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General Terms and Conditions of PRofiFLITZER GmbH, Berlin

General Terms and Conditions of PRofiFLITZER GmbH
within the scope of employee leasing and employment agency services (AGB ANÜ)

General terms and conditions

PRofiFLITZER GmbH (Supplier) carries out services for the purposes of the promotion of sales at the customers’ requests (Customer). To this end, independent (individual) suppliers, namely specialist consultants, merchandisers/rack jobbers, as well as trainers and other staff, are requested by the supplier and contracted after a corresponding aptitude test. This can be verified via a trade licence, where required, within the scope of the contractual relationship with PRofiFLITZER GmbH.
§ 1 Validity
  1. The General Terms and Conditions of PRofiFLITZER GmbH apply to persons who, at the time of conclusion of the contract, are acting in the exercise of their commercial or independent professional activity (companies) as well as to legal entities under public law and special funds under public law. The General Terms and Conditions are an integral part of the respective contract.
  2. Deliveries, services and offers shall be made exclusively on the basis of and subject to these General Terms and Conditions. PRofiFLITZER GmbH does not recognize any terms and conditions of the Contractual Partner deviating from these General Terms and Conditions unless it expressly agrees to their validity in writing. The General Terms and Conditions shall also apply if PRofiFLITZER GmbH performs deliveries and/or services for the Contractual Partner without reservation in the knowledge of deviating terms and conditions of the Contractual Partner.
  3. These General Terms and Conditions shall also apply to all future transactions with the contractual partner.
§ 2 Offers
  1. The offers of PRofiFLITZER GmbH are subject to change and non-binding. All contracts, even if the declarations are received by the representatives of PRofiFLITZER GmbH, are concluded upon receipt of the written order confirmation, at the latest upon execution of the services. The written order confirmation shall be decisive for the scope of services. Subsidiary agreements and amendments require the written confirmation of PRofiFLITZER GmbH.
  2. The selection of personnel is the sole responsibility of PRofiFLITZER GmbH. PRofiFLITZER GmbH usually requires a lead time of 6-8 weeks for project/campaign preparation. However, the decisive factor is the lead time specified in the respective offer. Acceptance of an order without observing this lead time may result in additional costs, which may be charged to the client.
  3. If contact data are made available to the Client within the scope of personnel proposals, personnel provision and personnel placement, these serve exclusively the purpose of preliminary information for the Client. It is not permitted to pass on the contact data provided to uninvolved third parties.
  4. In case of occurring problems with the personnel, comprehensible objective reasons must be given to PRofiFLITZER GmbH, which exclusively concern the professional competence to be provided by PRofiFLITZER GmbH and could lead to the possible replacement of the personnel. If the client has special or unusual personnel requests, this must be communicated to PRofiFLITZER GmbH in writing at least 6 weeks before the service is provided. PRofiFLITZER GmbH is entitled to charge additional prices for this.
  5. In the event of unacceptable working conditions, including sexual harassment of the personnel provided, PRofiFLITZER GmbH shall not be liable for any damage that may arise as a result. However, PRofiFLITZER GmbH will make every effort to alleviate the situation or to deploy other personnel, which may involve time delays, without PRofiFLITZER GmbH being liable for these time delays.
  6. If the personnel employed for the purpose of sales promotion are to perform ancillary tasks, such as photo documentation, etc., in the interest of the customer, this must be additionally agreed upon in advance of the assignment. After completion of the actual order, requests or tasks of the client are to be contractually agreed upon again with PRofiFLITZER GmbH and are associated with additional costs. Irrespective of this, the invoice issued for the main order must be paid to PRofiFLITZER GmbH on time.
§ 3 Prices
  1. The net prices agreed upon conclusion of the contract shall apply as prices. The statutory value added tax will be charged separately. The prices are set in euros.
  2. PRofiFLITZER GmbH shall be entitled to demand reasonable payments on account, the amount of which shall be based on the relationship between the services rendered and the total scope of the service owed under the contract.
  3. PRofiFLITZER GmbH reserves the right to change prices appropriately if cost reductions or cost increases occur after conclusion of the contractual relationship, in particular due to collective wage agreements or changes in the price of materials. The client reserves the right to prove that the costs are lower.
§ 4 Secrecy

The development of conceptual and design proposals by PRofiFLITZER GmbH as well as the communication of information serving the later realization of such proposals are subject to secrecy. They constitute business secrets and as such must be treated confidentially. Copyright and proprietary rights to the work and concepts presented by PRofiFLITZER GmbH in the course of the presentation shall remain with PRofiFLITZER GmbH even if a presentation fee is charged.

