1. Scope and subject
- 1 These General Terms and Conditions (hereinafter referred to as ‘GTC’) apply exclusively to entrepreneurs, legal entities under public law or special funds under public law.
1.2 We shall recognize any terms and conditions of the Client that conflict with or deviate from our GTC only if we expressly agree to their validity in text form.
1.3 These GTC shall also apply to any future transactions with the Client, in particular placement, consulting and service contracts within the scope of higher-level executive search processes (including personnel consulting, personnel search and personnel selection).
2. Service deliverables and conclusion of contract
A brokerage, consulting or other service contract is concluded between us and the Client, which shall be valid even if the contract is only placed verbally.
3. Placement fee
3.1 Unless we have agreed otherwise with the Client in text form, our entitlement to a placement fee shall arise no later than at the time when an employment relationship is established between the Applicant proposed by us (hereinafter referred to as ‘Applicant’) and the Client. An employment relationship is defined as any dependent employment and service relationship, also including any independent employment relationship, e.g. within the framework of freelance work. The employment relationship is established when an employment or other service contract is signed by the Applicant and the Client, but at the latest when the Applicant commences work.
3.2 The placement fee shall also arise in the following cases:
- If the Client hires the Applicant in spite of characteristics and qualifications deviating from the requirements profile, or
- If, in the case of economic equivalence, the Applicant is hired for a position other than the one commissioned, the only decisive factor being the causality of our activity for the establishment of this employment or service relationship, or
- If an employment or service relationship is established between the Applicant and a third party, provided that particularly close personal or strong economic relationships exist between the third party and the Client, in particular if the third party and the Client are affiliated companies, or
- If the Client passes on information about the Applicant to a third party and an employment or service relationship is established between this third party and the Applicant.
3.3 The placement fee shall be calculated on the basis of a percentage of the gross annual target salary agreed between the Client and the Applicant. In the case of an independent employment relationship, the agreed annual target remuneration, excluding VAT, shall be the calculation basis instead of the gross annual target salary. In any case, we charge a minimum placement fee of EUR 45,000.00.
3.4 The gross annual target salary or annual target remuneration on which the calculation of the placement fee is based is defined as the gross salary or remuneration calculated for one year, including any additional benefits as well as special payments and variable salary or remuneration components (e.g. 13th month salary, foreign service allowances, vacation and/or Christmas bonuses, gratuities, profit share, bonuses, provision of a car, etc.). Performance-related salary or remuneration components are accounted for at their anticipated or customary value at the time the employment relationship is concluded.
Benefits in kind are calculated at their monetary value. However, this does not apply to the provision of a car, which is subject to a flat rate of EUR 10,000.00, regardless of its value and size.
3.5 We are and remain entitled to a placement fee, irrespective of whether the employment relationship is established, whether it ends before the commencement of work or how long it lasts.
3.6 Our entitlement to a placement fee in the full amount shall remain in force for a period of 18 months after we have presented an Applicant to the Client with the possibility of a concrete contractual opportunity between the Client and the Applicant, e.g. by providing an Applicant profile (hereinafter referred to as ‘presentation’) and an economically equivalent employment or service relationship is established with the Applicant. The Client is free to disprove the causality of our activity for the employment or service relationship.
3.7 Costs incurred by Applicants in conjunction with interviews with the Client are not included in the fee agreed between the Parties. Such costs shall be reimbursed by the Client at the Applicant’s request.
4. Value-added tax
The statutory value-added tax (VAT) shall be paid to us by the Client in addition to the agreed remuneration.
5. Contributory causation / prior knowledge
5.1 We are entitled to our fee if our activity contributes to the establishment of the employment or service relationship.
5.2 Profiles of Applicants who are already available to or known to the Client for the position to be filled (prior knowledge) shall exclude any contributory causality of our activity for the Applicants proposed, provided that we were notified of such prior knowledge in text form immediately after the presentation of the Applicant. Otherwise, a previous or simultaneous presentation of the same Applicant by another recruitment consultancy does not eliminate the contributory causality.
6. Obligation to provide information for determining our fee entitlement
6.1 The Client undertakes to notify us in text form within 5 working days of the conclusion of an employment contract with an Applicant or – if no employment contract has previously been concluded – of the commencement of work, stating all information necessary to determine our entitlement to the applicable fee. This information specifically includes the start of the contractual relationship, the gross annual target salary amount or the annual target remuneration including all and any additional benefits (see Section 3.4.)
