthermore, the contractor shall retain the right to issue directives. 
1.3 The temporary employee is required to maintain confidentiality regarding all business affairs of the client, both during and after the end of the leasing relationship.

 

2. Duty of care/cooperation of the client/occupational protection measures
2.1 The client shall accept a duty of care in association with occupational protection measures at the location where the temporary employee is employed. It shall therefore indemnify the contractor against all claims by the temporary employee and other third parties resulting from its failure to fulfil or insufficient fulfilment of this duty. 
2.2 The client shall ensure that legal regulations on occupational protection (in particular on working hours and occupational safety) applicable at the temporary employee's place of employment are upheld. The client shall instruct the temporary employee before the employee begins work and shall inform the employee of any specific existing risks related to the work to be performed, as well as measures to avoid such risks. The client shall grant the contractor access to the temporary employee's workplace by prior agreement so that the contractor can ensure compliance with occupational safety measures. 
2.3 If the temporary employee suffers a work accident, the contractor must be informed of this promptly.

 

3. Rejection/exchange of temporary employees
3.1 The client is allowed to reject a temporary employee through written declaration submitted to the contractor, if there is just cause that would entitle the contractor to terminate its employment relationship with the temporary employee by way of extraordinary termination. If an employee is rejected, the contractor is entitled to lease the client other temporary employees with equivalent professional qualifications. 
3.2 If the client determines within the first four hours that the leased temporary employee is not suitable for the planned duties and if it requests that the employee be exchanged, it will not be charged for up to four hours after prior consultation. 
3.3 Furthermore, the contractor is entitled to exchange temporary employees leased to the client at any time on organizational or legal grounds and to lease temporary employees to the client with equivalent professional qualifications.

 

4. Impediments to performance/withdrawal
4.1 The contractor will be freed from its performance obligations either in whole or in part if and insofar as the leasing of temporary employees is temporarily or permanently impossible or unreasonably difficult due to extraordinary circumstances not culpably caused by the contractor (such as labour disputes in the client's or contractor's company (strikes, lockouts, etc.), state measures, natural catastrophes, and similar). Furthermore, the contractor is entitled to withdraw from the ELA in such cases. 
4.2 If the temporary employee does not begin its work or does not begin in a timely manner in violation of the agreement, the client will inform the contractor promptly. The contractor will attempt to provide a short-term substitute worker to the best of its abilities. If the client does not provide prompt notification, it will have no claims against the contractor resulting from or in relation to temporary employees who do not begin work or do not do so in a timely manner.

 

5. Billing
5.1 All billing rates provided by the contractor are net amounts. At the end of the contract - and on a weekly basis of leasing continues - the contractor will provide the client with an invoice including a statement of statutory VAT, unless the parties expressly agree to some other invoicing schedule. 
5.2 Changes to the work location and work area will entitle the contractor to change the hourly billing rate. 
5.3 The contractor will bill services based on the time sheets provided by the temporary employees and signed by the client each week. If the daily or weekly hours worked by the temporary employee exceed the regular daily or weekly working hours for the client, the contractor will invoice overtime hour surcharges according to the stipulations of the Employee Leasing Agreement. The same applies to billing any holiday, shift, night work and other surcharges stipulated under wage agreements. If time sheets are not submitted to the contractor for billing and if this is due to the fault of the client, the contractor is entitled in case of disputes to invoice the temporary employee's daily working hours as the maximum daily working hours for employees under the current valid version of the Working Hours Act (Sec. 3 ArbZG). In such cases, the client may provide proof that the temporary employee's worked for a shorter number of hours. 

 


5.4 Invoiced amounts are due and payable immediately, without discounts. 
5.5 If the client falls into default, the contractor is entitled to charge statutory default interest, and at least 5% p.a. above prime rate of the Deutschen Bundesbank or the financial instrument of the European Central Bank in its place.

 

6. Offsetting/rights of retention/assignment
Client rights of offsetting and retention shall only exist for claims that have been acknowledged in writing or established in a court of law.