§ 5 Solicitation and Placement of Personnel
  1. The Client and their authorized third parties are prohibited from hiring or employing the Contractor’s personnel who are currently employed by the Client or have been employed by the Client in the last three months, during the term of this Agreement.
  2. The enticement of any kind of the commissioned, freelance or self-employed personnel provided by PRofiFLITZER GmbH is only permissible upon payment of a fee of fee in the amount of 1,900 € per enticed person.g. This applies until 12 months after termination of the cooperation.
  3. It is possible to entice away personnel permanently employed by PRofiFLITZER GmbH for the client for a placement fee of 25% of the actual full-time annual gross income (fixed and variable) received by the employee in a new employment relationship with the client or commissioned third parties. The client undertakes to provide PRofiFLITZER GmbH with the employment contract or the regulations documenting the full-time gross annual salary and all other contractual benefits for the calculation of the placement fee. Should an employee employed by PRofiFLITZER for the Client be hired by the Client or contracted third parties for a position other than the one for which he/she was originally hired, a placement fee of 25% of the actual full-time annual gross income (fixed and variable) will also be due in full.
  4. The separate General Terms and Conditions for Staff Leasing (AGB-ANÜ), which can be found here, apply to all assignments within the framework of staff leasing.
§ 6 Payment
  1. Invoice settlement, including ancillary and third-party costs, shall be made without deduction and shall be due within 14 days of the invoice date. If an invoice is not paid on time, PRofiFLITZER GmbH reserves the right to restrict or completely discontinue the service.
  2. If the Contractual Partner is in default of payment, PRofiFLITZER GmbH shall be entitled to charge default interest at a rate of 8% above the interest rate for longer-term financing transactions of the European Central Bank (LRG rate). In case of proof of higher damage caused by delay, PRofiFLITZER GmbH shall be entitled to claim such damage. The contracting party reserves the right to prove that no damage or less damage has been incurred as a result of the delay in payment. For PRofiFLITZER GmbH shall not be liable for any damage incurred by the Contractual Partner for this reason.
  3. An invoice shall be deemed to have been accepted unless PRofiFLITZER GmbH receives a written objection within 7 days. The date of receipt shall be decisive for compliance with the deadline.
  4. Bills of exchange and checks are only accepted on account of performance. Any costs incurred as a result shall be borne by the contractual partner and shall become due upon acceptance of the check or bill of exchange. The submission of bills of exchange shall in any case require prior written agreement on the scope and type of settlement. If a promissory note or a check of the contracting party is not honored, all outstanding invoices as well as all further acceptances shall become due immediately.
  5. Payments with discharging effect can only be made directly to PRofiFLITZER GmbH. If several claims are outstanding, payments shall be credited against the oldest claims together with ancillary claims, subject to any other provision by PRofiFLITZER GmbH.
  6. In the event of justified doubts about the contractual partner’s ability to pay, in particular in the event of payment arrears, PRofiFLITZER GmbH may, subject to further claims, revoke payment terms granted and make its claims, including any claims under bills of exchange, due immediately. In addition, PRofiFLITZER GmbH may, after Acceptance of the order for further services may require advance payment or cash on delivery of the services or security services, or, if this request is refused, withdraw from the contract without granting a grace period and claim any damages incurred. This shall also apply if partial services have already been rendered.
  7. The contracting party is entitled to set off its own claims only to the extent that its counterclaims have been finally adjudicated, are undisputed, or have been acknowledged by PRofiFLITZER GmbH. He shall only be entitled to exercise the right of retention insofar as his counterclaim is based on the same contractual relationship and is also legally binding, undisputed or acknowledged.
  8. In case of necessary technical equipment not arriving at PRofiFLITZER GmbH according to the contract and not in time for the deployment of the personnel, PRofiFLITZER shall not be liable for any delays in the performance of the order. Any additional costs incurred as a result for a necessary fast shipment (express) shall be borne by the customer.
  9. Equipment provided can be reclaimed by the client after completion of the order and payment of the invoice with a notice period of 2 months. If no reclaim is made, it will become the property of PRofiFLITZER GmbH without compensation.
