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AGB | General Terms and Conditions | OpenCelium

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General Terms and Conditions of becon GmbH – hereinafter referred to as “becon” – as of 01.01.2010

1.1.1 These terms and conditions shall apply to the present business relationship between becon and the contracting party, unless otherwise agreed in individual cases.

1.1.2 All deliveries, services, offers, etc. provided by becon shall be subject exclusively to these terms and conditions. These shall also apply to all future business relations, even if they are not expressly agreed again. These terms and conditions shall be deemed to have been accepted at the latest upon receipt of the goods or the service. Counter-confirmations of the contractual partner with reference to his terms and conditions are hereby contradicted.

1.2 Prices, due date and payment

1.2.1 Unless otherwise stated, becon shall be bound by the prices contained in its offers for 30 days from the date of the offer.

Otherwise, the prices stated in becon’s order confirmation shall be decisive.

1.2.2 The respective statutory value added tax shall be added to the prices stated.

1.2.3 Additional deliveries and services shall be charged separately.

1.2.4 The invoice amount shall become due upon receipt of the invoice and shall be paid immediately without deduction. In case of default becon shall charge default interest in the amount of the statutory provisions.

The proof of a higher damage caused by delay remains at becon’s discretion, as well as the proof to the contracting party that a lower burden has been incurred.

1.2.5 becon is entitled, despite any provisions of the contracting party to the contrary, to set off payments first against the contracting party’s older debts and will inform the contracting party about the type of set-off made. If costs and interest have already been incurred, becon is entitled to credit the payment first to the costs, then to the interest and finally to the main performance.

1.2.6 becon expressly reserves the right to reject checks or bills of exchange. Acceptance is always on account of payment only. Discount and bill charges shall be borne by the contracting party and are due immediately. A payment shall only be deemed to have been made when becon can dispose of the amount. In the case of checks, payment shall be deemed made only when the check is cashed.

1.2.7 becon employees are not authorized to collect cash. Payments with discharging effect can only be made directly to becon or to a bank or postal check account specified by becon.

1.2.8 If becon becomes aware of circumstances which call into question the creditworthiness of the contracting party, in particular if a check is not honored or payments are stopped, becon is entitled to call due the entire remaining debt, even if becon has accepted checks. In this case becon is also entitled to demand advance payments or the provision of security.

1.3 Offsetting

The contractual partner shall only be entitled to set-off, retention or reduction, even if notices of defects or counterclaims are asserted, if the counterclaims have been legally established or are undisputed. However, the contractual partner shall also be entitled to withhold payment on the basis of counterclaims arising from the same contractual relationship.

1.4 Liability

1.4.1 Claims for damages shall be excluded irrespective of the type of breach of duty, including tortious acts, except in cases of intent or gross negligence.

1.4.2 In the event of a breach of material contractual obligations becon shall be liable for any negligence, but only up to the amount of the foreseeable direct damage typical for the contract. Claims for loss of profit, saved expenses, claims for damages by third parties as well as other indirect and consequential damages cannot be demanded, unless a quality feature guaranteed by becon has the specific purpose of protecting the contracting party against such damages.

1.4.3 The limitations and exclusions of liability under 1.4.1 and 1.4.2 do not apply to claims which have arisen due to malicious conduct on the part of becon, to claims under the Product Liability Act and to damage arising from injury to life, body or health.

1.4.4 Insofar as becon’s liability is excluded or limited, this shall also apply to employees, representatives and vicarious agents of becon.

1.5 Secrecy

1.5.1 Unless expressly agreed otherwise in writing, information submitted to becon in connection with orders or inquiries shall not be deemed confidential.

1.5.2 becon’s employees are obliged to maintain secrecy with regard to confidential business matters or matters requiring secrecy.

1.6 Application of law, place of jurisdiction, severability clause

1.6.1 These Terms and Conditions and the entire legal relationship between becon and the contracting party shall be governed by the laws of the Federal Republic of Germany. Provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.

1.6.2 Amendments and supplements to these terms and conditions as well as to all contracts between becon and the contracting party require written confirmation by becon to be effective. This also applies to the waiver of the written form requirement.

1.6.3 If the business partner is a merchant, a legal entity under public law or a special fund under public law, Munich shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. Insofar as legally permissible, becon’s registered office is agreed as the place of performance.

1.6.4 Should any provision of these Terms and Conditions or of the underlying contract be or become invalid or unenforceable in whole or in part, this shall not affect the validity of the remaining provisions. Rather, the contracting parties shall cooperate to replace the invalid or unenforceable provision with a legally permissible and valid provision or an enforceable provision that is suitable to achieve the success intended by the invalid or unenforceable provision. The same applies to the filling of contractual gaps.

