Terms and Conditions - Austria
(as on July 2018)
Section 1 General
- The following conditions shall be applicable to all contracts concluded between epunkt GmbH (hereinafter: "epunkt") and a customer (hereinafter: "Contracting Entity"), particularly, through the search, placement, occupation and secondment of employees or freelancers, including providing related services such as placing job advertisements or preparing expert analysis (personality profile analysis, attentiveness endurance test, social skills tests) etc., as well as the licensing of software (hereinafter: "Orders") further, for agreements with persons, who are in search of an employment relationship (hereinafter: "Search Orders" or "candidate"; contracting entity and candidate together, hereinafter "Contract Partner") or was placed as a freelancer to a contracting entity (Principal) by epunkt (Contracting Entity and Freelancers together, hereinafter "Contracting Parties"). They are also applicable for all future contract conclusions within the scope of the business relationship, even if they have not been explicitly agreed once again.
- epunkt contracts exclusively to the existing terms and conditions and rejects the provisions of the terms and conditions of the contracting entity that differ from the existing terms and conditions and are not recognized expressly and in writing by epunkt.
- The conclusion of a contract with epunkt conforms to general principles of civil law; particularly, a contract with epunkt also materializes by signing an offer or an order confirmation from epunkt by the contracting entity, by agreement of the contracting entity with the candidate identified by epunkt on the terms and conditions of service-, freelance service-, work and services-, employment- or other employment contract (hereinafter: "Employment Contract"), by registering a candidate in epunkt's candidate database or by the action of the candidate or freelancer at the contracting entity or principal.
- Offers from epunkt are binding up to two weeks after its submission.
Section 2 Duty of disclosure and liability
- The contracting entity and the candidate are obliged to promptly and fully provide documents required in connection with the order or search order and constantly inform epunkt of all activities and conditions that may be of importance for the order or search request. This is also applicable for all facts regarding the operation of the contracting entity, the impact it could have on the amount of work, place of work or remuneration entitled to the seconded employee as well as for documents, activities and conditions that become known during the occupation of epunkt. epunkt is entitled to charge for damages particularly, the frustrating search effort, according to the hourly rates applicable in the company, incurred on account of the erroneous, obsolete or incomplete information provided to him by the contracting entity, candidate or freelancer This is also applicable particularly for the fact that a candidate has already applied to the contracting entity but has not informed epunkt about this.
- Unless otherwise agreed in an individual contract, epunkt does not guarantee success in the search, particularly, not to find concurring candidates or freelancers within a specific period with the search order or order.
- If epunkt finds a matching candidate with the request to search or request, it is liable that the nominated candidate (including the seconded employees) or freelancers have the required qualification (=professional training) for the intended use by the contracting entity or principal; however, epunkt is excluded from any further liability and/or guarantee. epunkt shall particularly, not be liable for any results of work by the nominated candidate and for damages arising in the course of or caused by them during his occupation or his tardiness, his non-appearance or other misconduct. Apart from that, the contracting entity shall indemnify epunkt and hold harmless from any third-party claims for damages.
- The contracting entity is obliged to check the qualification of the candidate and if need be, immediately report the complaint; epunkt shall only be liable for cases of intentional or grossly negligent damage; the compensation for financial losses is in any case, excluded.
Section 3 Special provisions for personnel procurement
- Services of personnel procurement is the search, selection and nomination (naming) of one of the request by epunkt, especially, a requirement profile/job description provided by the contracting entity corresponding to the candidate. Additional services (placing advertisements, expert reports, etc.) are charged for separately. Requests for search could however, even result from the actual requirement of the contracting entity known or assumed by epunkt.
- The contracting entity is obliged to pay in accordance with the valid price list for each position (i) a fixed order fee in the amount of €1,800 regardless of performance on placing the request and (ii) a contingent fee of 18%-25% the net target annual salary on execution of an employment contract with a candidate nominated by epunkt, regardless whether the candidate placed by epunkt actually undertakes the employment contract. One-third of the performance-related fee is due once on candidate presentation. The date of the first personal contact (e.g. over the telephone, via Skype, interview,..) with a candidate presented by epunkt is understood as candidate presentation. The net target annual salary of the presented candidate serves as an assessment basis. This partial amount is deducted from the recruitment fee. For the purpose of the price list, the net target annual salary of the candidate including the expected provisions, extra pay and salary increase in the first year of service is understood as net target annual salary; if this actually differs from the candidate-related expected remuneration on execution of the contract, then epunkt is entitled to charge the contracting entity the resulting increase of the contingent fee on completion of the first year of service.