  10. In the event of contract cancellation and individual assignment cancellations by the Client, the deadlines and cancellation fees listed below shall be deemed binding:
    – up to 5 working days after written order confirmation = 20% of the order amount of the part of the service affected by the withdrawal
    – between 6 and 12 working days after written order confirmation = 40% of the order amount of the part of the service affected by the withdrawal
    – between 13 and 19 working days after written order confirmation = 60% of the order amount of the part of the service affected by the withdrawal
    – from 20 working days after written order confirmation = 80% of the order amount of the part of the service affected by the withdrawal.
  11. The withdrawal from the contract or the cancellation of individual assignments must be made in text form (e.g. by e-mail) by the Client.
  12. In case of non-compliance with the planning time stated in the offer (period between written order confirmation and first day of operation), 15% of the total order amount will be charged in addition to the cancellation fees.
  13. In case of a volume shortfall of more than 40% in relation to the total volume of the respective confirmed order, within the time or action period stated in the respective offer, PRofiFLITZER GmbH shall be entitled to demand, in addition to the cancellation fees, a lump-sum expense allowance in the amount of 10% of the total order amount stated in the respective offer.
  14. In the event of cancellation of services due to third parties (trading partners, domiciliary rights), the provisions of points 10-13 shall apply.
§ 7 Time of performance
  1. Deadlines and delivery periods will be scheduled and observed by PRofiFLITZER GmbH according to the wishes of the Contractual Partner. Delivery dates are only binding if they are expressly confirmed in writing by PRofiFLITZER GmbH. Fixed transactions also require a special written agreement.
  2. The delivery period shall be extended appropriately in the event of measures within the scope of labor disputes, in particular strikes and lockouts, as well as in the event of unforeseen obstacles beyond the control of PRofiFLITZER GmbH (force majeure), insofar as such obstacles can be proven to have a considerable influence on the completion or delivery of the delivery item and/or the service. This shall also apply if such circumstances occur during subcontracting, e.g. typesetting and printing work. PRofiFLITZER GmbH shall not be responsible for the circumstances even if they arise during an already existing delay. In important cases, PRofiFLITZER GmbH will inform the Contractual Partner of the beginning and end of such obstacles as soon as possible.
  3. The contractual partner shall only be entitled to claims for damages due to non-performance in the amount of the foreseeable damage if the delay is due to intent or gross negligence. Otherwise, the liability for damages shall be limited to a maximum of 10% of the value of that part of the overall performance which cannot be used on time or in accordance with the contract as a result of the delay.
  4. Compliance with the delivery period requires the fulfillment of the contractual obligations of the contractual partner.
§ 8 Warranty, Liability
  1. The contractual partner shall immediately check the contractual conformity of the work/services delivered. Any complaints must be reported to PRofiFLITZER GmbH in writing within 7 days after receipt of the work/service (delivery). The timeliness of the notification of defects depends on the receipt of the written declaration by PRofiFLITZER GmbH. If the timely notice of defects is not given, the work/service shall be deemed to have been approved, unless the defect was not recognizable during the inspection.
  2. Insofar as there is a defect in the work/service for which PRofiFLITZER GmbH is responsible, PRofiFLITZER GmbH shall be entitled, at its discretion, to remedy the defect or to make a replacement delivery, but only up to the amount of the order value.
  3. The warranty period is 1 year. This period is a limitation period and shall also apply to claims for compensation for consequential harm caused by a defect, insofar as no claims in tort are asserted.
  4. Claims for damages of any kind by the contractual partner are excluded. In particular, PRofiFLITZER GmbH shall not be liable for loss of profit or other financial losses of the Contractual Partner. The above exemption from liability shall not apply if the cause of the damage is based on intent or gross negligence. Furthermore, it shall not apply if the contracting party asserts claims for damages for non-performance due to the absence of a warranted characteristic. Insofar as the liability of PRofiFLITZER GmbH is excluded or limited above, this shall also apply to the personal liability of its employees, representatives and vicarious agents.

