General Terms and Conditions
A) General Provisions
1. Validity of the General Terms and Conditions
The business relationship between avitea GmbH (“avitea”) and the Customer (together also referred to as the “Parties”) is subject exclusively to these General Terms and Conditions (“GTC”). The validity of deviating or supplementary regulations, in particular the General Terms and Conditions of the Customer, is excluded, even if avitea does not expressly contradict them; other regulations only apply if avitea expressly agreed to them in writing prior to the conclusion of the contract. These General Terms and Conditions shall apply both to the present business transaction and for all future transactions without any need for a new reference to the validity of the General Terms and Conditions. avitea is a staffing services provider specializing in the field of the supply of temporary workers.
2. Quotations
All quotations from avitea shall be without engagement or obligation.
3. Compensation and Terms of Payment
3.1 The compensation to be paid by the Customer for services to be rendered by avitea shall be determined in accordance with the rates agreed with Customer for the specific order.
3.2 The prices specified do not include the relevant applicable value added tax.
3.3 avitea reserves the right to institute fair increases in prices if, after conclusion of the contract, factors such as collective bargaining decisions result in increased costs, especially due to increases in wage costs. This information shall be proven to the Customer on request.
3.4 Invoices issued by avitea are payable 14 days net and in full, i.e. without deductions.
3.5 All receivables of avitea shall be due immediately if the Customer does not comply with the payment conditions for reasons for which the Customer is responsible or if the Customer ceases payment. Moreover, avitea shall be entitled to request advance payments for outstanding services and to withdraw from the contract or to demand compensation for damages due to nonperformance after providing due notice and a reasonable grace period.
3.6 The Customer shall only be entitled to set off and withhold payments insofar as its claims are undisputed or have been legally established.
4. Customer’s Duties to Cooperate
4.1 The Customer undertakes to provide avitea in a timely manner any information and documents required for rendering the service.
4.2 The information, data and documents provided by the Customer to avitea shall only be examined by avitea for obvious errors.
4.3 The Customer shall notify avitea immediately, if the Customer makes an offer to permanently hire a person introduced by avitea.
5. Complaints
5.1 Complaints of any kind must be reported to avitea in writing immediately upon their detection.
5.2 Any and all claims of the Customer shall become null and void 12 months after provision of the relevant service.
6. Liability
6.1 Subject to the provision in number 6.2, avitea's statutory liability for damages shall be limited as follows:
(i) avitea's liability is limited to the amount of damages typically foreseeable at the time of the conclusion of the contract for the slightly negligent breach of essential obligations arising from the contractual relationship;
(ii) avitea is not liable for the slightly negligent breach of immaterial obligations arising from the contractual obligation.
6.2 The aforementioned limitations of liability shall not apply in cases of mandatory statutory liability and in the event of the assumption of a guarantee or culpably caused bodily injury.
6.3 The legal representatives, agents and employees of avitea are exempt from personal liability for material damage or financial losses caused by minor negligence on their part.
6.4 Information provided by avitea shall be understood as a guarantee only if designated as such expressly and in writing.
6.5 avitea shall be liable for loss of data only if such loss would not have been avoidable even if the Customer had exercised appropriate data backup measures and only insofar as the data can be reconstructed with reasonable effort and expense.
7. Liability with Insurance Payment
For property damage and financial losses, avitea shall be liable for the negligent breach of obligations, except in cases of gross negligence, up to an amount limited by the payment of its insurance company.
8. Force Majeure
8.1 Unforeseeable, unavoidable events that are beyond avitea's control and for which avitea is not responsible, such as force majeure, traffic disruptions, strikes or lockouts, release avitea from the obligation to perform in a timely manner for the duration of the event.
8.2 If the duration of the event is longer than 6 weeks or the service to be provided by avitea becomes impossible as a result of the event, both the Customer and avitea shall be entitled to withdraw from the contract. In this case, there shall be no obligation to pay damages.
9. Confidentiality, Data Protection
9.1 The Customer undertakes not to disclose any data shared with Customer by avitea, in particular prices, knowledge or experience (“INFORMATION”), in writing, verbally or by other means, either in general or to third parties. The above obligation does not apply to INFORMATION that can be proven to be public or that will become public knowledge at a later time without breaching this agreement. This requirement does not apply to INFORMATION that the Customer is known to be aware of or information that will be made known to the Customer at a later date.
9.2 All rights related to the information provided (including commercial protection and patent rights) are reserved. Its publication does not entitle the Customer to use the INFORMATION for purposes other than the agreed purpose.
