General Terms and Conditions of becon GmbH
– hereinafter referred to as “becon” – as of 01.01.2010
1.1.1 These terms and conditions apply to the present business relationship between becon and the contractual partner, unless otherwise agreed in individual cases.
1.1.2 All deliveries, services, offers, etc. provided by becon are exclusively subject to these terms and conditions. These also apply to all future business relationships, even if they are not expressly agreed again. These terms and conditions shall be deemed accepted at the latest upon receipt of the goods or services. Counter-confirmations of the contractual partner with reference to his terms and conditions are hereby rejected.
1.2 Prices, due date and payment
1.2.1 Unless otherwise stated, becon shall be bound by the prices contained in its offers for 30 days from the date of the offer.
Otherwise, the prices stated in becon’s order confirmation are decisive.
1.2.2 The respective statutory value added tax must be added to the prices quoted.
1.2.3 Additional deliveries and services shall be invoiced separately.
1.2.4 The invoice amount is due upon receipt of the invoice and must be paid immediately without deduction. becon demands default interest in the amount of the statutory provisions in the event of default.
becon is at liberty to prove a higher damage caused by default, as well as to prove to the contractual partner that a lower charge has been incurred.
1.2.5 becon is entitled, despite contrary provisions of the contractual partner, to initially offset payments against its older debts and will inform the contractual partner of the type of offsetting that has taken place. If costs and interest have already been incurred, becon is entitled to offset the payment first against the costs, then against the interest and finally against the main service.
1.2.6 becon expressly reserves the right to refuse checks or bills of exchange. Acceptance is always only on account of payment. Discount and bill charges shall be borne by the contractual partner and are due immediately. Payment shall only be deemed to have been made when becon can dispose of the amount. In the case of checks, payment is only deemed to have been made when the check is cashed.
1.2.7 becon employees are not authorized to collect payments in cash. Payments can only be made with discharging effect directly to becon or to a bank or postal checking account specified by becon.
1.2.8 If becon becomes aware of circumstances that call into question the creditworthiness of the contractual partner, in particular if a check is not honored or payments are suspended, becon is entitled to make the entire remaining debt due, even if becon has accepted checks. becon is also entitled in this case to demand advance payments or the provision of security.
1.3 Offsetting
The contractual partner is only entitled to offset, withhold or reduce payment, even if complaints or counterclaims are asserted, if the counterclaims have been legally established or are undisputed. However, the contractual partner is also entitled to withhold payment due to counterclaims arising from the same contractual relationship.
1.4 Liability
1.4.1 Claims for damages are excluded irrespective of the type of breach of duty, including tortious acts, except in cases of willful misconduct or gross negligence.
1.4.2 In the event of a breach of material contractual obligations, becon shall be liable for any negligence, but only up to the amount of the foreseeable direct damage typical for the contract. Claims for loss of profit, saved expenses, claims for damages from third parties and other indirect and consequential damages cannot be demanded, unless a quality feature guaranteed by becon is specifically intended to protect the contractual partner against such damages.
1.4.3 The limitations and exclusions of liability under 1.4.1 and 1.4.2 do not apply to claims that have arisen due to fraudulent behavior by becon, for claims under the Product Liability Act and for damages arising from injury to life, limb or health.
1.4.4 Insofar as becon’s liability is excluded or limited, this shall also apply to employees, workers, representatives and vicarious agents of becon.
1.5 Confidentiality
1.5.1 Unless otherwise expressly agreed in writing, information submitted to becon in connection with orders or inquiries shall not be deemed confidential.
1.5.2 The employees of becon are obliged to maintain secrecy regarding confidential or confidential business matters.
1.6 Applicable law, place of jurisdiction, severability clause
1.6.1 The law of the Federal Republic of Germany applies to these terms and conditions and the entire legal relationship between becon and the contractual partner. Provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.
1.6.2 Amendments and supplements to these terms and conditions and all contracts between becon and the contractual partner require written confirmation by becon to be effective. This also applies to the waiver of the written form requirement.
1.6.3 If the business partner is a merchant, a legal entity under public law or a special fund under public law, Munich is the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. To the extent permitted by law, the place of performance shall be becon’s registered office.
1.6.4 Should any provision of these terms and conditions or of the underlying contract be or become invalid or unenforceable in whole or in part, this shall not affect the validity of the remaining provisions. Rather, the contracting parties shall work together to replace the invalid or unenforceable provision with a legally permissible and valid or enforceable provision that is suitable to achieve the intended result of the invalid or unenforceable provision. The same applies to the filling of contractual loopholes.
