General terms and conditions
This Englisch translation of our general terms and conditions is provided as a reference only. In case of conflict of this version, our original German terms and conditions shall prevail.
1. General information
All services rendered by Careprofis GmbH (hereinafter referred to as "contractor") in connection with a contract for provision of staff or services to be provided are subject to the following Terms and Conditions. Any deviating terms of business of the customer (hereinafter referred to as "Client") shall not apply, even if the client does not expressly contradict them or declares he only wishes to conclude the contract under his terms.
2. Contract conclusion
2.1 The contract is concluded by accepting the offer of the contractor on the basis of the temporary worker contract as well as these terms and conditions and a written declaration of acceptance of the client and by signing the temporary worker contract. The client is aware that there are no obligations for the contractor to provide services, if the signed contractual document will not be returned by the client (§ 12 Clause 1 German Temporary Employment Act (hereinafter referred to as AÜG)).
2.2 If the client intends to transfer the handling of money and/or valuables to the temporary worker, he will in advance enter into a separate agreement with the contractor.
2.3. The contractor declares that the work contracts concluded with the temporary workers working in the facilities of the client contain the collective agreements of the iGZ-DGB in their currently valid version. The contractor thereby ensures that the standardized principle of equal treatment in § 9 No. 2 AÜG will be applied. We are a member of Interessenverband Deutscher Zeitarbeitsunternehmen e.V. (Association of German temporary employment agencies)
2.4. The client is obliged to check before the start of the assignment, if the temporary worker has terminated his employment during the last six months with the client's company or with a company group that is affiliated with the client within the meaning of § 18 of the German Stock Companies Act. If this is the case, the client must immediately inform the contractor about this. In view of the legal consequences (Equal Treatment) arising therefrom, the contracting parties can then dedice, if the provision should take place as planned and if the temporary worker contract should be adapted.
3. Labour Law Relations
3.1 With the entering into this agreement, no labor relation between the temporary worker and the client will be established. The contractor is the employer of the temporary worker.
3.2 For the duration of the assignment with the client, the client has the general right to give work instructions. The client will only assign such activities to the temporary worker that are subject to the scope of activites that have contractually been agreed with the client and that correspond to the level of education of the respective temporary worker. Furthermore, the contractor keeps the right to give instructions.
4. Duty of care and collaborative duties of the client/Safety measures
4.1 The client assumes the duty of care in relation to health and safety measures at the place of employment of the temporary worker (§ 618 German Civil Code, § 11 Clause 6 AÜG). The client indemnifies the contractor against claims from the temporary worker and third parties resulting due to the fact that the client did not meet and/or did not sufficiently meet this obligation.
4.2 The client will ensure that the accident prevention regulations and technical measures for occupational safety and health (e.g. §§ 5, 6 ArbSchG, German Occupational Safety and Health Act) are applicable at the place of employment of the temporary worker and that the legally permitted working limits and breaks are observed. Before the assignment starts, the customer has to inform the temporary worker about the work specific dangers occurring with the activity that has to be carried out and about the measures to avoid them. If the temporary worker provided by the contractor refuses to perform the work due to missing or unsufficient safety measures in the operating facilities of the client, the client is liable for all unplanned availability time arising out of such circumstances.
4.3 In order to perform its inspection and control measures, the client permits the contractor to access the workplaces of the temporary worker during normal working hours.
4.4 If administrative authorisations are or will be required for the assignment of the temporary worker, the client is obliged to obtain these authorisations before the temporary worker starts his assignment and to present it to the contractor upon request.
4.5 The client shall immediately notify the contractor in case the temporary worker has an accident at work, i. e. he will notifiy him in writing on the same day of the accident. As a result, the client submitts a written damage report to the contractor within 5 working days after the occurrence of the damage or inspects the accident's sequence of events together with the contractor.
5. Rejecting/Replacing temporary workers
5.1 The client is entitled to reject a temporary worker by written declaration to the contractor, if a reason exists that would entitle the contractor to an extraordinary termination of employment with the temporary worker (§ 626 BGB). The client is obliged to explain the reasons for this rejection in detail. In the case of rejection, the contractor shall be entitled to supply other temporary workers with equivalent qualifications.
5.2 If the client observes within the first four hours after the start of work that a temporary worker does not meet the requirements of the activity and if he insists on a replacement, then up to four working hours are not charged to his account upon prior consultation.
5.3 In addition, the contractor shall be entitled at any time to replace temporary workers for legal and/or organisational reasons and to provide other temporary workers that have the same qualifications.