2.1 Offer, conclusion of contract, prices

2.1.1 The offers of becon are subject to change and non-binding. Declarations of acceptance and all orders must be confirmed by becon in writing or by telex in order to be legally effective.

2.1.2 becon’s sales employees are not authorized to make verbal subsidiary agreements or to give verbal assurances that go beyond the content of the written contract.

2.1.3 Drawings, illustrations, dimensions, weights or other performance data shall only be binding if this is expressly agreed in writing.

2.1.4 The prices quoted are ex warehouse including normal packaging, unless otherwise stated.

2.2 Delivery, delivery times and transfer of risk

2.2.1 Binding delivery dates or deadlines must be in writing.

2.2.2 In the event of a delay in delivery for which becon is responsible, the duration of the period of grace to be set by the contracting party by law shall be fixed at two weeks, which period of grace shall commence upon receipt by becon.

2.2.3 Delays in delivery and performance due to force majeure and due to events which make delivery considerably more difficult or impossible for becon not only temporarily – this includes in particular strike, lockout, official orders etc., even if they occur at suppliers of becon or their sub-suppliers – shall not be the responsibility of becon even in the case of bindingly agreed deadlines and dates. They entitle becon to postpone the delivery or service for the duration of the impediment plus a reasonable start-up time or to withdraw from the contract in whole or in part due to the part not yet fulfilled.

2.2.4 becon is entitled to make partial deliveries and render partial services at any time, unless the partial delivery or partial service is not of interest to the contractual partner.

2.2.5 Kommt der Vertragspartner in Annahmeverzug, so ist becon berechtigt, Ersatz des ihr entstehenden Schadens zu verlangen; mit Eintritt des Annahmeverzugs geht die Gefahr der zufälligen Verschlechterung und des zufälligen Untergangs auf den Käufer über.

2.2.6 The risk shall pass to the contracting party as soon as the consignment has been handed over to the person performing the transport or has left becon’s warehouse for the purpose of shipment. If shipment is delayed at the request of the contracting party, the risk shall pass to the contracting party upon notification of readiness for shipment.

2.3 Rights of the contractual partner due to defects

2.3.1 The products shall be delivered free of manufacturing and material defects; the period for asserting claims for defects and further claims shall be one year from delivery of the products if the contracting party is a merchant, two years if the contracting party is a consumer. In case of sale of used goods, any warranty is excluded if the contracting party is an entrepreneur, if it is a consumer, the period is one year.

2.3.2 If operating or maintenance instructions of becon or otherwise enclosed are not followed, modifications are made to the products, parts are replaced or consumables are used which do not comply with the original specifications, claims due to defects of the products shall be forfeited if the contracting party does not refute a correspondingly substantiated claim that only one of these circumstances caused the defect. Translated with www.DeepL.com/Translator (free version)

2.3.3 If the contracting party is a merchant, it must notify becon of any defects in writing without delay, but no later than one week after receipt of the delivery item. Defects which cannot be discovered within this period even after careful inspection shall be notified to becon in writing immediately after discovery.

2.3.4 In the event of a notification by the contractual partner that the sold items have a defect, becon shall demand, at its option and at its expense, that – the defective part or device is sent to becon for repair and subsequent return;

– the contractual partner keeps the defective part or device ready and a service technician from becon is sent to the contractual partner to carry out the repair;

– the supplementary performance takes place by subsequent delivery of a defect-free item. Multiple subsequent deliveries are permissible.

2.3.5 If the contracting party requests that rectification work be carried out at a location specified by it, becon may comply with this request, whereby replaced parts shall not be charged, while working time and travel expenses shall be paid at becon’s standard rates.

2.3.6 If two attempts at subsequent performance fail, the contracting party may, at its option, reduce the purchase price appropriately or withdraw from the contract.

2.3.7 Liability for normal wear and tear is excluded.

2.3.8 Only the direct contractual partner is entitled to claims against becon due to defects and such claims are not assignable.

2.4 Retention of title

2.4.1 Until the fulfilment of all claims becon is entitled to against the contracting party now or in the future for any legal reason, becon reserves the title to the delivered goods (reserved goods). If the value of the security interests to which becon is entitled exceeds the amount of all secured claims by more than 20%, becon will release a corresponding part of the security interests at the request of the contracting party.

2.4.2 In case of access of third parties to the goods subject to retention of title, in particular seizures, the contracting party shall point out becon’s ownership and notify becon immediately so that becon can enforce its ownership rights. Insofar as the third party is not in a position to reimburse becon for the judicial or extrajudicial costs incurred in this connection, the contracting party shall be liable for such costs.