2.1 Offer, conclusion of contract, prices
2.1.1 becon’s offers are subject to change and non-binding. Declarations of acceptance and all orders require the written or telex confirmation of becon to be legally effective.
2.1.2 The sales employees of becon are not authorized to make verbal collateral agreements or to give verbal assurances that go beyond the content of the written contract.
2.1.3 Drawings, illustrations, dimensions, weights or other performance data are only binding if this is expressly agreed in writing.
2.1.4 The prices quoted are ex warehouse including normal packaging, unless otherwise stated.
2.2 Delivery, delivery times and transfer of risk
2.2.1 Binding delivery dates or deadlines must be made in writing.
2.2.2 In the event of a delay in delivery for which becon is responsible, the duration of the grace period to be set by the contractual partner by law shall be set at two weeks, which shall commence upon receipt of the grace period by becon.
2.2.3 becon is not responsible for delays in delivery and performance due to force majeure and due to events that make delivery significantly more difficult or impossible for becon, not only temporarily – this includes in particular strikes, lockouts, official orders, etc., even if they occur at becon’s suppliers or their subcontractors – even in the case of bindingly agreed deadlines and dates. They entitle becon to postpone the delivery or service for the duration of the hindrance plus a reasonable start-up time or to withdraw from the contract in whole or in part due to the part not yet fulfilled.
2.2.4 becon is entitled to make partial deliveries and render partial services at any time, unless the partial delivery or partial service is of no interest to the contractual partner.
2.2.5 If the contractual partner is in default of acceptance, becon shall be entitled to demand compensation for the damage incurred; the risk of accidental deterioration and accidental loss shall pass to the buyer upon the occurrence of default of acceptance.
2.2.6 The risk shall pass to the contractual partner as soon as the shipment has been handed over to the person carrying out the transportation or has left becon’s warehouse for the purpose of shipment. If the shipment is delayed at the request of the contractual partner, the risk shall pass to the contractual partner upon notification of readiness for shipment.
2.3 Rights of the contractual partner due to defects
2.3.1 The products are delivered free of manufacturing and material defects; the period for asserting claims for defects and further claims is one year from delivery of the products if the contractual partner is a merchant, two years if the contractual partner is a consumer. In the case of the sale of used goods, any warranty is excluded if the contractual partner is an entrepreneur; if the contractual partner is a consumer, the period is one year.
2.3.2 If operating or maintenance instructions from becon or other enclosed instructions are not followed, changes are made to the products, parts are replaced or consumables are used that do not correspond to the original specifications, claims for defects in the products shall lapse if the contractual partner does not refute a correspondingly substantiated claim that one of these circumstances caused the defect.
2.3.3 If the contractual partner is a merchant, he must notify becon of defects in writing immediately, but at the latest within one week of receipt of the delivery item. Defects that cannot be discovered within this period, even after careful inspection, must be reported to becon in writing immediately after discovery.
2.3.4 In the event of notification by the contractual partner that the items sold have a defect, becon shall demand at its discretion and at its expense that – the defective part or device is sent to becon for repair and subsequent return;
– the contractual partner keeps the defective part or device ready and a service technician from becon is sent to the contractual partner to carry out the repair;
– subsequent performance is carried out by subsequent delivery of a defect-free item. Multiple subsequent deliveries are permissible.
2.3.5 If the contractual partner requests that rectification work be carried out at a location specified by him, becon can comply with this request, whereby replaced parts are not charged, while working time and travel expenses are to be paid at becon’s standard rates.
2.3.6 If subsequent performance fails twice, the contractual partner may, at his discretion, reduce the purchase price appropriately or withdraw from the contract.
2.3.7 Liability for normal wear and tear is excluded.
2.3.8 Only the direct contractual partner is entitled to claims for defects against becon and these are not assignable.
2.4 Retention of title
2.4.1 becon retains title to the delivered goods (goods subject to retention of title) until all claims to which becon is entitled against the contractual partner now or in the future for any legal reason have been satisfied. If the value of the security rights to which becon is entitled exceeds the amount of all secured claims by more than 20%, becon shall release a corresponding part of the security rights at the request of the contractual partner.
2.4.2 In the event of access by third parties to the reserved goods, in particular seizures, the contractual partner shall draw attention to becon’s ownership and inform becon immediately so that becon can enforce its ownership rights. Insofar as the third party is not in a position to reimburse becon for the judicial or extrajudicial costs incurred in this connection, the contractual partner shall be liable for this.
