General Terms and Conditions of PRofiFLITZER GmbH, Berlin

General Terms and Conditions of PRofiFLITZER GmbH
in the context of temporary employment and job placement (temporary employment GTC)

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, upon conclusion of the contract, act in exercise of their commercial or self-employed professional activity (companies), as well as to legal entities under public law and special funds under public law. The general terms and conditions are part of the respective contract.
  2. Deliveries, services and offers are made exclusively on the basis of and with the inclusion of these general terms and conditions. PRofiFLITZER GmbH does not recognise conditions of the contractual party which deviate from these general terms and conditions unless PRofiFLITZER GmbH expressly agrees to their validity in writing. Thus, the general terms and conditions are also valid if PRofiFLITZER GmbH unreservedly executes deliveries and/or services for the contractual partner in the knowledge of deviating conditions of the contractual partner.
  3. These general terms and conditions are also valid for all future business with the contractual partner.
§ 2 Offers
  1. The offers of PRofiFLITZER GmbH are subject to change and are non-binding. All contracts, even if the explanations of the representatives of PRofiFLITZER GmbH are contrary to the latter, come with receipt of the written order confirmation, at the latest upon execution of the services. For the scope of the services, the written order confirmation shall prevail. Supplementary agreements and changes require written confirmation from 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 the preparation of a project/campaign. However, the lead time specified in the respective offer is decisive. An order acceptance without observance of this lead time may result in additional costs, which can be charged to the client.
  3. Where contact details are made available to the Purchaser in the context of staff proposals, staff provision and staff placement, these serve exclusively as prior information for the Purchaser. The transmission of contact details provided to an uninvolved third party is not permitted.
  4. In the case of issues arising with staff of PRofiFLITZER GmbH, objectively demonstrable grounds must be cited, which exclusively pertain to the professional competence guaranteed by PRofiFLITZER GmbH and which could lead to the possible substitution of personnel. If the Customer has any special or extraordinary personnel demands, this must be communicated in writing at least 6 weeks before the provision of PRofiFLITZER GmbH services. PRofiFLITZER GmbH is entitled to charge additional costs in this regard.
  5. PRofiFLITZER GmbH is not liable for any damage that may arise as a result of unreasonable working conditions, including sexual harassment of the staff provided. However, PRofiFLITZER GmbH will undertake to defuse the situation or deploy other staff, which may be accompanied by time delays, for which PRofiFLITZER GmbH shall not be held liable.
  6. Should the deployed staff perform secondary tasks for the purposes of sales promotion, e.g. photographic documentation in the interests of customers, this is to be additionally negotiated prior to the assignment. Requests made after completion of the actual order, or requirements of the Supplier, are to be negotiated in a new contract with PRofiFLITZER GmbH and will involve additional associated costs. Independently of this, the invoice sent to PRofiFLITZER GmbH for the main order must be paid on time.
§ 3 Prices
  1. The prices shall be the net prices agreed upon conclusion of the contract. The statutory value added tax is charged separately. Prices shall be specified in euros.
  2. PRofiFLITZER GmbH is entitled to demand reasonable payments on account, the amount of which is based on the relationship between the services rendered and the total contractual amount payable for the services.
  3. PRofiFLITZER GmbH reserves the right to change the prices appropriately, if, after conclusion of the contractual relationship, cost reductions or cost increases arise, especially due to wage agreements or changes in the cost of materials. The Customer reserves the right to provide evidence that the costs are lower.
§ 4 Confidentiality

The development of conceptual and design proposals by PRofiFLITZER GmbH as well as the communication of information that is used for the subsequent implementation of such proposals are subject to confidentiality. They constitute trade secrets and are to be treated confidentially as such. The copyright and ownership rights to all works and designs of PRofiFLITZER GmbH in the context of presentation remain with PRofiFLITZER GmbH, even if a presentation fee is charged.

