General Terms
General Terms and Conditions of Business
§ 1 Preamble
1.1 The firm HR Management Consultants GmbH, Gesellschaft für Personalberatung (hereinafter referred to as “HR-MC”) provides consultancy to its clients (hereinafter referred to as “Client/s”) in the form of the services listed under § 3 below. The legal relationship between Clients and HR-MC is based on a consultancy contract brought into effect by the Client’s verbal or written commissioning of an assignment and by written confirmation of the assignment by HR-MC. Offers made by HR-MC are always non-binding and without obligation. HR-MC’s confirmation of an assignment is also a contract document containing all the agreements reached, which consequently form parts of the contract. There are no collateral verbal agreements.
§ 2 Validity
2.1 Upon conclusion of a consultancy contract, these General Terms and Conditions of Business (GT&C) shall apply exclusively. In concluding the contract, the Client acknowledges that these form part of said contract. These GT&C shall apply to all consultancy assignments and recurring business relationships, even if they are not agreed explicitly on each subsequent occasion. Any conditions of the Client at variance with these GT&C shall be regarded as rejected and are excluded unless the parties have reached explicit written agreements to the contrary in the particular case. Agreements to vary these GT&C shall relate only to the content of the given variation – all other provisions of the GT&C shall remain unaffected. It is agreed that variations form part of any concluded consultancy contract only once. Variant provisions shall not continue to apply automatically in the case of recurring business relationships.
2.2 HR-MC reserves the right to make unilateral amendments to its GT&C for the future. These shall only apply to new consultancy contracts concluded after any such amendment, and to framework contracts with Clients extending into the period after the amendment unless the Clients have objected under 2.3 b).
2.3 The amended GT&C shall become a component of the contract if
a) HR-MC informs the Client that the GT&C have been amended, highlighting the particular amendment (for which communication by e-mail to the last known address supplied by the Client to HR-MC shall be sufficient) and
b) the Client does not object to this amendment within 14 days of receiving the amendment notification, and the legal consequences of non-objection have been pointed out in the communication from HR-MC.
§ 3 Services
3.1 HR-MC offers the following services:
- Recruitment
- Talent management
- Organizational consulting
- New placement
- Employer branding
3.2 Scope of service:
The scope of service of any consultancy product can be determined from the relevant assignment confirmation that constitutes the contractual basis. HR-MC always work in consultation with Clients to plan, deliver and document services, which are provided within the framework of projects, in under the agreed conditions (cf. § 4), and on the basis of a binding briefing meeting between the Client and HR-MC. HR-MC undertake to report back to the Client at regular intervals on the interim status and the results of projects. When an employment contract is concluded with any applicant put forward by HR-MC, and if HR-MC is not present at the time of signing, the Client undertakes to notify HR-MC within five working days of the signing of the contract.
3.3 Time of service provision:
Consultancy services by HR-MC are fundamentally deemed to be performed at the time of completion and are documented by the date of final invoicing.
§ 4 Fee/Incidental costs
4.1
Every consultancy service by HR-MC is on the basis of a fee. The amount and payment method of this is agreed between the Client and HR-MC and fixed in the consultancy contract. Fees are stated net and are subject to statutory value added tax.
For consultancy assignments that are not invoiced on a day-rate basis (e.g. recruitment projects), instalment payments starting from the commissioning of the assignment are agreed as a matter of policy. Day-rates are billed in phased invoices in step with project progress.
Consultancy assignments billed on a success-fee basis alone will not be agreed.
4.2 In addition to the fee, where the contracting parties have not agreed anything to the contrary, any outlay by HR-MC for material costs and expenses (“incidental costs”) shall be reimbursed by the Client upon submission of an invoice. The type and amounts of these “incidental costs” are listed in the consultancy contract.
4.3 Essential business travel by employees or partners of HR-MC in the course of projects is charged as specified in 4.2. The most recent current version of HR-MC’s internal travel expenses guidelines shall be the basis for every consultancy assignment. Accordingly, HR-MC undertake to plan incurred material costs and expenses as cost-effectively and proportionately as possible in the Client’s interests.
This being the case, the Client shall not be entitled to require production of the original receipts for travel and subsistence expenses incurred by consultants. Documentary evidence for the Client’s purposes shall be HR-MC’s invoice for travel expenses.
4.4 Invoices from HR-MC shall be due immediately on receipt and without deductions. If the invoice is not paid in full within a reasonable period of time (14 working days), HR-MC reserves the right to charge late-payment interest of 6% p.a. on the agreed fee from the date that payment becomes overdue.
