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Terms and conditions

Terms and conditions

Preamble

PRofiFLITZER GmbH (contractor) performs services on behalf of customers (clients) for the purpose of sales promotion. As a rule, independent (individual) contractors, in particular specialist consultants, merchandisers/rack jobbers, trainers and other personnel are requested by the contractor for this purpose and commissioned following an appropriate suitability check. In the internal relationship with PRofiFLITZER GmbH, you can prove this by means of a trade license.

§ 1 Validity

  1. The General Terms and Conditions of PRofiFLITZER GmbH apply to persons who are acting in the exercise of their commercial or independent professional activity (companies) when concluding the contract as well as to legal entities under public law and special funds under public law. The General Terms and Conditions are an integral part of the respective contract.
  2. Deliveries, services and offers are made exclusively on the basis of and subject to these General Terms and Conditions. PRofiFLITZER GmbH does not recognize terms and conditions of the contractual partner that deviate from these General Terms and Conditions unless it expressly agrees to their validity in writing. The General Terms and Conditions shall also apply if PRofiFLITZER GmbH performs deliveries and/or services for the contractual partner without reservation in the knowledge of deviating terms and conditions of the contractual partner.
  3. These General Terms and Conditions shall also apply to all future transactions with the contractual partner.

§ 2 Offers

  1. The offers of PRofiFLITZER GmbH are subject to change and non-binding. All contracts, even if the declarations are received by the representatives of PRofiFLITZER GmbH, are concluded upon receipt of the written order confirmation, at the latest upon performance of the services. The written order confirmation shall be decisive for the scope of the services. Collateral agreements and amendments require the written confirmation of PRofiFLITZER GmbH.
  2. The selection of personnel is the sole responsibility of PRofiFLITZER GmbH. PRofiFLITZER GmbH generally requires a lead time of 6-8 weeks for project/campaign preparation. However, the lead time specified in the respective offer is decisive. Acceptance of an order without observing this lead time may result in additional costs, which may be charged to the client.
  3. If contact details are made available to the client in the context of personnel proposals, provision of personnel and personnel placement, these shall serve the sole purpose of preliminary information for the client. The contact details provided may not be passed on to uninvolved third parties.
  4. If problems arise with the personnel, PRofiFLITZER GmbH must be given comprehensible objective reasons which relate exclusively to the professional competence to be provided by PRofiFLITZER GmbH and which could lead to the possible replacement of the personnel. If the client has special or unusual personnel requests, PRofiFLITZER GmbH must be informed in writing at least 6 weeks before the service is provided. PRofiFLITZER GmbH is entitled to charge additional prices for this.
  5. In the event of unreasonable working conditions, including sexual harassment of the staff provided, PRofiFLITZER GmbH shall not be liable for any damage that may arise as a result. However, PRofiFLITZER GmbH will endeavor to defuse the situation or deploy other personnel, which may be accompanied by time delays, without PRofiFLITZER GmbH being liable for these time delays.
  6. If the personnel deployed for the purpose of sales promotion are to carry out ancillary tasks, such as photo documentation, etc., in the interests of the customer, this must be additionally agreed in advance of the assignment. Requests or tasks submitted by the client after completion of the actual order must be contractually agreed again with PRofiFLITZER GmbH and are associated with additional costs. Irrespective of this, the invoice issued to PRofiFLITZER GmbH for the main order must be settled on time.

§ 3 Prices

  1. The net prices agreed upon conclusion of the contract shall apply. The statutory value added tax will be charged separately. Prices are set in euros.
  2. PRofiFLITZER GmbH shall be entitled to demand reasonable payments on account, the amount of which shall be based on the relationship between the services rendered and the total scope of the contractually owed service.
  3. PRofiFLITZER GmbH reserves the right to change the prices appropriately if cost reductions or cost increases occur after the conclusion of the contractual relationship, in particular due to collective wage agreements or changes in the price of materials. The client reserves the right to prove that the costs are lower.

§ 4 Confidentiality

The development of conceptual and design proposals by PRofiFLITZER GmbH as well as the communication of information that serves the later realization of such proposals are subject to confidentiality. They constitute business secrets and must be treated confidentially as such. Copyright and ownership rights to the work and concepts submitted by PRofiFLITZER GmbH as part of the presentation shall remain with PRofiFLITZER GmbH even if a presentation fee is charged.

