The apsa personnel concepts gmbh will hereafter briefly be referred to as “apsa”.
Client: The respective contractual partner of apsa is referred to as client in line with the individual agreement, even if he is referred to by another name in this individual agreement.
Applicants: persons, who apply at apsa.
Temporary employee: person, who is employed at apsa and whose workforce is provided to an apsa client for work performance.
1.2 In the following, all personal indications used in this GTC shall equally hold for persons of both, the female and the male sex.
1.3 General scope
These general terms and conditions, hereafter briefly referred to as “GTC”, are valid for all apsa fields of business activity. Paragraph 1 General of the present GTC is valid for all contracts concluded with apsa with clients, who are obliged to act in accordance with these GTC. The respective particular provisions apply supplementary for the general provisions. The apsa scope of business activity involves temporary support for limited and unlimited positions by providing employee leasing, the recruitment together with the independent project performance (particularly in the IT field).
The present GTC are valid as accepted upon contract conclusion, but at the latest when using the service and they become part of the contract between apsa and the client. GTC stipulated by the client, only enter into force, once apsa explicitly acknowledged them in writing.
1.4 Information obligation
The client and the applicant are committed to immediately and completely provide the required documents concerning the order and to inform apsa of all activities and circumstances, which may be of importance for the order. This applies particularly to all circumstances concerning the client’s business, the effects on the working scope, the working location or the remuneration the client is entitled to, as well as for documents, activities and circumstances, which become known during the apsa activity. apsa has the right to charge according to the valid apsa hourly rate, the damage caused, in particular the frustrating efforts, which have been caused by the client or applicant who provided faulty, old or incomplete information. This right particularly applies should an applicant already have applied for a job with the client, but has not immediately informed apsa of this matter.
1.5 Contract Conclusion
The contract is concluded in the context of the quotation and the GTC once the order has been placed orally as well as written and once the quotation or quotation confirmation has been signed by the client, in case the client or the applicant use the service or in case of the first apsa activity respectively, which shall complete the contract by apsa. The basis of the contract is the quotation, the individual contractual agreement and the GTC, whereas, in the event of inconsistencies, the following order of precedence is valid:
- Individual agreement (quotation)
- Legal requirements
1.6 Data protection and confidentiality
The client is obliged to treat every piece of information, also information concerning applicants he receives in the framework of the contractual relationship with apsa, with the highest confidentiality. Documents (concerning applicants and other documents) shall be treated with confidentiality and must be returned to apsa, in case there is no contract conclusion with the applicant. Any Information concerning applicants sent per Email shall be deleted and must not be saved. Any copies must be deleted. The client has no right to transfer documents (concerning applicants and other documents) to third parties and he has no right to use them directly or indirectly. In case the service of apsa will be used due to a counter-intuitive behaviour of the client, the client is committed to apsa to indemnify and hold this incidence harmless. Reference information may be gathered at any time after consulting apsa. apsa commits itself to treat any information gained from the client and applicant with the highest confidentiality.
1.7 Service performance through third parties
apsa is not committed to personal service performance, but it has the right to have third parties perform their services owed. In case the client insists on personal service performance through apsa, this shall be agreed in the written from.
apsa has the right to terminate orders at any time without giving reasons, by 7 day’s notice of termination. Claims of the client in the case of a termination of this kind are excluded. In case of the client’s delay in payment or deterioration of the creditworthiness, apsa at least has the right to discontinue the service entirely or to predicate further service performance on an advance payment. The client is allowed to terminate the order in writing– in the case of the applicability of paragraph 2.6 of the present GTC with the restrictions stipulated – by a 6-week’s notice of termination at the end of each calendar month.
1.9 Place of Jurisdiction
The place of jurisdiction for any contractual relationships with apsa is the competent court for the 13th district of Vienna exclusively. The subject-matter jurisdiction is in line with legal requirements. The Austrian Law is valid excluding CPIL, other reference standards and the UN sales convention. This is also valid in case the client has his registered office abroad, for which reason the service of apsa is also performed abroad.