6. Impediments to performance/Withdrawal
6.1 The contractor will be released from his obligation to perform, if and insofar the provision of temporary workers is permanently or temporarily impossible or unreasonably difficult due to exceptional circumstances not caused culpably by himself. Such exceptional circumstances are especially but not limited to industrial action, whether in the company of the client or the contractor, sovereign measures, natural disasters and the like. In addition, the contractor shall be entitled, in the aforementioned cases, to withdraw from the temporary employment contract.
6.2 Notwithstanding the above provisions, the customer is aware that the temporary workers provided by the contractor are not obliged to perform their duties if there is a strike at the operating facilities of the client.
6.3 If contrary to the agreement, the temporary worker does not start with his assignment or does not start in time, the client will inform immediately the contractor. The contractor will use its best efforts to provide a replacement in the short term. If this is not possible, the contractor shall be released from the contract. Failure to give immediate notification means that the client shall have no claims against the contractor arising from or in connection with work that has not been performed or has not been performend on time.
7.1 All billing rates indicated by the contractor are net values. The contractor will invoice the client - in case of an ongoing provision on a weekly basis - with statement of the VAT, unless the parties expressly agree upon another billing type.
7.2 Changes regarding the place of work as well as the work area entitle the contractor to change the hourly rates.
7.3 The contractor shall carry out the billing on the basis of the timesheets of the temporary worker that are weekly signed by the client. In case of a daily or weekly working time of the temporary worker that goes beyond the regular daily or weekly working time that is valid in the customer's business, the contractor will invoice an overtime surcharge according to the agreement in the temporary worker contract. The same applies to the invoicing of public holidays, shift work, night work and other collectively agreed surcharges. In the event that the contractor timesheets are not submitted for invoicing and this is due to the behavior of the client, the contractor shall be entitled, in case of dispute, to invoice a daily working time of the temporary worker that corresponds to the maximum daily working time of employees in accordance with the Working Time Act (§ 3 ArbZG). In these cases, the client reserves the right to prove that the length of service of the temporary worker is shorter.
7.4 The amounts invoiced by the contractor are immediately payable by the client upon receipt of invoice without any deductions.
7.5 The temporary workers provided by the contractor are not entitled to take advance payments or payments invoiced by the contractor.
7.6 In case of a late payment of the client, the contractor shall be entitled to invoice the statutory default interest, but at least 5 % p. a. of the base rate of the German Bundesbank or the replacing financial instrument of the European Central Bank.
8. Offset/Right of retention/Assignment
8.1 The client is not entitled to offset against the claims of the contractor or to exercise a right of retention, unless the counterclaim of the client is undisputed or has been established in law.
8.2 The client is only entitled to transfer rights and obligations under this agreement to any third party with prior written consent of the contractor.
9.1 The contractor is responsible for ensuring that the temporary workers are in general suitable for the intended work; he is, however, not obliged to check working papers, in particular certificates of temporary workers, for accuracy and for obtaining criminal records.
9.2 The contractor, its legal representatives and vicarious agents are not liable for damages caused by temporary workers during their assignment with the customer, unless the contractor, its legal representatives and vicarious agents have acted with intent or gross negligence during the selection phase. In addition, the liability of the contractor and its legal representatives and vicarious agents shall be limited to intent and gross negligence. This applies to both statutory and contractual basis of liabilities, particularly in the event of default, the impossibility, inability or in cases of unlawful act. In cases of intent or gross negligence of simple vicarious agents the contractor shall only be liable for foreseeable damage.
9.3 The client exempts the contractor from all claims that will be raised by third parties related to the execution and to the performance of the work assigned to the temporary worker. The contractor shall inform the client of any claims by third parties in writing.
9.4 If the client does not comply with its audit and reporting obligation pursuant to 2.4., the client shall release the contractor from all existing and future claims of the temporary worker related to Equal Treatment and all losses resulting from a breach of duty. The client is obliged to rely on a time-limit towards possible claimants.
10. Transfer of temporary workers/comission
10.1 A transfer occurs, if the client or a company which is legally or economically associated enters into an employment relationship with the temporary worker during the period of the temporary worker contract. A transfer also occurs, if the client or a legally or economically related company enters into an employment relationship with the temporary worker within six months after the end of the provision. The client reserves the right to prove in this case that the conclusion of the employment contract did not take place due to the previous provision.
10.2 A transfer also occurs, if the client or a legally or economically related company enters into a work relationship directly after establishing the contact with the job applicant by the contractor without a previous provision.