2.4.3 If the contractual partner acts in breach of contract – in particular in the event of default in payment – becon is entitled to withdraw from the contract and demand the return of the reserved goods.
2.4.4 The goods remain the property of becon. Processing or transformation is always carried out for becon, but without any obligation for becon. If becon’s (co-)ownership expires through combination, it is hereby agreed that the contractual partner’s (co-)ownership of the uniform item shall pass to becon in proportion to its value (invoice value). The contractual partner shall store becon’s (co-)ownership free of charge.
2.4.5 The contractual partner is entitled to process and sell the goods encumbered with becon’s property rights in the ordinary course of business as long as he is not in default. Pledging or transfer by way of security is not permitted. The contractual partner hereby assigns the claims arising from the resale or any other legal reason (insurance, tort) with regard to these goods (including all current account balance claims) to becon in full as security. becon revocably authorizes the contractual partner to collect the claims assigned to becon for its account in its own name. This collection authorization can only be revoked if the contractual partner does not properly meet its payment obligations.
3. Temporary employment
becon provides its contractual partner (hereinafter referred to as the “hirer”) with temporary workers in accordance with these General Terms and Conditions, the German Temporary Employment Act (AÜG) and the provisions of the temporary employment contract at the agreed place of assignment.
3.1 Permit
In accordance with § 1 of the Act on the Regulation of Commercial Temporary Employment (AÜG), becon has the necessary permit for the commercial leasing of employees (issued by the Bavarian State Labor Office).
3.2 Legal relationships, rights and obligations
3.2.1 The conclusion of the employee leasing agreement does not establish a contractual relationship between the employees of becon and the hirer. Changes regarding the duration of the assignment, working hours and work activity can only be agreed between becon and the hirer. During the assignment with the hirer, the leased employee is subject to his work instructions and works under his guidance and supervision.
3.2.2 becon is the employer of its employees in accordance with the AÜG with all associated rights and obligations. The hirer is primarily responsible for issuing work instructions, monitoring the execution of work and observing accident prevention regulations. The hirer may only allow the leased employees to carry out activities that fall within their job description and only allow them to operate the equipment, machines and tools required to carry out these activities.
3.2.3 The hirer undertakes to familiarize the leased employees with the workplace-specific hazards and the accident prevention and occupational safety regulations applicable to its company and the respective workplace before they start work and to ensure compliance with these regulations. In particular, the hirer is obliged to provide the safety equipment and protective clothing prescribed for the performance of the respective activity and to ensure that they are used and to provide first aid measures and equipment in accordance with §§ 24 ff. BGV A1. The hirer shall maintain and set up all devices, equipment and rooms accordingly and shall regulate the work processes taking place under its supervision in such a way that the leased employees are employed in accordance with the relevant occupational health and safety regulations, in particular that they are protected against health hazards. The hirer shall carry out any necessary preventive medical check-ups.
3.2.4 In the event of accidents at work, the hirer is obliged to notify the relevant employers’ liability insurance association immediately in writing in accordance with the relevant statutory regulations. becon must be notified immediately and a copy of the notification must be made available.
3.2.5 The hirer undertakes to grant becon or its representatives free access to the workplaces in which the employee is employed in order to comply with the regulations of the insurance company regarding safety inspections at the place of work.
3.2.6 The hirer undertakes to employ the temporary worker only within the legally permissible limits of the Working Hours Act and, insofar as a different or longer period of employment is only permissible with the approval of the relevant state authority (Trade Supervisory Office), to obtain this.
3.2.7 becon undertakes to comply with its employer obligations, i.e. to comply with all labor, social and wage tax regulations and to make the corresponding payments properly and on time.
3.3 Hourly rate, invoicing
3.3.1 The agreed hourly or daily rate or the monthly flat rate shall be decisive for invoicing. It shall include all ancillary wage costs for the leased employee. Unless expressly agreed otherwise, the rates apply without surcharges for overtime, night work, shift work, Sundays and public holidays, piecework and other surcharges.
becon reserves the right to increase the rates if wage increases occur after conclusion of the contract, if employees are replaced by others with higher qualifications or if circumstances for which becon is not responsible cause an increase in costs.
3.3.2 Unless otherwise agreed, the standard working week is 40 hours. Any hours worked over and above the agreed hours as well as night, Sunday and public holiday hours will be charged at the following surcharges:
– Overtime exceeding this basis 25 %
– Working hours on Saturdays 25 %
– Working hours on Sundays and public holidays 100 %
– Night work from 8 p.m. to 6 a.m. 25 %
– Overtime from 8 p.m. to 6 a.m. 50 %
– Shift work 10 %
If several supplements coincide, only the highest supplement is charged. If there is a public holiday in the working week or if less than five days are worked in a working week, the calculation of hours is changed to a daily rate basis. A daily working time of eight hours per working day is then assumed.
