1. general
All services provided or to be provided by ERZA GmbH (hereinafter referred to as the Contractor) on the basis of correspondence, an order, an order confirmation or in connection with the concluded employee leasing or recruitment contract shall be subject to the following General Terms and Conditions (GTC). Deviating general terms and conditions of the customer (hereinafter referred to as the Client) shall not apply even if the Contractor does not expressly object to them or the Client declares that it only wishes to conclude the contract on its own terms.
2. conclusion of contract
2.1. The contractual relationship is established by the Contractor’s offer in accordance with the temporary employment contract or the personnel placement contract and these General Terms and Conditions and the Client’s written declaration of acceptance by signing the temporary employment contract, the order confirmation or the personnel placement contract. The Client is aware that the Contractor is not subject to any performance obligations. exist if the signed contract document is not returned by the client (Section 12 (1) of the German Temporary Employment Act (AÜG)).
2.2. If the Client intends to entrust the temporary worker with the handling of money and/or valuables, it shall make a separate agreement with the Contractor in advance.
2.3. The Contractor declares that the employment contracts that it has concluded with the temporary workers deployed in the Client’s company include the iGZ-DGB collective agreements in their entirety in their currently valid version. The Contractor is a member of the Interessenverband Deutscher Zeitarbeitsunternehmen e.V. (Association of German Temporary Employment Agencies).
2.4. The Client undertakes to check before each assignment whether the temporary worker 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 in the last six months prior to the assignment. If this is the case, the Client shall inform the Contractor of this finding without delay. In view of the resulting legal consequences (equal treatment), the contracting parties shall then have the opportunity to decide whether the assignment should be carried out as planned and, if necessary, to amend the assignment agreements.
2.5. The client warrants that no employee deployed under this temporary employment contract has worked for the client via another personnel service provider in the last 4 months. 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.
3. Labor law relationships
3.1. 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 provided (no chain leasing).
3.2. 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 Contractor 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 Contractor.
4. Client’s duty of care / duty to cooperate / occupational health and safety measures
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, the Client shall indemnify the Contractor 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. The client warrants that the applicable laws and regulations at the place of employment of the temporary accident prevention and occupational health and safety regulations (including §§ 5, 6 ArbSchG) and the legally permissible working time limits and breaks are complied with. In particular, the client shall instruct the temporary worker before the start of his/her work and inform him/her of any special the dangers of the work to be carried out and measures to prevent them. The Instructions must be documented by the client and a copy given to the personnel service provider. If temporary workers of the Contractor 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.
4.3. The occupational health check-ups required for the assignment must be carried out before the start of the assignment and evidence of these must be provided to the client. If follow-up examinations are required, the Client shall inform the Contractor 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 Contractor at the Contractor’s expense.
4.4. In order to carry out the monitoring and control measures incumbent on the Contractor, the Client shall grant the Contractor the right of access to the workplaces of the temporary workers during normal working hours.
4.5 If official permits are or become necessary for the employment of temporary workers , the Client undertakes to obtain these before the temporary worker commences employment and to submit the permit to the Contractor on request.
4.6. The Client undertakes to notify the Contractor in writing without delay, i.e. on the day of the accident, of any accident at work suffered by the temporary worker. Subsequently, the Client shall provide the Contractor with a written damage report within 5 working days of the occurrence of the accident or investigate the circumstances of the accident with the Contractor.
5. Rejection / replacement of temporary workers
5.1. The Client is entitled to reject a temporary worker by written declaration to the Contractor if there is a reason that would entitle the Contractor to terminate the employment relationship with the temporary worker for cause (Section 626 BGB). The Client is obliged to explain the reasons for the rejection in detail. In the event of rejection, the Contractor shall be 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 contractor is not suitable for the intended work and insists on a replacement, he will not be charged for up to four working hours after prior consultation.
5.3. In addition, the Contractor shall be 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 quality.
6. impediments to performance / withdrawal
6.1. The Contractor shall be released from its obligation to perform in whole or in part if and to the extent that the assignment of temporary workers is permanently or temporarily impossible or impossible due to extraordinary circumstances that were not culpably caused by the Contractor. is made unreasonably difficult. Such extraordinary circumstances include, but are not limited to, labor disputes, whether in the company of the Client or the Contractor, sovereign measures, natural disasters and the like. In addition, the Contractor shall be entitled to withdraw from the employee leasing contract in the aforementioned cases.
