General Terms of Service of PRofiFLITZER GmbH
PRofiFLITZER GmbH (Contractor) performs services on behalf of customers (Client) for the purpose of sales promotion. For this purpose, as a general rule, independent (individual) contractors, in particular technical consultants, merchandisers/rack jobbers as well as coaches and other personnel are requested by the Contractor and commissioned after a corresponding aptitude test. Within the internal relationship with PRofiFLITZER GmbH, this may be evidenced by a business license, if applicable.
§ 1 Scope
(1) The General Terms of Service of PRofiFLITZER GmbH shall apply to persons who, at the time of signing the contract, are acting in the capacity of their commercial or independent professional activity (Companies) as well as to legal entities under public law and special entities under public law. The General Terms of Service are an integral part of the respective contract.
(2) Deliveries, services and proposals shall be made exclusively on the basis of and subject to these General Terms of Service. Any terms and conditions of the Contractual Partner deviating from these General Terms of Service shall not be recognized by PRofiFLITZER GmbH, unless PRofiFLITZER GmbH expressly agrees to their validity in writing. The General Terms of Service 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 of Service shall also apply to all future transactions with the contracting party.
§ 2 Offers
(1) The offers of PRofiFLITZER GmbH are subject to change and are 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 binding for the scope of the services. Ancillary agreements and amendments require the written confirmation of PRofiFLITZER GmbH.
(2) The selection of personnel is solely the responsibility of PRofiFLITZER GmbH. PRofiFLITZER GmbH usually requires a lead time of 6-8 weeks for project/campaign preparation. However, the determining factor is the specified lead time in the respective offer. Order acceptance without adhering to this lead time may result in additional costs, which may be charged to the Client.
(3) If contact information is provided to the Client in the context of personnel recommendations, personnel provision and personnel placement, it shall serve the sole purpose of providing the Client with advance information. Disclosure of the provided contact information to any non-involved third parties is not permitted.
(4) In the event of any problems with personnel, PRofiFLITZER GmbH must be given comprehensible objective reasons that exclusively concern the professional competence to be provided by PRofiFLITZER GmbH and that could lead to the possible replacement of the personnel in question. If the Client has special or unusual personnel requirements, PRofiFLITZER GmbH must be notified in writing at least six (6) weeks before the service is to be provided. PRofiFLITZER GmbH is entitled to charge an additional fee for this.
(5) In the event of any 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 defuse the situation or to assign alternative personnel, which may involve time delays, for which PRofiFLITZER GmbH shall not be liable.
(6) If the personnel employed for the purpose of sales promotion are to perform additional tasks, such as photo documentation, etc., in the interest of the customer, this must be separately agreed upon prior to the assignment. After completion of the actual order, any requests or tasks put forward by the client must be contractually agreed upon again with PRofiFLITZER GmbH and are associated with further additional costs. Irrespective of this, the invoice issued for the principal order must be paid to PRofiFLITZER GmbH on time.
§ 3 Pricing
(1) Prices shall be the net prices agreed upon at the time of conclusion of the contract. The statutory value added tax will be charged separately. All prices are in Euro.
(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 to be rendered under the terms of 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 material prices. The Client shall retain the right to demonstrate that the costs are lower.
§ 4 Confidentiality
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 confidentiality. Such information constitutes business and trade secrets and as such must be treated as confidential. 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 Non-solicitation and Recruitment
(1) The Client and its authorized third parties are prohibited from offering to hire or employ 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) Solicitation in any form of the contracted, freelance or self-employed personnel provided by PRofiFLITZER GmbH is only permitted upon payment of a fee in the amount of €1,900 per solicited person. This shall remain valid for 12 months after the termination of the cooperation.
(3) It is possible to solicit 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 a commissioned third party. 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 by a third party commissioned by the Client for a position other than the one for which he/she was originally hired, a placement fee in the amount of 25% of the actual full-time annual gross income (fixed and variable) will also be due in full.