9.3 Confidentiality also applies to data covered by the data protection law. The Parties shall process and use the personal data of the other party only for contractually agreed purposes. In particular, they will secure personal data against unauthorized access, and furthermore, they will neither record nor store nor duplicate this data, nor use or exploit it in any form, nor pass it on to third parties without the consent of avitea. avitea observes the Federal Data Protection Act in its respective version when processing data.
10. Termination
10.1 Insofar as a contract is concluded for an indefinite period, both Parties shall have a right to ordinary termination with a notice period of 3 months, effective at the end of the month.
10.2 Each party is entitled to terminate the contract without notice for good cause. Good cause shall be deemed to exist in particular if a party fails to meet its payment obligations despite being granted a reasonable grace period or if insolvency proceedings are applied for or are imminent in respect of its assets.
10.3 In the event of termination, avitea shall be entitled to discontinue the provision of the owed activities and to withdraw the employees assigned to the Customer.
10.4 Other rights to which avitea is entitled in the event of termination, in particular claims for damages, shall remain unaffected.
B) General Terms and Conditions for the Supply of Temporary Workers
1. General Information
1.1 avitea affirms that since February 6, 2005, it has been in possession of a license to engage in employee leasing most recently granted by the Federal Employment Agency in Düsseldorf. This license has been neither revoked nor withdrawn in the meantime. avitea undertakes to present the license certificate if requested by the Customer.
1.2 avitea shall notify the Customer immediately if the license is revoked or otherwise becomes void in accordance with Section 5 of the German Federal Labor Leasing Act (AÜG). If the license is not renewed, withdrawn or nullified, avitea shall furthermore notify the Customer of the anticipated end of the processing and the statutory processing period.
1.3 avitea warrants to the Customer that only employees in an employment relationship with avitea shall be leased (no re-leasing).
1.4 avitea declares that the employment contracts it has concluded with the employees assigned to the Customer's facility incorporate the collective bargaining agreements of the German Trade Union Confederation (DGB) and the Association of German Temporary Employment Agencies (iGZ), including the supplemental industry collective bargaining agreements in their entirety and in their respective currently valid versions.
1.5 avitea is a member of the General Association of Personnel Service Providers.
1.6 The Customer warrants that it will not re-lease the leased employee, either openly (open temporary work) nor in concealed form (concealed temporary work, e.g. fake contracts for work and labor).
1.7 Given the minimum wage requirements arising from the German Posting of Workers Act, the Customer shall notify avitea immediately of any change of the activity of the leased employees. The Parties agree that the agreed hourly rate shall be adjusted if the activity carried out becomes subject to minimum wage requirements or if there is an increase in the minimum wage.
1.8 Insofar as avitea leases employees to the Customer as defined by Section 1b Para. 1 AÜG (Prohibition on employee leasing in the main construction trade), the Customer affirms that the respective company does not primarily carry out trades as defined by Section 1 of the German Ordinance on Construction Management. The Customer is obligated to notify avitea immediately of any change.
2. Principle of Equal Status and Maximum Duration of Temporary Work
2.1 For each leased employee specified by name, the Customer shall immediately check whether this person was employed by the Customer or an affiliated company in the 6-month period prior to the start of temporary work as defined by Section 8 Para. 3 AÜG ("Revolving door clause"). If the requirements of Section 8 Para. 3 AÜG are in place, the Customer is obligated to notify avitea of this immediately. In these cases, the Customer shall provide in written form all relevant information with regard to the most important aspects of the working conditions of comparable permanent employees, including their compensation. Section 12, Para. 1 Sentence 4 AÜG shall apply in conjunction with Section 8 AÜG. Based on this written documentation, the respective hourly billing rate shall be adapted accordingly.
2.2 For each temporary employee specified by name, the Customer shall immediately check whether this employee has been leased to Customer by another agency within the last 4 months prior to the beginning of the leasing arrangement. If such a case is present, the Customer shall notify avitea of this immediately. Previous assignments shall be taken into account when agreeing on the assignment duration in the employee leasing contract. If the determined leasing period results in the obligation for equal status in accordance with Section 8 Para. 4 AÜG, the Customer shall be obligated to notify the staffing service immediately. In these cases, the Customer shall provide in written form all relevant information with regard to the most important aspects of the working conditions of comparable permanent employees, including their compensation. Section 12, Para. 1 Sentence 4 AÜG shall apply in conjunction with Section 8 AÜG. On the basis of this
written documentation, the respective hourly billing rate shall be adjusted accordingly.
