Terms of Service


Temporary employment

 

 

Status: 01.12.2018

   

 

 

1. General

 

The following General Terms and Conditions (GTC) apply to all services provided or to be provided by app GmbH (hereinafter: Contractor) from and in connection with the temporary employment contract. Deviating terms and conditions of the customer (hereinafter: the client) do not apply even if the contractor does not expressly object or the client declares that he only wants to conclude on his terms.

 

2. Conclusion of the contract

                                                                                                                                                                                         

The contractual relationship comes about through the offer of the contractor in accordance with the temporary employment contract as well as these general terms and conditions and the written declaration of acceptance by the client with the signing of the temporary employment contract. The client is aware that there are no performance obligations for the contractor if the signed contract document is not returned by the client (Section 12 (1) of the Temporary Employment Act (hereinafter: AÜG)).

If the client intends to transfer the handling of money and / or valuables to the temporary worker, he will make a separate agreement with the contractor in advance.

 

The contractor declares that the iGZ-DGB collective bargaining agreements are fully included in their currently valid version in the employment contracts that they have concluded with the temporary workers employed in the client's company. The contractor is a member of the Association of German Temporary Employment Companies

The client guarantees to check before each assignment whether the temporary worker has left an employment relationship with the client or a company affiliated with the client within the meaning of Section 18 of the German Stock Corporation Act in the last six months prior to the assignment. If this is the case, the client will inform the contractor of these findings immediately. In view of the resulting legal consequences (equal treatment), the contracting parties then have the opportunity to decide whether the leasing should be carried out as planned and, if necessary, to adjust the leasing contracts.

The client assures that no employee employed under this temporary employment contract has been working for the client through another personnel service provider in the last 4 months. Otherwise, the client informs the personnel service provider about the shorter interruption. In this case, previous assignments are taken into account when agreeing the duration of the assignment.

 

3. Labor Relations

The conclusion of this agreement does not establish an employment relationship between the temporary worker and the client. The contractor is the employer of the temporary worker. The contractor assures the client that only employees who are in an employment relationship with the personnel service provider will be hired (no chain rental).

 

For the duration of the assignment with the client, the client is responsible for exercising the right to issue instructions. The client will only assign the temporary worker those activities that are subject to the area of ​​activity contractually agreed with the contractor and that correspond to the level of training of the respective temporary worker. Otherwise the right of direction remains with the contractor.

 

4. Client's duty of care / cooperation / occupational safety measures

 

The client assumes the duty of care in connection with occupational safety measures at the place of employment of the temporary worker (§ 618 BGB, § 11 paragraph 6 AÜG). In this respect, he releases the contractor from all claims of the temporary worker and other third parties that result from insufficient or insufficient fulfillment of this obligation.

 

The client assures that applicable at the place of employment of the temporary worker

Accident prevention and occupational safety regulations (including §§ 5, 6 ArbSchG) as well as the legally permissible working time limits and breaks are observed. In particular, the client will instruct the temporary worker before the start of his work and explain any special dangers that may exist in the work to be performed, as well as measures to prevent them. The instruction is to be documented by the client and a copy is to be handed over to the personnel service provider. If the contractor's temporary workers refuse to work due to missing or inadequate safety devices or precautions in the client's company, the client is liable for the resulting downtime.

 

The preventive occupational medical examinations required for the assignment must be carried out before the start of the assignment and must be proven to the client. If follow-up examinations are required, the client will inform the contractor in writing. Follow-up examinations will be carried out by the company doctor responsible for the client or, if one is not available, by a company doctor commissioned by the contractor at the contractor's expense.

 

In order to carry out the monitoring and control measures incumbent on the contractor, the client grants the contractor access to the workplaces of the temporary workers within normal working hours.

 

If official permits are or become necessary for the employment of temporary workers, the client undertakes to obtain them before the temporary worker commences employment and to submit the approval to the contractor upon request.

 

The client assures that he will notify the contractor in writing of any accident at work of the temporary worker immediately, i.e. on the day of the damage. As a result, the client will provide the contractor with a written damage report within 5 working days after the occurrence of the damage or investigate the course of the accident with the contractor.

 

5. Rejection / replacement of temporary workers

 

The client is entitled to reject a temporary worker by means of a written declaration to the contractor if there is a reason that would entitle the contractor to an extraordinary termination of the employment relationship with the temporary worker (§ 626 BGB). The client is obliged to explain the reasons for the rejection in detail. In the event of rejection, the contractor is entitled to assign other technically equivalent temporary workers to the client.

