General terms and conditions
Version March 2022
These general terms and conditions (‘T&C’) apply to all contracts and other services that the company HR factory GmbH, at Konrad-Zuse-Platz 9, 81819 Munich, Germany (‘HR factory’) provides to its clients. Any deviating terms and conditions of the client are hereby rejected. HR factory only recognises any such deviating terms and conditions if this is expressly agreed in writing.
1. General provisions
§ 1 General
(1) By signing the contract, the client confirms commissioning or buying services provided by HR factory or documents prepared by HR factory for the client’s business or freelance activities.
(2) HR factory performs its activities for the client as an independent contractor.
(3) HR factory may use its own employees for the fulfilment of the contract. HR factory may also use independent consultants for the fulfilment of the contract. These act as independent contractors, using their own company name and promotional image.
(4) Any complementary agreements are made in writing; any individual agreements always take priority.
(5) The contractual relationship between HR factory and the client is subject to the law of the Federal Republic of Germany, excluding the UN Sales Convention.
(6) The exclusive place of jurisdiction for any and all disputes arising from this contract if the client is a merchant, a legal entity of public law, or special fund under public law, or is without a domestic place of jurisdiction, is Munich. HR factory is also entitled to file legal action against the client in its general place of jurisdiction.
§ 2 Services of HR factory
(1) Based on a separate agreement, HR factory provides the client with business consulting and human resources services, and, partially based on these services, workshop and coaching services. Furthermore, the client may commission HR factory as an interim manager. HR factory also provides services in the fields of personnel leasing and personnel placement.
(2) The T&C consist of the General Provisions (I), the Special Terms and Conditions for Business Consulting/Interim Management (II), for Training or Coaching Events (III), and for Personnel Leasing and Personnel Placement (IV).
(3) If additional services are provided by a third party, and HR factory expressly acts not as a contractual party, but solely as an agent, the service relationship only arises with that third party. HR factory accepts no liability to that effect. The agreement in question is decisive.
§ 3 Value-added tax and payment
(1) Unless otherwise specified, the agreed fees and prices are indicated at net value, including value-added tax.
(2) HR factory always issues an invoice to the client.
(3) Unless agreed otherwise, the client must effect payments within 30 days after billing. If the agreed payment deadline is exceeded, HR factory may charge a late interest in the amount of 8% over the base interest rate, without any additional warning. This does not affect the right of HR factory to claim any damages arising from missed payment deadlines.
(4) HR factory is entitled to use any payments received from the client to cover any older outstanding amounts payable by the client. If any late interest and costs have already occurred, HR factory is entitled to use the payment to cover the costs incurred due to the delay, then the interest, and then the main amount for the services.
(5) In the event of an ongoing long-term contractual relationship, e.g., with large consulting orders, HR factory may invoice the client at regular intervals (e.g., monthly).
(6) The client only has the right to set-off if the counterclaims are recognised by HR factory or legally binding. In exercising its right of retention, the client is only allowed to use its counterclaims arising from the same contract.
§ 4 Liability/limitation of liability
(1) HR factory is held liable for any material and legal defects in accordance with applicable law.
(2) In addition to liability for material and legal defects, HR factory is subject to unlimited liability in what pertains to damage based on intent or gross negligence. HR factory is also liable for any slightly negligent breach of important duties (duties whose breach jeopardises the achievement the purpose of the contract), and for the breach of principal duties (duties whose fulfilment enables regular performance of the contract, and whose fulfilment the client regularly relies on), but only in the context of foreseeable damage typical for the contract. HR factory is not held liable for any slightly negligent breach of any duties not specified above.
(3) The limitations of liability specified in the previous paragraph do not apply to any injury to life and health.
§ 5 Data protection
(1) The client is aware that HR factory saves the client’s personal data necessary for the processing of the order on data storage media, and the client consents to this. The client expressly accepts the collection, processing and use of the client’s personal data. HR factory handles the personal data saved in a way that ensures confidentiality. The collection, processing and use of the client’s personal data takes place in accordance with the General Data Protection Regulation (GDPR).
(2) With express prior consent by the client, personal information can also be used to inform the client of products, marketing activities and various services.
(3) The client has the right to revoke their consent at any time, with future effect. In such a case, HR factory is required to immediately erase the personal data of the client. With an ongoing contractual relationship, this erasure takes place once the relationship ends.
(4) The parties mutually undertake to maintain confidentiality in what pertains to the information disclosed as part of their contractual relationship. The HR Experts hired by HR factory are contractually obligated to maintain confidentiality for all of the client’s confidential matters and events that are disclosed to them, and must observe data secrecy as per GDPR. (5) Without prior written approval by HR factory, the client is not allowed to provide knowledge, documents or other details pertaining to the persons presented by HR factory to third parties, or to present these persons to third parties for the purpose of employment. A ‘third party’, as specified in this Paragraph 11, is defined as any natural individual or legal entity, or a consortium, that is not the client, including any companies associated with the client as per Section 15 of the German Stock Corporations Act (AktG).
