General terms and conditions of K&K Industriebau und Personalbetreuungs GmbH
The following GTC apply to all personnel leasing agreements concluded between K&K GmbH and the lessee (Lessee). Divergent GTC of the Lessee do not apply, even if K&K GmbH has not explicitly objected to them or the Lessee declares that it only wishes to conclude the contract subject to its own terms and conditions..
1) Official approval
K&K GmbH leases its employees to the Lessee on the basis of the Personnel Leasing Act (Arbeitnehmerüberlassungsgesetzes, AÜG). The regional office of the Federal Employment Agency in Berlin Brandenburg, granted the lessor a permit to lease personnel on 16.12.1998. The permit became valid on 16.12.1993.
2) Legal status of K&K employees
The conclusion of a personnel leasing agreement does not establish any contractual relationship between the employees of K&K GmbH and the Lessee. During their deployment, the employees of K&K GmbH are subject to the work instructions of the Lessee and perform their work under the Lessee’s supervision and management. Changes to the term of deployment, working hours and tasks performed may only be agreed on between K&K GmbH and the Lessee.
3) Lessee’s general obligations
When deploying K&K employees, the Lessee must comply with all applicable statutory provisions relating to safety in the workplace; in particular, it must only deploy the employees leased from K&K GmbH during the legally permitted working hours. As part of fulfilling their obligations, the competent employees of K&K GmbH are expressly permitted to inspect the workplace of the leased employee. If the conditions on safety in the workplace under statute or which have been agreed with you are not complied with, the Lessee is liable to K&K GmbH for any wage expenses which arise from this. K&K GmbH may terminate the relationship with immediate effect.
If permits from state authorities are (or become) necessary to deploy the employee, the Lessee will obtain these before the employee commences work and submit such permits to K&K GmbH at its request.
The Lessee will notify K&K GmbH in writing without delay (i.e. on the day when the damage is incurred) of any accidents which the leased employee has at the workplace. Furthermore, the Lessee will provide K&K GmbH with a written report of damage within three working days of the damage being incurred. Pursuant to section 193 Social Insurance Code, Vol. 7 (Sozialgesetzbuch VII, SGB), the Lessee is also under an obligation to notify the accident to its own insurer.
The Lessee will only assign such tasks to K&K GmbH’s employees as have been contractually agreed. If the Lessee modifies the leased employee’s responsibilities, it must notify K&K GmbH of this by 12 noon of the preceding day and also inform the employee of any security requirements relating to the respective workplace. The Lessee will inform the employee of the general sources of risk associated with the tasks to be performed as well as specific security-related issues before the employee commences work. The Lessee will implement first aid measures.
4) Selection of employees and rejection / substitution of employees
The employees are generally qualified for the intended deployment, which means that they are capable of rendering the services according to the requirements set. If the employee does not have the required qualification or is unsuitable for the tasks to be performed for other reasons, the Lessee may demand that the employee is changed for another. Otherwise, the Lessee is entitled to reject an employee who has been provided by giving a written declaration to K&K GmbH, if there is a reason which would entitle K&K GmbH to extraordinary termination under the employment relationship with the employee (section 626 German Civil Code (Bürgerliches Gesetzbuch, BGB)). In such cases, the Lessee must set out the reasons for the rejection in detail. In case of a justified rejection, K&K GmbH is entitled to provide other employees to the Lessee who have suitable professional qualifications.
Furthermore, K&K GmbH is at all times entitled to substitute the employee provided to the Lessee for organisational or legal reasons and provide other employees with suitable professional qualifications.
Unless the individual contract specifies otherwise and the contract does not have a limited term, personnel leasing agreements may be terminated by either party
– within the first three months of the term of the agreement, subject to a notice period of 1 week
– during the 4th, 5th and 6th months of the term of the agreement, subject to a notice period of 2 weeks
– after the 6th month of the term of the agreement, with effect to the 15th or the end of a month, subject to a notice period of 4 weeks.
The employees deployed at the Lessee are not entitled to take delivery of termination notices.
6) Obstacles to the rendering of services/withdrawal
K&K GmbH will be released from the obligation to render performance, either wholly or temporarily, if (and to the extent that) the leasing of personnel becomes impossible or unreasonably difficult (either temporarily or permanently) because of extraordinary circumstances which were not caused by the fault of K&K GmbH. Such extraordinary circumstances include (but are not restricted to) labour conflicts (regardless of whether they take place in the Lessee’s company or at K&K GmbH), measures taken by state authorities under public law, natural disasters, illnesses, epidemics and similar. Furthermore, in the cases specified, K&K GmbH is entitled to withdraw from the personnel leasing agreement.
If the leased employee fails to commence work, fails to continue work or is absent from work for other reasons, the customer must inform K&K GmbH of this promptly. K&K GmbH is entitled (and will make best endeavours) to provide a substitute employee. If no substitute employee is available, K&K GmbH will be released from the obligation to provide an employee, unless K&K GmbH is to blame for the employee failing to commence work.
7) Place of work
The place of work is the respective location of the branch office. Changes to the place of work as well as the field of work entitle K&K GmbH to modify the rates charged.
K&K GmbH will bill for its services on a weekly basis according to the proof of work done provided by the leased employee (and confirmed by the Lessee) each week. The proof of work done by the leased employee must be confirmed by the Lessee after its submission and will be provided to K&K GmbH by the Lessee by the 3rd working day of the following week at the latest. By doing this, the Lessee acknowledges that the content of the proof of work done is correct and that it is the basis for billing.