- If the employment relationship between the proposed epunkt employee and the contracting entity is dissolved in the first three months after his appointment due to reasons arising from the person of the proposed candidate, epunkt performs a one time, free of cost search and selection process for the same position, as long as the assignment for reappointment occurs within four weeks after termination of employment.
Section 4 Special provisions for secondment of employees
- Subject of a secondment contract is the transfer of authority over an employee of epunkt to the contracting entity; the contracting entity is obliged to transfer the seconded employee exclusively within the scope of authority granted to him and fulfil the obligatory supervision and duty of care as an employer, particularly for the purpose of AÜG [Temporary Employment Act] for termination of the secondment contract without notice.
- The execution of a contract for the secondment of an employee by epunkt to the contracting entity does not constitute an employment relationship between the contracting entity and the seconded employee.
- The contracting entity assumes the duties as an employer as laid down in ASchG [Labour Protection Act] and has to ensure and or observe these themselves and comply with employer’s duty of care in the case of escape clause of the secondment contract without notice by epunkt, for compliance with all occupational safety and health and employee protection law provisions, particularly any of the AZG [Working Hours Act] and/or ARG of the individual employee protection.
- The contracting entity has to inform epunkt in a timely manner and completely about progress and consequences of necessary work-related accidents, in which the employee seconded by epunkt was a part of, such that epunkt can notify a legally compliant accident notification to the responsible social insurance carrier.
- The remuneration for each working hour agreed with the employer and recorded in the order confirmation includes all wages- and incidental wage costs including statutory taxes, on whose payment epunkt is obliged as provider of personnel. The prices are valid until the next increase due to requirements of collective shaping of the law (advancement, KV-degree, operational exercises, etc.); in the case of such increases epunkt is entitled to increase the agreed fee with the client in the amount of this adjustment.
- Unless otherwise stated in the order confirmation, overtime hours, which should be provided with a surcharge of and up to 25%, with 19%, overtime a surcharge up to 50%, with 30% and up to 100% overtime charge 60% of the standard hourly rate.
- The employee seconded by epunkt has to at least provide the agreed working hours during the period of employment in the company of the contracting entity; in the absence of such an agreement, the normal working hours shall be deemed as the agreed working hours. Should the seconded employee provide less than the agreed working hours per month, epunkt has to charge in the course of the monthly settlement, the missing hours for standard hourly rate, unless failure to achieve arises from an absence within the scope of Section 8 of AngG [Austrian Employee Act].
- If the employee seconded by epunkt has claims on anniversary bonus, bonuses or other special compensations, then for to the gross amount plus the statutory contribution of the employer shall in turn be charged to the contracting entity.
- Where applicable, the claims that the seconded employee is entitled to for travel expenses or other expenses shall be charged 1:1 to the contracting entity.
- The contracting entity is obliged to protect the assets and interests of the seconded employee and particularly, keep their valuables and other things out of reach.
- Die Verrechnung des Entgelts für die Überlassung von Dienstnehmern erfolgt auf Basis des vom Auftraggeber bestätigten Stundennachweises, der epunkt und dem Dienstnehmer nach Abschluss eines Monats unverzüglich zu übermitteln ist.
- epunkt is entitled to terminate contracts with the contracting entity, at any time without notice and without providing reasons, particularly, in case of default in payment or deterioration in the creditworthiness of the client or violation of duties to protect against the seconded employee; compensation claims of the contracting entity are excluded in this case. In case of default in payment or deterioration of the creditworthiness, epunkt is also entitled to make the remaining services dependent on a prepayment.
- The contracting entity has to announce the return of an employee evidently, six weeks before the last desired day of employment.
- The contracting entity is entitled to justify an employment relationship after a secondment period of twelve months without additional costs with an employee seconded by epunkt, provided there are no liabilities toward epunkt; otherwise, the fees mentioned in Section 8 are due.