6.2 If the Client fails to comply with this obligation within a reasonable period of time after having been requested to do so, we shall be entitled to calculate our fee on the basis of an appropriate and customary market remuneration amount corresponding to the Applicant’s qualifications. This does not relieve the Client of its obligations set forth in Section 6.1. In addition, we are entitled to charge the Client the difference in the event of a higher gross annual target salary or a higher annual target remuneration agreed between the Client and the Applicant. The Client is free to prove that a lower gross annual target salary or annual target remuneration applies.
6.3 The Client shall provide us with a copy of the service contract upon request.
7. Limitation of liability
7.1 We shall be liable pursuant to the statutory provisions insofar as the Client asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents.
7.2 In cases of slight negligence, we shall be liable pursuant to the statutory provisions in the event of injury to life, limb or health, in the event of breach of a guarantee and in the event of liability and indemnity for damages under the Product Liability Act.
7.3 In cases of slight negligence, we shall also be liable pursuant to the statutory provisions in the event of a breach of a material contractual obligation, with the liability amount being limited to the foreseeable damage typically associated with the type of contract involved. Contractual obligations include any obligations whose fulfillment is essential for the proper execution of the contract and on whose compliance the Client regularly relies or may rely or whose breach jeopardizes the achievement of the purpose of the contract.
7.4 Unless otherwise set forth above, our liability is excluded.
7.5 Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, representatives and vicarious agents.
7.6 Insofar as we are commissioned with the search for personnel, it is a matter of course for us to exercise due diligence in our approach to the search for and selection of employees. However, if the Applicant does not meet the Client's expectations or does not achieve specific work results, this is beyond our control and we cannot accept any liability for such cases.
8. Termination
8.1 If there is good cause, we may terminate the contract without notice. Good cause shall be deemed to exist in particular if:
- The Client fails to meet its contractual obligations to collaborate, or
- Insolvency proceedings are opened over the Client’s assets, or
- The Client violates the confidentiality provisions set forth in Section 10.
8.2 Termination shall not release the Client from payment of the agreed remuneration, e.g. a lump sum for expenses, a termination fee or the placement fee if the conditions outlined in Section 3 are met.
8.3 Any termination needs to be made in text form.
9. Payment terms
Invoices are due for payment immediately upon receipt.
10. Confidentiality / communication
10.1 The Parties mutually undertake to treat all data and information disclosed during the cooperation with the Client as confidential and not to disclose it to third parties or use it without the express consent of the other party, which may be revoked at any time, unless the disclosure serves for the performance of the contract or is made on the basis of statutory and legal obligations or in the context of the assertion of our fee entitlement. This obligation shall survive even after termination of the cooperation and shall extend to the employees of the Parties.
10.2 In the event that no placement is made with an Applicant, the Client undertakes to return to us all documents made available to them and to destroy any associated records, documents, data, etc., that have been compiled.
10.3 The Client is not permitted to contact the Applicant’s current or former employer(s) without the Applicant’s consent.
10.4 The Client is advised that the sending of information and documents by electronic means (in particular by e-mail) is exposed to risks. If the Client does not agree to communicating or sending data by e-mail, the Client shall notify us in text form.
11. Data privacy
Each of the Parties is responsible for their activities under this contract and the handling of Applicant data as a controller pursuant to the GDPR. They shall therefore process personal data of Applicants in compliance with the obligations incumbent upon them. In particular, the Client shall not process Applicant data transmitted to it by us for any purpose other than the performance of this contract or the potential establishment of the respective employment or service relationship.
12. Place of jurisdiction, applicable law, contract language
12.1. The place of jurisdiction for any disputes arising from and in conjunction with the contractual relationship, including disputes in documentary proceedings, is Hamburg, Germany. At our discretion, we may bring an action at the place of jurisdiction where one of our branch offices is located, provided that the action relates to the business operations of this branch office. However, this jurisdiction clause applies only if the customer is a merchant, a legal entity under public law or a special fund under public law.
12.2 This contract and any associated legal relationships are subject to the law of the Federal Republic of Germany. The contract language is German.
13. Final provisions
13.1 Subsidiary agreements, if any, must be made in text form.
13.2 If any individual provisions of these GTC or of the contract are invalid or unenforceable or become invalid or unenforceable after conclusion of the contract, the validity of the remaining provisions of these GTC or the contract shall remain unaffected. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision whose economic effect comes closest to the objective pursued by the contracting Parties through the invalid or unenforceable provision.
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