General Terms and Conditions for the Provision of Employees of the Company Energieanlagen Greifswald GmbH (Lessor)
§ 1 Legal Status and Employment of Lessor's Employees
(1) The contract for the provision of employees between the lessor and the lessee does not establish a contractual relationship between the lessee and the lessor's employees. During their deployment, the lessor's employees are subject to the lessee's right to issue instructions and work under the lessee's guidance and supervision. However, changes to the place of work, working hours, and type of activity can only be agreed upon between the lessor and the lessee.
§ 2 Lessor's Collective Agreement Binding and Impact of Collective Wage Increases
(1) The industry-wide collective agreements concluded between the Federal Employers' Association of Personnel Service Providers e.V. (BAP) and the DGB Collective Bargaining Association for Temporary Employment, as well as any applicable collective agreements on industry supplements for temporary employees and relevant company agreements, shall apply to the lessor's employees.
(2) If, after the conclusion of the contract between the lessor and the lessee, there is an increase in the collectively agreed wages, the lessor is entitled to increase the customer rates agreed with the lessee by the same percentage, whereby any one-time collective payments for this purpose shall be converted into a monthly percentage.
§ 3 Selection of Lessor's Employees
(1) The lessor shall provide the lessee with carefully selected employees. The lessor will take into account any requests of the lessee when selecting the temporary employees. However, the lessor is entitled to replace the temporary employees with other temporary employees of equal suitability and qualifications at any time.
(2) The lessee is only entitled to demand the replacement of a temporary employee if the temporary employee is unsuitable for the agreed activity, fails to appear for work without excuse, or it turns out that the temporary employee has left an employment relationship with the lessee or a company affiliated with the lessee within the meaning of § 18 AktG in the last six months. The lessee is obligated to assert the lack of suitability in writing to the lessor within three working days of becoming aware of it. After this period has expired, the claim for replacement lapses.
§ 4 Absence of Lessor's Temporary Employees
(1) The lessee bears the risk of a temporary employee's absence due to illness or force majeure. The lessee also bears the risk that the deployment of temporary employees with the lessee is not possible due to the lack of consent from the lessee's works council pursuant to § 99 BetrVG.
§ 5 Confidentiality Obligation of Temporary Employees
(1) The lessor's employees have contractually committed themselves to maintaining confidentiality regarding all business and trade secrets and other confidential information of the lessees where they are employed.
§ 6 Occupational Safety/Health and Safety
(1) The lessee is obligated to provide the temporary employees with sufficient and appropriate instruction on occupational safety and health before they start work, in accordance with § 11 Paragraph 6 AÜG, § 12 Paragraph 2 ArbSchG. In particular, the lessee is obligated to inform the temporary employees about the applicable accident prevention regulations for the lessee's business and the respective workplace before they start work, and to provide the temporary employees with the necessary safety equipment and protective clothing.
(2) The lessee is obligated to comply with all occupational safety and health regulations when employing the temporary employees. The lessee will properly document any hazards associated with the work and related protective measures.
(3) The lessee is obligated to report work accidents involving the temporary employees to the lessor and the responsible accident insurance carrier or professional association without delay and in the proper manner.
(4) The lessee shall grant the lessor access to the lessee's business premises at any time during regular business hours upon request, so that the lessor can monitor compliance with occupational safety and health regulations.
§ 7 Compliance with Applicable Law/General Equal Treatment Act
(1) The lessee undertakes to comply with the provisions of applicable law when employing the temporary employees. In particular, the lessee will ensure that (i) the temporary employees' rights under the Works Constitution Act are observed and (ii) the provisions of the General Equal Treatment Act are also upheld with respect to the temporary employees.
(2) If a temporary employee is subjected to unequal treatment by the lessee or the lessee's employees, the lessee shall indemnify the lessor against all claims of the temporary employee.
§ 8 Billing
(1) The agreed customer rates shall be decisive for billing purposes. The lessor will submit weekly activity reports to the lessee. If the lessee does not raise any objections to the activity reports submitted to them within a period of one week, the activity reports shall be deemed approved.
(2) The lessor will issue weekly invoices to the lessee. The invoices are due and payable within seven days of the invoice date. In the event of late payment, the lessee shall owe default interest at the statutory rate.
§ 9 Placement Fee
(1) If the employee is hired by the lessee or a company affiliated with the lessee pursuant to § 18 AktG, the lessor is entitled to a placement fee. The amount of the fee is graded according to the preceding period of temporary employment and the gross monthly salary that the employee earns after being hired, as follows:
Upon hiring
- within the first three months: 2 gross monthly salaries
- from the fourth to sixth month: 1.5 gross monthly salaries
- from the seventh to ninth month: 1 gross monthly salary
- from the tenth to twelfth month: ½ gross monthly salary.
(2) Even if there is no direct temporal connection between the employee's employment relationship with the lessee, the lessor is still entitled to demand a placement fee in the amount specified in Paragraph 1 if the employment relationship with the lessee or a company affiliated with the lessee pursuant to § 18 AktG is attributable to the temporary employment. This is presumed if the employment relationship is established within six months after the last temporary employment. The lessee is free to rebut this presumption.
§ 10 Liability
(1) The lessor is only liable for the culpable incorrect selection of temporary employees for the agreed activity and for any other gross negligence or intentional breaches of duty on its part.
§ 11 Place of Performance and Jurisdiction
(1) The place of performance and jurisdiction for the contract between the lessor and the lessee is Greifswald.
§ 12 Choice of Law
(1) The laws of the Federal Republic of Germany shall apply.
§ 13 Final Provisions
(1) Oral side agreements require written form to be effective.
(2) Should any provision of this agreement be or become wholly or partially invalid, the validity of the remaining provisions of this agreement shall remain unaffected. The invalid provision shall be replaced by the legally permissible provision that comes closest to what was intended. The same shall apply in the event of an unintended regulatory gap.
