General terms and conditions
The following general terms and conditions apply to all services of 4U Aircraft Design and Engineering GmbH and its business areas for temporary employment in aviation technology, IT management and engineering services – hereinafter also referred to as 4U for short. The general terms and conditions always apply between 4U and the customer or hirer, even without express reference in offers or contracts.
I. Offers and contracts
4U is known as an aeronautical company. In addition, 4U was granted permission to lease employees within the meaning of Section 1 (1) AÜG. The customer or borrower undertakes to make a binding commitment to countersign the copies of the offers or the leasing contracts drawn up on the basis of the preliminary discussions with 4U and to return a signed copy to 4U. 4U is not obliged to perform if the copy of the signed offer or transfer agreement intended for 4U is not available in the original before the first day of performance. 4U also accepts all documents in electronic form.
II. Subject of the offers and contracts
4U uses the information and customer requirements from the preliminary discussions with the customer or the borrower and the documents provided to create corresponding offers and contract proposals.
In the area of temporary employment, 4U selects suitable employees on the basis of the respective individual requirements, which 4U transfers to the hirer. 4U does not owe the hirer any work of its own, only the hired 4U employee. The general collective agreement for temporary work in accordance with BZA / DGB collective bargaining agreement for trade unions in accordance with Section 8 (2) and (4) AÜG, including industry surcharge agreements, applies to temporary employment.
The qualification requirements for the technical services as well as for wanted employees are clarified in the preliminary discussions with the customer. Unless special requirements have been agreed, the hirer will be offered trained or experienced 4U employees with an average level of knowledge for the job sought.
4U is entitled to exchange employees who have already been hired out during the hiring period as part of the qualification sought. If the borrower wishes to hire a specific, named employee, 4U is entitled to hire another employee with the same qualifications if the employed employee leaves the employment relationship during the hiring out, falls ill or takes vacation due.
III. Implementation of the transfer
We have fulfilled our obligation to provide a transfer when the employee selected by 4U has arrived at the agreed location. With the transfer, we transfer the exercise of the work-related right of instruction to the borrower. The hirer takes on the instruction of the 4U employee in the relevant on-site occupational safety.
IV. Liability by 4U
4U is not liable for the type, scope, execution or quality of the work performed by our employees for the borrower. If the performance of an employee provided by 4U is not satisfactory, the hirer has the right to send this employee back to 4U within the first four hours after starting work without the working time being charged. In this case, 4U will create a replacement for this employee if the borrower so wishes
4U is not liable for slightly negligent breaches of obligations, the fulfillment of which enables the proper execution of the contract and on the observance of which the contractual partner can rely, even to the exclusion of liability for indirect and consequential damage. The above limitation of liability does not apply to damage that can be directly and exclusively attributed to 4U.
V. Obligations of the customer or borrower
The hirer is obliged to deploy the employee within the scope of the qualification sought. 4U must be informed of any change in the deployment location and operation specified in the leasing contract. The remuneration owed by the borrower and agreed with 4U is not affected in the case of a quantitatively or qualitatively lower commitment of the employee. The borrower is not permitted to entrust our employees with work for which they are not qualified.
Employees must be deployed within the scope of the respective working hours agreed in the employment contract. The employees are contractually obliged to work overtime on the instructions of the hirer within the framework of the applicable Working Hours Act. The arrangement of additional overtime is prohibited.
The borrower is obliged to inform 4U immediately that our employees are absent. If he does not comply with this obligation, it will be assumed that 4U has fulfilled the obligation to provide the requested employee until the relevant evidence is provided.
If the hirer’s business is on strike, 4U is not entitled to lease. See also Section 11 (5) AÜG.
The employees are paid exclusively by 4U. The employees are not authorized to accept advances or any payments from the borrower. Payments made by the borrower to the employees are not made on behalf of or in the interest of 4U.
The borrower is prohibited from additionally employing the employees as part of a secondary job during the leasing period. If the borrower violates this prohibition, the hours worked in the context of this secondary employment are deemed to be lease hours for which remuneration is payable in accordance with the previously agreed hourly rate.
The borrower is obliged to take the necessary measures to protect the leased employees from being disadvantaged within the meaning of the General Equal Treatment Act (AGG) and to take suitable measures to prevent them immediately in the event of violations. A violation constitutes a violation of the leasing contract. In the cases of § 14 AGG, employees have the right to refuse performance.
VI. Occupational health and safety at the borrower
The borrower is responsible at the place of use for compliance with the obligations resulting from § 618 BGB and § 11 Paragraph 6 AÜG.