10.3 The time of the conclusion of the agreement is determining for establishing a working relationship between the client and the temporary worker, not the time when the temporary worker starts with the assignment.
10.4 The client is obliged to inform the contractor, if and when a contract has been concluded. If the contractor can provide evidences in the event of a dispute which may constitue a working relationship between the client and the temporary worker, the client shall bear the entire burden of proof that he did not enter into a working relationship with the temporary worker.
10.5 In the cases 10.1 to 10.3, the client must pay the contractor a commission. Temporary jobs are commissionable to the same extent as permanent employments.
10.6 The amount of the commission is 2.5 gross monthly salaries in case of a direct transfer of a temporary worker. In case of a transfer during the provision, the commission is 2 gross monthly salaries in case of a transfer within the first three months of the provision, 1.5 gross monthly salaries within a transfer within the first six months, 1 gross monthly salary in case of a transfer within the first nine months and 0.5 gross monthly salary in case of a transfer within twelve months.
10.7 Basis for the calculation of the 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 case of interruptions during the provision, the start of the last provision before establishing a work relationship is decisive. The commission must be paid plus the applicable value added tax. The commission is payable within 14 days after receipt of the invoice.
10.8 In case the employee works for the client on the basis of a freelancer contract or on a contract of a self-employed worker, the provisions apply on condition that the monthly fee agreed between the client and the employee serves as the reference point of the basis of the calculation and not the gross monthly salary.
11. Contract duration/termination
11.1 As far as the temporary worker contract was not closed for a limited period of time, the contract will run for an indefinite period. In the first week of the assignment of the temporary worker, the client is entitled to terminate the contract within a one day period. In addition, both parties shall have the right to terminate the agreement within a period of three working days at the end of a calendar week, unless the parties do not make any other arrangements.
11.2 The right to immediate termination remains unaffected. The contractor has the right to immediate termination of this agreement in case: a) of an opening of insolvency proceedings concerning the contracters assets, in case insolvency proceedings have been opened or rejected for lack of sufficient assets or in case such proceedings will be carried out or b) the client does not pay a due invoice after a warning has been issued or a reasonable time-limit.
11.3 The termination of this agreement by the client shall be effective only if the contractor receives notice of it. The temporary workers provided by the contractor are not entitled to accept notices of termination.
12. The obligations of the client in relation to its customers
The client is obliged to work with its customers on the basis of bindingly agreed general terms of business that must correspondingly contain the following provisions:
"Until full payment the goods remain our property. For the resale, the customer receives a revocable authorization. Rights to payment of the purchase price arising due to the resale shall be assigned to us. The processing or transformation of the purchase object by the client is always undertaken on our behalf. In case of an agreement concerning objects that do not belong to us we shall acquire the co-ownership of the new item in proportion to the value of the other items processed. The same applies if the objects are mixed. If the object of the customer is to be considered the main object, the customer has to transfer us co-ownership proportionately. "
"Terms and conditions of the customer shall only apply if they do not contradict our conditions."
"We are entitled to assign the claims resulting from our business relationship. "
"The following payment notice must be indicated on each outgoing invoice: "Payments to cancel a debt may only be paid to
Crefo Factoring Nord GmbH Wandalenweg 8-10, 20097 Hamburg, bank details... to which we have assigned and sold our claims arising from our business relationship due to a factoring agreement."
"Place of jurisdiction and place of fulfillment shall be our head office, or at our choice, the location of the client's head office. "
13. Final provisions - Severability clause
13.1 Changes and additions to the agreement between the parties must be made in writing to become effective. This also applies to an amendment to the written form requirement. The temporary workers provided by the contractor are not entitled to agree on modifications, additions or side-agreements in relation to the temporary worker contract with the client.
13.2 The place of jurisdiction for all disputes arising from or in connection with the contractual relationship between the contractor and the client is the headquarter of each branch of the contractor that has concluded the existing temporary worker contract, providing that the client is a merchant. The contractor can also file his claims at the courts of the clients's general place of jurisdiction.
13.3 All legal relations between the contractor and the client shall exclusively be subject to the laws of the Federal Republic of Germany.
13.4 Additions and amendments to these terms and conditions must be in written form in order to be legally valid. The same applies to a waiver of the requirement for the written form. Should a regulation or part of a regulation in whole or partly not be legally valid or void, then the validity of the remaining regulations is unaffected. An invalid or impracticable condition shall be replaced by one that is valid and practicable and fulfils the economically intended purpose of the invalid condition as closely as possible.