General Terms and Conditions (GTC)
1. Scope / Conclusion of Contract
1.1 The concrete GTC shall apply exclusively for all temporary employment, consulting services and personnel consulting provided by FOCUSON Personalmanagement GmbH (hereinafter referred to as “FOPM“ for short), and all rights and obligations arising therefrom as well as contracts, verbal agreements and other agreements.
1.2 Any contradictory or divergent conditions of the client shall only apply if FOPM expressly submits to them in writing. The FOPM GTCs shall accordingly also apply if FOPM renders services without reservation and in awareness of the contradictory or divergent conditions of the client.
1.3 The FOPM GTCs shall also apply for future business transactions between the contractual parties, even if no additional reference is made to them in such cases.
1.4 A contractual relationship with FOPM shall come into being by means of the client signing the proposal or the confirmation of order, by means of forwarding the employment guarantee, or upon acceptance of the employment of an assigned employee/worker.
2. Scope of Performance
2.1 FOPM employs workers for assignment to third parties in accordance with the Temporary Employment Act (AÜG). The subject matter of the performance is therefore the provision of labour to the client and not the rendering of specific services per se. FOPM accordingly does not owe any work results of any kind whatsoever.
2.2 The type and scope of activities to be carried out as well, as the division of labour of the assigned workers, shall be agreed upon exclusively between FOPM and the client. The client may only commission the assigned workers with work that has been agreed upon between him and FOPM. In the event that the labour force provided by FOPM is given work by the client that is arranged unilaterally, or is contrary to the agreement or illegal, then the client shall bear sole responsibility and shall indemnify and hold FOPM completely harmless.
2.3 The assigned workers shall work under the leadership, instructions and responsibility of the client and shall be subject to his duty of supervision and care. The client pledges, with respect to the assigned workers, to comply with the relevant statutory and collective bargaining laws, in particular the Working Hours Act and accident prevention regulations, and adhere to the respective safety and occupational health requirements. The client shall be liable for ensuring FOPM that the duty of care of an employer toward the assigned workers is complied with.
2.4 In the event that the client re-assigns the assigned FOPM workers to a third party, the client pledges to impose upon the third party the provisions of this contract and to indemnify and hold FOPM completely harmless in the event of any violation of contractual, legal or other provisions by the third party.
3. Rights and Obligations
3.1 Before reassigning the employee, the client must inform both FOPM and the assigned employee about the required skills and the required professional knowledge, the health-related requirements and inspection requirements, about the necessity of any special medical monitoring, about all safety aspects and risks, as well as about other relevant characteristics of the workplace, and provide FOPM with the respective documents. The client must independently convince himself that the assigned employee possesses the required skills and has carried out any required inspections and/or he must independently arrange for and document any required preliminary or follow-up inspections of the worker.
3.2 The client pledges to instruct the assigned workers regarding their work and to enlighten them to the extent required, in particular regarding measures to ward off danger. He shall provide the assigned workers with the necessary work equipment, means of production, occupational safety equipment, tools and the like, at his expense.
3.3 The assigned employees are insured at the respective area hospital through FOPM. The client pledges to report any workplace accidents to FOPM as well as to the respective authorities without delay, using the accident report form.
3.4 The client shall grant FOPM access to the workstations of its workers in order to maintain its obligations as employer.
3.5 The client must independently obtain all official approvals required for the activities of the worker, such as written approval of the Health and Safety Executive if the daily working hours of 10 hours is exceeded.
3.6 The client pledges to immediately report any misconduct on the part of the assigned employees to FOPM, or otherwise forfeit his rights.
3.7 FOPM may recall assigned workers from the client at any time, provided it replaces them at the same time with other suitable workers.
3.8 FOPM shall have the right to withdraw from jobs, to cease services in their entirety, or to make any additional rendering of services conditional on pre-payment if the creditworthiness of the client is diminished, if the client is in default with the payments to FOPM, or if insolvency proceedings against the client are pending, being initiated or the filing of such is rejected/dismissed due to lack of cost coverage. The client shall have no claims whatsoever from such cessation of services.
3.9 The client pledges to promptly notify FOPM when its need for the respective assigned workers has ended, but at the latest in accordance with the legally required notice of termination of two weeks for workers and 6 weeks for salaried employees.
3.10 Application documents, which FOPM has provided to the client, shall remain the intellectual property of FOPM. They are to be treated confidentially and returned promptly to FOPM or destroyed when not being used. The client pledges neither to forward any application documents or data regarding the candidates proposed by FOPM to third parties, nor to keep or copy them. Both parties pledge to comply with the provisions of the Data Protection Act in its currently valid version.
4. Personnel Consulting
4.1 If the client has (also) commissioned FOPM with personnel consulting services, then he shall give his assurance that FOPM is the only business consultancy to whom a concrete search request has been issued.