§ 5 Enticement regulations and staff placement
  1. The Customer and its contracted third parties are forbidden from making an offer, recruiting or employing the Supplier’s staff who are currently deployed or who have been deployed in the last three months for the Customer during the duration of this agreement.
  2. Enticement of any kind of the contracted, freelance or self-employed staff provided by PRofiFLITZER GmbH is exclusively permissible under payment of afee in the amount of €1,900 per enticed person. This applies for 12 months after the end of the collaboration.
  3. Enticement of staff permanently employed by PRofiFLITZER GmbH for the Customer is possible for a commission fee of 25% of the annual full-time gross income (fixed and variable) which the Supplier obtains as part of a new employment relationship with the Customer or contracted third party. The Customer is obligated to provide PRofiFLITZER GmbH with a copy of the employment contract or the regulations, which document the annual full-time gross wage amount as well as all other contractual services for the calculation of the placement fee. Should one of the staff deployed by PRofiFLITZER for the Customer be employed by the Customer or contracted third party for a position other than that for which he/she was originally employed, a commission fee in the amount of 25% of the actual full-time gross income (fixed and variable) shall likewise be due in full.
  4. The separate General Terms and Conditions for Temporary Employment (AGB-ANÜ) apply to all assignments in the context of temporary employment (AGB-ANÜ), which you canfind here.
§ 6 Payment
  1. The invoice, including ancillary and external costs, will be settled without deduction and is due within 14 days of the invoice date. In the event an invoice is not paid on time, PRofiFLITZER GmbH reserves the right to limit the service or fully terminate it.
  2. Should the contractual partner delay payment, PRofiFLITZER GmbH is entitled to charge default interest in the amount of 8% above the interest rate for long-term financing transactions of the European Central Bank. In the case of evidence of greater damage caused by delay, PRofiFLITZER GmbH is entitled to enforce this. The contractual partner reserves the right to prove that there is no or lesser damage as a result of the payment delay. PRofiFLITZER GmbH shall not be liable for any damage to the contractual partner deriving from this reason.
  3. An invoice is deemed accepted unless PRofiFLITZER GmbH objects to it in writing within 7 days. The receipt shall be authoritative for the compliance with the time limit.
  4. Bills of exchange and cheques are accepted only as conditional payment. Resulting costs are to be borne by the contractual partner and become payable with the acceptance of the cheque or bill of exchange. In all cases, the deposit of bills of exchange requires prior written agreement on the scope and type of regulation. If a promissory note or a cheque of the contractual partner is not honoured, all outstanding invoices as well as all other bills of acceptance shall be due immediately.
  5. PRofiFLITZER GmbH can only be paid directly with full discharge. Where several receivables are unsettled, subject to another provision by PRofiFLITZER GmbH, payments shall be imputed to the oldest claims and ancillary claims.
  6. In the case of justified doubts about the solvency of the contractual partner, particularly in the event of delay in payment, PRofiFLITZER GmbH, subject to further demands, can revoke terms of payment and request that receivables including any bills of exchange be payable immediately. Furthermore, PRofiFLITZER GmbH, after acceptance of the order for further services, can request advance payments or cash upon delivery of services or securities, or if this request is rejected, can withdraw from the contract and claim damages without setting an extension period. This also applies if partial services have already been provided.
  7. The contractual partner is entitled to offset against its own claims only so far as its counterclaims are legally established, undisputed or accepted by PRofiFLITZER GmbH. It is entitled to exercise the right of retention only so far as its counterclaim is based on the same contractual relationship and is also legally binding, undisputed or accepted.
  8. PRofiFLITZER shall not be liable for any delays to order fulfilment in the case of contractual non-compliance and untimeliness with regard to the assignment of staff upon the arrival of the necessary PRofiFLITZER technical equipment. Resulting additional costs for a necessary rapid dispatch (Express) shall be borne by the Customer.
  9. Equipment made available can be recovered by the Customer after completion of the order and payment of the invoice with a notice period of 2 months. If no recovery takes place, this shall become the property of PRofiFLITZER GmbH without compensation.