2. Special terms and conditions for business consulting / interim management
§ 6 Commissioning, determining the end of the order
(1) In the case of business consulting, the client and HR factory determine the task, the procedure, the nature of work results and the remuneration in writing. Any modifications or additions to the tasks, the procedure and the nature of the work results also require a written agreement.
(2) HR factory is deemed to have provided business consulting services to the client once HR factory conducts and prepares the required analyses, the resulting conclusions and recommendations, and states them to the client. It is irrelevant, if or when the client implements the conclusions or recommendations.
(3) Commissioning as an interim manager also takes place based on a separate written agreement that must specifically determine the scope and extent of the activities to be carried out by HR factory or by an interim manager presented by HR factory, as well as the amount of remuneration payable by the Client.
§ 7 Duties of the client
(1) The client undertakes to support the activities of HR factory. In particular, the client must meet all the requirements pertaining to its field of business that are necessary for the provision of the service, at no cost. If the reasonable requirements set by HR factory are not met, the client must separately compensate the documented waiting times that arise from this.
(2) If HR factory acts as an interim manager, the client is responsible for providing any possibly necessary work or other permits, specifically those necessary for the legality of any orders that the client issues to the interim manager presented by HR factory.
(3) The client briefs and appropriately trains the interim manager provided by HR factory in the client’s company guidelines. This particularly applies to the use of the equipment (e.g., computers) that the client is to provide to the interim manager, and the scope and limits of such use.
(4) The client provides the interim manager with the authority necessary to perform the services, and declares the interim manager to be authorised to issue instructions.
(5) The client appoints a contact person for the interim manager.
§ 8 Duties of HR factory
HR factory must handle information pertaining to the business and trade secrets of the client in confidence, and optionally may require its employees or subcontractors to sign a formal obligation to that effect.
§ 9 Protection of work results
The reports, plans, drafts, presentations and calculations prepared by HR factory may only be used for the purposes contractually agreed. Every non-contractual use of these services, especially their publication, requires prior written approval by HR factory. This also applies if the service provided is not to be subject to any special legal rights, copyright in particular.
3. Special terms and conditions for training and coaching
§ 10 Commissioning training or coaching events
(1) If a client would like to order an HR factory training event, HR factory sends the client an offer for participation/conducting the desired training or coaching event, which the client can then accept within 2 weeks in writing. This confirmation by the client makes the registration of the event binding to both the parties, and the client is then billed accordingly.
(2) If HR factory assigns trainers as part of third-party training or coaching events, these trainers act exclusively on behalf of HR factory, unless HR factory expressly only acts as an agent for this service. In the case of the latter, a contractual relationship is established with the third party in question. HR factory accepts no liability to that effect. The specific agreement is decisive in this case.
§ 11 Training and coaching event prices
Participation in training or coaching events is agreed on an individual basis in the contract.
§ 12 Conducting training and workshop events, cancellation and failure
(1) The event venue is specified in the offer or the order confirmation.
(2) HR factory reserves the right to cancel confirmed events for organisational or other significant reasons (e.g., the number of participants being too low), no later than four weeks prior to the beginning of the event. In such cases, HR factory, however, undertakes to offer alternatives. In the event of a cancellation or failure of the event, e.g., due to force majeure, HR factory immediately reports this to the participants, and returns the participation fee amounts already paid; no other claims apply. Unless otherwise agreed, the minimum number of participants is 10.
(3) The client is entitled to cancel the order at no cost, no less than 6 weeks prior to the beginning of the event. If such cancellation takes place no less than 14 days prior to the beginning of the event, the client must pay 50% of the agreed remuneration to HR factory. If such cancellation takes place less than 14 days prior to the beginning of the event, the client must pay the entirety of the agreed remuneration to HR factory. Additionally, the client must cover any costs that HR factory has incurred due to the already confirmed booking of the event (accommodation, travel, incidental costs).
§ 13 Copyright on training documents
HR factory reserves all copyright and other property rights pertaining to training documents, including in the case of translating, reprinting or reproducing these documents. Without prior written approval by HR factory, no user of the training documents may use them in any form, fully or in part, for designing lessons, reproduction, distribution or publication.
4. Special terms and conditions for personnel leasing and personnel placement
§ 14 Services of HR factory
LeistungeIn the context of these T&C, the services of HR factory include: permanent employment for an employee presented by HR factory; transfer of an HR factory employee presented by HR factory (‘personnel lease’), temporary transfer of employees (‘HR Experts’), and other services intended to fulfil the order in question.
§ 15 Activities of the client
The client must ensure that HR factory is provided with the information and documents that it needs to provide the contracted services in time. The client is responsible for the verification of professional or academic qualifications, and the client must confirm the suitability of the candidates proposed by HR factory either itself, or through authorised representatives.