 

If the client determines within the first four hours that a temporary worker of the contractor is not suitable for the intended activity and he insists on an exchange, he will not be charged for up to four working hours, after prior consultation.

 

In addition, the contractor is entitled at any time, for organizational or legal reasons, to replace temporary workers hired out to the client and to hire technically equivalent temporary workers.

 

6. Obstacles to performance / withdrawal

 

The contractor shall be wholly or temporarily released from his obligation to perform if and to the extent that the hiring out of temporary workers is made permanently or temporarily impossible or unreasonably difficult due to extraordinary circumstances that were not caused by the contractor's fault. Such extraordinary circumstances are, in particular but not conclusive, industrial action, regardless of whether in the company of the client or the contractor, sovereign measures, natural disasters, etc. In addition, the contractor is entitled to withdraw from the temporary employment contract in the aforementioned cases.

 

If the client's company is on strike, the client may not allow temporary workers to work in the company, contrary to the provision in Section 11 (5) AÜG. In addition, the ban on strikes initiated by member unions of the DGB collective bargaining community also applies to workers deployed before the start of industrial action. According to this, the temporary worker is not deployed to the extent of the strike call in companies or parts of companies that are properly strikes. The client ensures that no temporary workers are used as long as the prohibition of use extends. In this respect, the personnel service provider is not obliged to provide employees. The parties to the labor dispute can deviate from the above regulations in individual cases and agree to the use of temporary workers (e.g. in emergency service agreements). In this respect, Section 11 (5) sentence 2 AÜG applies. The client informs the personnel service provider immediately about an ongoing or planned strike.

 

If, contrary to the agreement, the temporary worker does not take up his work or does not take up his work in a timely manner, the client will inform the contractor immediately. The contractor will do its best to provide a replacement at short notice. If this is not possible, the contractor will be released from the order. If the client fails to notify us without delay, these claims are not entitled to claims against the contractor in connection with the non-commencement of the work by the temporary worker or not in time.

 

7. Billing

 

All billing rates specified by the contractor are net figures. Upon completion of the order, the contractor will issue the client with an invoice stating the statutory value added tax - weekly if the assignment continues, unless the parties expressly agree on a different accounting method.

 

Changes to the location and the work area entitle the contractor to change the hourly rate.

 

The contractor carries out the billing according to the time sheets provided by the temporary worker and signed weekly by the client. In the case of daily or weekly working hours of the temporary worker that go beyond the regular daily or weekly working hours applicable to the client, the contractor will calculate overtime surcharges in accordance with the agreement made in the temporary employment contract or listed below. The same applies to the calculation of public holidays, shifts, night work and other collectively provided surcharges. In the event that the contractor is not presented with time sheets for billing and this is due to the behavior of the client, the contractor is entitled, in the event of a dispute, to calculate a daily working time of the temporary worker, which corresponds to the maximum daily working time of employees according to the Working Hours Act in the respective current version (§ 3 ArbZG). In these cases, the client reserves the right to prove that the temporary worker has been employed for a shorter period of time. The following surcharges are agreed:

 

Overtime surcharge: 25% from the 40th hour per week

Night work allowance: 25% between 11 p.m. and 6 a.m.

Saturday hours: 25% (midnight to midnight)

Sunday surcharge: 50% (from midnight to midnight)

Holiday surcharge: 100% (from midnight to midnight)

Shift hours (full continuous hours): 10%

Partial account hours: 5%

Dirt hardship allowance: 10%

 

If higher surcharges are paid in the hiring company, the surcharges are based on the percentages in the hiring company.

 

8. Equal Pay Billing

 

The contractor must grant your temporary workers the same services and essential working conditions as for a comparable employee in the customer company after a period of 9 months in accordance with the statutory principle of equality (equal pay).

In addition to the temporary employment contract, a questionnaire to determine the comparable wage (equal pay) must be available before the temporary employment app begins. If the information to be provided is not available or is incomplete or incorrect before the start of the assignment and therefore the determination of the relevant hourly rate or the equal pay compensation and thus the remuneration to be paid to the temporary worker is incorrect or incomplete, we are entitled to set the hourly rate and the To determine the equal pay compensation amount based on the actual facts and to adjust it retrospectively. A retroactive adjustment of the temporary work remuneration applies to all claims, such as judgments and decisions that were not foreseeable at the start of the contract.

