1. General

    1. The following terms and conditions apply to every engagement. Pursuant to Sec. 12 AÜG (“Arbeitnehmerüberlassungsgesetz”: German Temporary Employment Act), a written contract must be concluded for each engagement between the client and zemicontrol Ost – hereinafter referred to as “the contractor”. Contract amendments and side agreements must be made in writing. We will be bound by our offers if they are accepted within 4 weeks of the offer date. General terms and conditions of the client are effective only if the contractor has accepted these in writing. This is also the case even if the contractor does not expressly object to the general terms and conditions.
    2. The work of the temporary worker at the client is subject to the public-law regulations of occupational safety law that apply to the client’s business. Any resulting obligations for the employer are the responsibility of the client, notwithstanding the obligations of the contractor. The client will ensure that all accident prevention and occupational safety regulations applicable at the place of work of the temporary worker as well as the provisions of the ArbZG (“Arbeitszeitgesetz”: German Working Hours Act) are observed and that first aid facilities and measures are provided. Before work commences, the client must notify the temporary worker of the workplace-specific risks pertaining to the work to be performed as well as of the measures to avoid such risks.
    3. In the event of exceptional circumstances that were not foreseeable when concluding the contract, including but not limited to absence without leave, sudden illness, an accident involving the temporary workers or the ending of their working relationship with the contractor, domestic unrest, epidemics, sovereign acts, disasters, strikes or similar that hamper or endanger due implementation of the contract by the contractor, the contractor is entitled to rescind the contract in full or in part or to postpone provision of the temporary workers for an appropriate period. However, this does not apply in the event of grossly negligent breaches of contract by the contractor. To the extent that the contractor is entitled to postpone the provision of temporary workers or to rescind the engagement in full or in part, claims for damages by the client are excluded regardless of their legal grounds. In the event of delays in provision in relation to industrial action, in particular strikes and lockouts, and the occurrence of other unforeseen hindrances that are not within the contractor’s control, the contractor is released from the duty of performance for the duration of the hindrance, provided that proof is given that these hindrances prevented the use of the temporary workers.
    4. The contractor and the temporary worker are obliged to maintain secrecy regarding all business matters of the client.
    5. The temporary worker is assessed by the contractor for professional suitability and allocated to a specific pay group. The temporary worker is hired out to the client to perform only the work specified in the engagement and therefore may only use or operate those devices, machines, tools etc. required to carry out this work. Changes to the agreement in relation to the time, duration and location of the use of the temporary worker can only be made in writing with the contractor and not with the temporary worker.
    6. If necessitated by important organisational or statutory grounds, the contractor can assign further performance of an engagement to a different temporary worker with equivalent professional qualifications, but the contractor must take into account the specific circumstances of the client’s business and the client’s wishes.
    7. Without the express written consent of the contractor, the temporary worker may not be engaged to transport or handle cash or other means of payment or to perform debt collection.
    8. To the extent that the temporary worker is exposed to chemical, physical or biological effects or performs hazardous activities as defined in BGV A 4 while working in the client’s business, the client must carry out a preventive medical examination prior to commencement of that work. In the event of an industrial accident, the client must notify the contractor without delay.
  2. Prices, payment, assignment and default interest

    1. Invoicing is on a monthly basis. The invoice amount is due for immediate payment once the invoice is issued. Invoices must be paid net cash as due. The client is obliged to sign the list of activities presented to it by the temporary worker in a timely manner.
    2. Our terms of business and terms of payment apply exclusively; these are the terms to which our customer agreed upon issuing the engagement. They also apply to future transactions even if no express reference is made to them but they have been sent by the party issuing the engagement for an engagement confirmed by us. If the engagement is issued based on terms that deviate from our terms of business and terms of payment, our terms of business and terms of payment apply exclusively even if we do not object to the deviating terms. Consequently, deviations are valid only if expressly agreed to in writing by us.
    3. We are entitled to assign the claims arising from our business relationships.
    4. Unless expressly agreed otherwise, the prices are net of allowances for overtime and additional work, night-time work, shift work, work on Sundays and public holidays, plus statutory VAT. We reserve the right to increase prices by a reasonable amount. The increase takes effect 2 weeks after receipt of the written notification of a price increase. Notification of a price increase entitles the client to terminate the engagement as of the date of the price increase subject to a period of one week’s notice from receipt of the notification.
    5. If payment is not made on time, the client is in default of payment even without a reminder and owes default interest of 8 percentage points above the respective base interest rate. The authoritative date for compliance with the payment term is the date of receipt of payment on the contractor’s account. The contractor is entitled to charge dunning costs arising from default of payment corresponding to 5% of the invoice amount, but no less than a lump sum of EUR 25.00. The client has the right to prove that the contractor did not suffer any damage or suffered less damage in individual cases.
    6. In the event that the purchaser is in default with any payment obligations to us, the existing payments are due immediately.
    7. The temporary worker is remunerated exclusively by the contractor. The temporary worker is not entitled to accept advance payments or any payments from the client.
  3. Allowances, travel expenses, daily allowances