2 Special provisions for temporary employment
2.1 apsa contracts temporary employees to provide them third parties and provides the client with employees. The provision (service scope of apsa) is performed (in accordance with this sequence) in line with the provisions of this quotation, the signed contract, the present GTC and particularly in line with the Temporary Employment Act, as far as the individual agreement (quotation, contract, GTC) does not contain any regulations and as far as there do not result any mandatory regulations from the Temporary Employment Act. apsa provides the employees, who are liable to the instruction and guidance of the client. As a consequence, apsa is not committed to deliver a particular performance or success respectively.
The client shall only use the temporary employee for services stipulated between the client and apsa. Should the temporary employee perform services of a higher quality grade, this service is considered as covered by contractual agreements. The employee remuneration is to be effected in line with the corresponding wage agreement. Should the temporary employee actually perform services of lower quality grade, this does not result in a reduction of the apsa cost rate, but the stipulated remuneration shall be paid. The client alone is responsible for an unauthorized contract deployment or an unlawful activity of the temporary employees, and commits himself to exempt apsa from any liability.
The temporary employees are not allowed to assume money or valuables and they are not allowed to debt collection in the name of the client.
The client does not have the right to leave temporary employees to third parties; thus, the so -called “chain employment relationship” through the client is unauthorized and provokes compensations from the part of the client.
2.2 Employee protection
The client is responsible in the broadest sense for the duration of the temporary employment agreement and for the adhesion to the employee protection and duty of care in line with the Temporary Employee Act. The client declares expressively that the provision of temporary employees will not negatively impact the wage and working conditions and will not harm the positions of the employees working at the business premises of the client. Concerning this matter, the client commits himself to inform apsa without delay about significant alterations of the circumstances. The standard working time of the temporary employee is in line with the labour-law related provisions contained in the contractual arrangement for the actually conducted work, whereas the employees in the factory of the client are to be taken into account (§10 section 3 Temporary Employment Act).
Should the temporary employees violate the employment law (e.g. unexcused absence or unpunctuality) or work accidents, the client shall display apsa immediately. The client is also committed to immediately report a work accident to the competent authority. apsa informed the client about all essential circumstances important for observing personal safety at work as well as about the special personal protection. apsa is required to terminate a temporary employment immediately, once apsa has been informed that the client, in spite of being requested, has not complied with the employee protection and care duty. The client is informed about the fact that during the time of the temporary employment, the labour-law related valid legal provisions as well as any other valid general mandatory provisions in the employment company for comparable employees, relating to aspects like working time and vacation, also apply for the temporary employee; furthermore, before placing the order, the client is committed to inform apsa about these applicable provisions. According to the provisions of § 10 of the Temporary Employment Act, the temporary employees are to be treated in the same way as the full-time employees of the employment company. The client has knowledge of the provisions of §10 section 1a that will enter into force on January 1, 2014. Should the result of this provision be a performance obligation, this will not affect the remuneration stipulated between apsa and the employee. In case of the violation of employee protection or care duty as well as the obligations regulated in the present GTC on third party claims and temporary employment relationships, the client holds apsa harmless from and against and claims.
2.3 Data security/ transfer of ownership
apsa commits to instruct the temporary employees to keep all trade and business secrets of the client from anyone at anytime, but apsa does not assume liability for the temporary employee’s observation of these secrets.
The settlement is performed on the basis of the working hours performed by the temporary employees (this also affects hours when the on-call- or standby duty) in line with the provisions stipulated in the corresponding individual contract or quotation respectively.
As far as there are business trips or the like for the temporary employees to be reimbursed, these will also be charged to the client. The client also bears the cost for training and further education.
The working hours performed shall be written down by the temporary employees and shall be proved by the client. The working time evidence shall be sent to apsa by the client or by the temporary employee at the end of the month. If the working time evidence is not approved, this does not give the client the right to retain the service in return.