Section 5 Special provisions for placement of employees
- An employment of freelancers is understood as the use of candidates for the purpose of these terms and conditions, who at the time of the execution of the contract has a business license and is assigned by epunkt as a subcontractor (as an independent contractor, hereinafter: "Freelancer") for project requests between epunkt and a principal (hereinafter: "Contracts of work" or "Principal").
- epunkt accepts the liability that at the time of execution of the contract for work, the Freelancer has a proper business license. The Principal is liable to epunkt in the event that the freelancer becomes active not in a personal or commercial dependence due to the de facto fulfilment of the contract of work in the sense of Section 4 paragraph 4 Social Security Act [ASVG Allgemeines Sozialversicherungsgesetz] and indemnifies and holds epunkt harmless in case of claims by trade-, social security- tax or other public positions for obligations arising from the employment of the Freelancer.
- The liability of epunkt against the Principal for the behaviour of the Freelancer is limited to cases of intentional or grossly negligent damage.
- The Principal is obliged, to report to epunkt after the completion of a calendar month, to what extent, the Freelancer had rendered services for the Principal; furthermore, he is obliged, to confirm the scope of rendered services upon presentation of the record of hours to the Freelancer.
- If the Principal justifies another employment relationship as a consulting relationship to the Freelancer, then the provisions of the personnel procurement or the secondment of the employee are applicable.
- Any, intellectual property rights in the course of fulfilment of the work contract are passed on with complete payment to the Principal; for the period between the termination of the contract of work and the complete payment, an appropriate fee is due to epunkt for the use of intellectual property rights.
Section 6 Special provisions for the Freelancer
- The definitions made under Section 5 (1) can also be used in this section.
- In this context, any contract concluded between the parties of the contract (hereinafter: "Consulting Contracts") are subject to the condition precedent of the written conclusion or the condition subsequent to the contract of work; the duration of the Consulting Contracts must therefore, correspond to maximum of those of the underlying contract of work. epunkt is however, obliged to immediately inform the Freelancer in the event of the termination of the contract of work This is applicable accordingly even for those cases, in which the Principal justifiably amends the scope of the contract of work; in this case, the number of hours agreed in the Consulting Contract are reduced proportionately.
- With remuneration provided in the Consulting Contract, all expenses of the Freelancer – including travel expenses and accommodation costs are compensated at the agreed location of the – Freelancer.
- In the event of other liability for damages of the Freelancer against epunkt, the Freelancer shall ensure that the services rendered by him within the scope of the Consulting Contract, shall be confirmed in writing by the Principal at the end of the month. The remuneration of services of the Freelancer by epunkt shall be a condition of this written confirmation; the Freelancer has all remuneration claims against epunkt on maturity, within four months after that month, in which he provided service, and on presentation of the invoice, which complies with the provisions of the Value Added Tax Act.
- The Freelancer is an independent contractor and is obliged to immediately report to epunkt every change to the scope of his trading license in the event of other liability for damages; he is liable to himself for the timely payment of all taxes, fees and (Social security-) additional charges and for the activities performed covered by the scope of his professional authorization during the entire duration of the Consulting Contract. Labour Law Provisions are not applicable to the Consulting Contract. The Freelancer indemnifies and holds epunkt harmless for the claims due to violations of the Freelancer against these obligations.
- The Freelancer is liable to epunkt under the provisions of Section 1167ff of the Civil Code of Austria [ABGB] and also issues a warning against the Principal for not providing or providing incomplete documents; the benchmark of the Section 1299 ABGB (liability of experts) is applicable.
- The Freelancer relinquishes all intellectual property rights, which he has acquired or could acquire in connection with the Consulting Contract for Contract of Work to epunkt and is also obliged, not to claim any use claims, claims for damages or prohibitory injunctions from the processing, publishing, reproducing, distributing, using or any other use.
- The Freelancer is obliged to handle all information, particularly, even people-related, documents and other auxiliaries, which he received in connection with the Consulting Contract or Contract for Work, towards any and all parties, with the exception of epunkt, with the strictest of confidentiality, to only use for the purpose of fulfilling his obligations from the Consulting Contract and return – including all copies or logs – thereof immediately to epunkt after execution of the Consulting Contract and Contract for Work and in the event of compensation for damages, impose these obligations, to even those persons employed or assigned by him; a right of retention is under no circumstances useful. Any breach of this obligation, even the non-binding commitments to those employed by him, involves a penalty of €12,000 and the enforcement of the additional damages.