    1. The client agrees to give the temporary workers work only in line with the working hours limit permissible by law. To the extent that a longer working period is only permissible with the approval of the state occupational safety authority, the client must obtain such approval. The basis for calculating the following allowances is the regular weekly working hours applicable in the client’s company.
      The following allowances apply in respect of overtime and additional work, shift work, night-time work, work on Sundays and public holidays:
      a) Overtime and additional work: 25%
      b) Hours worked on Sundays: 50%
      c) Hours worked on public holidays: 100%
      d) Hours worked between 10 p.m. and 6 a.m. (night-time work): 25%
      e) Shift allowances and deviating allowances (a – d) require a separate agreement
      In the event of a combination of overtime, additional work, night-time work and work on Sundays and public holidays, the higher allowance is paid in each case.
    2. If the place of work is outside of the city limits of the branch engaged to carry out the work, the client must pay the travel expenses incurred by the temporary worker on public transport from the city centre to the place of work. In this case, it is also possible to agree on an appropriate daily allowance.
  4. Warranty and liability

    1. The contractor’s liability in respect of the temporary worker extends only to proper selection in terms of the contractually agreed work. Liability is therefore limited to damage caused by wilful intent or grossly negligent failure to meet the selection obligation. There is no liability for further claims, including but not limited to damage caused by the temporary worker while carrying out the work or because of the work. The client releases the contractor from any and all claims made by third parties in connection with the implementation and execution of the work assigned to the temporary worker.
    2. In the event that foreign workers are used, the contractor assures that the necessary work permits are in place. The client undertakes to comply with any limitations on the work permit regarding industry or place of work. In the event of infringements of the aforementioned limitations, the client releases the contractor from claims by the employment authority.
    3. If the performance by a temporary worker provided by the contractor appear insufficient to the client and the client informs the contractor of this within the first four hours of the temporary worker commencing the work, the contractor will provide a replacement worker within the scope of the existing possibilities. The client will not be charged for those four hours.
  5. Termination

    1. If a permanent contract to hire out temporary workers is concluded, both contractual parties are entitled to terminate the contract as of the end of a working day within the first 5 working days subject to a period of notice of 2 working days. In this case, the number of actual hours worked must be remunerated.
    2. Notice of termination must be given in writing.
    3. Both sides are entitled to termination without notice for due cause. Due cause exists in particular if the client is in default of payment from a duration of 5 working days, the client’s economic situation deteriorates significantly, the temporary workers are used by the client in a way that contravenes the contractual agreement, including but not limited to in the main construction industry, or the client grossly breaches compliance with occupational safety regulations.
  6. Hiring/mediation
    If a temporary worker of the contractor or a proven applicant is hired or mediated, the client undertakes to inform the contractor in writing without delay and at the same time to inform the contractor of the amount of the gross monthly wage of the temporary worker and/or applicant at the client. In this case, the client must pay mediation commission to the contractor.
    If an applicant is hired directly, the mediation commission is 3 gross monthly wages plus statutory VAT. If a temporary worker of the contractor is hired, the amount of mediation commission is graded in accordance with a mediation agreement as follows:
    • within the first 3 months of hiring out: 2.5 gross monthly wages of the temporary employee at the client plus statutory VAT;
    • after 3 months of hiring out: 2 gross monthly wages of the temporary employee at the client plus statutory VAT;
    • after 6 months of hiring out: 1.5 gross monthly wages of the temporary employee at the client plus statutory VAT;
    • after between 9 months and 12 months of hiring out: ½ gross monthly wage of the temporary employee at the client plus statutory VAT.
    The mediation commission is due for payment upon conclusion of the employment agreement between the client on the one hand and the former temporary worker of the contractor or the proven applicant on the other. If there is no direct temporal link between an employment relationship of the temporary worker with the client and the previous hiring out, the contractor is still entitled to demand mediation commission if the employment relationship of the former temporary worker at the client is attributable to the hiring out. It is assumed that the employment relationship of the former temporary worker at the client is attributable to the previous hiring out if the employment relationship between the client and the former temporary worker of the contractor is established within six months of the last hiring out. The client is free to provide counter-evidence and to exempt itself from its payment obligation as a result.

  7. Court of competent jurisdiction
    The court of competent jurisdiction for all disputes – also for special procedures deciding claims arising out of bills of exchange or cheques and summary procedures – is Düsseldorf. All disputes are subject to the law of the Federal Republic of Germany.

  8. Permit
    The contractor is in possession of a temporary permit pursuant to Sec. 1 AÜG (“Arbeitnehmerüberlassungsgesetz”: German Temporary Employment Act), issued by the Agentur für Arbeit Düsseldorf in Düsseldorf on 17 May 2018 in accordance with Sec.1 (1) AÜG.

  9. Miscellaneous
    1. Oral side agreements require written confirmation by the contractor in order to be valid.
    2. The invalidity of part of these terms and conditions does not affect the validity of the remaining provisions. Both contractual parties are obliged to replace the invalid provision with a provision that comes closest to the original economic and legal intent of the invalid provision.
    3. Any right of retention can only be offset or asserted if and only if it relates to undisputed claims or claims recognised by the court.