§ 5 Recruitment regulation and personnel placement

  1. The Client and its authorized third parties are prohibited from hiring or employing the Contractor’s personnel who are currently working for the Client or who have worked for the Client in the last three months during the term of this agreement.
  2. Poaching of any kind of the freelance or self-employed personnel provided or commissioned by PRofiFLITZER GmbH is only permitted upon payment of a fee of fee of € 1,900 per headhunted person.g. This applies until 12 months after the end of the cooperation.
  3. Personnel permanently employed by PRofiFLITZER GmbH for the Client may be poached in return for a placement fee amounting to 25% of the actual full-time annual gross income (fixed and variable) which the employee receives in a new employment relationship with the Client or a third party commissioned by the Client. The client undertakes to provide PRofiFLITZER GmbH with the employment contract or the regulations documenting the full-time gross annual salary and all other contractual benefits for the calculation of the placement fee. If an employee employed by PRofiFLITZER for the client is hired by the client or a third party for a position other than the one for which he was originally hired, a placement fee of 25% of the actual full-time annual gross income (fixed and variable) shall also be payable in full.
  4. The separate General Terms and Conditions for Temporary Employment (AGB-ANÜ), which can be found here, apply to all assignments within the scope of temporary employment.

§ 6 Payment

  1. Payment of the invoice, including ancillary and third-party costs, shall be made without deduction and is due within 14 days of the invoice date. If an invoice is not paid on time, PRofiFLITZER GmbH reserves the right to restrict or completely discontinue the service.
  2. If the contractual partner is in default of payment, PRofiFLITZER GmbH shall be entitled to charge default interest in the amount of 8% above the interest rate for longer-term financing transactions of the European Central Bank (LRG rate). PRofiFLITZER GmbH shall be entitled to assert a claim for higher damages caused by delay if it can be proven. The contractual partner reserves the right to prove that no or less damage has been incurred as a result of the default in payment. For PRofiFLITZER GmbH shall not be liable for any damage incurred by the contractual partner for this reason.
  3. An invoice shall be deemed accepted unless PRofiFLITZER GmbH receives a written objection within 7 days. The date of receipt shall be decisive for compliance with the deadline.
  4. Bills of exchange and checks are only accepted on account of performance. Any resulting costs shall be borne by the contractual partner and shall become due upon acceptance of the check or bill of exchange. The presentation of bills of exchange shall in any case require prior written agreement on the scope and type of settlement. If a personal acceptance or a check of the contractual partner is not honored, all outstanding invoices and all other acceptances shall become due immediately.
  5. Only PRofiFLITZER GmbH can be paid directly with discharging effect. If several claims are outstanding, payments shall be credited against the oldest claims in each case together with ancillary claims, subject to any other provision by PRofiFLITZER GmbH.
  6. In the event of justified doubts about the solvency of the contractual partner, in particular in the event of payment arrears, PRofiFLITZER GmbH may, subject to further claims, revoke any payment terms granted and declare its claims, including any bills receivable, due immediately. In addition, PRofiFLITZER GmbH may, after In the event of acceptance of the order for further services, the Supplier may demand advance payment or cash on delivery of the services or security, or, if this demand is rejected, withdraw from the contract without setting a grace period and claim damages incurred. This also applies if partial services have already been rendered.
  7. The contractual partner shall only be entitled to offset its own claims to the extent that its counterclaims have been legally established, are undisputed or have been recognized by PRofiFLITZER GmbH. He is only authorized to exercise the right of retention to the extent that his counterclaim is based on the same contractual relationship and is also legally binding, undisputed or recognized.
  8. PRofiFLITZER shall not be liable for any delays in the fulfillment of the order if the necessary technical equipment does not arrive at PRofiFLITZER GmbH in time for the deployment of the personnel. Any additional costs incurred for a necessary express delivery (express) shall be borne by the client.
  9. Equipment provided can be reclaimed by the client after completion of the order and payment of the invoice with a period of 2 months. If it is not reclaimed, it shall become the property of PRofiFLITZER GmbH without compensation.
  10. In the event of contract rescission and individual assignment cancelations by the Client, the following deadlines and cancellation fees shall apply as binding:
    – up to 5 working days after written order confirmation = 20% of the order amount of the part of the service affected by the withdrawal
    – between 6 and 12 working days after written order confirmation = 40% of the order amount of the part of the service affected by the withdrawal
    – between 13 and 19 working days after written order confirmation = 60% of the order amount of the part of the service affected by the withdrawal
    – from 20 working days after written order confirmation = 80% of the order amount of the part of the service affected by the withdrawal.
  11. Cancellation of the contract or individual assignments must be made in text form (e.g. by e-mail) by the client.
  12. In the event of non-compliance with the planning time stated in the offer (period between written order confirmation and first day of operation), 15% of the total order amount will be charged in addition to the cancellation fees.
  13. If the volume falls short by more than 40% of the total volume of the respective confirmed order within the time or action period stated in the respective offer, PRofiFLITZER GmbH shall be entitled to demand a lump-sum compensation for expenses in the amount of 10% of the total order amount stated in the respective offer in addition to the cancellation fees.
  14. In the event of service cancellations attributable to third parties (trading partners, domiciliary rights), the provisions of points 10-13 shall apply.

