General Terms and Conditions of the HAPEKO Hanseatisches Personalkontor Deutschland GmbH

1. Application and Object

1.1 These General Terms and Conditions (hereinafter: GTC) apply exclusively to entrepreneurs, legal persons under public law and special funds under public law.

1.2 We will only recognize terms and conditions of the client contrary to our GTC if we expressly agree to their application in text form.

1.3 These GTC also apply to any future transactions with the client, especially brokerage, consulting and service agreements for personnel recruitment and selection.

2. Services and Contract Conclusion

Between us and the client, a brokerage, consulting or other service contract will be concluded that will also be valid if an order is placed orally.

3. Brokerage Fee

3.1 Our claim to a brokerage fee will be established—unless we conclude a different agreement with the client text form—when an employment relationship is established between our suggested applicant (hereinafter: the applicant) and the client. An employment relationship means any working relationship, including any independent service relationship, e.g., for freelance work. An employment relationship will be established when an employment or other service agreement is concluded between the applicant and the client, at the latest, upon the commencement of work activities by the applicant.

3.2 The brokerage fee will also be charged in the following cases:
• If the client hires the applicant despite characteristics and qualifications that differ from the job profile.
• If the applicant is hired for another economically equivalent position than that specified by the order. This depends solely on whether the employment relationship was established because of our activities.
• If an employment relationship is established between the applicant and a third party with a particularly close personal or economic relationship, especially if the third party and the applicant are affiliated companies.

3.3 The brokerage fee will be determined based on a percentage rate agreed with the client for the gross annual target wage agreed between the client and the applicant. In case of a freelance relationship, the agreed annual target remuneration, excluding VAT, will be used instead of the gross annual target wage. However, in any case, we will charge a brokerage fee of at least EUR 6,000.00.

3.4 The gross annual target wage or annual target remuneration used to determine the brokerage fee is the gross wage or remuneration determined for 1 year, including any additional payments, such as special payments and variable wage or remuneration components (e.g., 13th monthly wages, expatriation allowances, leave pay and/or Christmas bonuses, gratifications, profit sharing, other bonuses, car provision, etc.). Performance-based wages or remuneration components will be assessed at their usual value or the value projected at the time of conclusion of the employment relationship.

Benefits in kind will be assessed as countervailing benefits. However, this does not apply to car provisions which will be assessed at EUR 5,000.00, irrespective of their value or size.

3.5 Our claim to a brokerage fee will remain, irrespective of whether the employment relationship is implemented or ended before its commencement and irrespective of its duration

3.6 Our claim to a full brokerage fee will be established for 12 months after we introduce an applicant to the client with an opportunity for conclusion of a specific contract between the client and the applicant, e.g., by providing an applicant profile, (hereinafter: the presentation) and an economically equivalent employment relationship is established with the applicant. The client may prove that the employment relationship was not established because of our activities.

3.7 Costs incurred by the applicant for job interviews with the client are included in the fee agreed between the parties and must be refunded by the client if requested by the client.

4. VAT

In addition to the agreed fee, the client must pay VAT to us.

5. Joint Causality/Prior Knowledge

5.1 Our fee claims will be established through the joint causality of our activities for the establishment of an employment relationship.

5.2 Profiles of applicants for the position to be filled that have already been submitted or were already available to the client (prior knowledge) exclude joint causality of our activities for suggested applicants if this prior knowledge is reported to us in text form without undue delay after the presentation of the applicant. Otherwise, the presentation of the same applicant made prior or at the same time by another personnel department will not exclude joint causality.

6. Duty to Provide Information to Determine Fee Claims

6.1 The client must report the conclusion of an employment contract with an applicant or—if no employment contract has been concluded—the commencement of activities to us in text form, including any information necessary for determining our fee claim, especially the commencement of the employment relationship, the gross annual target wage or annual target remuneration, including any additional payments (see Section 3.4), within 5 business days.

6.2 If the client fails to comply with this obligation despite notice with an appropriate grace period, we may base our fee calculations on appropriate and customary remuneration for the applicant’s qualifications. If a higher gross annual target wage or annual target remuneration is agreed with the applicant, we may invoice the difference to the client. The client may prove that a lower gross annual target wage or annual target remuneration was agreed.

6.3 The client must submit a copy of the employment contract to us if requested.

7. Liability Limitation

7.1 Unless regulated otherwise hereafter, damage claims of the client are excluded. We will especially not be liable for lost profits or other asset damage of the client. If our liability is limited or excluded, this also applies to the personal liability of our employees, representatives and vicarious agents.

7.2 In case of material or asset damage caused through negligence, we will only be liable for violations of essential contractual obligations, but limited to the amount of foreseeable damage typical to the contract.

7.3 We will be unlimitedly liable for damages caused through intent or gross negligence, for injuries to life, limb or health and for breaches of a guarantee. We will also be unlimitedly liable in case of liability under the German Product Liability Act [Produkthaftungsgesetz, ProdHaftG].

7.4 We can only guarantee proper employee search and employee selection procedures. We will therefore not be liable if an applicant does not fulfill every expectation or does not achieve certain results.

8. Termination

8.1 The client may terminate the order at any time without notice.

8.2 Apart from that, both parties may terminate the order without notice for a compelling reason. A compelling reason will especially be present if:
• The client does not fulfill its contractual cooperation obligations.
• Insolvency proceedings are opened for the assets of a party.
• The client violates the confidentiality obligations under Section 10.

8.3 Termination does not release the client from payment obligations for the agreed fee, e.g., the administrative fee, cancellation fee or brokerage fee, if the requirements of Section 3 of these GTC are met.

8.4 Terminations must be issued in text form.

9. Payment Conditions

Invoices will become due immediately upon their receipt.

10. Confidentiality/Communication

10.1 The parties must mutually treat any data and information obtained during the cooperation with the client confidentially and may not transfer to third parties or use such data or information without the express authorization of the other party which may be withdrawn at any time, unless the transfer serves contract performance purposes or is necessary due to legal obligations or for the enforcement of our fee claims. This obligation also applies to employees of the parties and will continue to apply even after the cooperation ends.

10.2 If an applicant is not recruited, the client must return any provided documents to us and must destroy any corresponding records and produced documents, data, etc.

10.3 The client may not contact current or previous employers of the applicant without the applicant’s consent.

10.4 The client must note that sending information and documents electronically (especially by email) entails risk. The client must notify us in text form if the client does not agree to communication or sending data via email.

11. Data Protection

The parties act as controllers in the sense of the GDPR for their activities under the contract and for the treatment of applicant data. The parties must therefore process personal data of applicants in compliance with their obligations. Applicant data provided by us may therefore especially not be processed by the client for purposes other than the performance of the contract or the eventual establishment of an employment relationship.

12. Place of Jurisdiction, Applicable Law and Contract Language

12.1 The place of jurisdiction for any disputes under or in relation to the contractual relationship, including for disputes in summary procedures, is, at our discretion, Hamburg, Germany, or our branch location if the lawsuit refers to operations of this establishment. However, this place of jurisdiction clause only applies if the client is a merchant, legal person under public law or a special fund under public law.

12.2 The contract and all of its legal relationships are governed by the law of the Federal Republic of Germany. The contract language is German.

13. Final Provisions

13.1 Side agreements must be concluded in text form.

13.2 Should individual regulations of these GTC or of the contract be or, after contract conclusion, become invalid or enforceable, this will not affect the validity of the other regulations of these GTC or of the contract. The invalid or unenforceable regulation must be replaced with a valid and enforceable regulation that most closely approximates the economic effects pursued by the contract parties through the invalid or unenforceable regulation.