If, after the start of the transfer, there are changes to the statutory or collective bargaining provisions, relevant sectoral collective agreements, regulations on minimum wages, regulations on equality (equal pay) or other wage-relevant conditions and agreements, the borrower must notify the app immediately and retrospectively adjust the billing rates and the equal pay compensation amount, plus any incidental wage costs.

The calculation of the equal pay compensation amount plus ancillary wage costs and a handling amount for administrative costs is always carried out one month in advance when the payroll period has ended and the difference (equal pay compensation amount) has been calculated.

If annual benefits and one-off payments, such as Christmas bonuses, vacation pay, benefits in kind, etc. are due, these will be invoiced in the month following the payment plus ancillary wage costs.

In addition, the statutory and collective bargaining agreements apply.

The invoice amounts are due immediately - without any deductions - upon receipt of the invoice issued by the contractor. The client is in default if the invoice amount is not received on the contractor's business account within 10 calendar days of receipt of the invoice. A previous reminder is not required (Section 286 (3) BGB). § 288 BGB (default interest) applies.

 

The temporary workers hired out by the contractor are not authorized to receive advances or payments on the statements issued by the contractor.

 

In the event of default in payment by the client, the contractor is entitled to charge the statutory default interest, but at least 5% pa above the base interest rate of the Deutsche Bundesbank or the financing instrument of the European Central Bank that replaces it. In this case, the client reserves the right to prove that the contractor did not suffer any damage, or not to this extent.

 

9. Offsetting / right of retention / assignment

 

The client is not entitled to offset against claims of the contractor or to assert a right of retention unless the counterclaim asserted by the client is undisputed or has been legally established.

 

The client is only entitled to transfer rights and obligations from this agreement to third parties with the prior written consent of the contractor.

 

10. Warranty / liability

 

The contractor ensures that the employees deployed have the required qualifications. He will provide evidence of the qualification upon request from the client. In an individual contract with the temporary worker, the contractor guarantees that data protection regulations do not conflict with the disclosure of such information.

 

The contractor, their legal representatives and vicarious agents are not liable for damage caused by temporary workers on the occasion of their work for the client, unless the contractor, their legal representatives and vicarious agents are guilty of willful or grossly negligent selection fault. Otherwise, the liability of the contractor as well as his legal representatives and vicarious agents is limited to intent and gross negligence. The limitation of liability does not apply to damage based on injury to life, limb or health. It applies to both legal and contractual liability, in particular in the event of default, impossibility, inability, breach of duty or in cases of tort. In the event of intent or gross negligence by simple vicarious agents, the contractor is also only liable for foreseeable damage.

 

10.1 The client undertakes to exempt the contractor from all third-party claims that they may assert in connection with the execution and performance of the activities assigned to the temporary worker by the client. The contractor will notify the client in writing of any claims made by third parties. The client releases the personnel service provider from all claims which the personnel service provider may incur as a result of the client's breach of the assurances and obligations arising from this contract (e.g. inspection and notification obligations) . The contractor undertakes to refer to any relevant deadlines against any claimants.

 

11. Acceptance of temporary workers / agency commission

 

A brokerage exists if the client or a company legally or economically affiliated with him enters into an employment relationship with the employee of the contractor for the duration of the temporary employment contract. A placement also exists if the client or a company legally or economically affiliated with him enters into an employment relationship with the temporary worker within 6 months of the termination 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 transfer.

 

11.1. A mediation is also present if the client or a company legally or economically affiliated with him enters into an employment relationship immediately after the contractor has established contact with the applicant without prior assignment. Decisive for the time of the establishment of the employment relationship between the client and the temporary worker is not the time of the start of work, but the time of the conclusion of the employment contract.

 

11.2 The client is obliged to inform the contractor whether and when an employment contract has been concluded. If, in the event of a dispute, the contractor provides evidence of the existence of an employment relationship between the client and the temporary worker, the client bears the burden of proof that an employment relationship was not entered into. In the cases of 10.1. and 10.2. the client has to pay a commission to the contractor. Fixed-term employment relationships are subject to commission to the same extent as open-ended employment relationships. The amount of the agency commission is 20% of the gross annual remuneration to be achieved in the case of direct hiring of the temporary worker without prior assignment. In addition, the agency commission amounts to 2.5 gross monthly salaries in the case of a takeover within the first 3 months after the start of the hiring, 2.0 gross monthly salaries in the case of a takeover within the 4th to 6th month after the start of the hiring out, and in the case of a transfer within the 7th 1.5 gross monthly salary up to the 9th month and 1.0 gross monthly salary in the event of a transfer within the 10th to 12th month after the start of the assignment.