(4) he separate General Terms of Service for the Hiring of Employees (AGB-ANC), which can be found here, apply to all assignments within the framework of the hiring out of employees: General Terms and Conditions of PRofiFLITZER GmbH within the framework of the hiring out of employees (AGB-ANC)
§ 6 Payment
(1) Invoice settlement, including additional 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 defaults on payment, PRofiFLITZER GmbH shall be entitled to charge a default penalty interest of 8% above the interest rate for longer-term financing transactions of the European Central Bank (LRG rate). If evidence of higher damage caused by delay can be provided, PRofiFLITZER GmbH shall be entitled to claim such damage. The contractual partner reserves the right to prove that either no damage or less damage has been incurred as a result of the delay in payment. PRofiFLITZER GmbH shall not be liable for any possible damages incurred by the contractual partner for this reason.
(3) An invoice shall be deemed as accepted, unless PRofiFLITZER GmbH is notified of an objection in writing within 7 days. The date of receipt shall be the determining factor for compliance with the deadline.
(4) Bills of exchange and checks are only accepted as conditional payment. 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 deposit of bills of exchange shall, in any case, be subject to prior written agreement on the scope and type of settlement. If a promissory note or a check of the contractual partner is not honored, all outstanding invoices as well as all further acceptances shall become due immediately.
(5) Payments with an exempting effect can only be made directly to PRofiFLITZER GmbH. Should there be more than one outstanding claim, payments shall be credited against the oldest claims together with secondary claims, subject to any other provisions by PRofiFLITZER GmbH.
(6) n the event of justified doubts about the contractual partner’s ability to pay, in particular in the event of overdue payments, PRofiFLITZER GmbH may, subject to further claims, revoke any payment terms granted and make its claims, including any claims under bills of exchange, due immediately. Moreover, PRofiFLITZER GmbH may, following acceptance of the order for further services, demand advance payment or cash on delivery for the services or security services, or, if this demand is refused, withdraw from the contract without granting a grace period and assert claims for damages incurred. This shall also be applicable if partial services have already been provided.
(7) The contractual partner shall only be entitled to offset its own claims insofar as its counterclaims have been legally established, undisputed or acknowledged by PRofiFLITZER GmbH. The Client shall only be entitled to exercise the right of retention insofar as its counterclaim is based on the same contractual relationship and is also legally binding, undisputed or acknowledged.
(8) Should necessary technical equipment not arrive at PRofiFLITZER GmbH in accordance with the contract and in time for the deployment of the personnel, PRofiFLITZER shall not be held liable for any delays in the order fulfillment. Any additional costs incurred as a result of the need for expedited shipping (express) shall be borne by the Client.
(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 reclamation is made, it will become the property of PRofiFLITZER GmbH without compensation.
(10) In the event of cancellation of a contract and individual assignment cancellations by the Client, the deadlines and cancellation fees listed below shall be deemed as binding:
- Up to 5 working days after written order confirmation = 20% of the total order value of the part of the service impacted by the cancellation
- Between 6 and 12 working days after written order confirmation = 40% of the total order value of the part of the service impacted by the cancellation
- Between 13 and 19 working days after written order confirmation = 60% of the total order value of the part of the service impacted by the cancellation
- More than 20 working days after written order confirmation = 80% of the total order value of the part of the service impacted by the cancellation
(11) The withdrawal from the contract or the cancellation of individual assignments must be made in written form (for example email) by the Client.
(12) In case of non-compliance with the planned 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 period or area of action 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 service cancellations attributable to third parties (trading partners, in-house law), the provisions of points 10-13 shall apply.
§ 7 Performance Time
(1) Deadlines and delivery periods will be scheduled and observed by PRofiFLITZER GmbH according to the requests made by 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 deadline shall be extended accordingly in the event of measures within the scope of industrial 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 goods and/or service. This shall also apply if such circumstances occur in the course of subcontracting, e.g., typesetting and printing work. PRofiFLITZER GmbH shall not be held responsible for the circumstances even if they arise during an already existing delay The start and end of such obstacles will be communicated by PRofiFLITZER GmbH to the contractual partner as soon as possible in important cases.
(3) The contractual partner shall only be entitled to claims for damages due to non-performance in the amount of the foreseeable damage in the event that the delay is due to intent or gross negligence. Furthermore, the liability for damages shall be limited to a maximum of 10% of the value of that part of the overall performance that cannot be used in a timely manner or in accordance with the contract as a result of the delay.
