(hereinafter referred to as the “Terms and Conditions”)
§ 1 Scope
The services and offerings of NKV GmbH Personal- & Industriedienstleistungen, Vertrieb (hereinafter referred to as “NKV”) in connection with the provision of employees (hereinafter referred to as “temporary workers”) within the framework of temporary staffing (pursuant to Section 1(1) of the German Temporary Staffing Act (AÜG)) shall be provided exclusively in accordance with these General Terms and Conditions, even if the Client has provided its own General Terms and Conditions. NKV hereby expressly rejects the Client’s General Terms and Conditions.
The provisions of a temporary employment contract (hereinafter referred to as the “Temporary Employment Contract”) or a framework agreement concluded between NKV and the Client regarding the services covered by these General Terms and Conditions shall take precedence over these General Terms and Conditions in the event of any conflict between them.
§ 2 Permits/Application of Wage Rates/Social Security/Work Permits
NKV holds a permanent license for the commercial provision of temporary workers in accordance with Section 1 of the German Temporary Employment Act (AÜG), issued by the Düsseldorf branch of the Federal Employment Agency on April 23, 2021.
NKV shall notify the Client immediately upon becoming aware of the revocation or withdrawal of the license granted herein for the commercial provision of temporary workers. Likewise, NKV will notify the Client of any conditions or instructions imposed on it by the competent regional directorate and will inform the Client of any potential revocation, withdrawal, or non-renewal of the license granted to NKV for the commercial provision of temporary workers that comes to NKV’s attention.
Under the employment contract between the temporary workers and NKV, the rights and obligations of the parties are governed by a collective bargaining agreement (iGZ/DGB) within the meaning of Section 1(1) of the German Temporary Employment Act (AÜG), as amended.
All temporary workers assigned to the Client must—where required—hold a residence and work permit valid in the Federal Republic of Germany at the time of and for the duration of their assignment with the Client. The Client may also deploy the temporary worker assigned to it outside the Federal Republic of Germany; in such cases, the Client shall, at its own expense, ensure that the necessary registration of the temporary worker at the place of assignment is completed in a timely manner, obtain any necessary work or residence permits, and notify NKV in a timely manner with detailed information regarding the applicable working conditions if minimum working and/or remuneration conditions must be observed at the place of assignment by law and/or if the assignment of the temporary worker is subject to approval or notification by NKV.
§ 3 Performance of the Contract
The Client is entitled and obligated to accept the work performed by the temporary employee provided to the Client during the agreed-upon contract period and for the agreed-upon number of hours. Unless otherwise agreed, the temporary employee’s weekly working hours are deemed to be 35 hours, and the daily working hours on business days are deemed to be 7 hours. If the Client is in default, in whole or in part, of accepting the temporary worker’s services, NKV is entitled to demand payment of the compensation for the unaccepted working hours of the temporary worker provided.
The timing and duration of daily and weekly working hours, as well as the timing and duration of any breaks, shall be determined exclusively by the Client. The Client is authorized to require the temporary worker to perform overtime, as well as night work, work on Saturdays, Sundays, and public holidays, in compliance with the Working Hours Act. However, if necessary, the Client shall obtain a permit from the competent supervisory authority at its own expense if the temporary worker is to be employed beyond the working hours permitted under the Working Hours Act.
All essential details of the temporary worker’s duties (nature and scope) as provided to the Client, as well as any changes to such duties, shall be agreed upon exclusively between the Client and NKV. The Client shall only assign the temporary worker to tasks that have been previously agreed upon with NKV. If the temporary worker is assigned tasks other than those specified in the respective temporary employment contract, NKV is entitled to increase the agreed-upon compensation if the temporary worker is entitled to higher pay due to the change in duties.
The client is solely responsible for providing the work equipment necessary for the temporary worker’s duties. Any exceptions must be agreed upon in writing with NKV prior to the start of work. The client shall provide the temporary worker only with work equipment that complies with the applicable occupational safety regulations. NKV GmbH assumes no liability for the proper return of work equipment or for any other company-owned equipment issued by the client.