  10. In the event of withdrawal from the contract and/or individual order cancellations by the Customer, the following notice periods and cancellation fees shall be binding:
    – up to 5 working days after written order confirmation = 20% of the order total of the service part affected by the withdrawal
    – between 6 and 12 working days after written order confirmation = 40% of the order total of the service part affected by the withdrawal
    – between 13 and 19 working days after written order confirmation = 60% of the order total of the service part affected by the withdrawal
    – from 20 working days after written order confirmation = 80% of the order total of the service part affected by the withdrawal.
  11. The withdrawal from the contract or the cancellation of individual assignments must be in written form (e.g via e-mail) by the Customer.
  12. In the case of non-compliance with the planning time specified in the offer (period between written order confirmation and first day of assignment) 15% of the total order amount will be charged in addition to the cancellation fees.
  13. In the case of volume reductions of more than 40% in relation to the total volume of the respective confirmed order, within the time or action frames indicated in the respective offer, PRofiFLITZER GmbH is entitled to, in addition to the cancellation fees, a flat-rate expense allowance amounting to 10% of the total order amount stated in the respective offer.
  14. In the case of service cancellations which are attributable to third parties (business partners, householder’s right) the provisions of points 10-13 shall apply.
§ 7 Performance time
  1. Appointments and delivery times are scheduled and observed by PRofiFLITZER GmbH in accordance with the wishes of the contractual partner. Delivery times are only binding if they are expressly confirmed by PRofiFLITZER GmbH in writing. Fixed date transactions also require a special written agreement.
  2. The delivery period shall be extended appropriately for measures in the context of industrial disputes, particularly strikes and lockouts, as well as in the event of unforeseen obstacles, which are outside the control of PRofiFLITZER GmbH (force majeure), insofar as such obstacles are demonstrably of significant influence on the completion or delivery of the delivery item and/or the performance. This also applies in such circumstances in the case of sub-deliveries, such as typesetting and printing work. The circumstances shall not fall under the responsibility of PRofiFLITZER GmbH if they occur during an already existing delay. In important cases, PRofiFLITZER GmbH will inform the contractual partner as soon as possible of the beginning and end of such obstacles.
  3. Claims for damages due to non-fulfilment in the amount of the foreseeable damage are only granted to the contractual partner if the delay is due to wilful intent or gross negligence. Moreover, the liability for damages is restricted to a maximum of 10% of the value of the part of the overall performance which cannot be used in time or in accordance with the contract as a result of the delay.
  4. Compliance with the delivery period requires the fulfilment of the contractual obligations of the contractual partner.
§ 8 Guarantee, Liability
  1. The contractual partner must check the conformity of the work/services provided without delay. Any complaints must be communicated to PRofiFLITZER GmbH in writing within 7 days of receipt of the work/service (delivery). With regard to the timeliness of the notice of defects, this depends on the receipt of the written declaration at PRofiFLITZER GmbH. If the timely notice of defects is omitted, the work/service shall be deemed approved, unless it is a defect which was not identifiable during the examination.
  2. If a defect of the work/service for which PRofiFLITZER GmbH is responsible exists, it is entitled, at its discretion, to remedy the defect or to provide a replacement, but only up to the amount of the order value.
  3. The guarantee period is 1 year. This period is a limitation period and also applies to claims for compensation for damage caused by defects, insofar as no claims arising from tort are asserted.
  4. Claims for damages of any kind of the contractual partner are generally excluded. In particular, PRofiFLITZER GmbH is not liable for loss of profit or other financial losses of the contractual partner. The above exclusion of liability does not apply if the cause of damage is based on wilful intent or gross negligence. It shall also not apply if the contractual partner asserts claims for damages due to the absence of a guaranteed feature because of non-performance. Insofar as the liability of PRofiFLITZER GmbH is excluded or limited above, this also applies to the personal liability of employees, representatives and vicarious agents.