2.3 If the employee leasing contract does not specify a specific date for the end of the temporary work, the contract shall be deemed to be concluded for an indefinite period. To ensure compliance with the maximum duration of temporary work in accordance with Section 1 Para. 1 AÜG, for each named temporary employee the Customer shall check whether this employee has been leased to the Customer by another agency within the last 4 months. If such a case is present, the Customer shall notify avitea of this immediately. Furthermore, the Customer shall notify avitea immediately and completely of all regulations valid within the Customer's company that permit a maximum duration of temporary work longer or shorter than 18 months and are relevant for an operation in which a leased employee can be deployed based on the leasing agreement. Both sides shall monitor compliance with the respective maximum duration of temporary work. If any party has good reason to doubt that the maximum duration of temporary work is being complied with, they are entitled to terminate the assignment of the respective leased employee immediately. If the maximum duration of temporary work is exceeded, the Parties shall mutually waive the assertion of claims for damages resulting from exceeding the duration.
3. Employment of Temporary Employees
3.1 The conclusion of the employee leasing agreement shall not result in any contractual relationships between the temporary employee and the Customer. avitea possesses the authority to issue instructions on the basis of the employment contract. However, the Customer possesses the right and the obligation to issue work instructions, check the performance of the work and monitor compliance with accident prevention and other safety regulations. The Customer undertakes to assign the temporary employee only as provided by valid labor statutes and laws.
3.2 The consent of avitea must be obtained for assignment to any facility of the company other than that specified in the employee leasing agreement, exchanging employees within the facility or assigning activities other than those specified in the respective employee leasing agreement. The Customer is obligated to provide timely advance notification to avitea if the temporary employee is to be deployed internationally.
3.3 The Customer warrants that the provisions of the Federal Working Hours Act shall be implemented for the corresponding assignment at the Customer's facility. Deploying the temporary employee beyond 10 hours per workday shall require consultation with avitea. Work may only exceed 10 hours on a workday if permitted by a collective bargaining agreement or company agreement based on a collective bargaining agreement of the Customer in accordance with Section 7 of the Federal Working Hours Act or a permit issued by a government agency or if an exceptional case exists as defined by Section 14 of the Federal Working Hours Act.
3.4 In the case of Sunday or holiday work, the Customer shall provide avitea with proof establishing the necessity of requiring Sunday or holiday work.
3.5 The Customer shall notify avitea whether and to what extent it grants the temporary employees access to its shared facilities. The Customer shall notify avitea immediately of any changes in this regard.
3.6 If the temporary employee is deployed in a position of trust, particularly being assigned to handling money and/or valuables, this shall require a separate advance agreement with avitea. Without such an advance agreement, the staffing service shall assume no liability if temporary employees are entrusted with valuables.
3.7 If the Customer's employees go on strike, the Customer shall not assign any temporary employees to work in the operation contrary to the provision in Section 11 Para. 5 AÜG. Furthermore, for strikes initiated by member unions of the Association of German Trade Unions (DGB), the prohibition on assignment shall also apply to employees assigned before the beginning of the labor dispute. Accordingly, within the initiated strike, the temporary employee shall not be assigned to work in facilities or parts of facilities that are the subject of a strike that is compliant with the law. The Customer shall ensure that no temporary employees are assigned within the area of application of the prohibition on assignment. To this extent, avitea shall have no obligation to furnish temporary employees. The Parties to the labor dispute can deviate from the above provisions on a case-by-case basis and agree on the use of temporary employees (e.g. in emergency service agreements). To this extent, Section 11 Para. 5 Sentence 2 AÜG shall apply. The Customer shall notify avitea immediately of any strike that is planned or underway.
4. Personnel Selection/Leasing Conditions
4.1 Personnel are selected by avitea based on the requirement profiles specified in the requisition. The Customer requisition can be submitted by phone or in text form.
4.2 avitea undertakes to select suitable personnel for the planned work. When qualifications are required for which a recognized skilled occupation exists, avitea undertakes to select and lease to the Customer only those employees who have successfully completed this vocational training. Any other arrangement must be made in writing.
4.3 avitea shall ensure that the assigned employees, insofar as they are not citizens of an EEA country or Switzerland, are entitled to carry out the work based on the provisions of immigration law. avitea shall provide corresponding evidence upon request by the Customer.
4.4 Exchanging temporary employees during an ongoing assignment shall be permitted by mutual agreement only.
4.5 If the temporary employee does not start work at the Customer's facility or does not continue it, avitea is entitled to provide a replacement employee. In case of absence of a temporary employee caused by vacation or illness, avitea can provide a replacement employee by mutual agreement. When selecting a replacement employee, the same requirements shall apply as for selecting the absent temporary employee.