The agreed lease fee plus the statutory VAT as specified in the personnel leasing agreement is the relevant standard for calculation. The Lessee must check the invoice and lodge any complaints with K&K GmbH within an exclusion period of one week running from the issue of the invoice. The amount invoiced must be paid without any deductions within 2 weeks of the invoice being issued. Employees are not entitled to collect debts.
Claims may only be set off and a right of retention may only be enforced against K&K GmbH using claims which are undisputed or which have been established with legal effect.
9) Extra pay, surcharges
Overtime and work done during the night, on Sundays or on public holidays requires a special prior agreement. Special surcharges will be charged to the Lessee for such work; the level of such surcharges is governed by the terms of the personnel lease agreement.
Unless otherwise agreed, K&K GmbH is also entitled to increase the leasing fee by the same factor as its costs are increased because it must make higher payments to the employees leased to the Lessee under tariff agreements on extra pay/surcharges in certain sectors. K&K GmbH must disclose its calculations of costs as grounds for its claim.
All employees of K&K GmbH are contractually bound by an obligation to keep all of the Lessee’s business affairs absolutely confidential.
K&K GmbH is not liable for the acts of the employees. K&K GmbH is only liable for the proper selection of its employees with respect to the contractually agreed tasks.
K&K GmbH’s liability for property and financial damage is limited to intention and gross negligence. If material contractual obligations are breached, e.g. the obligation to select employees properly, K&K GmbH is also liable for property and financial damage in case of normal and slight negligence. There is no liability for acts where there was no fault, even for personal injury.
If an employee is injured at the Lessee’s business and the Lessee or its agents are at fault for such injury, the Lessee is liable for any obligations owed by K&K GmbH to the employee to continue paying wage costs which arise from this breach of obligation.
K&K GmbH has no liability for any damage incurred by the Lessee because of defective performance. The Lessee must indemnify K&K GmbH for all claims brought against it by third parties in connection with the performance of the tasks assigned to the employee by the Lessee. Furthermore, the Lessee must indemnify K&K GmbH for all claims of the employee which the latter brings against K&K GmbH as a result of having legal action taken against it by a third party because of its activities for the Lessee. This does not apply to claims which arose because of a failure by K&K GmbH to properly select the employee.
The Lessee may not entrust money or matters relating to securities to the leased employees. If it does trust money/such matters to the leased employee(s), this constitutes deployment which is not in compliance with the contract for which K&K GmbH has no liability.
Complaints must be submitted in writing on the day they are ascertained, but within 48 hours at the latest. They must be submitted solely to K&K GmbH.
K&K GmbH is liable within the scope of its third-party liability insurance up to the coverage amount specified in the policy and in the general terms of third party liability (version 11.95). In any case, K&K GmbH’s liability for all damage incurred within a single insurance year is limited to double the coverage amount. The basic coverage amount of the business third party liability insurance is a lump sum of EUR 3,000,000 for all personal injury and property damage and EUR 100,000 for all financial damage.
12) Agency clause
If the Lessee and the employee conclude an employment contract during the term of the lease or within the six months after it has expired, K&K GmbH is entitled to an agency commission. The amount of agency provision due depends on the previous duration of the lease:
– for leases of up to six months, it amounts to double,
– for leases of six to twelve months, it is equal to
the gross monthly salary agreed between the Lessee and the employee, plus VAT. Multiple lease terms will be added together.
The claim to payment of the agency provision also arises if, during the periods specified in para 1, the employee
(1) is appointed by an affiliated company of the Lessee (sections 15 et. seq German Stock Corporation Act (Aktiengesetz, AktG)) or
(2) is appointed by a company which is not affiliated to the Lessee’s corporate group, but is deployed by that company at the Lessee as a temporary employee.
The agency provision falls due upon the conclusion of the employment contract between the employee and the Lessee (para 1) or the respective affiliate company (para 2, 1st alternative) or upon the assumption of work activities at the lessee enterprise (para 2, 2nd alternative).
The Lessee must provide information on the agreed monthly salary. If the Lessee fails to provide the information within a reasonable period, K&K GmbH is entitled to calculate the commission based on a monthly working time of 160 hours and the previously agreed leasing fee, less 30%. This does not affect the right to enforce the claim to information and to the calculation of the commission pursuant to para 1.
The Lessee is entitled to furnish counter-evidence that there was no causal link between the lease and the appointment.
All necessary data is digitally recorded and disclosed under this contract.
14) Amendment clause
K&K GmbH reserves the right in the event of changes to the statutory or tariff provisions to amend the agreed contractual provisions to suit the changed circumstances.
To the extent that remuneration for employees of K&K GmbH is increased according to tariffs or statutes after the agreement is concluded, K&K GmbH is entitled to increase the hourly rates accordingly. The same applies to the extent that K&K GmbH is obliged vis-a-vis its employees to apply statutory minimum pay or minimum pay tariffs or to switch to paying them according to the principle of equal pay.
15) Concluding provisions
Ancillary agreements and amendments to the contract must be in writing to be effective. If a provision, or a part of a provision of these terms and conditions is void, either wholly or in part, the other provisions (or parts thereof) will remain effective. In this case, the parties will agree on a new and effective provision which comes as close as possible to the spirit, purpose and economic meaning of the ineffective provision.
Last amended May 2018