General Terms and Conditions (GTC)
These General Terms and Conditions shall apply to all contracts, deliveries
and other services, unless they are amended or excluded with the express written consent of or excluded with the express written consent
of EMS, and insofar as no deviating provisions have been agreed in individual contracts.
Deviating terms and conditions of the customer are expressly rejected.
They shall not be recognized even if EMS does not expressly object to them again after receipt. These General Terms
and Conditions shall be deemed
to have been accepted at the latest upon receipt of the service
2. service/work contract
Details regarding the personnel service are specified in the respective individual contract (usually service or work contract)
and the service descriptions therein. The contract shall become legally effective upon receipt of a written order confirmation by the customer,
at the latest, however, when the agreed service or work performance is commenced. Unless otherwise agreed in writing,
the contract is concluded for an indefinite period and can be terminated in writing by either party with a notice period of 3 months to the end of a quarter. Decisive for the timeliness of the termination is the receipt by the other party to the contract. If the customer does not fulfill his obligation to immediately countersign or to cooperate in the preparation of the service description or the subject matter of the service prior to commencement of the service, EMS may provide the service in accordance with its draft in such a way as it deems appropriate with regard to the interests of the customer.
3. execution by other companies
EMS shall be entitled, after prior information to the customer, to make use of other companies for the performance of its contractual obligations.
4. Force majeure
In the event of war, terrorism, strikes, civil unrest and other cases of force majeure, EMS shall be entitled to interrupt or appropriately reschedule the service if its performance becomes impossible. In the event of interruption beyond a reasonable period of time, the customer may request EMS to reduce the fee in accordance with the expenses saved for the period of interruption.
5 Right to issue instructions and prohibition of integration
The selection of employees and the right to issue instructions shall be the sole responsibility of EMS, except in cases of imminent danger. The customer shall refrain from integrating the employees of EMS into his own company or from giving them instructions. In the event of a breach of this obligation, the customer shall indemnify EMS against any disadvantages arising therefrom.
6. loyalty clause
The customer undertakes not to entice away any employees used by EMS for the performance of its tasks vis-à-vis the customer and/or to use them or have them used for tasks in its company during the term of the contract and for six months after termination of the contract. If the customer violates this provision, he shall be obligated to pay a contractual penalty in the amount of 5,000.00 Euro for each employee poached/employed.
7 Default of payment and acceptance
(1) In the event of default in payment by the customer, EMS shall be entitled to suspend its performance obligations until all outstanding debts have been paid in full.
(2) If the customer defaults on acceptance of the agreed contractual services, EMS shall be entitled to claim damages in lieu of performance if the statutory requirements are met.
(1) Unless otherwise agreed, the remuneration for services under the contracts or other lump-sum settlements shall be due immediately upon receipt of the invoice without deduction. In the event of default in payment, EMS shall be entitled to demand the statutory default interest (currently in the amount of 9% above the base interest rate), as well as the statutory lump-sum compensation of currently € 40.00. This lump-sum compensation shall be offset against any claim for damages by EMS, insofar as this is based on legal costs. EMS shall be at liberty to assert a claim for damages exceeding this amount.
(2) The customer shall notify EMS immediately of any changes in the data required for invoicing. If the notification is not made and if it is therefore necessary to issue one or more invoices again, EMS shall be entitled to charge a processing fee of 10 euros plus VAT per invoice concerned.
9. price changes
In the event of a change/new introduction of wage costs and ancillary wage costs, in particular due to the conclusion of new minimum wage or other collective bargaining agreements, statutory taxes (with the exception of value added tax), levies, insurance premiums, vehicle operating costs or other statutory changes, the agreed price shall be increased or reduced proportionately by the same percentage as the aforementioned costs are increased or reduced, plus the statutory value added tax. Changes in the aforementioned costs shall be notified in writing in advance.
(1) EMS shall be liable within the scope of the statutory provisions if the Customer asserts claims for damages based on intent or gross negligence on the part of EMS, its representatives or vicarious agents. If the causation of damage is based on slight or simple negligence, EMS shall only be liable if and insofar as essential contractual obligations are violated. Material contractual obligations in this sense are those obligations whose breach would jeopardize the purpose of the contract and on whose fulfillment the customer may therefore justifiably rely.
(2) In any case, liability shall be limited to the foreseeable average damage typical for the contract. EMS shall therefore not be liable for atypical, unforeseeable consequences of damage.
(3) Furthermore, EMS shall not be liable for consequential damages.
(4) If the amount of liability exceeds the typically foreseeable damage, the following maximum liability amounts shall apply:
– Euro 1.000.000,- for property damage per calendar year
– Euro 500.000,- for pure financial losses per calendar year.
(5) The above limitations shall not apply in the event of injury to life, body or health.
11 Notification of defects and claims for damages
The customer shall notify EMS in writing of any defects within seven calendar days of becoming aware of them. If the customer fails to notify EMS of the defect, the assertion of claims for defects shall be excluded. Notwithstanding the above provision, the customer shall notify EMS in writing of claims for damages within a period of 14 days after becoming aware of the damaging event. Furthermore, the claim for damages shall expire if the customer, in case of rejection by EMS or its insurance company, does not assert it in court within three months after rejection.
12 Data processing
EMS shall be entitled to collect, process and use contractual data of the customer in accordance with the BDSG.
13 Place of performance, place of jurisdiction and severability clause
(1) Nuremberg shall be the place of performance and jurisdiction for all legal disputes arising from this contractual relationship as well as from its creation and effectiveness. EMS shall be entitled at its discretion to sue the customer at the customer’s place of jurisdiction or at the place of jurisdiction of the EMS branch responsible for the customer.
(2) Should a provision or part of a provision of the contract with the customer or of these General Terms and Conditions be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a provision that comes closest to the economic purpose of the contract.