The work location specified in the respective temporary employment contract serves as the basis for calculating NKV’s compensation. If the client changes the work location and this results in higher expenses for NKV or the temporary workers provided, NKV is entitled to increase its compensation accordingly or to demand reimbursement for the increased expenses.
By law, a temporary worker provided by NKV may not be assigned by the client to a business that falls within the construction industry as defined in Section 1b, sentence 1 of the German Temporary Employment Act (AÜG) to perform tasks that are typically carried out by manual laborers. If such an assignment nevertheless takes place, the client shall be liable for any damages and expenses incurred by NKV as a result.
Pursuant to Section 11(5), first sentence, of the German Temporary Employment Act (AÜG), the temporary worker provided to the client is not obligated to work at the client’s premises as long as the client is affected by an industrial dispute (strike/lockout). If the temporary worker exercises his or her right to refuse to work during an industrial dispute, the client is not released from its obligation to accept the temporary worker’s services and to pay the agreed remuneration therefor. The same applies if the temporary worker does not exercise this right, but the client is unable to deploy the temporary worker due to the labor dispute, or if the temporary worker participates in a staff meeting taking place at the client’s premises.
If official permits are required for the temporary worker’s employment with the client, or become required at a later date, the client shall obtain such permits at its own expense and provide NKV with a copy thereof upon request. This applies in particular to cases where the temporary worker is assigned to work abroad. In the event of such an assignment abroad, the Client shall inform NKV, prior to the start of the assignment, of all work authorization regulations in force at the assignment location pursuant to local law.
§ 4 Rejection / Replacement / Withdrawal
The client may reject a temporary worker provided to them who does not meet their requirements within the first working day. In the event of such a rejection, the client remains obligated to pay for the hours worked by the temporary worker. If an immediate rejection pursuant to the first sentence does not occur, the qualifications of the temporary worker provided shall be deemed to be in accordance with the contract, such that the client may no longer subsequently assert that the temporary worker’s professional qualifications are insufficient for the work specified in the temporary employment contract.
NKV is entitled, but not obligated, to replace a temporary worker who is absent due to illness or for any other reason with another temporary worker who possesses the qualifications required for the position, following prior consultation with the client.
If the Client rejects a temporary worker provided by NKV, terminates the assignment of such temporary worker, the temporary worker fails to commence work or does not do so in a timely manner, or subsequently ceases work through no fault of NKV, and if, in any of these cases, NKV does not have an equivalent replacement available, NKV is entitled to withdraw from the respective temporary employment contract without the client being entitled to claim damages as a result of the withdrawal. The same applies if the temporary worker is unable to commence work with the client for any other reason or must terminate it at a certain point in time, and NKV is not responsible for this reason.
§ 5 Liability
NKV is liable only for the timely placement and proper selection of a temporary worker who is suitable and qualified for the job (liability for selection). Therefore, NKV is not liable for damages caused by the temporary worker in the course of or in connection with his or her work, unless liability for selection applies. NKV’s liability for selection is excluded if the temporary worker is assigned to a task not agreed upon in the respective temporary employment contract.
NKV shall not be held liable for circumstances arising from force majeure or events that make it permanently or temporarily significantly more difficult or impossible for NKV to provide a suitable temporary worker—in particular strikes, lockouts, illness, epidemics, or official orders—even in the case of binding deadlines and dates. Such circumstances entitle NKV to postpone the provision of personnel for the duration of the impediment plus a reasonable start-up period, or to withdraw from the respective temporary employment contract with respect to the portion not yet fulfilled.
NKV shall be liable for a breach of an obligation arising from a contract or by law only if NKV, a legal representative of NKV, or a vicarious agent of NKV committed the breach intentionally or through gross negligence; strict liability is excluded. In the event of a breach of material contractual obligations or injury to life, limb, or health, liability shall also apply for other forms of negligence. Material contractual obligations are those whose fulfillment is essential for the proper performance of the respective contract, whose breach jeopardizes the achievement of the contract’s purpose, and on whose compliance the contracting party therefore regularly relies.