  5. PRofiFLITZER GmbH shall also not be liable for intentional or grossly negligent conduct of third parties who are not involved as vicarious agents in the performance of the contractual relationship.
  6. After a declaration of readiness for printing by the Contractual Partner, PRofiFLITZER GmbH shall be released from any liability for the correctness of the documents submitted and/or any damages incurred. This shall also apply if the contractual partner makes corrections to artwork or similar documents on its own initiative.
  7. PRofiFLITZER GmbH is not obligated to have advertising designs legally reviewed. No liability is assumed for the legal, in particular competition law harmlessness of the advertising. The same applies to the registrability and protectability of designs. The assumption of liability requires a special written agreement with the contractual partner.
§ 9 Liability of the Contractual Partner

The contractual partner alone shall be liable for the legal validity of all information provided by the contractual partner, in particular with regard to trademarks, design patents, copyrights and other industrial property rights. If, as a result of the information provided by the Contractual Partner, claims are asserted against PRofiFLITZER GmbH for infringement of copyrights, trademarks, registered designs, patents or other industrial property rights, the Contractual Partner shall indemnify PRofiFLITZER GmbH against all claims and compensate PRofiFLITZER GmbH for the damage incurred, including any necessary legal costs.

§ 10 Transfer of rights, copyrights and ancillary copyrights, contractual penalty
  1. All rights of use under copyright law associated with the work supplied by PRofiFLITZER GmbH shall be transferred by PRofiFLITZER GmbH to the Contractual Partner only within the scope of the purpose of the contract, i.e. the scope of the contract in terms of space, time and content shall not exceed the scope of the contract. The right of use and the type of use granted in each case shall be determined by the specific purpose of the contract, unless the parties have agreed otherwise in writing.
  2. Rights of use to works that have not yet been paid for at the end of the contract or, in the case of settlement on a commission basis, have not yet been published, shall remain with PRofiFLITZER GmbH subject to any other agreements made. The exploitation and/or use of the work of PRofiFLITZER GmbH is only permitted if PRofiFLITZER GmbH has given its prior consent and/or a separate fee for the extended granting of the right of use has been agreed between the parties in advance. Works protected by copyright may not be altered, either in the original or in reproduction, without the express consent of PRofiFLITZER GmbH. This also applies to sketches, drafts, final drawings, templates, work drawings and electronic storage media (files etc.). In the event of a breach of this provision, PRofiFLITZER GmbH shall be entitled to demand a contractual penalty in the amount of twice the agreed remuneration. If no such remuneration has been agreed, the remuneration customary under the collective agreement for design services STST/AGD (as amended) shall be applied.

  3. Preliminary designs, drafts, sketches, work drawings, etc. shall remain the property of PRofiFLITZER GmbH and shall be returned upon request within a reasonable period of time after completion of the order or delivery of the work. The contractual partner shall be liable for any damage.
  4. PRofiFLITZER GmbH is not obliged to hand over files or layouts created on the computer to the Contractual Partner. If the Contractual Partner requests the surrender of computer data, etc., this shall be agreed upon and remunerated separately.

§ 11 Reference advertising
  1. The client grants the contractor permission to name the client/brand and agrees to a mention of the cooperation in the context of reference advertising. This authorization applies in particular to the communication channels listed below:

    – Newsletter
    – Press releases
    – Websites www.profiflitzer.de and www.my-profiflitzer.de –
    Business platforms “Xing” and “Linked in

§ 12 Labeling, specimen copies
  1. PRofiFLITZER GmbH is entitled to ten specimen copies of all published design work.
  2. PRofiFLITZER GmbH reserves the right to sign the advertising materials and models ordered by it, in particular to appear on the works to be supplied with the company, name, copyright notice and address in accordance with the given space.
§ 13 Data protection
  1. The client and third parties involved – usually trade partners – must comply with data protection laws when handling the data provided, in particular sedcards of personnel.
  2. The disclosure of data to uninvolved third parties is prohibited. Violations will be reported to the police or will result in a claim for damages, depending on the amount of damage caused.
§ 14 Written form, place of performance, place of jurisdiction, choice of law
  1. Unless otherwise stated in the order confirmation, the place of performance shall be the registered office of PRofiFLITZER GmbH.

  2. If the Contractual Partner is a merchant, the place of jurisdiction shall be the registered office of PRofiFLITZER GmbH. PRofiFLITZER GmbH is also entitled to sue the contracting party at its place of jurisdiction.
  3. The business relations and the entire legal relations between the Contractual Partner and PRofiFLITZER GmbH shall be governed exclusively by the laws of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
  4. All previous terms and conditions are hereby superseded.

  5. If individual clauses of these General Terms and Conditions are or become invalid in whole or in part, this shall not affect the validity of the remaining part or clauses. In relation to the contracting parties, the invalid clause or the invalid part of the clause shall be replaced by the legally valid provision that comes closest in economic terms to the purpose pursued by the invalid clause.

The above provisions shall apply in the event that the General Terms and Conditions turn out to be incomplete.

Berlin, 13th January 2015