1.1 Franz & Wach Personalservice GmbH (hereinafter: F&W) provides services in the field of employee leasing as well as employee placement (personnel placement).
1.2 In the area of employee leasing, F&W has been granted an unlimited permit in accordance with § 1 AÜG by the Baden-Württemberg Regional Directorate of the Federal Employment Agency.
2.1 Terms and conditions of the employee leasing contract
In accordance with § 12 AÜG, a written contract must be concluded between the customer and F&W for each order placed by the customer in the sense of an employee leasing/rental.
Additional agreements or collateral agreements must be agreed and confirmed in writing.
2.2 Terms and conditions of the recruitment order
In the area of personnel placement, a placement contract between the Customer or a company affiliated with the Customer and F&W is concluded through the following alternative actions:
a) Conclusion of an agency agreement
The brokerage order is issued expressly or impliedly by the customer and a brokerage contract is concluded. This is to be concluded in writing, whereby the conclusion by way of an e-mail or a fax transmission or in the sense of a textual communication is also sufficient for the written form.
b) Takeover from the transfer
A takeover of temporary workers from F&W by the Customer within the first twelve months of the assignment is not excluded and shall be deemed to be a placement by takeover from the assignment. The placement transaction shall arise if the termination of the employment relationship between F&W and the employee to be taken over, which forms the basis of each takeover, was initiated/caused by the Customer or initiated in any other way, e.g. by non-binding offers to the employee to be taken over, advertisement of the position of the employee to be taken over or active poaching from the employment relationship with F&W.
c) Takeover after termination
Insofar as the Customer takes over an employee of F&W who was previously leased from F&W within the scope of an employee leasing, an agency transaction shall arise in this respect if the takeover takes place within the first six months after termination of the employment relationship between F&W and the employee to be taken over, even if the Customer did not cause/cause or otherwise initiate the termination of this employment relationship within the meaning of b).
d) Employment of applicants
If the customer requests profiles of employees or of applicants who are available in F&W's pool, the placement relationship shall come into existence if the customer accepts the respective applicant into a service, employment or work contract relationship within the first six months after receipt of the applicant profiles.
e) Time of the conclusion of the brokerage transaction
The customer's attention is expressly drawn to the relevant point in time of the conclusion of the brokerage transaction as follows:
in the case of letter a), from the time the order is placed;
in the case of letters b), c) and d), from the conclusion of the employment contract with the transferred/employed employee/applicant or from the beginning of the employment with the new employer (customer), whichever period begins earlier. In these cases (of letters b), c) and d), the agency relationship shall come into existence upon corresponding action of the Customer, if the Customer does not object to the agency transaction within a period of three days and refrains from the actions under letters b), c) and d) or terminates them/ dissolves the contractual relationships with the taken-over employees or applicants affected thereby.
The hourly rates agreed in the employee leasing contract shall apply plus surcharges and statutory value-added tax.
In the event of a change in the collective wage agreements applicable to F&W or relevant statutory provisions, the billing rate shall be increased/changed in each case as of the effect of the change. Additional costs incurred due to a collective agreement provision shall be charged to the customer plus the usual costs as a calculation surcharge. Times for on-call duty and travel times of the temporary workers shall be invoiced at the agreed hourly billing rate.
The statutory provisions of the Working Hours Act must be complied with (working hours, rest periods, break times, work on Sundays and public holidays).
Surcharges on the hourly billing rate will be calculated as follows:
From the 41st hour of the week 25 % surcharge
Night work (20:00 to 06:00) 25 % Surcharge
Saturday work 50 % surcharge
Sunday work 100 % Surcharge
Holiday work 125 % surcharge
Experience surcharge 1.5 % Surcharge after the expiry of 9 calendar months if the payment of an industry surcharge is not provided for a particular industry or is subsequently discontinued.
Experience-based surcharge 3.0 % Surcharge after 12 calendar months if payment of an industry surcharge is not provided for a particular industry or is subsequently discontinued.
Minimum industry surcharge 1.5 % if the application of the cap would result in no industry surcharge being paid at all after the 6th week of deployment. This regulation is relevant for assignments where the current remuneration of the temporary worker is already higher than the (un)capped remuneration of a comparable permanent employee of the customer.
Invoices are payable immediately upon receipt, net.
If the invoice amount is not paid by the Customer when due, F&W shall be entitled to charge interest on arrears in the amount of 8 percentage points above the respective base interest rate.
In addition, reminder costs of € 10.00 per reminder shall be incurred if the customer fails to pay after a first reminder and a second or third reminder becomes necessary. The Customer is entitled to prove that he is not responsible for the delayed payment. In addition, the Customer shall be entitled to prove that F&W has incurred no or less damage in the individual case.
Further costs, in particular travel costs or costs for additional work are always subject to a separate agreement.
The prices in the case of an agency pursuant to Section 2 a) of these GTC shall be determined by individual agreement between F&W and the Customer. Clause 2 e) shall apply mutatis mutandis.
The prices in case of a mediation according to item 2 b), c) and d) are based on the following regulation:
The fee claim corresponds to 25 % of the annual gross remuneration plus special payments (Christmas and vacation bonuses, premiums and commissions) agreed between the customer and the employee/applicant taken over, plus the statutory value added tax. The fee shall be reduced proportionately by 1/12 for each full calendar month in which the employee was employed by the Customer without interruption. The Customer undertakes to provide F&W with all information necessary for the calculation of the fee in writing. Insofar as this is not done within one month after hiring/transfer, F&W shall be entitled to invoice a fee based on a comparable gross annual remuneration according to the above provisions.