4.6 The Customer shall be entitled to have the temporary employee replaced if, in an exceptional case, the employee is not suitable for the intended task. Corresponding documentation of the lack of suitability must be provided. If the Customer determines the lack of suitability within the first four hours of a temporary assignment, the Customer shall not be billed for up to four labor hours and avitea shall endeavor to exchange the temporary employee for a suitable employee. The Customer shall also be entitled to have the employee replaced if cause exists that would entitle it to extraordinary termination if the Customer itself were the employer (Section of 626 of the German Civil Code). If the Customer believes that it is entitled to have the employee replaced under the provisions of this paragraph and intends to terminate the assignment of the respective employee, it shall notify avitea of this immediately, providing reasons for the exchange of employees.
In all other respects, avitea shall take measures to provide a replacement if a temporary employee does not begin work or refuses to do the work. Until a replacement is found, the Customer shall release avitea from the duty to provide temporary employees and avitea shall release the Customer from the duty to provide compensation.
5. Duty of Temporary Employees to Maintain Confidentiality
5.1 avitea undertakes to ensure compliance with data protection standards. avitea does this by prohibiting the temporary employee from processing personally identifiable data in a legally compliant manner, disclosing it, making it accessible or otherwise using it for purposes other than carrying out tasks at work. The employee is, in particular, obligated to maintain absolute secrecy with regard to data concerning participants in the work to be carried out and to protect all documents against access by third parties.
5.2 Furthermore, employees are obligated to keep all matters and processes confidential that are brought to their attention in the course of contract-related activities, especially those related to business and company secrets, insofar as these must be kept confidential by their very nature.
5.3 avitea undertakes, to conclude corresponding written agreements to this effect with the temporary employees.
5.4 This shall also apply after the end of the contract, assuming these processes have not become common knowledge in the meantime.
5.5 If the temporary employee is tasked with processing personal data at the Customer's facilities, the Customer has the duty to obligate the temporary employee to maintain data secrecy when they begins their work and to ensure that all provisions required by data protection law are observed.
6. Billing
6.1 Billing shall take place on a monthly basis based on the effective work hours rendered, whereby at least the company-specific work time agreed in the respective labor leasing agreements shall be billed.
6.2 If the temporary employee's work time extends beyond the regular work time, avitea shall bill additional amounts for overtime in accordance with the labor leasing agreement. The same shall apply for invoicing holiday work, shift work, nighttime work and other surcharges and bonuses provided for by collective bargaining.
6.3 The work hours for each leased employee must be documented by time sheets detailing the work carried out. They must be filled out for each temporary employee on a weekly basis and signed by an officer of the Customer after a review of the facts. The Customer shall not incur any costs for the temporary employee for participating in employee meetings, company parties or other company-specific events that are not work time.
6.4 The Customer is obligated to provide the opportunity for time sheets to be filled out in a timely manner.
6.5 The time sheets must list the beginning and end of the daily work time with breaks. Overtime hours must be listed separately.
6.6 In detail, the Parties shall be entitled to reach special arrangements regarding the modalities for determining the hours worked. The temporary employees can use the tools in place at the Customer's facility (time sheet/electronic time clock) if these are present. The Customer shall grant avitea the ability to install avitea's own time clock terminals at its facilities.
6.7 The temporary employee is not entitled to accept payments from the Customer. Payments to the temporary employee shall not be counted towards fulfillment of the contract.
7. Hiring of Employees/Placement/Commission
7.1 The following configurations shall be deemed placement within the first 12 months after the beginning of the first temporary employment at Customer's facility:
- An employment relationship comes into being between the temporary employee and the Customer or a company affiliated with the Customer as defined by Section 18 of the German Stock Corporation Act.
- The Customer leases the temporary employee after the end of their employment at avitea through another professional employment organization.
7.2 In both cases, avitea shall be entitled to invoice the following placement fee:
Within the first month of the beginning of the first time the employee was leased, the commission shall amount to 16%. The basis for calculating the commission is the taxable gross annual salary agreed between the Customer and the temporary employee, but at minimum the gross annual salary plus value-added tax agreed between avitea and the temporary employee. The Customer shall submit to avitea a copy of the signed employment agreement. For each full month that the temporary employee is employed on the basis of temporary employment, the placement fee shall be reduced by 1/12. After the 12 full months of temporary employment have expired, the commission is reduced to zero.