3.3.3 The hirer is obliged to confirm the hours during which becon employees were available to him by signing the activity reports submitted at least once a month. If no authorized representative of the hirer can be presented at the place of assignment to sign the activity reports, becon employees are entitled to confirm them instead. Objections regarding certified hours must be submitted within one week of receipt of the invoice, otherwise they cannot be considered. Invoices are issued on the basis of the confirmed timesheets.
3.4 Business trips, travel expenses
Travel times for assignments of the temporary worker outside the location agreed in the individual contract shall be fully remunerated at the normal hourly rate for the outward journey, provided that the trip was ordered by the hirer. Travel expenses shall be borne in full by the hirer if the journey was arranged by the hirer.
3.5 Acceptance of payments
The hirer may not grant wage or other advance payments to the leased employees. Such payments are not recognized by becon and cannot be offset under any circumstances.
3.6 Selection of employees
3.6.1 The employees of becon are selected according to the requirements of the hirer. Nevertheless, the hirer is obliged to satisfy itself of the suitability of the temporary workers for the intended activity. If the hirer determines within the first day that an employee is not suitable for the intended activity, becon will provide a replacement within the scope of its possibilities. The first day will not be charged.
3.6.2 becon is entitled to recall its employees at any time and replace them with other employees of equal quality. In the event of absence due to illness, however, there is no obligation to provide replacement staff. If the temporary worker does not take up his work or does not continue it, becon shall endeavor to provide a replacement. If this is not possible, becon shall be released from the obligation to provide temporary staff.
3.7 Additional limitation of liability
3.7.1 Due to the instruction and control function of the hirer, becon is not liable for damage caused by the employee in the performance of his work, nor for poor performance. The hirer shall also indemnify becon against claims for damages by third parties with regard to the leased employee. becon shall not be liable for slight negligence in the selection of its temporary workers for the agreed activity if temporary workers are leased who do not have the required professional aptitude and the hirer suffers damage as a result. The temporary workers are not authorized agents or vicarious agents of becon.
3.7.2 The temporary workers may not be entrusted by the hirer with valuables, money or securities matters or other work not agreed, otherwise the liability lies exclusively with the hirer.
3.8 Exceptional circumstances
If exceptional circumstances occur, becon is entitled to postpone the order placed or to withdraw from the order in whole or in part without compensation. This includes all circumstances which make the transfer temporarily or permanently difficult or impossible. Compensation payments are excluded. No employees shall be provided in the event of a legal labor dispute.
3.9 Personnel placement after previous employee leasing
If the hirer establishes an employment relationship with the becon employee within a period of twelve months after expiry of the leasing period, a placement commission is to be paid to becon on the basis of the personnel placement contract then fulfilled.
This applies regardless of whether the conclusion of the employment contract is based on the initiative of the hirer or that of the employee. The hiring of the employee in a company legally or economically affiliated with the hirer is also to be understood as a transfer into an employment relationship. becon undertakes to carry out each placement contract carefully and with the utmost confidentiality. The hirer undertakes to provide becon with all necessary information required for the execution of the personnel placement contract.
The amount of the placement fee is two gross monthly salaries, which is reduced by 1/12 per month of employment. The fee is due at the start of the new employment relationship.
3.10 Termination
3.10.1 Temporary workers are initially assigned to the hirer for two weeks for trial and training with a two-day notice period. Within the first day, the hirer may cancel the individual contract without assuming any costs and reject the temporary worker.
3.10.2 At the end of this trial period, the individual contract may be terminated with two weeks’ notice, provided that the Temporary Worker has not been employed by the Client for more than six months. Otherwise, the notice period is four weeks.
3.10.3 The notice of termination must be submitted to a becon employee authorized to represent the company.
3.10.4 The right to extraordinary termination is governed by law. In particular, the following entitle the employee to extraordinary termination of the employee leasing contract
– non-compliance with accident prevention regulations by the hirer,
– a significant deterioration in the economic situation of the hirer, as well as
– default in payment by the hirer or
– cases in which the work performance in the hirer’s company
has become impossible due to strike, lockout
(see also § 11 para. 5 AÜG), force majeure or other reasons within the meaning of § 323 BGB.
3.11 Enticement of employees
The hirer undertakes not to entice away becon employees in an inadmissible manner within the meaning of §§ 138 BGB and 1 UWG.