6.2. If the client’s business is on strike, the client may not employ temporary workers in the business, contrary to the provision in Section 11 (5) AÜG. take action. In addition, the ban on 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 to the extent of the ban on deployment. 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.
6.3. If, contrary to the agreement, the temporary worker does not start work or does not start work on time, the Client shall inform the Contractor immediately. The Contractor shall make every effort to provide a replacement at short notice. If this is not possible, the Contractor shall be released from the contract. If the Client fails to notify the Contractor immediately, the Client shall not be entitled to any claims against the Contractor arising from or in connection with the temporary worker’s failure to commence work or to commence work on time.
7. Settlement
7.1. All rates quoted by the Contractor are net rates. The Contractor shall provide the Client with an invoice at the end of the order – weekly if the assignment continues – showing the statutory VAT, unless the parties expressly agree a different invoicing method.
7.2. Changes to the location and the area of work shall entitle the Contractor to change the hourly rate.
7.3. The Contractor shall carry out billing in accordance with the timesheets provided by the temporary worker and signed by the Client on a weekly basis. If the temporary worker’s daily or weekly working hours exceed the Client’s regular daily or weekly working hours, the Contractor shall charge overtime surcharges in accordance with the agreement made in the temporary employment contract. The same applies to the calculation of holiday, shift, night work and other working hours. supplements provided for in the collective agreement. In the event that the Contractor is not provided with timesheets for invoicing and this is due to the Client’s conduct, the Contractor shall be entitled, in the event of a dispute, to calculate a daily working time of the temporary worker that corresponds to the maximum daily working time of employees in accordance with the Working Hours Act in the respective applicable version (Section 3 ArbZG). In such cases, the Client reserves the right to prove a shorter period of employment of the temporary worker.
7.4. The invoice amounts are due immediately – without deduction – upon receipt of the invoice issued by the Contractor by the Client. The Client shall be in default if the invoice amount is not received in the Contractor’s business account within 10 calendar days of receipt of the invoice. A prior reminder is not required (Section 286 (3) BGB). § Section 288 BGB (default interest) shall apply.
7.5. The temporary workers assigned by the Contractor are not authorized to accept advances or payments on the invoices issued by the Contractor.
7.6 In the event of default in payment by the Client, the Contractor shall be entitled to charge the statutory default interest, but at least 5% p.a. above the prime rate of the German Central Bank or the financial instrument of the European Central Bank replacing it. In this case, the Client reserves the right to prove that the Contractor has not incurred any damage or has not incurred damage to this extent.
8. Offsetting / right of retention / assignment
8.1. The Client shall not be entitled to set off claims against claims of the Contractor orright of retention, unless the counterclaim asserted by the Client is undisputed or has been legally established.
8.2. The Client is only entitled to transfer rights and obligations arising from this agreement to third parties with the prior written consent of the Contractor.
9. Warranty / Liability
9.1. The Contractor shall ensure that the employees deployed have the necessary qualifications. At the request of the Client, the Contractor shall provide proof of qualification. The Contractor shall guarantee in individual contracts with the temporary worker that data protection regulations do not prevent the disclosure of such information.
9.2. The Contractor, its legal representatives and vicarious agents shall not be liable for damage caused by temporary workers in the course of their work for the Client, unless the Contractor, its legal representatives and vicarious agents are guilty of intentional or grossly negligent selection.
9.3. Otherwise, the liability of the Contractor and its legal representatives and vicarious agents shall be limited to intent and gross negligence. The limitation of liability shall not apply to damages resulting from injury to life, limb or health. It applies to both statutory 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 on the part of simple vicarious agents, the Contractor shall furthermore only be liable for foreseeable damages.
9.4. The Client undertakes to indemnify the Contractor against all claims asserted by third parties in connection with the execution and performance of the activities assigned to the temporary worker by the Client. The Contractor shall inform the Client in writing of any claims asserted by third parties.
9.5. The Client shall indemnify the personnel service provider against all claims that arise 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 Contractor undertakes to invoke the relevant exclusion periods vis-à-vis any claimants.
10. takeover of temporary employees / placement commission
10.1. A placement is deemed to have taken place if the client or a company legally or economically associated with the client during the term of the temporary employment contract with the employee of the Contractor enters into an employment relationship. A placement also exists if the Client or a company legally or economically affiliated with it 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.