NKV’s liability is limited to foreseeable damages typical for this type of contract, damages caused by NKV through willful misconduct or gross negligence, or damages resulting from a breach of material contractual obligations or from injury to life, limb, or health. Paragraph 1, sentence § applies mutatis mutandis.
The Client shall indemnify NKV, in accordance with Sections 280 and 281 of the German Civil Code (BGB), against all claims for damages by its temporary employees that result from false statements made by the Client or from the Client’s failure to notify NKV of changes to the applicable collectively agreed wages or of reassignments to other work areas.
§ 6 Termination of a Temporary Employment Contract
A temporary employment contract may be terminated by either party with 14 business days’ notice. If this notice period is not observed, NKV is entitled to charge the client the amount that would have been due had the contract been terminated in accordance with the proper procedure. In individual cases, as a gesture of goodwill, terminations occurring on or before Wednesday of the current calendar week for the following week will not be charged.
If a temporary employment contract is terminated on a Thursday or Friday for the following week, NKV will charge the client the amount that would have resulted from a proper termination.
The right to terminate a temporary employment contract at any time for good cause and without notice remains unaffected. Such grounds exist for NKV in particular if the client a) suspends payments or an application is filed to open insolvency proceedings against its assets, or b) is in default of fulfilling its obligations to NKV arising from another contractual relationship and fails to fulfill them despite a written warning and the setting of a deadline.
Termination of a temporary employment contract—regardless of the reason—must be in writing. A termination notice given only to the temporary worker is invalid.
§ 7 Compensation / Billing
Unless otherwise expressly agreed, the remuneration agreed upon with the client includes all wages and ancillary labor costs, such as wages or salaries in the event of illness, social security contributions, vacation pay, and pay for work on public holidays, as well as the costs of travel to and from the work site specified in the relevant temporary employment contract.
The agreed compensation must also be paid for periods during which a temporary employee is on call.
Unless otherwise expressly specified, NKV is entitled to charge the following surcharges on the respective remuneration:
More than 37 hours per week (Mon.–Fri.) or 7.4 hours per working day: 25%
More than 47 hours per week or 9.4 hours per working day: 50%
Saturday work: 25%
Sunday work: 50%
Work on public holidays (at the place of assignment): 100%
Late-shift work (2:00 p.m. to 10:00 p.m.): 10%
Night work (10:00 PM to 6:00 AM), unless overtime: 25%
Permanent night shift: 20%
Night work, insofar as it constitutes overtime: 50%
Dirty work allowance: 10%
If the conditions for several of these allowances are met simultaneously, only the highest allowance applies in each case. The statutory holidays of the temporary worker’s place of assignment apply.
If, during the term of a temporary staffing agreement, an increase in the wages under the collective bargaining agreement applied by NKV takes effect, NKV is entitled to increase the portion of the most recently applicable hourly rate that is dependent on the temporary worker’s wage in accordance with the percentage increase applicable to the temporary worker. The portion of the agreed hourly rate dependent on the wage increase amounts to 90%. Paragraphs 2 and 3 apply mutatis mutandis if a wage increase occurs due to the introduction of a statutory minimum wage or a change in the applicable collective bargaining agreement.
All prices and fees stated in quotations, confirmation letters, temporary employment contracts, etc., are net amounts subject to the applicable statutory value-added tax.
The hours worked by the temporary employee are billed to the client based on the client’s time records (which may be electronic); if the client does not maintain such records, billing is based on the time sheets maintained by the temporary employee. The client is obligated, where applicable, to review the activity reports submitted to it by the temporary worker at the end of each calendar week and upon completion of the assignment within two business days of their submission, and to have them signed by an authorized representative and confirmed with the company seal. A copy of the activity record shall remain with the Client for invoice verification. If the client fails to comply with the obligation set forth in sentence 2 and is at fault for such failure, the temporary worker’s records shall be deemed approved; this shall not apply if the client raises written, substantiated objections to the accuracy of the information included in the activity report within one week of receiving the invoice billing the temporary worker’s respective working hours.
