General terms and conditions
As at: 04/03/2024
1. general
The company persona part Personaldienstleistungen GmbH (hereinafter: persona part) holds an unlimited permit for temporary employment in accordance with Article 1 § 1 of the Temporary Employment Act (AÜG), issued by the Rhineland-Palatinate-Saarland State Labour Office on 03.04.1997 with headquarters in Saarbrücken as the responsible licensing authority (now: Nuremberg Employment Agency).
These General Terms and Conditions (GTC) are an integral part of all - including future - offers, order confirmations, contracts and agreements of persona part in the field of temporary employment and personnel placement.
These General Terms and Conditions of persona part,
as of 04 March 2024, supersede all previous General Terms and Conditions; previous General Terms and Conditions therefore no longer have any effect. Conflicting terms and conditions of the customer company (hereinafter: client) are hereby expressly rejected by persona part. The following terms and conditions shall also apply if persona part provides the services to the client without reservation in the knowledge of conflicting or deviating terms and conditions of the client.
2. temporary employment
persona part declares that the employment contracts concluded with the employees deployed in the client's company are subject to the collective labour agreements between the German Temporary Employment Agency Association (iGZ) and the individual trade unions of the German Trade Union Confederation (DGB), including industry supplement collective agreements for temporary employment, as amended from time to time, by effective reference.
The client undertakes to check before each assignment and to inform persona part without being asked whether the employee intended for assignment 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 (AktG) in the last 6 months prior to the assignment or was employed in the client's own company via another temporary employment agency. If this is the case, the client shall inform persona part of this finding without delay. In view of the resulting legal consequences (equal treatment or increased industry surcharges), the contracting parties then have the opportunity to decide whether the assignment should be carried out as planned and, if necessary, to adjust the employee assignment agreements.</p
The client is obliged to inform persona part of the economic sector (industry) to which it belongs. In the event that an industry supplement collective agreement for the supply of temporary workers applies, the client must also declare whether it is relying on the so-called cap or cap regulation of Section 2 (4) of the applicable industry supplement collective agreement. If the cap regulation is applied, the client must also state the current regularly paid hourly wage of a comparable employee of the hiring company, as well as inform persona part immediately of any future changes to the current regularly paid hourly wage of a comparable employee. In this case, persona part shall be entitled to adjust the hourly rate or, in the absence of agreement with the client, to terminate the assignment. The client is fully liable for damages due to incorrect information provided by the client.</p
Without prejudice to persona part's rights under the statutory provisions, the client is obliged to compensate persona part for damages arising from the obligation to pay additional industry surcharges due to missing or incorrect information or information provided by the client. The compensation shall amount to twice the amount of the additional industry surcharges to be paid.</p
For the duration of the assignment with the client, the client is responsible for exercising the work-related right to issue instructions. The leased employee must adhere to the working hours communicated to him by the client and carry out the work assigned to him properly, conscientiously and cleanly. The client shall only assign the employee activities that are subject to the scope of activities contractually agreed with persona part and the agreed qualification in accordance with the employee leasing agreement and that correspond to the level of training of the respective employee. In all other respects, the right of direction remains with persona part.</p
The client must fulfil the obligations arising from occupational health and safety law and assumes the duty of care in connection with occupational health and safety measures at the employee's place of employment. In this respect, it shall indemnify persona part against all claims by the employee and other third parties resulting from failure to fulfil this obligation or failure to fulfil it adequately.
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The client must inform persona part immediately about a strike in its own company and ensure that no leased employee works in a company on strike in violation of Section 11 (5) sentence 1 AÜG or takes over activities that were previously carried out by employees who are in industrial action. The client is aware of the sanctions it faces under the AÜG in the event of a violation in this regard.</p
The client may not make any payments (advances, instalments, etc.) to the employee, as this is the responsibility of persona part without exception. No liability is assumed for any payments made to the employee by the client. Offsetting is also refused.
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The client is obliged to observe the statutory working time regulations, in particular compliance with the maximum working hours and the prohibition of work on Sundays and public holidays without exception (in accordance with the Working Hours Act). The persona part company shall be informed of any operational exceptions or special regulations in the client's company and, if necessary, a copy shall be provided.</p
Employees who are absent due to illness or other circumstances may be replaced by persona part. There is no obligation to do so.
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In exceptional circumstances, persona part may cancel or postpone an order. This also includes the circumstance of a difficult or impossible start of work (e.g. also due to a possible objection by the works council of the client or a strike in the client's company) or in the event of default of payment by the client. The employee(s) may be withdrawn without prior notice. Compensation for damages cannot be derived from this.</p
In accordance with Section 12 AÜG, any agreement between persona part and the Client must be made in writing (Sections 126, 126a BGB). This also applies to ancillary agreements. With the signing of the employee leasing contract (ANÜV), these GTC of persona part shall be deemed to be effectively included in the contractual relationship, even if this is or was not expressly confirmed separately by the client and, if applicable, even if the client's own terms and conditions are asserted without express objection.
