1. Scope and Object
1.1. These General Terms and Conditions (hereinafter: Terms) are exclusively valid with respect to entrepreneurs, legal entities under public law or public-law special funds.
1.2. We only acknowledge terms of the client that oppose or deviate from our terms if we expressly consent to their validity in text form.
1.3. These terms also apply for all future business with the client, in par- ticular contracts involving recruitment, consulting and services associated with personnel recruiting and selection of personnel.
2. Services and contract conclusion
A contract for recruitment, consulting or other services is concluded between us and the client; this contract is also valid if the order is given exclusively in verbal form.
3. Recruitment fee
3.1. Our claim to a recruitment fee is established, unless we have agreed otherwise in text form with the client – as soon as an employment relationship is initiated between the applicant we proposed (hereinafter: the applicant) and the client. An employment relationship refers to any working relationship as well as any independent service relationship, for instance in the form of freelance activity. The employment relationship is established once a contract for work or other services is concluded between the applicant and the client, no later than when the applicant begins work.
3.2. The recruitment fee is also due in the following cases:
• If the client hires the applicant despite characteristics and qualifications deviating from the profile of requirements, or
• If the applicant is hired for a different position than the commissioned vacancy in case of economic equivalence, whereby the decisive factor here is exclusively the causal relationship between our work and the establishment of this employment relationship, or
• If an employment relationship is established between the applicant and third party, insofar as there is a particularly close personal connection or significant economic connection between the third party and the client, particularly if the third party and the client are affiliated companies, or
• If the client forwards information about the applicant to a third party and an employment relationship is established between the applicant and this third party.
3.3. The recruitment fee is calculated based on a percentage, agreed with the client, of the gross annual salary agreed between the client and the applicant. In case of a freelance employment relationship, the decisive factor is exclusively the annual target remuneration excluding VAT rather than the gross annual salary. However, we charge a recruitment fee of at least 10,000.00 euros.
3.4. The gross annual salary or annual target remuneration used as the basis for calculating the recruitment fee is defined as the gross salary calculated for one year or the remuneration calculated for one year
including all additional benefits, extra payments and variable salary or remuneration components (e.g. 13thsalary, expatriation allowances, holiday and/or Christmas bonuses, gratuities, profit participation, bonuses, granting of a company car etc.). Performance-based salary or remuneration components are estimated at the expected or typical value upon conclusion of the employment relationship.
Benefits in kind are calculated at their monetary value. However, this does not apply for the granting of a company car, which is estimated at a lump sum of 5,000.00 euros regardless of the value and size.
3.5. Our claim to a recruitment fee remains valid regardless of whether the employment relationship is performed, whether it ends before the start of work or how long it lasts.
3.6. Our claim to the full recruitment fee exists for a period of 12 months after we have presented an applicant to the client with the option of establishing a specific contract between the client and applicant, for instance by submitting an applicant profile (hereinafter: the presentation) and an economically equivalent employment relationship is established with the applicant. The client reserves the right to con- test the causal relationship between our work and the employment relationship.
3.7. Costs incurred for the applicants in connection with interviews con- ducted by the client are not included in the fee agreed between the parties and the client must reimburse the applicants at their request.
The statutory VAT is to be paid to us by the client in addition to the agreed remuneration.
5. Contributory cause/Prior knowledge
5.1. Our fee claim is already established if our work is a contributory cause for the establishment of the employment relationship.
5.2. Profiles of applicants that were already available or known to the client for the vacant position (prior knowledge) exclude our work from being considered a contributory cause for the proposed applicants as long as this prior knowledge was communicated to us promptly after the presentation of the applicant in text form. Otherwise, even prior or simultaneous presentation of the same applicant by another personnel consultant does not exclude our contributory cause.
6. Duty to provide information to determine the fee claim
6.1. The client agrees to inform us in text form concerning the establishment of an employment contract with an applicant – or if no employment contract was established earlier, the start of work – within 5 working days, indicating all the information required to determine our fee claim, in particular the start of the employment relationship, the amount of the gross annual salary or annual target remuneration plus all extra payments (see Clause 3.4).
6.2. If the client fails to fulfil this obligation after being requested to do so with an appropriate grace period, we are entitled to use a suitable and typical remuneration in line with the applicant‘s qualifications as the basis for calculating our fee. This shall not release the client from his obligations under 6.1. Moreover, we are still entitled to charge the client for the difference if the gross annual salary or annual target remuneration agreed with the applicant is higher. The client is free to demonstrate a lower gross annual salary or annual target remuneration.