(4) Compliance with the delivery deadline assumes the fulfillment of the contractual obligations of the contractual partner.
§ 8 Guarantee, Liability
(1) The contractual partner shall immediately verify the contractual conformity of the work/services delivered. Any complaints must be communicated to PRofiFLITZER GmbH in writing within seven (7) days following receipt of the work/service (delivery). The timeliness of the notification of complaints is determined by the date on which PRofiFLITZER GmbH receives the written declaration. If the timely notice of complaint is not made, the work/service shall be deemed to have been approved, unless it involves a shortcoming that was not recognizable during the review.
(2) Insofar as there is a shortcoming in the work/service for which PRofiFLITZER GmbH is responsible, PRofiFLITZER GmbH shall be entitled, at its own discretion, to remedy such shortcoming 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 represents the statute of limitations and shall also apply to claims for compensation for consequential damage caused by a defect, insofar as no claims in tort are asserted.
(4) Claims for damages of any kind of the contractual partner are fundamentally excluded. Under no circumstances shall PRofiFLITZER GmbH be liable for loss of profit or other financial losses of the contractual partner. The aforementioned exemption from liability shall not apply if the damage was caused intentionally or by gross negligence. Furthermore, it shall not apply if the contractual partner asserts claims for damages for non-performance due to the absence of a guaranteed feature. Insofar as the liability of PRofiFLITZER GmbH is excluded or limited as described above, this shall also apply to the personal liability of its employees, representatives and vicarious agents.
(5) PRofiFLITZER GmbH shall also not be held 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 accuracy of the documents submitted and/or any damages incurred thereby. This shall also apply if the contractual partner makes corrections to templates or similar documents of their own accord.
(7) PRofiFLITZER GmbH is not obligated to have advertising concepts legally reviewed. No liability is assumed for legality, in particular competition law, of the advertising. The same applies to the eligibility for registration and protectability of designs. The assumption of liability shall require a special written agreement with the contractual partner.
§ 9 Liability of the Contractual Partner
The contractual partner is solely 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, design patents, 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, Copyright and Ancillary Copyrights, Contractual Penalty
(1) All rights of use under copyright law associated with the work performed by PRofiFLITZER GmbH shall be transferred by PRofiFLITZER GmbH to the contractual partner only within the scope of the purpose of the contract, that is, the scope of the right of use in terms of space, time and content as well as the type of use granted in each case shall be determined in accordance with the specific purpose of the contract, unless the parties have agreed otherwise in writing.
(2) Rights of use to work that has not yet been paid for prior to termination of the contract or, in the case of settlement on a commission basis, has not yet been published, shall remain with PRofiFLITZER GmbH subject to any other agreements made. The exploitation and/or use of PRofiFLITZER GmbH’s work shall only be permitted if PRofiFLITZER GmbH has given its prior consent and/or a separate fee for the extended granting of rights 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 shall also apply 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 upon, the remuneration customary under the collective bargaining agreement for design services STST/AGD (as amended) shall apply.
(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 is liable for any damage.
(4) PRofiFLITZER GmbH is not obligated to hand over files or layouts created on a computer to the contractual partner. If the contractual partner requests the release of computer data, etc., this shall be separately agreed and compensated for.
§ 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 shall apply in particular to the communication channels listed below:
- Press releases
- Websites www.profiflitzer.de and www.my-profiflitzer.de
- Business platforms Xing and LinkedIn
§ 12 Labeling, Sample Copies
(1) The PRofiFLITZER GmbH is entitled to ten sample 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 area.
§ 13 Data Protection
(1) The Client and third parties involved – usually trading 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 prosecuted or result in a claim for damages based 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 shall also reserve the right to sue the contractual partner at its place of jurisdiction.
(3) Any business relations and all legal relations between the contractual partner and PRofiFLITZER GmbH shall be governed exclusively by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.
(4) All previous terms and conditions are hereby superseded.
(5) In the event that individual clauses of these General Terms of Service are or become invalid in whole or in part, this shall not affect the validity of the remaining part or clauses. With respect 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 likewise in the event that the General Terms of Service prove to be incomplete.
Berlin, January 13, 2015