Provision of Temporary Workers
§ 1 General
The following GT&Cs shall, without exception, apply to all agreements between Ingenics Services GmbH (hereinafter: Ingenics) and the client (hereinafter: Client) that are focused on the provision of temporary workers. GT&Cs of the Client that differ or deviate from these shall have no validity, unless Ingenics gives its express, written consent thereto.
§ 2 Official Approval
Ingenics possesses an open-ended permit for the provision of temporary workers, which was issued by the Bundesagentur für Arbeit [German Federal Employment Agency], Agentur für Arbeit Nürnberg [Nuremberg Employment Agency].
§ 3 Legal Position and Assignment of Ingenics' Workers
No contractual relationship between the Client and Ingenics' workers (hereinafter: Workers) shall be brought about as a result of the contract for the provision of temporary Workers between Ingenics and the Client. During their assignment, the Workers shall be subject to the Client's right to issue directives and shall work under the Client's instruction and supervision. However, changes to the Workers' place of work or to the duration or nature of their work may only be agreed upon between Ingenics and the Client. It shall be impermissible to assign the Workers to transporting money or securities or to collecting payments.
§ 4 Commitment to a Collective Bargaining Agreement
(1) The employment relationship between Ingenics and the Workers shall be governed by the "Collective Bargaining Agreements on Temporary Agency Work" of the the BAP/DGB collective bargaining association.
(2) In order to implement a collectively agreed temporary worker's sector-specific supplement applicable to a certain sector, the Client shall inform Ingenics of which sector the host company belongs to, and whether and - if applicable - which collective bargaining agreements or which works agreements benefiting temporary workers are applicable at the host company. The Client shall prove to Ingenics the hourly pay regularly paid to a comparable worker at the customer's company. The Client shall be accountable for the accuracy of the information provided.
(3) The Client shall inform Ingenics of any ensuing changes to such sector affiliation, to such applicable collective bargaining agreements or to such works agreements benefiting temporary workers.
(4) Insofar as the payment of a temporary worker's sector-specific supplement is not provided for in respect of a certain sector or subsequently ceases to apply or, for other reasons, does not arise, the customer's net rate shall be increased by 1.5 % after the individual temporary Worker concerned has been assigned for a continual period of nine (9) months, and by 3 % in total after the individual temporary Worker concerned has been assigned for a continual period of 12 months. The date of commencement of the period of assignment at the customer's company, not the date when the sector-specific supplement ceases to apply shall be decisive for the calculation of the individual time limit. If the assignment is interrupted for a period of three (3) months, the supplement shall fall due after the interruption has ended, with the preceding assignment periods being taken into account.
§ 5 Fee
(1) The fee for the provision of temporary Workers' labour shall be based on the hourly rate agreed upon in the contract. Travelling time arising in the course of business trips to be undertaken on behalf of the Client shall constitute billable working time.
(2) In addition to the fee provided for above in subsection (1), the Client shall pay to Ingenics the following supplements on the hourly rate:
a. for overtime (exceeding the agreed working time by more than 15 %): 25%.
b. for night work (between 23:00 h and 06:00 h): 25%.
c. for Sunday work (between 00:00 h and 24: 00 h): 50 %.
d. for bank holiday work (on statutory public holidays between 00:00 h and 24:00 h; on Christmas Eve and New Year's Eve from 14:00 h): 100%.
The aforementioned percentages shall be reduced to the equivalent values for the corresponding supplements at the Client's host company, insofar as a corresponding arrangement relating hereto exists at the Client's host company. In the absence of such arrangement, the aforementioned percentages shall apply. Insofar as higher percentages than those mentioned above apply at the Client's host company, the aforementioned percentages shall be increased accordingly. The Client shall be responsible for informing Ingenics of any arrangements at the host company concerning supplements.
(3) If, after the contract between Ingenics and the Client has been concluded, the fee to be paid by Ingenics to the Workers is increased as a result of collectively agreed or statutory provisions, Ingenics shall be entitled to increase by the same percentage the prices agreed upon with the Client. In this respect, any collectively agreed one-off payments shall be converted into a monthly percentage for this purpose.