The client must immediately notify HR factory in writing if the client submits a permanent position offer to an HR Expert. The client must brief the HR Expert assigned by HR factory in the client’s company guidelines in writing, and provide the HR Expert with appropriate and detailed training. This particularly applies to the use of the equipment (e.g., computers) that the client is to possibly provide to the HR Expert, including the scope and limits of such use.
The client is responsible for providing any possibly necessary work or other permits, especially those necessary for the legality of any orders that the client issues to the HR Expert presented by HR factory.
§ 16 Remuneration
The remuneration that the client must pay for the services provided by HR factory is determined based on the remuneration rates agreed for the order in question with the client. If the client and HR factory do not separately agree on the remuneration, and the client hires the person presented by HR factory, the fee payable to HR factory is based on the following calculation:
The permanent employment fee is equal to 35% of the agreed gross annual salary of the hired HR Expert/candidate, including the applicable value-added tax. In calculating the gross remuneration for the first year, all of the remuneration components are taken into account, specifically also including the components that are paid depending on results and/or independently of the results. Any bonuses and supplementary pay that are independent of results, including material benefits (e.g., company car), foreign travel allowances, living cost allowances, or representation cost allowances, are included at their fiscal value. For the private use of a company car, a flat rate of EUR 10,000.00 is added to the gross annual salary. Bonuses that depend on results, such as royalties or profit shares, are included at their normally expected value, and any contributions in kind are included at their monetary value.
Whenever an employee is transferred from being provided as a lease by HR factory to being a permanent employee, HR factory is entitled to a placement fee in the amount of 35% of the agreed gross annual salary.
The placement fee is also payable to HR factory if less than twelve months after the end of the last lease or presentation of an employee, and the employment of that employee by the client or a company associated with the client (as per Article 15 of AktG).
The fee is payable within 5 business days after the formalisation of the employment, i.e., the signing of the contract, and no later than the beginning of actual employment. After the conclusion of the contract or after hiring the employee, the client must immediately inform HR factory that it has permanently hired an applicant or HR Expert provided by HR factory, and notify HR factory of the gross annual salary of the employee (including the amount of compensation for incidental costs, such as travel expenses, and compensation agreements, that the client must pay). The claim for compensation exists regardless of whether it is the client that contacts the presented person or HR Expert, or it is the presented person or HR Expert that submits an application to the client or a company of its group. HR factory’s claim for compensation also does not depend on the position that the client or a group company associated with it hires or assigns the person presented by HR factory for, specifically if that person is hired or assigned for a position that is different from the one originally proposed by HR factory.
§ 17 Billing, payment deadlines and delay in payment
The billing for the services takes place in the event of permanent employment, at the time of conclusion of the contract between the client and the applicant, or at the time of publishing in print and/or online media, no later than the time of placement, or at the time of conclusion of the contract, for other services.
The invoices become payable immediately upon receipt, without deductions; the prices and fees specified are understood to include the applicable value-added tax rate.
In the event of placement of HR Experts, the billing by HR factory takes place on a weekly or possibly monthly basis. HR factory bills the client separately for any usual costs pertaining to accommodation at the place of assignment, weekend travel costs, business trips, training (including travel costs, night accommodation, catering etc.), unless contractually agreed otherwise.
Through an authorised representative, the client verifies the work hours/days delivered by the HR Expert and recorded in the activity report, on a weekly basis. The representative must confirm the activity report in writing, with a signature and company seal, provided that this procedure is agreed on, and the report is not provably false. The original of the activity report is received by HR factory, and the client receives a copy of the activity report. If HR factory does not have an activity report signed by the client, the corresponding billing takes place based on the contractually agreed weekly worktime.
If the service provided by HR factory is a labour service, which in any case must be recorded and agreed as such in a separate agreement in writing, the client has a claim for rectification in the event of possible defects. In the event of failed rectification, the client has the rights provided by the law. The client must submit any defect claims to HR factory in writing, as soon as the client discovers the defect. Defect claims lapse 12 months after the provision of the labour service.
If certain circumstances that are not the fault of HR factory partially or fully prevent HR factory from performing the services it undertook for the client, HR factory is entitled to withdraw from the contract. HR factory is expressly not bound by any duty to compensate damage in such a case.
§ 18 Termination
Each of the parties is entitled to terminate this contract without notice if the other party commits a significant breach of this contract.
HR factory is also entitled to terminate this contract without notice if:
- the client is insolvent
- the initiation of an insolvency procedure has been requested for the assets of the client
- the client is in default of payment
- the client is late on accepting the service of HR factory
- the client does not fulfil its contractual duty to cooperate
In the event of termination, HR factory is entitled to end the performance of any possible activities that it must perform, and to withdraw any employees provided to the client as part of a personnel lease. This does not affect any other rights and claims of HR factory, including any damage claims.