§ 5 Guarantee/Liability
5.1 The work of HR-MC consists of project-related services. HR-MC can only guarantee appropriate practice within these projects in the fields in which it offers services itself. No liability can be accepted for any damages or unmet expectations in areas beyond the control of HR-MC after conclusion of the project, with the exception of Section 5.2 below.
5.2 Notwithstanding Section 5.1 above, in the case of recruitment assignments HR-MC offers Clients a six-month guarantee: if the working relationship between the Client and the candidate recruited by HR-MC is terminated within six months (irrespective of which party terminates the contract), HR-MC guarantees to refill the identical position by repeating the search and selection procedure that was agreed in the consultancy contract free of charge. Travel and subsistence expenses of the consultant and/or the applicant and project-related material costs (e.g. costs of readvertisement, depending on the agreed search procedure) are excluded from this guarantee. The Client shall have no claim to any alternative partial or full refund or retention of the agreed fee in the event that the guarantee is invoked. If the Client desires any modification of the originally agreed search process or the choice of a different search procedure in the event of a duplicate process, this represents a substantial amendment to the contractual provisions and thus amounts to the contracting of a new search assignment for which – depending on the chosen procedure – additional costs may arise for which the Client shall be responsible.
§ 6 Intellectual property rights and related rights
Providing consultancy to clients in all the fields listed above, particularly the recruitment of managers and specialists, is the core business of HR-MC. If a work contract is concluded between a client and an applicant put forward by HR-MC, this essential fact justifies the claim to a recruitment fee, regardless of whether this appointment was based on a previous concrete search assignment by the Client or whether HR-MC offered the Client verified profiles for review of candidates who were already known to HR-MC in the course of its work. This fact shall apply from the point in time that the Client receives the profile of the candidate and shall continue to apply for an unlimited time thereafter.
This shall also apply in the event that the Client hires an applicant put forward by HR-MC after having previously cancelled HR-MC’s assignment.
Extensive interdisciplinary knowledge of the personnel market and the direct environment of the Client’s industry, particularly the candidate profiles generated and legitimately stored as a result, effectively represent the intellectual property of HR-MC from which it generates its revenues.
The same applies to the provision of advice, recommendations or the devising of strategic concepts within the framework of the listed consultancy segments. Where a consultancy fee is not explicitly agreed but the work of HR-MC has been called upon, it is charged according to effort expended in terms of day-rates.
§ 7 Termination
A consultancy contract can be terminated at any time by either of the contracting parties without notice. The modalities for the balancing of interests in the event of termination are set out in the consultancy contract.
§ 8 Data protection
The Client gives consent to the electronic processing and storage of its data by HR-MC in the course of the contractual relationship. Such data shall not be passed on to third parties without authorization. It is explicitly unauthorized to transmit customer data relevant to the project to applicants in the course of the pre-selection process, or to subcontractors commissioned for the purpose of carrying out the contract and accounting as the case may be. The Client is advised that when data is transmitted over the Internet, given the current state of technology it is impossible to be completely certain that unauthorized persons do not access transmitted data during the transmission process. In all other respects, both the Client and HR-MC give assurances that they comply with statutory provisions on the protection of personal data.
§ 9 Exclusivity for search assignments
The Client undertakes not to engage any other HR consultant to work on the same matter during the period in which the assignment is being carried out by HR-MC.
§ 10 Confidentiality
HR-MC undertakes to treat all information that becomes known to it in the course of cooperation with the Client as confidential. In the case of recruitment assignments, the Client must not make contact with the applicant’s past or present employer without the applicant’s consent.
§ 11 Clientele protection
HR-MC undertakes to observe clientele protection within the course of recruitment assignments without time limit or restriction: where a Client has not declared the cooperation with HR-MC to have been terminated, HR-MC will at no time during the ongoing business relationship with the Client speak to the Client’s staff for the purpose of recruiting them to another Client. This shall apply irrespective of the frequency or volume of assignments contracted by the Client from HR-MC.
§ 12 Place of jurisdiction
The legal venue for disputes arising from the consultancy contract shall be Norderstedt.
§ 13 Severability clause
Should one provision of the consultancy contract or the General Terms and Conditions of Business prove incomplete or ineffective, this shall not affect the validity of the contract and of its remaining provisions. In that eventuality, a provision that comes closest to the expressed intention of the contract shall be deemed to have been agreed.
Norderstedt
10 November 2010