§ 6 Equal Pay / Sector-specific Supplement
(1) Insofar as an assigned temporary Worker is, under Section 8 (1) AÜG [Act on the Provision of Temporary Workers], entitled to the same pay as a comparable employee of the Client (equal pay) after having been assigned to the Client for a continual period of nine months, the Client shall, in good time before this time limit expires, inform Ingenics of all pay elements of a comparable employee that are necessary for ascertaining the equal pay claim. The same shall apply insofar as an equal-pay claim already arises at an earlier point in time. In this case, the Client shall make all necessary information available to Ingenics without delay. Insofar as extra claims of the Worker arise thereunder, the Parties shall commence negotiations on an appropriate adjustment of the contractually agreed hourly rate. The other duties to inform provided for in this contract shall remain unaffected hereby and shall apply accordingly.
(2) Insofar as the Worker is entitled to sector-specific supplements because he is assigned to a customer's company that is subject to such supplement, the hourly rates shall, for the first time after the Worker has been assigned at the customer's company for a continual period of 4 or 6 weeks, be increased in accordance with the relevant collective bargaining agreements on sector-specific supplements. Further increases shall enter into effect in phases, currently after 3, 5, 7 and 9 months of continual assignment.
§ 7 Billing
(1) All amounts invoiced by Ingenics to the Client shall be subject to value-added tax at the statutory rate.
(2) The Client shall sign on a weekly basis the performance records of the Workers assigned by Ingenics. The performance records shall be presented to the Client at the end of every week and be signed by the Client by no later than the third business day of the following week. If the Client does not sign within one week the performance records presented to it and also raises no objections to these performance records, the performance records shall be deemed approved.
(3) Ingenics shall issue monthly invoices to the Client on the basis of these performance records. The invoices shall be due and payable within thirty (30) days of issuance. In the event of default in payment, the Client shall owe default interest at the statutory rate.
§ 8 Selection and Exchange of Workers / Ingenics' Duties
(1) Ingenics shall provide diligently selected Workers to the Client. Ingenics shall take any wishes of the Client into account when selecting the Workers.
(2) During the course of the assignment, Ingenics may exchange Workers with other equally suitable Workers, provided that legitimate interests of the Client are not infringed as a result thereof. Within the first six (6) hours after a Worker first starts work at the Client, the Client may, without giving reasons, request that the Worker be exchanged. In this case, the Client shall not be invoiced for the Worker's hours of work. An entitlement to have the Worker exchanged at a later point in time shall exist only if the Worker is unsuitable for the agreed work or, without a valid excuse, fails to appear for work, or if it emerges that, in the preceding six (6) months, the Worker had left an employment relationship with the Client or with an affiliate of the Client as defined by Section 18 AktG [Public Limited Companies Act]. The Client shall give Ingenics written notification of such unsuitability within one (1) week of having become aware thereof. After this time limit has expired, the entitlement to an exchange shall lapse.
(3) Ingenics shall fulfil all statutory obligations that arise in relation to the social insurance authorities and the Finanzamt [Tax Office] from the employment relationship with the Workers.
§ 9 The Client's Duties
(1) The Client shall facilitate the rendering of the services of the temporary Workers provided by Ingenics. The Client shall, free of charge and in due time, create within its sphere of operation the conditions necessary for the rendering of these services. The Client shall, if need be, make available necessary work rooms and work equipment (including means of communication and IT systems) and enable the Workers to access its business premises. If the Client fails to comply with these duties to cooperate, delays arising as a result thereof shall be chargeable to the Client.
(2) During the work assignment, the Client shall take on an employer's duties of care in relation to the Workers. The Client shall ensure that the applicable rules for the prevention of accidents and concerning health and safety at work as well as the working time limits permissible by law are complied with at the Workers' place of work, and that "first aid" facilities and measures are in place.