7.3 The Customer shall notify avitea immediately of any hiring or change of temporary agency.
7.4 The Customer reserves the right to provide evidence that the conclusion of the employment relationship or the leasing through a different employment agency did not occur based on the preceding temporary employment through avitea.
8. Liability/Assignment
8.1 avitea shall be liable for properly selecting a temporary employee who is suitable and qualified for the specific task as well as providing them for the agreed duration of the lease. The liability for fault in selecting shall be limited to damage resulting from intentional violations of the duty of selection or violations caused by gross negligence.
8.2 With regard to the fact that the temporary employee carries out his or duties under the direction and supervision of the Customer, avitea shall not be liable for damages caused by the temporary employee while carrying out their duties or as part thereof. A leased temporary employee is not a contractual agent, vicarious agent or authorized agent of avitea. The Customer hereby indemnifies and releases avitea from any and all claims asserted by third parties in conjunction with carrying out and performing the task given to the temporary employee.
8.3 In all other respects, the liability of avitea and its statutory representatives and agents shall be limited to intentional damages and gross negligence. This limitation of liability does not apply to damage resulting from injury to life, limb or health. This pertains to both statutory and contractual prerequisites for liability, specifically, cases of delay, impossibility, incapacity, breach of contractual duties or impermissible action. Specifically, avitea shall not be liable for the work results of temporary employees or damages caused by temporary employees in carrying out their work or associated therewith, nor for damages incurred by the Customer due to the tardiness or absence of the temporary employees. In case of malice or gross negligence of ordinary agents, avitea shall furthermore be liable only for foreseeable damages.
8.4 avitea expressly disclaims any and all further liability – regardless of the legal basis.
8.5 The Customer hereby indemnifies avitea from any and all claims of avitea arising from any breach by the Customer of the assurances and obligations arising from this contract (including the duties of inspection and notification).
8.6 Due to statutory provisions or the provisions of collective bargaining agreements, in certain cases avitea shall be obligated to grant the temporary employee equal status in full or in part to a comparable employee of the Customer with regard to the basic working conditions of the Customer. In these cases, avitea shall rely on information from the Customer for adequately providing these working conditions or compensation. If the Customer provides incomplete or incorrect information in this respect or provides incomplete, incorrect or untimely notification of changes and this results in financial harm to temporary employees of avitea, avitea shall correct this by means of corresponding subsequent billing and subsequent payments to the affected temporary employees. avitea may, at its discretion, decide whether to invoke cutoff periods; to this extent, it is not subject to the duty to minimize damages. The sum of the resulting gross amounts shall be deemed agreed by the Parties as the damages to be paid by the Customer to avitea. In addition, the Customer shall be liable to avitea for claims asserted by social insurance agencies and fiscal authorities due to the actions incurring liability listed above, independent of the payment of gross wages.
8.7 The same shall apply accordingly if the Customer assigns the temporary employee tasks that construe grounds for an industry-specific minimum wage in accordance with Section 8, Para. 3 of the German Posting of Workers Act despite the fact that this is expressly prohibited in the employee leasing agreement.
8.8 If the information provided by the Customer in the labor leasing agreement with regard to the relevant statutory provision or the collective bargaining agreement declared to have general binding status as defined by Section 8 Para. 3 of the German Posting of Workers Act shall prove inaccurate based on the activity actually assigned to the temporary employee, the above provisions shall apply accordingly.
8.9 The Customer shall not be entitled to assign receivables of avitea to a third party.
C) Final Provisions
1. Written Form
Amendments and supplements to these GTC and any other contract concluded between the Parties must be made in writing to be effective. This shall also apply to any amendment or cancellation of the provision requiring the written form.
2. Severability Clause
Should any of the provisions of these terms and conditions or any other contract concluded between the Parties be or become invalid, this shall not affect the validity of the remaining parts of the terms and conditions or the affected contract. The Parties undertake to replace the invalid provision with a valid provision coming as close as possible to the intended economic effect. The same shall apply for filling any gaps in the contract.
3. Place of Jurisdiction, Applicable Law
3.1 The place of jurisdiction for all disputes arising from or in connection with the contractual relationship is Lippstadt, Germany. avitea is, however, entitled to sue the Customer at any other legal place of jurisdiction.
3.2 The laws of the Federal Republic of Germany shall apply.
Note on female / male / gender-neutral spelling
For reasons of improved readability, the masculine or plural form is normally used on these pages and in our publications. We wish to expressly point out here that the male, feminine and gender-neutral forms are meant for the appropriate articles and for all our publications.
Version: December 2018