The employees are insured against accidents with the administrative trade association. The borrower is obliged to notify 4U of any accidents at work of 4U employees immediately. Reportable accidents at work are generally investigated jointly.
The public-law provisions of occupational health and safety law that apply to the operation of the hirer apply, and the hirer undertakes to strictly comply with and monitor them. In particular, the hirer has to instruct the 4U employees before starting work in accordance with Section 12 (2) ArbSchG about safety and health protection at work, namely about the workplace-specific hazards. If it is necessary to use or hand out personal protective equipment against fatal hazards, the hirer has to convey the practical application to the 4U employees by means of exercises as part of his instruction. The instructions must be documented in writing.
Insofar as the borrower is obliged to carry out a risk analysis for the activities to be carried out by the 4U employees in accordance with § 5 ArbSchG, he grants our superiors of the employees and our safety specialists access to the analysis documentation. If the 4U employees are exposed to chemical, physical or biological effects at the hirer or carry out activities that are hazardous to health within the meaning of the “Ordinance on the Simplification of Laws and Strengthening of Occupational Health Care” (ArbMedVV) or other legal provisions, the hirer, with the consent of 4U, has to do so before this Activity to carry out the mandatory occupational medical care and to inform us of the results. In the case of activities of the 4U employee with hazardous substances of category 1A or 1B, the borrower must ensure that after the end of the transfer, a notification is made to 4U indicating the type, level and duration of the employee’s exposure to such substances. If the provisions of occupational health and safety are not complied with, 4U employees are entitled to refuse to work without us losing our entitlement to contractual remuneration.
The superiors of the 4U employees or the specialists for occupational safety are entitled to check compliance with the provisions of occupational safety in the hirer’s company.
VII. Liability of the borrower
The borrower is liable to 4U for reimbursement of damages and expenses incurred by 4U because the borrower has at least negligently failed to meet his obligations, in particular from items V and VI.
The borrower is also liable to 4U for compensation for such damage that 4U incurs as a result of one or more of the following violations of the temporary employment contract:
Incorrect assignment of industry affiliation in accordance with § 4 Paragraph 1 and Paragraph 2,
Incorrect information about the use within the last three months before the start of the leasing according to § 4 Paragraph 3 Clause 2, 1st indent,
Mention of an incorrect settlement fee or failure to notify changes to the settlement fee in accordance with Section 4 (3) sentence 2, 2nd indent,
Violation of Section 4 (4),
Violation of the information requirements from §§ 5 and 8.
If the borrower violates the ban on the unauthorized deployment of 4U employees abroad – unless this has been expressly approved in the temporary employment contract – he is obliged to compensate 4U for the resulting damage. The same applies in the event of a violation of Section 1 (1b) AÜG (maximum leasing period)
If the borrower has violated one of the obligations mentioned in paragraphs 2 and 3, 4U is entitled to terminate the temporary employment contract without notice.
VIII. Prices and Payments
Unless expressly agreed otherwise, the prices apply without surcharges for overtime, night work, shift work, Sundays and public holidays. The prices are calculated on the basis of the location and operation of the hirer named in the temporary employment contract. If the 4U employee is deployed at other work locations, the hirer has to reimburse the additional travel and, if applicable, accommodation costs.
Billing takes place weekly on the basis of the hours worked by the 4U employees for the hirer based on activity records, unless otherwise stipulated in the leasing contract. The borrower is obliged to countersign the activity records. This also applies in the event that the hirer does not match the hours listed by the 4U employee. In this case, the hourly differences are to be noted by the hirer. If the borrower does not comply with his obligation to sign even after a reminder, the hours of the 4U employee should be used as the basis for billing, subject to a later clarification with the borrower.
The invoices are due within 10 working days from the invoice date. If the borrower does not pay within this period, he will be in default of payment. The company reserves the right to charge interest on all open items with 9 percentage points p.a. above the base rate of the ECB, but at least 10% p.a. The basis for the leasing contracts is the above-mentioned, respectively valid collective wage agreement for temporary work according to BZA / DGB collective bargaining agreement for trade unions in accordance with § 8 Paragraphs 2 and 4 AÜG including industry surcharge wage agreements. Day as the basis for the calculation. All surcharges to be paid by the borrower for shift, night, Sunday and public holiday work are regulated in the general collective agreement. If several surcharges are applicable, only the higher surcharge will be charged.
When using particularly highly qualified 4U employees, non-tariff agreements may be necessary, which are regulated separately in the individual leasing contracts.