2.4.3 In case of breach of contract by the contracting party – in particular in case of default of payment – becon shall be entitled to withdraw from the contract and to demand the return of the goods subject to retention of title.

2.4.4 The goods shall remain the property of becon. Processing or transformation shall always be carried out for becon, but without any obligation for it. If becon’s (co-)ownership expires due to combination, it is already now agreed that the contracting party’s (co-)ownership of the uniform item shall pass to becon on a pro rata basis (invoice value). The contracting party shall store becon’s (co-)ownership free of charge.

2.4.5 The contractual partner is entitled to process and sell the goods encumbered with becon’s property rights in the ordinary course of business as long as he is not in default. Pledges or transfers of ownership by way of security are not permitted. The claims arising from the resale or any other legal ground (insurance, tort) with regard to these goods (including all balance claims from current account) are already now assigned by the contracting party in full to becon by way of security. becon revocably authorizes him to collect the claims assigned to becon for its account in his own name. This authorization to collect may only be revoked if the contracting party fails to properly meet its payment obligations.

3. Employee leasing

becon shall provide its contractual partner (hereinafter referred to as the “hirer”) with temporary workers in accordance with these General Terms and Conditions, the German Personnel Leasing Act (AÜG) and the provisions of the temporary employment contract at the agreed place of deployment.

3.1 Permission

In accordance with § 1 of the Law on the Regulation of Commercial Temporary Employment (AÜG), becon possesses the required permit for commercial temporary employment (issued by the Bavarian State Employment Office).

3.2 Legal relationships, rights and obligations

3.2.1 The conclusion of the employee leasing contract does not establish a contractual relationship between becon’s employees and the hirer. Changes with regard to deployment duration, working hours and work activity can only be agreed between becon and the hirer. During the assignment with the hirer, the leased employee is subject to the hirer’s work instructions and works under the hirer’s guidance and supervision.

3.2.2 becon is the employer of its employees pursuant to the AÜG with all associated rights and obligations. The hirer is primarily responsible for issuing work instructions, monitoring work performance and observing accident prevention regulations. He may only allow the employees assigned to him to carry out the activities associated with his job description and to operate only such equipment, machines and tools as are required to carry out this activity.

3.2.3 The hirer undertakes to familiarize the leased employees with the workplace-specific hazards as well as the accident prevention and occupational health and safety regulations applicable to its business and the respective workplace before they start work and to ensure compliance with these regulations. In particular, the hirer is obliged to provide the safety equipment and protective clothing prescribed for the performance of the respective activity and to ensure that they are used, as well as to provide first aid measures and facilities in accordance with §§ 24 ff. BGV A1. The hirer shall maintain and set up all devices, equipment and rooms accordingly and shall regulate the work processes taking place under its supervision in such a way that the leased employees are employed in accordance with the respective occupational health and safety regulations, in particular that they are protected against health hazards. Any necessary preventive medical examination must be performed by the hirer.

3.2.4 In the event of accidents at work, the hirer shall be obliged to immediately notify the responsible employers’ liability insurance association in writing in accordance with the relevant statutory provisions. becon must be notified immediately and a copy of the notification must be provided.

3.2.5 The hirer undertakes to grant becon or its representatives free access to the workplaces in which the employee is deployed in order to comply with the regulations on the part of the insurance carrier concerning safety inspections at the place of work.

3.2.6 The hirer undertakes to employ the temporary worker only within the legally permissible limits of the Working Hours Act and, insofar as a different or longer period of employment is only permissible with the approval of the relevant government body (Trade Supervisory Office), to obtain such approval.

3.2.7 becon undertakes to comply with its employer obligations, i.e. to comply with all provisions of labor, social and payroll tax law and to make the corresponding payments in a proper and timely manner.

3.3 Hourly rate, billing

3.3.1 The agreed hourly or daily rate or the monthly flat rate shall be decisive for the calculation. It includes all fringe benefits for the leased employee. Unless otherwise expressly agreed, the rates shall apply excluding surcharges for overtime, night work, shift work, Sundays and public holidays, piecework and other surcharges.

becon reserves the right to increase the rates if wage increases occur after conclusion of the contract, if employees are replaced by others with higher qualifications or if circumstances beyond becon’s control cause an increase in costs.

3.3.2 Unless otherwise agreed, the working week shall normally be 40 hours. Hours worked in excess of those agreed, as well as night, Sunday and holiday hours, are subject to the following surcharges:

– Overtime in excess of this base 25%.

– Hours worked on Saturdays 25%

– Hours worked on Sundays and public holidays 100%.

– Night work from 8:00 p.m. to 6:00 a.m. 25%.

– Overtime from 8:00 p.m. to 6:00 a.m. 50%.