NKV will issue weekly invoices for the remuneration and any reimbursement claims.
§ 8 Recruitment / Placement Fee
If the client or a company affiliated with it under corporate or group law enters into an employment or apprenticeship relationship with a person provided to it by NKV GmbH as an employee or introduced to it as a candidate during the term of the temporary staffing arrangement, or within 6 months after the expiration of the staffing period, or within 6 months after the candidate was introduced, this constitutes a placement service by NKV GmbH subject to a fee, unless the client can prove that neither the assignment nor the introduction of the person in question was the cause of the hiring into an employment or training relationship. The date of conclusion of the employment or training relationship is decisive for calculating the end of the period.
The conclusion of a fixed-term employment relationship between the client and the person in question is also subject to a fee.
The placement fee due within the aforementioned period, plus applicable VAT, amounts to 2.0 gross monthly salaries for placements without prior assignment, and for placements with prior assignment, the amount depends on the duration of the assignment of the relevant individual to the client upon completion
Before the end of the 3-month assignment period: 2.0 full-time equivalents
Upon termination after a 3-month assignment period: 1.5 months' salary
Upon completion after a 6-month assignment period: 1.0 full-time equivalent
Upon completion after a 9-month assignment period: 0.5 BM
Upon termination after a 12-month assignment period: 0.0 BM
(GM = gross monthly salary)
The gross monthly salary is calculated as 1/12 of the gross annual salary of the placed candidate from their employment relationship with the client, including (where applicable, pro-rated) vacation pay or Christmas bonuses, other special payments, bonuses, or commissions, as well as benefits in kind.
The placement fee is due upon the conclusion of the employment or apprenticeship agreement between the client and the individual in question.
The fact that the employment relationship between NKV GmbH and the individual in question has been terminated, or that the individual has since been assigned to other duties at the client’s premises, has no bearing on the entitlement to payment of the placement commission.
The customer is obligated to provide NKV GmbH with information regarding the establishment of the contract with the relevant individual and the date on which the contract was concluded. The customer must notify NKV GmbH of this no later than 3 business days after the employment or apprenticeship relationship has been established. This obligation to provide information also includes details regarding the gross monthly salary agreed upon between the customer and the relevant individual.
Upon request, the customer must provide NKV GmbH with a copy of the contract entered into with the person in question, including all supplementary agreements, within 10 business days.
§ 9 Occupational Safety
During their assignment, temporary workers are subject to the occupational safety and health regulations applicable to the client company; pursuant to Section 11(6) of the German Temporary Employment Act (AÜG), the resulting employer obligations rest with the client. The client shall ensure that the temporary worker has unimpeded access to the company’s occupational safety facilities
Before commencing work, the temporary employee provided shall be instructed by the client’s designated representative regarding the specific hazards at the work site, the client’s internal safety regulations, and, if applicable, the client’s quality management system or comparable systems. In the event that the temporary worker is exposed to special stresses, environmental influences, or hazards, the client shall inform NKV of this prior to the commencement of work.
If personal protective equipment or a medical examination is required for the temporary worker’s duties, the client shall inform NKV of this in a timely manner. The client shall provide the personal protective equipment at its own expense or arrange for the necessary medical examination. The client shall also ensure that first aid measures are in place.
The client shall immediately notify NKV in writing of any work-related or commuting accident involving the temporary worker. NKV shall complete a full accident report in accordance with Section 193 of SGB VII and forward it to the relevant employers’ liability insurance association. The client shall provide NKV and the relevant employers’ liability insurance associations with the information necessary to investigate the accident.
The Client grants NKV and its representatives the right to visit the temporary employee’s workplace, after providing prior notice, and on multiple occasions if necessary.
§ 10 Confidentiality / Data Protection / Creditworthiness and Construction Operations Audits
The temporary employee provided by NKV has agreed in their employment contract to maintain confidentiality regarding all of the client’s business matters. The client shall inform NKV prior to the temporary worker’s first day of work if data confidentiality pursuant to § 5 BDSG applies to the temporary worker due to his or her work for the client. In this case, NKV shall require the temporary worker in writing to maintain data confidentiality in accordance with § 5 BDSG and shall provide proof of this to the client upon request.