6.3. On request, the client must provide us with a copy of the employment contract.
7. Limitation of liability
7.1. We are liable in accordance with the statutory provisions if the client makes claims for damages based on intent or gross negligence, including intent or gross negligence by our representatives or vicarious agents.
7.2. In the case of simple carelessness, we are liable in the event of an injury to life, limb or health, in the event of a violation of a guarantee or an obligation to pay compensation under the German Product Liability Act.
7.3. In the case of simple carelessness, we are also liable according to the statutory provisions we are only liable for breaches of cardinal contractual obligations, the amount of which will be restricted to foreseeable damages typical for this type of contract. Essential contractual obligations are all obligations that must be fulfilled to enable the contract to be implemented correctly and which the client regularly expects or should expect to be fulfilled or violation of which endangers the contractual purpose being achieved.
7.4. Insofar as no other agreement differing from the above has been reached, our liability shall be precluded.
7.5. If the liability for damages on our part is precluded or limited, this shall also apply with respect to the personal liability for damages of our employees, representatives or vicarious agents.
7.6. If we have been engaged for personnel recruitment, proper procedure during personnel recruitment and personnel selection is a matter of course for us. If an applicant fails to meet the client‘s expectations or fails to achieve specific work results, this is outside our influence and we cannot assume any liability.
8.1. The client may terminate the contract at any time without notice.
8.2. If there is good cause, either party may terminate the contract without notice. In particular, good cause is considered to exist if
• the client fails to fulfil its contractual obligations of cooperation,
• insolvency proceedings are initiated concerning the client‘s assets or
• the client violates the confidentiality provisions in Clause 10.
8.3. Termination does not release the client from the payment of the ag- reed remuneration, for instance an expense allowance, a cancellation fee or the recruitment fee, as long as the conditions under Clause 3 are met.
8.4. Terminations must be issued in writing.
9. Payment conditions
Invoices are due for payment immediately upon receipt.
10. Confidentiality / Communication
10.1. The parties mutually agree to maintain confidentiality concerning all data and information of which knowledge is obtained during collaboration with the client, and not to forward data to third parties or use data without the express consent of the other party which can
be withdrawn at any time, unless this disclosure serves the purpose of contract performance or occurs due to statutory and legal obligations or when asserting our fee claim. This obligation continues to apply after the end of collaboration and also applies to all employees of the parties.
10.2. If no contract is negotiated with an applicant, the client agrees to return all submitted documents to us and to destroy any records or documents, data etc. that have been drawn up.
10.3. The client is not permitted to contact current or previous employers of the applicant without the consent of the applicant.
10.4. The client is hereby informed that transmitting information and documents electronically (particularly via email) involves risks. If the client does not agree to communication or the transmission of data via email, the client will inform us in text form.
11. Data protection
The parties are each controllers within the meaning of GDPR for their respective activities under this contract and when handling applicant data. Therefore, they will process the personal data of applicants in compliance with their due obligations. In particular, the client will refrain from using the applicant data provided by us for any purpose other than the performance of this contract or the potential establishment of the respective employment relationship.
12. Place of jurisdiction, applicable law, contract language
12.1. The place of jurisdiction for all disputes arising from and in connection with this contractual relationship, including disputes related to notarial proceedings, is Hamburg. According to our choice, we may also file a suit at the location of one of our branch offices if the legal action relates to the business operations of this branch office. However, this place of jurisdiction clause only applies if the client is an entrepreneur, a legal entity under public law or a public-law special fund.
12.2. This contract and all legal relationships are subject to the laws of the Federal Republic of Germany. The contract language is German.
13. Final provisions
13.1. Ancillary agreements must be made in writing.
13.2. If individual provisions of these terms or the contract should be in- effective or unenforceable or become ineffective or unenforceable after the contract is concluded, this will not affect the validity of the rest of these terms or the contract. The ineffective or unenforceable provision must be replaced by an effective and enforceable regulation whose effect is closest to the commercial objective that the contracting parties pursued with the ineffective or unenforceable provision.
Hamburg, October 2023
HAPEKO Hanseatisches Personalkontor Deutschland GmbH