§ 7 Performance time

  1. PRofiFLITZER GmbH shall schedule and observe deadlines and delivery periods in accordance with the wishes of the contractual partner. Delivery dates are only binding if they are expressly confirmed in writing by PRofiFLITZER GmbH. Fixed-date transactions also require a special written agreement.
  2. The delivery period shall be extended appropriately in the event of industrial disputes, in particular strikes and lockouts, as well as in the event of unforeseen obstacles beyond the control of PRofiFLITZER GmbH (force majeure), insofar as such obstacles demonstrably have a significant influence on the completion or delivery of the delivery item and/or service. This also applies if such circumstances occur during sub-deliveries, e.g. typesetting and printing work. PRofiFLITZER GmbH shall also not be responsible for the circumstances if they arise during an already existing delay. PRofiFLITZER GmbH shall inform the contractual partner of the beginning and end of such obstacles as soon as possible in important cases.
  3. The contractual partner shall only be entitled to claims for damages due to non-performance in the amount of the foreseeable damage if the delay is due to intent or gross negligence. Otherwise, liability for damages shall be limited to a maximum of 10% of the value of that part of the overall performance which cannot be used on time or in accordance with the contract as a result of the delay.
  4. Compliance with the delivery period presupposes the fulfillment of the contractual obligations of the contractual partner.

§ 8 Warranty, liability

  1. The contractual partner must check the contractual conformity of the delivered work/services without delay. PRofiFLITZER GmbH must be notified of any complaints in writing within 7 days of receipt of the work/service (delivery). The timeliness of the notice of defects shall be determined by the receipt of the written declaration by PRofiFLITZER GmbH. If no notice of defects is given in due time, the work/service shall be deemed approved, unless the defect was not recognizable during the inspection.
  2. If PRofiFLITZER GmbH is responsible for a defect in the work/service, it shall be entitled, at its discretion, to remedy the defect or make a replacement delivery, but only up to the amount of the order value.
  3. The warranty period is 1 year. This period is a limitation period and also applies to claims for compensation for consequential damages, insofar as no claims in tort are asserted.
  4. Claims for damages of any kind by the contractual partner are generally excluded. In particular, PRofiFLITZER GmbH shall not be liable for loss of profit or other financial losses of the contractual partner. The above exemption from liability shall not apply if the cause of the damage is based on intent or gross negligence. Furthermore, it shall not apply if the contractual partner asserts claims for damages for non-performance due to the absence of a warranted characteristic. Insofar as the liability of PRofiFLITZER GmbH is excluded or limited above, this shall also apply to the personal liability of its employees, representatives and vicarious agents.
  5. PRofiFLITZER GmbH shall not be liable for third parties who are not involved as vicarious agents in the performance of the contractual relationship, even for intentional or grossly negligent behavior of these third parties.
  6. After a declaration of readiness for printing by the contractual partner, PRofiFLITZER GmbH shall be released from any liability for the correctness of the documents submitted and/or any damage incurred. This shall also apply if the contractual partner makes corrections to artwork or similar documents on its own initiative.
  7. PRofiFLITZER GmbH is not obliged to have advertising drafts legally reviewed. No liability is assumed for the legal, in particular competition law compliance of the advertising. The same applies to the registrability and protectability of designs. The assumption of liability requires a special written agreement with the contractual partner.

