General Terms and Conditions Germany
Version 2.0 Stand 1. Januar 2018
1. Contracting Parties
The contractual partners are Entourage GmbH Nymphenburger Straße 39, 80335 München represented by the managing directors Mr Dominik M. Aumer and Mr Moritz Haucke – hereinafter referred to as the Contractor – and the Customer – hereinafter referred to as the Principal –
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 and the provision of temporary staff. These general terms and conditions apply to any presentation of a candidate by the contractor to the client, even if they have not been referred to in individual cases. 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 apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the client shall only become part of the contract if and to the extent that the contractor has expressly agreed to their validity in writing. The Customer shall be informed immediately of any changes to these General Terms and Conditions. Individual agreements made between the parties in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these General Terms and Conditions. For the content of such agreements a written contract or a written confirmation of the contractor is required. The agreement does not constitute an exclusive search order. The Client may make use of the services of comparable companies.
2.1. Presentation of the candidate
The candidate shall be deemed to have been introduced (hereinafter referred to as “Introduction”) by the transmission of information which enables his identity to be clearly identified. If a contract (e.g. employment contract, interim management contract, consultancy contract or participation contract – whether part-time or full-time) is concluded between the Client and the candidate presented within 12 months of the presentation of the candidate, 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 made other representations to the Company during the last three months prior to the presentation by the Contractor – irrespective of the presentation by the Contractor – the Client must notify the Contractor of this in writing within 14 days of the presentation. In this case, no further services will be provided by the contractor. Upon request, the client must provide the contractor with suitable evidence of the candidate’s other performance within 14 days.
3. Commission payments
3.1. Commission entitlement
The contractor is entitled to the payment of a commission through the conclusion of a contract between the candidate and the client (cf. § 2.1 para. 2) – regardless of the company and position in which the candidate is employed by the client or for which activity he is commissioned. The claim to payment of the commission shall also exist after termination of the personnel placement contract, if the contract between the candidate and the client has been concluded through the activity of the contractor.
3.2. Amount of commission
The commission payment is based on the candidate’s expected gross remuneration 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 cars. The valuation of the non-cash benefit of the company car is based on the 1% tax rule on the basis of the gross list price. If the client and candidate have agreed a free employee relationship, the amount of the commission is based on the monthly invoice of the candidate. The commission must then be settled monthly. The commission is staggered as follows.
|Annual gross commission||Provision|
|From EUR 90.000,01||36 %|
|EUR 60.000,01 to EUR 90.000,00||33 %|
|EUR 30.000,01 tosEUR 60.000,00||30 %|
|up to EUR 30.000,-||EUR 9.900,00 Fixed salary|
3.3. Due date of commission for premium search order
All payments are subject to value added tax at the current rate of 19%. Payments can be made within 14 days of invoicing. In the event of default, the Contractor shall charge interest on the basis of the current statutory provisions. This does not affect 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 shall apply to the due date of the commission in deviation from § 3.3: The invoice for the first tranche amounting to 12 % of the gross annual fee shall be issued upon placement of the order. The second tranche, amounting to 12% of the gross annual fee, will be credited upon successful completion of the interview. If the candidate is not suitable, the client has the option of requesting two further interviews. The third tranche amounting to 12% of the gross annual fee will be invoiced upon signing 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
If the contract between the client and the candidate is terminated within the first six months due to the person or behaviour of the candidate, the contractor is obliged to search for suitable replacement candidates for a period of six months. The basis is the immediate and written notification of the procedure by the client to the contractor. The Client shall also be obliged to inform the Contractor in writing whether the termination is due to the person or conduct of the candidate.
4. Commission payments for taking over Project Consultants
This commission regulation applies exclusively in the case of the takeover of a Project Consultant. The commission regulation also applies if the parties have not agreed on a commission regulation in the Project Consultant contract. The contractor is 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 the contractor within the meaning of § 18 AktG concludes an employment contract with the Project Consultant prior to or during the term of the assignment or within six months after termination of this assignment, the Project Consultant is deemed to have been mediated by the client. In this case, the client shall be entitled to an agency fee amounting to 40 times the daily rate agreed in the individual order. The daily rate shall be eight times the hourly rate. The prices quoted are exclusive of the statutory value-added tax.
If the Contractor proves that the Client’s expenditure for the recruitment of an employee comparable to the Assumed Project Consultant is lower 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 assignment 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 or companies associated with it within the meaning of § 18 AktG, the agency fee shall not apply. The placement fee shall become due upon conclusion of the employment contract concluded with the Project Consultant previously provided by the Client. The contractor must inform the client immediately of this conclusion of the contract.
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 correctness of the information or the assessment of the candidates. The client is responsible for checking the suitability of the candidate.
6. Information duties
The Client shall inform the Contractor immediately of any circumstances which may affect the mediation activity. Within seven days at the latest, the client shall notify the candidate that a contract has been concluded. In addition, the client shall disclose the contractually agreed amount of remuneration and prove it in writing by means of suitable documents. In the event that the client fails to comply with this duty of disclosure or fails to do so in good time, the contractor shall be entitled to a commission amounting to 40% of the expected gross remuneration. The Client shall obtain the consent of the candidate to pass on the documents required for the commission calculation.
7. Confidentiality clause
All information made available to the client, which is necessary for the execution of the mediation activity, will be treated confidentially. A passing on of the information to third parties (also within the enterprise of the client) is expressly forbidden. If the candidate concludes a contract with a third party due to the unauthorized disclosure of information, the contractor is entitled to a commission from the client in accordance with the contract.
8. Applicable law and place of jurisdiction
All provisions of the contract are subject to the law of the Federal Republic of Germany. Place of jurisdiction is Munich. The contractor reserves the right to take legal action at the client’s place of business.
9. Ancillary agreements and severability clausel
Collateral agreements and amendments to the contract must be made in writing to be effective. This formal requirement can neither be revoked or invalidated verbally nor 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.