The Client, for its part, undertakes to treat as confidential any personal data of the temporary employee that comes to its attention, whether intentionally or incidentally, in the course of the collaboration, and to ensure that such data is not disclosed to third parties.
The Client agrees that the data specified in the temporary employment contract may be used by NKV to conduct a credit check and to inquire with SOKA-Bau and/or the relevant regional office of the Federal Employment Agency as to whether the Client is a construction company within the meaning of Section 1b of the Temporary Employment Act (AÜG).
Our company regularly checks your creditworthiness when entering into contracts and in certain cases where there is a legitimate interest. To this end, we work with Creditreform Herford & Minden Dorff GmbH & Co. KG, Krellstraße 68, 32584 Löhne, from whom we obtain the necessary data. For this purpose, we transmit your name and contact information to Creditreform. For further information on data processing at Creditreform, please refer to the detailed information sheet “Creditreform Information pursuant to Art. 14 EU GDPR (see Appendix 1) or visithttps://www.creditreform.de/herford/datenschutz.”
§11 Due Date / Prohibition on Offsetting / Right of Retention
Unless otherwise agreed, any claim for payment asserted by NKV against the Client becomes due upon receipt of the invoices and must be paid in full without deduction. If the Client fails to make full payment upon receipt of the respective invoices, the Client shall be in default immediately upon the expiration of the due date following receipt of said invoice, without the need for a reminder from NKV.
NKV is entitled to charge default interest at a rate of 4% above the respective 3-month Euribor in the event of default. Further claims arising from default remain unaffected. Billing is based on a timesheet, which is presented to the client by the employee for signature at the end of each week. The timesheet must be returned to the employee, countersigned, no later than Monday of the following week.
NKV employees are not authorized to accept payments. Customers are also prohibited from providing NKV employees with advances on wages or other forms of compensation. Payments made to NKV employees will not be recognized and may under no circumstances be offset against NKV’s claims.
The Client may set off claims against NKV’s claims only if such claims are undisputed or have been legally established. The Client is also entitled to a right of retention only in the cases specified in the first sentence.
Reimbursement of expenses pursuant to Section 670 of the German Civil Code (BGB): Please understand that we are unable to reimburse any expenses you may incur in connection with attending job interviews at our headquarters or affiliated offices.
§ 12 Place of Performance / Jurisdiction
The place of performance for any obligations of the Client is the registered office of NKV.
If the Client is a merchant within the meaning of Section 38(1) of the German Code of Civil Procedure (ZPO), the exclusive venue for all disputes arising out of or in connection with the business relationship with the Client, including any claims relating to bills of exchange and checks, shall be the local or regional court with jurisdiction over NKV’s registered office. NKV is also entitled to bring an action against the Client at the Client’s general venue.
§ 13 Final Provisions
The legal relationship between the Client and NKV is governed by the laws of the Federal Republic of Germany, excluding any references to international legal provisions.
Any side agreements, as well as amendments and additions to contracts entered into on the basis of these General Terms and Conditions and to these General Terms and Conditions themselves, are valid only if made in writing. This also applies to any waiver of the written form requirement set forth in the first sentence; however, it does not apply to the extent that the amendments or additions are the subject of an individual agreement between NKV and the Client.
If any provision of these General Terms and Conditions is or becomes invalid or unenforceable, or if these General Terms and Conditions contain a gap, the validity of the remaining provisions shall remain unaffected. In such a case, the contracting parties shall replace the invalid or unenforceable provision with one that corresponds as closely as possible to the economic purpose of the original provision. Any gap in the provisions shall be filled by a supplementary provision agreed upon by the parties that corresponds as closely as possible to the economic purpose of the General Terms and Conditions and the framework agreements.
The provisions of paragraph 3 shall apply mutatis mutandis to any invalid provision or any omission in a contract concluded on the basis of these Terms and Conditions.
As of: December 19, 2024