§ 9 Liability of the contractual partner

The contractual partner alone shall be liable for the legal validity of all information provided by the contractual partner, in particular regarding trademarks, registered designs, copyrights and other industrial property rights. If claims are asserted against PRofiFLITZER GmbH due to infringements of copyrights, trademarks, registered designs, patents or other industrial property rights as a result of the information provided by the contractual partner, the contractual partner shall indemnify PRofiFLITZER GmbH against all claims and compensate PRofiFLITZER GmbH for the damage incurred, including necessary legal costs.

§ 10 Transfer of rights, copyrights and ancillary copyrights, contractual penalty

  1. PRofiFLITZER GmbH shall transfer all rights of use under copyright law associated with the work delivered by PRofiFLITZER GmbH to the contractual partner only within the scope of the purpose of the contract, i.e. the spatial, temporal and content-related scope of the rights of use shall be limited to the contractual partner. The right of use and the type of use granted in each case shall be determined by the specific purpose of the contract, unless the parties have agreed otherwise in writing.
  2. Unless otherwise agreed, PRofiFLITZER GmbH shall retain the rights of use to work that has not yet been paid for or, in the case of invoicing on a commission basis, not yet been published at the end of the contract. The exploitation and/or use of the work of PRofiFLITZER GmbH is only permitted if PRofiFLITZER GmbH has given its prior consent and/or a separate fee for the extended granting of rights of use has been agreed between the parties in advance. Works protected by copyright may not be altered either in the original or in reproduction without the express consent of PRofiFLITZER GmbH. This also applies to sketches, drafts, final artwork, templates, working drawings and electronic storage media (files etc.). In the event of a breach of this provision, PRofiFLITZER GmbH shall be entitled to demand a contractual penalty in the amount of twice the agreed remuneration. If no such remuneration has been agreed, the usual remuneration according to the collective agreement for design services STST/AGD (as amended) shall be used as a basis.
  3. Preliminary designs, drafts, sketches, working drawings etc. shall remain the property of PRofiFLITZER GmbH and shall be returned on request within a reasonable period after completion of the order or delivery of the work. The contractual partner is liable for any damage.
  4. PRofiFLITZER GmbH is not obliged to hand over files or layouts created on the computer to the contractual partner. If the contractual partner wishes computer data etc. to be handed over, this shall be agreed and remunerated separately.

§ 11 Reference advertising

The client grants the contractor permission to name the customer/brand and agrees to the cooperation being mentioned in reference advertising. This authorization applies in particular to the communication channels listed below:

  • Newsletter
  • Press releases
  • Websites www.profiflitzer.de and www.my-profiflitzer.de –Business platforms “Xing” and “Linked in”

§ 12 Labeling, specimen copies

  1. PRofiFLITZER GmbH is entitled to ten specimen copies of all published design work.
  2. PRofiFLITZER GmbH reserves the right to sign the advertising material and models ordered by it, in particular to appear on the works to be supplied with the company, name, copyright notice and address in accordance with the space provided.

§ 13 Data protection

  1. The client and third parties involved – usually trading partners – must comply with data protection regulations when handling the data provided, in particular sedcards of personnel.
  2. The disclosure of data to uninvolved third parties is prohibited. Violations will be reported to the police or will result in a claim for damages depending on the amount of damage caused.

§ 14 Written form, place of performance, place of jurisdiction, choice of law

  1. Unless otherwise stated in the order confirmation, the place of performance shall be the registered office of PRofiFLITZER GmbH.
  2. If the contractual partner is a merchant, the place of business of PRofiFLITZER GmbH shall be the place of jurisdiction. PRofiFLITZER GmbH shall also be entitled to sue the contractual partner at its place of jurisdiction.
  3. The business relations and all legal relations between the contractual partner and PRofiFLITZER GmbH shall be governed exclusively by the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.
  4. All previous General Terms and Conditions are hereby revoked.
  5. If individual clauses of these General Terms and Conditions are or become invalid in whole or in part, this shall not affect the validity of the remaining part or the remaining clauses. The ineffective clause or the ineffective part of the clause shall be replaced by a legally effective provision that comes closest to the economic purpose of the ineffective clause.

Validity

The above provisions shall apply accordingly in the event that the General Terms and Conditions prove to be incomplete.

Berlin, January 13, 2015