 

11.3 The basis for calculating the agency commission is the gross monthly salary agreed between the client and the temporary worker, but at least the gross monthly salary agreed between the contractor and the temporary worker. The client submits a copy of the signed employment contract to the contractor. In the event of interruptions in the hiring process, the beginning of the last hiring process before the employment relationship was established is decisive. The agency commission is to be paid plus statutory VAT. The commission is payable 14 days after receipt of the invoice.

 

11.4 If the employee works for the client on the basis of a freelance employee contract or a contract with a self-employed person, the provisions apply accordingly, with the proviso that instead of the gross monthly salary, the monthly fee agreed between the client and the employee forms the basis of the calculation. The above provisions apply accordingly if the employee is hired out by another temporary employment agency. The above provisions also apply in the event that the employee is placed in an apprenticeship relationship with the client. In this case, the basis for calculating the agency commission is the gross training remuneration agreed between the client and the temporary worker, but at least that between the contractor and the temporary worker
last agreed gross monthly salary

 

12. Contract term / termination

 

If the temporary employment contract was not concluded for a limited period, it will run for an indefinite period. If, contrary to expectations, a temporary worker does not meet the expectations, the client has the option, after prior consultation with the contractor, to send the temporary worker back within the first 4 working hours. In this case no costs will be charged. The contractor will provide a suitable replacement within the scope of the available possibilities. If this is not possible, the client can cancel the order with immediate effect. In addition, both parties have the right to terminate the agreement with a notice period of seven weekdays, unless the parties agree otherwise.

 

12.1 This does not affect the right to terminate the contract without notice. Both contracting parties have an extraordinary right of termination with a month's notice to the end of the month if the AÜG should be fundamentally changed. In particular, the contractor is entitled to terminate this agreement without notice if an application has been made to open insolvency proceedings against the client's assets, if insolvency proceedings have been opened or rejected for lack of assets, or if the client does not threaten to settle a due invoice even after a reminder and a deadline. the client violates the assurances and obligations within the meaning of §9.5.

 

12.2 A termination of this agreement by the client is only effective if it is declared to the contractor in writing. The temporary workers hired out by the contractor are not authorized to accept notices of termination.

 

13. Confidentiality and data protection

 

The contracting parties undertake to keep confidential business and trade secrets that become known to you during the cooperation, both for the duration of the cooperation and after its termination. The duty of confidentiality does not extend to such knowledge that is accessible to everyone or that can be passed on without any disadvantage for the other party to the contract. In case of doubt, however, technical, commercial and personal processes and circumstances that become known to the contractual partner in connection with the cooperation are to be treated as company secrets. In such cases, the other contractual partner is obliged, prior to disclosure to third parties, to obtain permission from the management of the contractual partner concerned as to whether a certain fact is to be treated confidentially or not.

 

13.1 The contracting parties mutually undertake to comply with the statutory data protection provisions. The contractor assures that a corresponding agreement is made in the employment contract with employees who are assigned to be hired out. The client must keep the contractual conditions of the cooperation, in particular the hourly rate, confidential to third parties. This does not apply to cases in which he is legally entitled or obliged.

 

14. Final provisions - severability clause

 

Changes and additions to the agreement between the parties must be made in writing to be effective. This also applies to a change in the written form requirement itself. The electronic form (§ 126a BGB) may also be used instead of the written form. The temporary workers hired out by the contractor are not entitled to make changes, additions or ancillary agreements to the temporary employment contract with the client.

 

14.1 The place of jurisdiction for all disputes arising from and in connection with the contractual relationship between the contractor and the client is the registered office of the respective office of the contractor that has concluded the present temporary employment contract, provided the client is a businessman. The contractor can also assert his claims at the courts of the general place of jurisdiction of the client.

 

14.2 The law of the Federal Republic of Germany applies exclusively to all legal relationships between the contractor and the client. The contractor declares not to participate in a procedure for alternative dispute resolution in consumer matters in accordance with the law on alternative dispute resolution in consumer matters.

 

14.3 Additions and changes to these General Terms and Conditions must be made in writing to be legally effective. This even applies to the waiver of the written form requirement. Should a provision or part of a provision be or become wholly or partially ineffective, this shall not affect the effectiveness of the remaining provisions. The ineffective provision will be replaced by one that comes closest to the economic purpose.

 

 

app GmbH 2019