(3) The Client shall ensure that the Workers receive induction into their work contractually defined and are instructed and supervised during their work. The Client shall comply with all statutory, official and other provisions relating to health and safety at work. In particular, the Client shall be responsible for compliance with the duties ensuing from Section 11 (6) AÜG and Section 618 BGB [German Civil Code]. The Client shall properly document any hazards associated with the Worker's work as well as any protective measures taken relating thereto.
(4) On request at any time during the normal business hours, the Client shall allow Ingenics to access the Client's business grounds in order to enable Ingenics to monitor compliance with the provisions concerning health and safety at work.
(5) The Client shall, in accordance with the statutory provisions, in particular Section 193 SGB [Social Security Code] VII, report to Ingenics and the relevant accident insurer or the relevant Berufsgenossenschaft [employers' liability insurance association], without delay, any accidents suffered at work by the Workers.
(6) Insofar as overtime or Sunday work is requested of the Worker, the Client shall ensure that all applicable necessary official authorisations are obtained. Without delay, the Client shall inform Ingenics, in text form, of the extraordinary reasons for the overtime.
§ 10 The Client's Duties to Inform
(1) The Client shall communicate to Ingenics in due time the particular characteristics of the job envisaged for the Workers, and what qualification is necessary for this.
(2) Insofar as an occupational medical check-up is a prerequisite for the Workers' job, the Client shall, before the job begins, inform Ingenics of the need for such check-up. The Client shall organise and carry out the check-up at its own expense.
(3) To ensure that the maximum assignment period under Section 1 (1b) AÜG is observed, the Client shall, without delay, inform Ingenics if a Worker had already worked at the Client on a temporary agency work basis during a period of three (3) months prior to the assignment (hereinafter: "Prior Employment"), and if the assignment is, after such Prior Employment has been taken into account, expected to exceed a total period of 18 months. Insofar as a higher maximum assignment period is provided for by a collective bargaining agreement, this maximum assignment period shall take the place of the 18-month period provided for in sentence 1.
(4) The Client shall inform Ingenics without delay if, during the six (6)-month period preceding the assignment, a Worker had been employed at the Client or at an employer that, with the Client, forms a corporate group as defined by Section 18 AktG. In this case, the Client shall pay the resulting extra costs with regard to the Worker concerned.
§ 11 Absence of a Worker
The risk of a Worker being absent owing to his being unfit for work or owing to force majeure shall be borne by the Client. Likewise, the Client shall bear the risk that the Worker's assignment to the Client is impossible under Section 99 BetrVG [Works Constitution Act] owing to lack of consent by the Works Council.
§ 12 Liability
(1) Ingenics shall not be liable for the scope, execution, nature or quality of the work undertaken by the Workers.
(2) Apart from being liable to perform its contractual duties regarding the temporary Workers assigned, Ingenics shall be liable only for properly selecting Workers for the contractually agreed work. Liability for fault in selection shall be limited to loss incurred as a result of any intentional or grossly negligent breach of the obligation to properly select. Furthermore, the sum of the liability for all loss ensuing therefrom shall be limited to a maximum total amount of € 1,000,000.00 per calendar year.
§ 13 Secrecy
(1) The Client and Ingenics shall be mutually obliged to treat with strict confidentiality all information concerning the business and/or operational affairs of the respective other Party and to use such information merely for the purpose intended under the respective order placed. Within the scope of this intended purpose, Ingenics shall be entitled to pass on such information to third parties.
(2) The Parties mutually undertake to comply with the statutory provisions relating to data protection, in particular Section 5 Bundesdatenschutzgesetz [German Federal Data Protection Act], and ensure this compliance.
(3) The Workers have contractually undertaken to maintain secrecy in respect of all confidential company and business information and other confidential information relating to the Clients where they are assigned.
§ 14 Observance of Applicable Law / Equal Treatment
(1) The Client undertakes to comply with the provisions of applicable law during the Workers' assignment. In particular, the Client shall ensure that (i) the Workers' rights under industrial constitution law are observed, and (ii) the provisions of the Allgemeines Gleichbehandlungsgesetz [General Equal Treatment Act] are also adhered to in relation to the Workers.