<p
Invoices are generally issued on a weekly basis based on the timesheets signed by the client. Invoicing is based on the remuneration agreed in the employee leasing agreement plus statutory VAT. At the end of the working week or after the end of the assignment, the client is obliged to sign the timesheets submitted by the leased employee or - if agreed - to transmit or make them available immediately by means of data transmission. persona part reserves the right to issue partial invoices based on the regular weekly minimum number of hours agreed in the employee leasing contract if the client fails to confirm or transmit the timesheets on time. By signing the timesheets, the client bindingly confirms the working time and duration stated therein as well as the proper execution of all work. If the time sheets cannot be submitted to the client within 7 days for reasons for which the client is responsible, the employee shall instead be authorised to confirm these with his signature. The employee's timesheets shall then serve as the legally binding basis for invoicing.</p
The invoice amount is due upon receipt of the invoice and must be paid without deduction within the period specified in the invoice, but at the latest within 8 calendar days of receipt of the invoice. - The client shall only be entitled to offset or withhold payment in the case of demonstrably undisputed or legally enforceable claims. If payment is not made on time, the client shall be in default even without a reminder. The date of receipt of payment by persona part shall be decisive.</p
The client is obliged to inform persona part in writing without being requested to do so before any change in the place of assignment not previously expressly agreed, in particular outside the Federal Republic of Germany. The client shall be fully liable for the consequences of any change of location not previously agreed and shall then be obliged to indemnify persona part against any third-party claims arising from the breach of this obligation.
The client warrants that it will not deploy employees of persona part in any company in accordance with Section 101 (2) SGB III with entitlement to apply for a seasonal short-time allowance or to employ them only occasionally or temporarily in such a company, which are usually performed by workers there.
3. personnel placement
Indirect personnel placement (with/after prior temporary employment): If an employee is taken on in an employment relationship (employment or service contract) from the temporary employment, persona part is entitled to a placement fee from the client or a company affiliated with the client (§§ 15ff. AktG in Germany). The amount of the placement fee is staggered as follows: 15% of the annual gross income if taken on within the first 3 months, 12% of the annual gross income after 3 months, 9% of the annual gross income after 6 months, 5% of the annual gross income after 9 months and no agency fee after 12 months. The annual gross salary as agreed between the client and the employee as gross remuneration (excluding fringe benefits plus statutory VAT) is decisive. The fee shall be due for payment immediately upon the establishment of the employment relationship, i.e. upon signing of the contract between the client and the employee or upon commencement of work at the client's company, without deduction and within 8 days of invoicing. The client is obliged to provide persona part with information on the agreed gross remuneration within 7 days of being requested to do so. If the client does not provide the information within this period, persona part shall be entitled to calculate the commission on the basis of the employee's previous gross salary at persona part, taking the regularly agreed monthly working hours as a basis. The right to enforce the right to information and to calculate the commission remains unaffected. persona part shall also be entitled to the placement fee if an employment relationship is established between the client and the employee within six months of the last assignment, which is causally related to the (in)directly preceding assignment with persona part. After six months following the end of the assignment, we do not charge a placement fee, regardless of whether there is an (in)direct causal connection to the previous assignment.
4 Warranty and liability
The employees provided or placed were checked by persona part for their professional suitability and were only provided to the client for the performance of the contractual activity, i.e. the activity specified in the employee leasing agreement, or the work requested. A transfer or commencement of a non-contractual activity of the employee by the client is a change to the contract and must therefore be reported to persona part immediately. A general liability of persona part does not exist. persona part is only liable for negligence in the selection of an employee with regard to the agreed activity.
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As the employee works under the supervision and management of the client, persona part is not liable for any damages. This also applies to intentional or grossly negligent behaviour, insofar as legally permissible. The client shall indemnify persona part against any claims of third parties that may arise in connection with the execution and performance of the work assigned to the assigned employee.
If the client is not satisfied with the work performance of an assigned employee, persona part must be notified in writing within four hours on the first day of the assignment, stating the reasons. persona part is not responsible for the work performance of an employee provided. As far as possible and reasonable, persona part will provide or arrange a replacement employee.
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5 General Equal Treatment Act (AGG)
The company persona part provides employees who have been informed about the contents of the AGG and have been obliged to comply with it.
The client guarantees that compliance with all provisions of the AGG is ensured and regularly monitored within its operational sphere of influence. The client shall indemnify persona part for all damages resulting from a violation of the provisions of the AGG within its operational sphere of influence.
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6. final provisions
The law of the Federal Republic of Germany shall apply exclusively to all contractual agreements between persona part and the client.
Should a provision or part of a provision of these GTC be invalid in whole or in part, this shall not affect the validity of the remaining provisions or parts of the remaining provisions. The invalid provision shall be replaced by a provision that comes closest to the economic purpose of the invalid provision.
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The place of fulfilment and exclusive place of jurisdiction for all mutual contractual and post-contractual claims is - as far as legally permissible - the registered office of persona part Personaldienstleistungen GmbH, i.e. Landau.