Should labour-law related or any other provisions lead to a wage and non-wage costs increase (particularly to an increase in the minimum wage), apsa has the right to adapt the invoice amount of the increase extent as from the date of the increase. This also applies for any special remunerations, anniversary money etc., which will be charged to the client.
The invoices will be settled on a monthly basis. The invoice amount shall be paid immediately after invoice receipt without deduction.
Claims have to be made immediately within 7 days after invoice receipt, whereas the maturity of the total invoice amount is not affected. In the case of absence of a timely and written claim, the invoice is considered as approved and authorized. Should there be a delay in payment, as of the maturity day, monthly interests for delay amounting to 1.5% apply, as well as reminder charges amounting to €12 per reminder as stipulated.
apsa is not liable for a special work performance, a special service or a special success, as, for the time of the temporary employment agreement, the temporary employee is to be considered as employee of the client (particularly in line with §7 section 1 of the Temporary Employment Act). The client shall exercise protective effects in favour of third parties that result from the work of the temporary employee for the client by holding apsa harmless from and against claims. Mutual receivables of the contracting partners may neither be compensated in the framework of the present contractual relationship, nor in the framework of any other contractual relationship (prohibition of set-off). apsa is under no circumstances liable, should the temporary employee be entrusted with financial matters, as e.g. cash transactions performance, money safekeeping and managing, security papers and other valuables. The liability of apsa in connection with the whole business relationship with the client is limited in any case to the amount of the sum insured of the business liability insurance, but in any case not exceeding €1000,000, – and it is also limited to culpable negligence that can be accused, or intention respectively.
The client commits to make a written report to apsa immediately about sign of industrial action at his premises. Should the client fail to make this report, he therefore has to hold apsa harmless from and against claims concerning imposed penalties.
Should the duties of apsa be occupied in any form without fault due to unlawful activities of the client in the framework of the temporary employee agreement, the client will hold apsa harmless from and against claims.
The client ensures that his temporary employees will not be headhunted by competitors of apsa during the duration of the temporary employee agreement. For this, the client is liable in tort. Client claims that particularly result from obligations of secrecy violation or competition clauses, in particular for the time after the termination of employment in the client’s company, or claims that result from patent- and employee liability matters, are exceptionally a matter to be discussed between the client and the temporary employee directly.
2.6 Minimum contract duration
The recruiting, training and further education of the temporary employees involves a substantial financial-and time effort for apsa. To be able to compensate this effort, the minimum contract duration of 6 months is to be stipulated. Should the contractual relationship be terminated before the end of the minimum contract duration, the client has to pay remuneration once the contractual relationship has been terminated for the time between contract termination and the end of the minimum contract duration. The amount of this remuneration is calculated from the average remuneration of the months until contract termination. Should the time of contractual relationship be less than a month, the remuneration shall be calculated on the basis of the weekly remuneration projected to one month.
3 Special provisions for recruiting
The service includes a thorough recruiting as well as any recruiting- and selection work. Current applicants are being pre-selected and corresponding documents are being presented according to job- and requirement profiles delivered by the client. On demand of the client, apsa will arrange the job interviews.
3.2 Success fee and payment conditions
Unless in the quotation were not been stipulated any contrasting agreements, the following conditions apply: Success fee: should the client and an applicant announced by apsa enter into a contractual agreement of whichever kind, from the time of the contractual formation between client and applicant on, however at the latest with the start of the employment of the applicant at the client’s company, the success fee amounting to 28% of the annual gross target remuneration is to be paid plus the legal VAT, however, at least €10,000, – are to be paid. The fee includes all apsa services – excluding required or respectively desired consultation services, as e.g. law and tax consultations. Consequently, the fee includes the following apsa services: design of a thorough requirement profile; recruiting; optional placement of an online advertisement; applicant briefing and quality insurance on the phone for a pre-selection; personal interviews with the applicants to determine hard facts and soft skills; design of an expert profile; appointment coordination during the whole process.
apsa is also fully entitled for remuneration in case the client or a third party – to whom the client has delivered information concerning the applicant, especially documents concerning the applicants – enters into a contractual agreement or in case an applicant named by apsa is contracted for another position than formerly intended. Furthermore, apsa is also entitled to remuneration in the following cases, in case:
- The business in bad faith is not completed only because the client, contrary to the negotiation process, refrains from a legal act or notable reason;
- The client and the applicant conclude another equivalent business, as far as the business mediation falls within the scope of activity of apsa
- The contract is not concluded with the client, but with another person, because the client informed another person about the personal data of the applicant named by apsa.