– Shift work 10 %

If several surcharges coincide, only the highest surcharge will be charged. If there is a public holiday in the working week or if less than five days are worked within a working week, the hourly calculation is changed to a daily rate basis. A daily working time of eight hours per working day is then to be assumed.

3.3.3 The hirer is obligated to confirm by signature on the submitted activity records the hours during which becon’s employees were available to him at least on a monthly basis. If proof of activity cannot be presented to an authorized representative of the hirer for signature at the place of employment, becon employees are authorized to confirm this instead. Objections regarding certified hours must be proven within one week of receipt of invoice, otherwise they cannot be considered. Invoices are issued based on the confirmed timesheets.

3.4 Business trips, travel expenses

Travel times for assignments of the temporary worker outside the location agreed upon in accordance with the individual contract shall be fully remunerated at the normal hourly rate for the outward journey, provided that the journey was arranged by the hirer. Travel expenses shall be borne entirely by the hirer if the trip was ordered by him.

3.5 Receipt of payments

The hirer shall not provide wage or other offset advances to the leased employees. Such payments will not be recognized by becon and cannot be offset under any circumstances.

3.6 Selection of employees

3.6.1 becon employees are selected according to the requirements of the hirer. Nevertheless, the hirer is required to satisfy himself of the suitability of the temporary workers for the intended activity. If the hirer determines within the first day that an employee is not suitable for the intended activity, becon will provide a replacement employee within the scope of its possibilities. The first day will not be charged.

3.6.2 becon is entitled to recall its employees at any time and to replace them with other employees of equivalent quality. In the event of absences due to illness, however, there is no obligation to provide substitute staff. If the temporary worker does not take up or continue his work, becon shall endeavor to provide a replacement. If this is not possible, becon shall be released from the obligation to transfer.

3.7 Additional limitation of liability

3.7.1 Due to the instruction and control function of the hirer, becon shall not be liable for any damage caused by the employee in the course of his work, nor for poor performance. The hirer shall also indemnify becon against claims for damages by third parties with regard to the leased employee. becon shall not be liable for slight negligence in the selection of its temporary workers for the agreed activity if temporary workers are provided who do not have the required professional aptitude and the hirer suffers damage as a result. The temporary workers are not authorized agents or vicarious agents of becon.

3.7.2 The temporary workers may not be entrusted by the hirer with valuables, money or securities matters or other work not agreed upon, otherwise the liability lies exclusively with the hirer.

3.8 Exceptional circumstances

In the event of extraordinary circumstances, becon shall be entitled to postpone the order placed or to withdraw from the order in whole or in part without compensation. This includes all circumstances that make the transfer temporarily or permanently difficult or impossible. Compensation for damages is excluded. No workers are left in a legal labor dispute.

3.9 Personnel placement after previous employee leasing

If the hirer establishes an employment relationship with becon’s employee within a period of twelve months after expiry of the temporary employment period, a placement commission shall be paid to becon on the basis of the then fulfilled personnel placement contract.

This applies regardless of whether the conclusion of the employment contract is based on the initiative of the hirer or that of the employee. The hiring of an employee by a company legally or economically affiliated with the hirer shall also be deemed to be a transfer to an employment relationship. becon undertakes to perform each brokerage contract carefully and with the utmost confidentiality. The hirer undertakes to provide becon with all necessary information required for the performance of the staffing agreement.

The amount of the placement fee is two months’ gross salary, reduced by 1/12 per month of assignment. The fee is due at the start of the new employment.

3.10 Termination

3.10.1 Temporary workers shall initially be provided to the hirer for two weeks for trial and familiarization purposes with two days’ notice. Within the first day, the hirer may cancel the individual contract without bearing any costs and reject the temporary worker.

3.10.2 After the expiry of this probationary period, the individual contract may be terminated with a notice period of two weeks, provided that the temporary worker has not yet worked for the hirer for more than six months. Otherwise, the notice period is four weeks.

3.10.3 The notice of termination shall be given to an authorized becon employee.

3.10.4 The right to extraordinary termination shall be governed by law. In particular, the following shall be entitled to extraordinary termination of the employee leasing agreement:

– non-compliance with accident prevention regulations by the hirer,

– the significant deterioration of the financial circumstances of the hirer, as well as

– Default of payment by the hirer or

– the cases in which the work performance in the hirer’s enterprise is suspended due to strike, lockout

– (see also Section 11 (5) AÜG), force majeure or other reasons within the meaning of Section 323 BGB has become impossible.

3.11 Soliciting employees

The hirer undertakes not to entice away becon employees in an unlawful manner within the meaning of §§ 138 BGB and 1 UWG.

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