4.2 FOPM’s fee claim is determined by the concrete individual agreement. Any required costs for legal and/or tax advice (such as in connection with the issuing of an employment contract) shall not be included in the fee claim.
4.3 A fee claim shall arise if the client concludes an employment agreement with a proposed candidate. In addition, a fee claim shall also arise if a third party concludes an employment agreement with one of the proposed candidates who became known to the third party via the client.
4.4 In addition, the terms of payment as per Item 5 shall apply correspondingly.
5. Terms of Payment, Settlement
5.1 Billing for the assigned employees shall occur on the basis of the working hours performed by the employees in accordance with the statements made in the individual agreement as well as these GTC.
5.2 If the assigned employees are utilised for activities in higher occupation groups than initially agreed upon, then the client shall pledge to pay respectively higher charge rates to FOPM. The charge rate shall not be decreased if the assigned employee is utilised in a lower occupation group than agreed upon. The client pledges to pay the additional costs that thereby arise. He shall be liable for the accuracy of his information.
5.3 The assigned employees are to record the performed working hours on the “time sheet” according to hours and minutes worked, which is to be confirmed by the client. The client is to send this filled-out and confirmed form to FOPM at the end of each workweek as well as on the last day of each month. If working hours are recorded electronically, the data from the time recording system must be sent to FOPM on time. If this is not sent over in a timely manner, FOPM shall be authorised to bill based on the normal working hours. Upon request, FOPM shall be authorised to inspect the records and/or documentation pertaining to time recording of the assigned worker and to make copies of them.
5.4 Billing shall always take place at the end of each month. The net invoice amount shall be due and payable immediately upon receipt and without discount. Assigned employees are not entitled to collect payment. Accordingly, the client is not authorized to make advances and/or any other payments to assigned employees.
5.5 Complaints must be made without delay, at the latest one week after receipt of invoice; otherwise, the invoices shall be considered approved. The due date of the invoice shall remain in effect even if complaints have been raised in a timely manner.
5.6 In the event of default in payment, FOPM shall be authorised to bill the client default interest in the amount of 8% above the respective base interest rate. The client shall also pledge to bear all of the dunning costs, collection expenses, and investigation and information charges associated with collection of the open invoice.
5.7 The client shall not be authorised to offset open receivables due to FOPM, unless FOPM defaults or the counterclaim is approved or established by law.
5.8 The client shall not be authorised to withhold or reduce payments on the basis of claims asserted against FOPM.
5.9 If legal, collective bargaining or other provisions applicable within the client company for assigned employees result in an increase in the wage costs and ancillary wage costs, in particular an increase in the minimum wage, then FOPM shall be authorized to adjust the prices of its services equal to the increase on the date of the increase.
5.10 Upon acceptance of a service, using a worker assigned by FOPM, the client pledges to pay a commission, the amount of which is determined according to the individual agreement. The commission must also be paid if the time period between employment by the client and the assignment of the worker is less than six months. The commission shall be due at the start of the employment relationship with the client.
6.1 FOPM selects its workers with the due diligence of a businessperson with due respect mainly to the qualifications (professional training) requested by the client.
Unless there is an agreement to the contrary, FOPM shall be liable only for the average occupational and professional skills of the assigned workers.
6.2 If this obligation is breached, FOPM shall be directly liable to the client only for the personal injury and damage to property from faulty selection to the third party, i.e. the client’s customer, but only to the extent that FOPM committed intentional or grossly negligent breaches of the duty of care, and the lack of skills of the assigned employees for the client was not identifiable. FOPM shall moreover not assume liability vis-à-vis the client. In particular, FOPM shall not be liable for damages that arise directly for the client, indirect damages, consequential damages, mere financial losses, lost profits, or interest losses.
6.3 FOPM shall in no way be liable if the assigned employees are entrusted with money matters, e.g. the safekeeping and management of money, cash management, securities and other objects of value. It is the sole responsibility of the client to protect himself against any risks associated with these matters.
6.4 The liability of FOPM in connection with the business relationship with the client shall be limited in amount to the respective contract value, which is the total amount paid to FOPM for the respective assigned workers, but a maximum of EUR 5,000.00.
7. Other Provisions
7.1 The place of jurisdiction for all disputes arising from contracts with the client shall be the court having subject matter jurisdiction in Graz. Austrian law shall apply exclusively to the exclusion of the UN Convention on Contracts for the International Sale of Goods and the conflict of law rules.
7.2 Any ancillary agreements and contract modifications must be in writing; the same shall apply for a departure from the written form requirement.
7.3 If any of the above-mentioned conditions shall be or become ineffective, this shall not affect the effectiveness of the other provisions. The ineffective provisions shall be replaced by regulations that most closely resemble the economic purpose of the contract while protecting the interests of both parties.