  5. For third parties who are not involved in the performance of the contract, PRofiFLITZER GmbH is also not liable for intentional or grossly negligent conduct of these third parties.
  6. After a declaration of readiness to print by the contractual partner, PRofiFLITZER GmbH is released from any liability for the correctness of the submitted documents and/or any resulting damage. This shall also apply if the contractual partner makes corrections to printed documents or similar documents on its own initiative.
  7. PRofiFLITZER GmbH is not obliged to have advertising drafts checked legally. Liability for the legal harmlessness of advertising, especially with regard to competition law, is not accepted. The same applies to the eligibility of designs for registration and protection. The assumption of liability requires a special written agreement with the contractual partner.
§ 9 Liability of the Contractual Partner

The contractual partner is solely liable for the legal existence of all information provided by the contractual partner, particularly in relation to trademarks, designs, copyrights and other industrial property rights. If, as a result of the information provided by the contractual partner, claims arising from infringements of copyrights, trademarks, designs, patents or other industrial property rights are asserted against PRofiFLITZER GmbH, the contractual partner shall indemnify PRofiFLITZER GmbH in respect of all claims and shall reimburse  PRofiFLITZER GmbH for any damages incurred, including any legal costs.

§ 10 Transfer of Rights, Copyright and Industrial Property Rights, Contractual Penalty
  1. PRofiFLITZER GmbH transfers all copyright rights related to the work delivered by PRofiFLITZER GmbH to the contractual partner exclusively within the scope of the contract purpose, i.e. the spatial, temporal and substantive scope of the right of use, as well as the respective granted nature of use determined by the specific purpose of the contract, unless the parties have reached another agreement in writing.
  2. Rights of use for work that has not yet been paid upon termination of the contract or has not yet been published in the case of settlement on a commission basis shall remain with PRofiFLITZER GmbH, subject to any agreements made otherwise. The exploitation and/or use of the work of PRofiFLITZER GmbH is only permissible if it has agreed to this in advance and/or a separate remuneration has been agreed between the parties for the extended right of use. Works protected by copyright may not be modified in original or in reproduction without the express consent of PRofiFLITZER GmbH. This also applies to sketches, drafts, final artwork, templates, work drawings and electronic storage media (files etc.). In case of violation of this provision, PRofiFLITZER GmbH is entitled to demand a contractual penalty in the amount of double the agreed remuneration. If such remuneration has not been agreed, the collective agreement for STST/AGD design services (in the latest version) shall apply.

  3. Preliminary drafts, 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 return to the contractual partner files or layouts which were created on a computer. If the contractual partner desires the disclosure of computer data etc., this must be specifically agreed upon and remunerated.

§ 11 Reference Advertising
  1. The Customer grants the Supplier permission to customer/brand referencing and agrees to the collaboration being mentioned in the context of reference advertising. This authorisation shall apply in particular to the following communication channels:

    – newsletter
    – press releases
    – websites and –
    business platforms “Xing” and “Linked in”

§ 12 Marking, Specimen Copies
  1. PRofiFLITZER GmbH is entitled to ten copies of all published design works.
  2. PRofiFLITZER GmbH reserves the right to sign the advertising media and models ordered by it, in particular to appear on the works to be delivered with company, name, copyright notice and address in accordance with the given space.
§ 13 Data Protection
  1. The Customer and involved third parties – usually business partners – must comply with data protection when handling the data provided, in particular composite cards from staff.
  2. The transfer of data to uninvolved third parties is forbidden. Infringements will be reported and/or incur a claim for damages based on the degree of damage caused.
§ 14 Written Form, Place of Performance, Jurisdiction, Choice of Law
  1. Unless otherwise stated in the order confirmation, the registered office of PRofiFLITZER GmbH is the place of performance.

  2. If the contractual partner is a trader, the registered office of PRofiFLITZER GmbH shall be the place of jurisdiction. PRofiFLITZER GmbH is also entitled to bring legal proceedings against the contractual partner in the latter’s jurisdiction.
  3. The law of the Federal Republic of Germany with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods shall apply to the business relationship and the entire legal relationship between the contractual partner and PRofiFLITZER GmbH.
  4. All previous General Terms and Conditions are hereby annulled.

  5. If individual clauses of these General Terms and Conditions are or become invalid in whole or in part, the validity of the remaining part or of the other clauses is not affected. In relation to the contracting parties, instead of the ineffective clause or the ineffective part of the clause, the legally effective regulation that comes closest to the economic purpose pursued with the ineffective clause shall apply.

The above provisions shall apply in the event that the General Terms and Conditions turn out to be incomplete. Berlin, 13th January 2015