General Terms and Conditions Germany
Version 2.0 Status 1 January 2018
1st contracting party
The contracting parties are Entourage GmbH Nymphenburger Straße 39, 80335 Munich represented by the Managing Directors Mr Dominik M. Aumer and Mr Moritz Haucke - hereinafter referred to as the Contractor - and the Client - hereinafter referred to as the Client -.
2. content of the contract and scope of application
The contractor is a personnel consultancy whose business purpose is the placement of suitable candidates with the client as well as the hiring out of employees. These General Terms and Conditions shall apply to every presentation of a candidate by the Contractor to the Client, even if they have not been referred to in the individual case. If the parties conclude a contract for the provision of Project Consultants, § 4 of these General Terms and Conditions shall apply in addition to the Project Consultant Contract. These General Terms and Conditions shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Client shall only become an integral part of the contract if and to the extent that the Contractor has expressly agreed to their validity in writing. The Client shall be informed immediately of any changes to these general terms and conditions. Individual agreements made between the parties in individual cases (including subsidiary agreements, supplements and amendments) shall in any case take precedence over these general terms and conditions. The content of such agreements requires a written contract or written confirmation by the contractor. The agreement does not constitute an exclusive search assignment. The Client may make use of the services of comparable companies.
2.1 Introduction of the candidate
The candidate shall be deemed to have been introduced (hereinafter referred to as "introduction") by the transmission of information that enables his/her identity to be clearly identified. If a contract (e.g. employment contract, interim management contract, consultancy contract or participation contract - irrespective of whether part-time or full-time) is concluded between the Client and the presented candidate within 12 months of the candidate's presentation, both parties shall assume that the contract was concluded on the basis of the presentation of the candidate by the Contractor. If the candidate has already been introduced to the company elsewhere in the last three months before the introduction by the contractor - irrespective of the introduction by the contractor, the client must notify the contractor of this in writing within 14 days of the introduction. In this case, the contractor shall not provide any further services. Upon request, the client must provide the contractor with suitable evidence of the candidate's presentation elsewhere within 14 days.
3. commission payments
3.1 Entitlement to commission
The contractor is entitled to payment of a commission through the conclusion of a contract between candidate and client (cf. § 2.1 Para. 2) - irrespective of the company and position in which the candidate is employed by the client or the activity for which the candidate is commissioned. The entitlement to payment of the commission shall also exist after termination of the recruitment contract if the contract between candidate and client has come into existence through the activity of the contractor.
3.2 Amount of the commission
The basis of the commission payment is the expected gross remuneration of the candidate per annum. The gross remuneration consists of the contractually agreed gross employee salary of the candidate plus the agreed additional benefits such as commissions, bonuses, premiums and company car. The valuation of the non-cash benefit of the company car is carried out via the 1% rule valid for tax purposes on the basis of the gross list price. If the client and the candidate have agreed on a free employee relationship, the amount of the commission is based on the candidate's monthly invoice. The commission is then to be settled monthly. The graduation of the commission is as follows.
|from EUR 90,000.01||36 %|
|EUR 60,000.01 to EUR 90,000.00||33 %|
|EUR 30,000.01 to EUR 60,000.00||30 %|
|up to EUR 30,000||EUR 9,900.00 Fixed salary|
3.3 Due date for payment
All payments are subject to statutory VAT at the current rate of 19%. Payments are due within 14 days of the invoice date. In the event of default, the contractor shall charge interest on the basis of the current statutory provisions. This shall be without prejudice to the assertion of additional damages caused by default.
3.4 Due date of commission for premium search order
If the parties have agreed on a premium search order, the following provision on the due date of the commission shall apply in deviation from § 3.3: The first tranche in the amount of 12 % of the gross annual fee shall be invoiced when the order is placed. The second instalment in the amount of 12 % of the gross annual fee shall be invoiced upon successful completion of the interview. The client has the option of requesting two further interviews if the candidate is not suitable. The third instalment of 12% of the gross annual fee will be invoiced upon signing of the contract. A premium search order is agreed in writing between the parties and always applies only to the specifically agreed search order.
3.5 Termination of the candidate
In the event of termination of the contract between the client and the candidate due to a reason lying in the person or behaviour of the candidate within the first six months, the contractor is obliged to search for suitable replacement candidates for a period of six months. The basis for this is the immediate and written notification of the event by the client to the contractor. The client is also obliged to inform the contractor in writing whether the termination is based on a reason lying in the person or the conduct of the candidate.
4. commission payments for the takeover of project consultants
This commission regulation shall apply exclusively in the event of the takeover of a Project Consultant. The commission provision shall also apply if the parties have not agreed on a commission in the Project Consultant Contract. The Contractor shall be entitled to take over Project Consultants provided by the Client and to conclude employment contracts with such Project Consultants. If the Contractor or a company affiliated with it within the meaning of Section 18 of the German Stock Corporation Act (AktG) concludes an employment contract with the Project Consultant before the start of or during the period of the assignment or within six months of the end of this assignment, the Project Consultant shall be deemed to have been placed by the Client. In this case, the Client shall be entitled to a placement fee in the amount of 40 times the daily rate agreed in accordance with the individual assignment. The daily rate shall be eight times the hourly rate. The prices stated are in each case exclusive of the legally applicable value added tax.
If the Contractor proves that the Client's expenditure for the recruitment of an employee comparable to the Project Consultant taken on is less than the placement fee pursuant to paragraph 1, this shall be reduced by 1/2, but at least to the amount corresponding to the expenditure for the recruitment of a comparable employee.
If the Contractor proves that the provision of the Project Consultant or the corresponding offer of the Client did not cause the establishment of the employment contract between the Project Consultant and the company affiliated with the latter within the meaning of Section 18 of the German Stock Corporation Act (AktG), the agency fee shall not apply. The agency fee shall become due upon conclusion of the employment contract concluded with the Project Consultant formerly seconded by the Client. The Contractor shall inform the Client of this conclusion of contract without delay.
5. suitability of the candidate
The contractor checks all information provided by the candidate to the best of his knowledge and belief. No liability is assumed for the accuracy of the information or the assessment of the candidates. The examination of the candidate for suitability is the responsibility of the client.
6. information obligations
The client shall inform the contractor without delay of any circumstances that may affect the placement activity. The client shall indicate the conclusion of a contract with the candidate within seven days at the latest. In addition, the client shall disclose the contractually agreed remuneration amount and prove it in writing by means of suitable documents. In the event that the client does not comply with this duty of disclosure or does not comply with it in time, the contractor shall be entitled to commission in the amount of 40 % of the anticipated gross remuneration. For this purpose, the client shall obtain the candidate's consent to the disclosure of the documents required for the calculation of the commission.
7. confidentiality clause
All information provided to the client which is necessary for the performance of the brokerage activity shall be treated confidentially. Disclosure of the information to third parties (including within the client's company) is expressly prohibited. If the candidate concludes a contract with a third party on the basis of the unauthorised disclosure of information, the contractor shall be entitled to commission from the client in accordance with the contractually regulated commission scale. Any further claims for damages against the client remain unaffected by this.
8 Applicable law and place of jurisdiction
All provisions of the contract are subject to the law of the Federal Republic of Germany. The place of jurisdiction is Munich. The contractor reserves the right to take legal action at the registered office of the client.
9 Ancillary Agreements and Severability Clause
Subsidiary agreements and amendments to the contract must be in writing to be effective. This formal requirement may not be waived or set aside either verbally or tacitly. The partial or complete invalidity of individual provisions of this contract shall not affect the validity of the remaining provisions of the contract. Each of the contracting parties has received a written copy of this contract.