F&W is the employer of the leased employees (within the scope of the employee leasing/rental) within the meaning of the regulations of the AÜG with all associated rights and obligations. The conclusion of the employee leasing contract does not establish a contractual relationship between the leased employee of F&W and the customer. During the assignment, the leased employees of F&W shall be subject to the work instructions of the customer; they shall work under the customer's supervision and guidance. Any changes to the duration of the assignment, working hours and work activities or similar shall be agreed exclusively between F&W and the Customer. The leased employees are neither representatives nor other authorized agents of F&W.
The leased employees may only be employed in activities that correspond to their job description. Only such devices, machines and tools may be operated that are required for the respective activity. In this respect, F&W shall not be liable for any damage caused by the Customer in the exercise of its instruction and control function. F&W shall provide carefully selected temporary workers who are professionally qualified and suitable for the activity. In the event of justified complaints by the Customer within the first six hours of the assignment, which are reported to F&W, the leased employees may be replaced by other employees who are equally suitable, unless contrary interests of the Customer are thereby violated.
F&W's temporary workers are deployed exclusively at the location agreed in the employee leasing contract.
The customer shall indemnify F&W against all claims resulting from violations of the above conditions or not related to the agreed activity.
The leased employees of F&W do not have collection authority, so that the customer is not entitled to pay out monetary amounts to them. This also applies to wages or other payments such as travel allowances. There is no authority to receive money.
The customer is obligated to fulfill and observe the statutory provisions of occupational health and safety and accident prevention law and to comply with them in relation to the leased employees. This also includes any existing obligations under collective bargaining or works constitution law. To this end, the customer shall identify and document the hazards, injuries and other incidents associated with the work and the resulting occupational safety measures. The customer is also responsible for providing instructions in the sense of accident prevention regulations at the beginning of the activity as well as general instructions in the sense of occupational safety and health. The customer shall provide the necessary safety equipment.
F&W shall be entitled to check compliance with the statutory occupational safety and health regulations as well as the accident prevention regulations on site at the Customer's premises and to satisfy itself of such compliance. In the event of accidents at work, F&W shall be notified immediately so that the accident report pursuant to § 193 SGB VII can be made in due time. Immediate notification in this sense means notification on the day of the accident, at the latest on the following day.
The Customer shall ensure that any necessary official approval for overtime, Sunday and holiday work is obtained. In addition, the Customer shall immediately inform F&W of any planned measures.
The customer consents to Franz & Wach naming its company name and logo in electronic form as a reference customer after successful completion of the services. The customer may revoke the consent by sending a simple e-mail to marketing[at]franz-wach.de and request immediate removal of the reference customer mention.
F&W undertakes to comply with the employer's obligations and in particular to observe the provisions of labor, social and wage tax law. The industry collective agreements concluded between the Bundesarbeitgeberverband der Personaldienstleister e.V. (BAP) and the DGB Tarifgemeinschaft Zeitarbeit apply to F&W's leased employees. In this respect, the income and other social benefits of the temporary workers are secured.
In the area of temporary employment, the beginning and end of the activity shall be governed by the provisions in the temporary employment contract and any supplementary agreements between the parties. The termination of the individual assignment of a temporary employee shall be effected by termination of the employment contract of the assigned temporary employee or by his dismissal at the customer, otherwise by termination of the employee leasing contract.
In the area of employee placement, the contractual relationship shall arise under the conditions set forth in Section 2 and shall end upon the conclusion of an employment or contractual relationship with the placed former employee or applicant.
In the event of extraordinary circumstances that could not have been foreseen at the time the contract was concluded, such as illnesses, civil unrest, catastrophes, epidemics, sovereign orders, strikes or similar, as a result of which the contractual and proper performance of the order by F&W is impeded, endangered or not possible, both in the area of employee leasing and in the area of employee placement, F&W shall be entitled to cancel the performance of the order or to make changes. In such cases, the Customer shall bear the risk. Claims for damages by the customer are excluded in such cases.
The performance of F&W employees deployed within the framework of employee leasing cannot give rise to liability on the part of F&W. The latter shall not be liable, except for the selection of the employee to be deployed, for damage caused or induced by the employee. In this respect, liability for the selection shall be limited to damages caused by intentional or grossly negligent conduct during the selection. The amount of liability for all resulting damages is limited to the maximum amount of € 2,000,000.00 per calendar year. There shall be no further claims against F&W arising from the employee leasing relationship. The latter does not apply to bodily injury/death and within the scope of the regulation of § 309 number 7 BGB.
In the area of personnel placement, F&W shall only be liable within the meaning of § 309 No. 7 BGB. Further liability is excluded.
Place of performance is the registered office of the lender/agent F&W. Crailsheim is agreed as the place of jurisdiction.
F&W points out that personal data provided may be processed and used exclusively for the purpose of personnel placement and the proper execution of the contract. The contracting parties mutually undertake to comply with the statutory provisions on data protection and confidentiality, in particular in accordance with EU-DGSVO as well as BDSG n. F., and shall ensure compliance therewith. The above obligations shall continue to apply after termination of the cooperation.
Subsidiary agreements and amendments to the contract must be made in writing to be effective.
Should any provision or part of these terms and conditions be invalid in whole or in part, this shall not affect the validity of the remaining provision or parts of the remaining terms and conditions.
German law shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.