The remuneration is understood excluding VAT and is to be settled 10 days after invoicing.
The basis for remuneration calculation is the gross annual target remuneration stipulated with the applicant. The gross annual target remuneration corresponds to the applicant’s gross annual salary (including a 13th and 14th monthly salary, gratifications and other remunerations comparably to salary) under consideration of the fixed and variable commissions, bonuses and salary increases in the first year of service; should the remuneration the applicant actually receives deviate from the remuneration expected at contract conclusion, apsa has the right to charge the client for the resulting increase of the success fee upon expiration of the first service year.
For this purpose, the client commits to inform apsa immediately of the applicant’s contract commencement and to give apsa notice about the actual gross annual remuneration by providing appropriate documents.
Default interest amounting to 1.5% monthly are to be applied from the maturity day on, as well as reminder charges amounting to €12, – per reminder as stipulated.
3.3 General and liability
Should a person named by apsa (applicant) be employed after the termination of 12 months directly by the client or by third parties or as a freelancer, apsa is entitled to the named fees in paragraph 3.2 of the present GTC. The services of apsa under no circumstances substitute a thorough examination of the applicant by the client. When signing the employment contract with a proposed person, the client assumes the full responsibility for his choice. apsa arranges the personal data of the applicants with the highest accuracy, but refuses to bear any responsibility concerning the statements and the performance of the future activity. Neither is apsa liable for the client’s choice concerning the employment of an applicant, nor concerning the existence and or presence of a work-and residence permit that are required and enable the applicant to legally work for the client. apsa does not have any contractual association to the applicants and neither does it receive remuneration nor any other reward. Any compensation of mutual receivables and payables of the contractual parties is excluded.
Furthermore, apsa is not liable for the fact that the client might find a suitable applicant within a period of time.
4 Special provisions for the project contract
4.1 Contract termination and services
The contract between apsa and the client is concluded by the client’s signature of the quotation or the quotation confirmation. This contract conclusion can be performed orally or in writing.
apsa is not bound to unilateral quotation modifications or additions performed by the client after order confirmation. These modifications or additions do not become contract content, unless APSA explicitly agrees to them. Should an order confirmation of apsa deviate from the order placed by apsa, the content of the order confirmation of apsa becomes contract content, unless the client promptly/ immediately objects this contract, at the longest within 7 days, in any case before the commencement of the service performance by apsa.
4.2 Liability and warranty
apsa is not responsible for the realization of a special project success, but it only has to make sure that the project was realized with honest effort and was performed by persons qualified for the corresponding services.
The client must tell in writing alleged defects immediately, at the latest within a period of 14 days.
In case of a default of a timely notification, claims against apsa are excluded. The notification of defects does not give the client the right to service retention.
Warranty claims are– as far as they concern remediable defects – are confined to improvement, the right to convert or the right for price reduction is excluded. For improvement apsa is committed to set an appropriate period of grace. As far as the client himself sets measures for improvement, the replacement for related costs is excluded. Warranty claims are to be asserted by judicial process within 6 months, otherwise the client will lose the right for warranty claims.
4.3 Rights of use
The client is granted the right of use for the services performed by apsa after termination of the project with full payment of the remuneration in line with the individual contractual agreement. The right of use includes the use by the client, but not the sale, rent, leasing or any other utilization of goods. The right of use does not include the right to copy the systems or to change or complete them without the consent of apsa. Until the complete payment of the remuneration, apsa has the absolute right of use as well as the exploitation right.