(2) If a Worker is treated unequally by the Client or by employees of the Client, the Client shall indemnify Ingenics against all claims of the Worker.
§ 15 Copyrights / Rights of Use
(1) For the deliverables devised and developed by Ingenics on behalf of the Client, Ingenics shall grant the Client full use as described in the order. This shall be based on the Client's full payment for the respective order.
(2) If Workers make any inventions or any suggestions for improvement when carrying out the individual orders, Ingenics shall, if requested by the Client and insofar as legally and actually possible, use such invention without limitation, or with corresponding limitations, for the order that is the subject-matter of the contract.
(3) Insofar as legally and actually possible, the rights arising therefrom shall be concurrently transferred to the Client in exchange for indemnification against any financial obligation that results to Ingenics from such invention in relation to the Worker concerned. The provisions of the Arbeitnehmererfindungsgsetz [Act on Inventions by Employees] shall be observed.
§ 16 Non-Solicitation / Placement Commission
(1) The Client undertakes not to solicit Workers in a manner that is impermissible under Section 1 UWG [Act Against Unfair Competition] and Section 826 BGB (e.g. inducement of breach of contract; solicitation for hindrance purposes, etc.). In the event of violations, Ingenics shall be entitled to claim damages.
(2) If an employment relationship is brought about between the Worker and the Client or an affiliate of the Client during the project assignment or during the three (3)-month period thereafter, the Client shall owe an appropriate placement commission. The placement commission shall amount to 25 % of the gross annual salary if the employment relationship is entered into within six (6) calendar months of the commencement of the project assignment, or 20 % if entered into within twelve (12) calendar months of the commencement of the project assignment. A placement commission shall cease to apply after the end of 12 calendar months of the project assignment. The Worker's gross annual salary shall be calculated on the basis of the pay agreed upon in the employment contract concluded with the Client or an affiliate of the Client, including any special annual payments (e.g. Christmas bonus, holiday bonus).
(3) Without delay after the employment contract concluded with the Worker has been concluded, the Client shall inform Ingenics of the agreed terms and conditions. If the Client fails to inform Ingenics of the terms and conditions of the employment contract within two (2) weeks of the conclusion of the employment contract, the Client shall, after Ingenics has unsuccessfully set a time limit, pay a placement fee in the sum of two months' customer turnover. The customer's monthly turnover shall be calculated on the basis of the hourly rate agreed upon for the Worker and the working time performed by the Worker during the assignment.
(4) The placement commission shall fall due upon the conclusion of the employment contract between the Client, or an affiliate of the Client, and the Employee. Ingenics shall issue to the Client an invoice for the placement commission amount. The placement commission shall be payable within 30 days of receipt of the invoice.
§ 17 Termination
Contracts between the Client and Ingenics concerning the provision of temporary Workers may be terminated by either Party with four (4) weeks' notice with effect from the end of a month.
§ 18 Place of Jurisdiction / Applicable Law / Final Provisions
(1) If the Client is a merchant or does not have a place of general jurisdiction in Germany, Ulm in Baden-Württemberg (Germany) shall be the place of jurisdiction. In other cases, the place of jurisdiction shall be governed by the statutory provisions.
(2) The laws of the Federal Republic of Germany, excluding German international private law, shall apply.
(3) Insofar as the Client does not maintain a business establishment in the Federal Republic of Germany at the time when the contract is signed, the Client shall, no later than one week after the signing of the contract, give Ingenics the name of an authorised recipient in the sovereign territory of the Federal Republic of Germany. Letters to the Client shall be deemed received when served upon the authorised recipient. This shall apply even if the authorisation to receive has lapsed in the meantime without the Client having informed Ingenics thereof. The Client shall, without delay, inform Ingenics of such lapse of authorisation.
(4) If any individual provisions of this contract are void, this shall not affect the validity of the other provisions. The Parties shall replace such void provisions with a provision that reflects as closely as possible what was originally intended.