10.2. 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 contractor has established contact with the applicant without a prior assignment, without a signed employee assignment or personnel placement contract and without a signed order confirmation.
10.3. 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 starts work, but the date on which the employment contract is concluded.
10.4. The client is obliged to inform the contractor whether and when an employment contract was concluded. If, in the event of a dispute, the contractor presents 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.
10.5. In the cases of 10.1. and 10.2. the Client shall pay a commission to the Contractor. 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 2.25 gross monthly salaries in the case of a takeover within the first 3 months after the start of the temporary assignment, 2.0 gross monthly salaries in the case of a takeover within the 4th to 6th month after the start of the temporary assignment, 1.75 gross monthly salaries in the case of a takeover within the 7th to 9th month, 1.5 gross monthly salaries in the case of a takeover within the 10th to 12th month and 1.0 gross monthly salaries in the case of a takeover from the 13th month after the start of the temporary assignment.
10.6. 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 shall provide the Contractor 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 the statutory value added tax. The commission is payable 14 days after receipt of the invoice.
10.7 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.
10.8. The above provisions shall apply accordingly if the employee is provided to the client by another temporary employment agency.
10.9. 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 remuneration agreed between the Client and the temporary worker, but at least the gross monthly salary last agreed between the Contractor and the temporary worker.
11. contract term/termination
11.1. If 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 employee’s assignment, the client is shall be 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.
11.2. This does not affect the right to terminate the contract without notice. Both contracting parties are entitled to an extraordinary right of termination with one month’s notice to the end of the month if the AÜG in principle should be changed. In particular, the Contractor shall be entitled to terminate this agreement without notice if
a) the opening of insolvency proceedings against the client’s assets has been applied for, insolvency proceedings have been opened or dismissed for lack of assets or such proceedings are imminent
b) the client fails to settle a due invoice even after a reminder has been issued and a deadline set.
c) the client breaches the assurances and obligations within the meaning of §9.5.
11.3. Termination of this agreement by the Client shall only be effective if it is declared to the Contractor in text form. The temporary employees assigned by the Contractor are not authorized to accept notices of termination.
12. Confidentiality and data protection
12.1 The contracting parties undertake to maintain secrecy about any business and trade secrets that become known to them during the cooperation, both for the duration of the cooperation and after its termination. The confidentiality obligation does not extend to such knowledge that is accessible to everyone or the disclosure of which is obviously without disadvantage to 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 respective other contracting party is obliged to obtain permission from the management of the contracting party concerned as to whether or not a particular fact is to be treated confidentially before disclosing it to third parties.
12.2 The contracting parties mutually undertake to comply with the statutory provisions on data protection. The Contractor shall ensure that a corresponding agreement is made in the employment contract with employees intended for assignment.
12.3 The client must maintain confidentiality towards third parties about the contractual conditions of the cooperation, in particular the hourly rate. This shall not apply in cases in which he is legally entitled or obliged to do so.
13. final provisions – severability clause
13.1. Amendments and additions 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 Contractor are not entitled to agree amendments, supplements or ancillary agreements to the temporary employment contract with the Client.
13.2. The place of jurisdiction for all disputes arising from and in connection with the contractual relationship between the Contractor and the Client shall be the registered office of the respective branch of the Contractor that has concluded the present employee leasing agreement, provided that the Client is a merchant. The Contractor may also assert its claims before the courts of the Client’s general place of jurisdiction.
13.3. The law of the Federal Republic of Germany shall apply exclusively to all legal relationships between the Contractor and the Client.
13.4. The Contractor 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.
13.5. Additions and amendments to these General Terms and Conditions must be made in writing to be legally effective. This also applies to the waiver of the written form requirement. Should a provision or part of a provision 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 of the invalid provision.
ERZA GmbH
– temporary staffing division
ERZA GmbH
Leerer Landstr. 11-13
26603 Aurich
Phone: +49 4941 9604-0
Monday to Thursday
from 08:00 to 13:00
and 14:00 to 17:00
Friday
from 08:00 to 14:00
ERZA GmbH | Leerer Landstr. 11-13 | 26603 Aurich
Phone 04941 9604-0
E-mail info@erza-gmbh.de