 

7. Guarantee/liability
7.1 The contractor shall ensure that the leased temporary employees are generally suitable for the intended duties; however, it is not obligated to review work papers, in particular temporary employee references, to ensure they are correct, nor to obtain police certificates of good conduct. 
7.2 The contractor shall not be liable for any damages caused by temporary employees in the course of their work for the client, unless the contractor is guilty of gross negligence or malicious intent in its selection of employees. Furthermore, the contractor's liability shall be limited to gross negligence and intentional actions. This applies to both statutory and contractual liability, in particular in cases of default, impossibility, incapacity, violation of duties, or inadmissible actions. In cases of malicious intent or gross negligence on the part of agents, the contractor shall furthermore be liable only for foreseeable damages.

 

8. Hiring temporary employees/placement commission
8.1 Placement shall be deemed to have irrevocably taken place if the client or a company legally or economically affiliated with it enters into an employment relationship with the temporary employee during the term of the ELA. A placement shall also be deemed to have taken place if the client or a company legally or economically affiliated with it enters into an employment relationship with the temporary employee within 12 months after the end of the leasing period. In such cases, the client is free to prove that the employment relationship was not concluded based on the previous leasing. A placement shall also be deemed to have irrevocably taken place if the client or a company legally or economically affiliated with it enters into an employment relationship directly after contacting the applicant through the contractor without prior leasing. 
8.2 The client is obligated to inform the contractor if and when an employment contract has been concluded. In case of a dispute, if the contractor can provide evidence of an employment relationship between the client and the temporary employee, the client bears the burden of proof for demonstrating that it did not enter into such an employment relationship. 
8.3 In the case of 8.1, the client must pay a placement commission to the contractor. Short-term employment relationships are subject to the commission in the same manner as long-term employment relationships. The amount of the placement commission shall be 2.5 times the gross monthly wages if a temporary employee is hired without prior leasing. If the employee is hired during leasing, the placement commission will be 2 x the gross monthly wages if hired within the first three months of leasing, 1.5 x the gross monthly wages if hired within six months, 1 monthly wage if hired within nine months, and 0.5 x the gross monthly wages if hired within 12 months. After the 12th month, no placement commission will be due. 
8.4 The placement commission will be calculated based on the gross monthly wages agreed between the client and temporary employee and at least the gross monthly wages agreed between the contractor and the temporary employee. The client shall submit a copy of the signed employment contract to the contractor. If leasing is interrupted, the beginning of the last lease before the employment relationship begins will be used in calculations. Statutory VAT must also be paid in addition to the placement commission. The commission is due for payment immediately upon receipt of invoice, without discounts. 
8.5 If the employee begins work based on a freelancing employment agreement or works independently for the client, the provisions shall apply accordingly. However, the monthly fee agreed between the client and employee shall be in calculations in place of the gross monthly wages.

 

9. Contractual term/termination
9.1 Insofar as the ELA is not concluded on a temporary basis, it shall have an unlimited term. The ELA may be terminated by either party with a notice period of one week to the end of the week. All terminations shall require the written form, although transmission via e-mail or fax shall be sufficient, in deviation from Sec. 126 BGB (German Civil Code). 
9.2 The right to termination without notice shall remain unaffected. The contractor is entitled to terminate this agreement without notice in particular if a) insolvency proceedings have been applied for against the assets of the client, insolvency proceedings have been opened or are pending, or b) the client does not pay an invoice which is due for payment, even after being issued a warning and given a grace period. 
9.3 A termination of the ELA by the client shall only be valid if the contractor is notified of it. Leased temporary employees are not authorised to accept termination declarations.

 

10. Final provisions – severability clause
10.1 Amendments and supplements to the ELA between the parties and to these General Terms and Conditions shall require the written form to be valid. Temporary employees leased by the contractor are not entitled to agree to amendments, supplements or ancillary agreements to the ELA with the client. 
10.2 The place of jurisdiction for all disputes arising from or in conjunction with the contractual relationship between the contractor and client is the headquarters of the contractor, Aschaffenburg. 
10.3 If a provision of part of a provision in this agreement is or becomes invalid in whole or in part, this shall not affect the validity of the remaining provisions.

 

Alptekin Personalservice GmbH
(Last changed 13/01/2014)