Transfer and change of job site take place at the expense of the borrower and represent lease time that is subject to remuneration for us.
IX. Offsetting and retention
The borrower can only offset an undisputed or legally established claim against our claims from the temporary employment or exercise rights of retention.
X. Agency commission when taking on 4U employees
- Geht der Entleiher mit einem ihm von 4U überlassenen Mitarbeiter während der Dauer des bestehenden Überlassungsvertrages oder in unmittelbarem zeitlichem Zusammenhang beendeten Überlassungsvertrag ein Arbeitsverhältnis ein, so gilt dies als eine Personalvermittlung durch 4U.
- Als eine Personalvermittlung gilt auch, wenn der Entleiher mit dem überlassenen 4U-Mitarbeiter außerhalb eines unmittelbaren zeitlichen Zusammenhangs mit einem beendeten Überlassungsvertrag innerhalb von 6 Monaten nach Beendigung der Überlassung ein Arbeitsverhältnis eingeht. In diesem Fall bleibt dem Entleiher aber der Nachweis vorbehalten, dass der Abschluss des Arbeitsverhältnisses nicht aufgrund der vorangegangenen Überlassung erfolgt ist.
- Als eine Personalvermittlung nach Absätzen 1 und 2 ist auch die Einstellung des 4U-Mitarbeiters in ein mit dem Entleiher rechtlich oder wirtschaftlich verbundenem Unternehmen oder die Weiterbeschäftigung über einen anderen Dienstleister zu verstehen.
- Für die Personalvermittlung nach den Absätzen 1 bis 3 erhält 4U eine Vermittlungsprovision wie folgt:
Stellt der Entleiher oder ein mit dem Entleiher rechtlich oder wirtschaftlich verbundenes Unternehmen nach Zugang eines Angebots mit 4U-Mitarbeiterprofil den 4U-Mitarbeiter ein, gilt auch das als eine Personalvermittlung. Für diese erhält 4U eine Vermittlungsprovision in Höhe von 40% des Bruttojahreszieleinkommens.
Zum Jahreszieleinkommen zählen neben dem regelmäßigen Monatsentgelt auch jegliche Zulagen, Boni und Sonderzahlungen (variable Vergütungsbestandteile) sowie Urlaubs- und Weihnachtsgeld. Dienstwagen werden im Jahreszieleinkommen mit einem Wert von 10.000 € berücksichtigt. - Die Vermittlungsprovision erfolgt netto zzgl. jeweils gültiger Umsatzsteuer.
XI. Duration of the transfer, termination and rights to refuse performance
A 4U employee’s leasing contract ends at the end of the period for which it was concluded. During this time, the contract cannot be terminated properly.
If no leasing period has been agreed, we will leave the 4U employees to the borrower for a maximum of 18 consecutive months from the first day of work with a mutual notice period of fourteen calendar days on Friday. The notification of vacancy by the borrower represents a termination of the leasing contract of the 4U employee.
The right to extraordinary termination for good cause remains unaffected. An important reason lies in the sustained violation of essential contractual obligations.
In the following cases, 4U is entitled to either terminate the leasing contract without notice or, if the contract is upheld, to assert a right to refuse performance or to request securities:
if the borrower is in default of payment
if the borrower’s financial situation deteriorates to such an extent that the remuneration claims are at risk
if the credit line granted to us by the credit insurer for the respective order is withdrawn or restricted
in the case of filing for insolvency proceedings against the borrower’s assets.
XI. Protection against competition
The borrower is prohibited from causing the 4U employees to break their employment relationships with 4U in breach of contract during the period of the assignment or to attempt to do so. In the same way, the borrower is prohibited from soliciting the 4U employees for other lenders or from arranging or establishing contact with other lenders and the 4U employee during the period of leasing.
The borrower is prohibited from lending the 4U employees; this also applies if the borrower is in possession of a permit according to § 1 AÜG.
If the borrower violates one of the aforementioned prohibition obligations, a contractual penalty in the amount of 150 times the hourly rate of the employee concerned is due.
XII. Place of jurisdiction, applicable law and severability clause
The place of jurisdiction for all disputes arising from this contract is the company’s headquarters in Frankfurt am Main. We are entitled to sue the borrower at his company headquarters.
The law of the Federal Republic of Germany applies to all claims and rights from and in connection with the services and the leasing contracts.
Should individual provisions of these terms and conditions be or become ineffective or void, this shall not affect the validity of the remaining provisions. Instead of the ineffective or void provisions, that which comes closest to the ineffective or void provision according to the economic sense of the contract shall apply.
Status: 04.03.2020