- The parties may terminate the Consulting Contract with a notice period of 30 days without any obligation to pay damages or termination fee; in the event of the exercising the right of termination, epunkt is obliged, to strive for the execution of another employment contract between a contracting entity and the Freelancer.
- The Freelancer and possible vicarious agents, to whom the Freelancer has to impose these obligations in the event of damages, it is prohibited for a period of 12 months after termination of the Consulting Contract, to accept IT-Services and or IT-Projects at the Principal or companies connected to them directly or by a third-party. In the event of a violation, the Freelancer has to pay epunkt contractual penalties of €500.00 per day; the enforcement of claims for damages remains unaffected by this.
- The Freelancer is obliged to inform epunkt about possible project extensions or transferring of projects and new projects planned at the Principal and known to him for the duration of the Consulting Contract.
Section 7 Data protection and confidentiality
- The contracting entity is obliged to handle all information about the candidate recommended by epunkt or Freelancer as confidential and not pass on to a third-party. The same applies to candidates or freelancers regarding the information received from the contracting entity.
- The contracting entity and the candidate or Freelancers agree that the data become known to them through the business relationship with epunkt, is saved internally by epunkt and processed automatically; they particularly, agree to inform the disclosure of data for initiation of employment- or contracts related thereto or the use of information of the contracting entity, candidate and Freelancer about legally or economically relevant topics.
- epunkt ensures contracting entities and candidates, to handle all information provided to them with confidentiality, however, authorised under imposition of this confidentiality obligation to make use of an informed third-party when carrying out this contract.
Section 8 Fees
- Provided, nothing else is planned in these terms and conditions, all fees are due on execution of the employment contract or granting the order or with the communication of the monthly record of hours of the seconded employee or Freelancer and is payable net within 14 days after receipt of the invoice. In the event of default in payment, epunkt is authorised, to claim interest on arrears of 1% per month. The offset against claims from epunkt is excluded.
- If a contracting entity or someone affiliated to them or a related party by personal or commercial connections concludes an employment contract or Consulting Contract with a candidate or Freelancer nominated by epunkt within two years from receipt of his data or within two years from terminating the employment relationship, then the contracting entity is obliged to pay epunkt the success fee according to the conditions valid at the time of execution of the contract. The contracting entity or Principal has to inform the company related to him through personal or economical relations, in the event of other liability for damages, on justification of an employment relationship, epunkt is entitled to a fee accordingly.
- In any case, the contracting entity and the candidate or Freelancer has to notify epunkt the execution of an employment contract with him or one of the companies mentioned under paragraph 2 and for the calculation of the remuneration in relevant circumstances immediately and completely, at the most within two months after execution of the contract or unless a contract was established, after commencement of the employment relationship; in the event of delay by the contracting entity, epunkt is authorised to claim a contractual penalty of 8% of the net target annual salary or net annual fee of the Freelancer besides the success or the fee charged normally by epunkt for placement of the Freelancer, whereby, the candidate or Freelancer and the contracting entity are jointly liable.
- Besides the order or success fee and the otherwise agreed fee, epunkt is always authorised to charge expenses, extraordinary additional costs (travel expenses of the candidate, non-local job or selection interview, etc.).
- The billing is done electronically.
Section 9 Termination of Contract
- The order and search order can be terminated by either party or parties at any time with a notice period of 14 days to the end of the month, for an important reason, however, can be terminated at any time without notice, in writing.
Section 10 Concluding Provisions
- Unless expressly stated otherwise by epunkt in the communications, contracts and information, all specified amounts exclusive of the taxes and additional charges payable on account of statutory provisions.
- Jurisdiction for all disputes arising from or in connection with contracts between the contracting entity or Freelancer and epunkt is Linz. Austrian laws apply.
- Agreements, with which provisions of these terms and conditions are amended or supplemented, must be in writing. This is also applicable for the change to this clause requiring the written form. Written communications may be by registered letter, FAX or email to the last known epunkt mail address.
- If any provisions of these terms and conditions are or become invalid, the effectiveness and validity of the remaining provisions shall not be affected. The invalid provision shall replaced by a provision that is legally effective and comes closest to the commercial purpose intended by the invalid provision.
- For ease of readability, the distinction between masculine and feminine form is avoided in these terms and conditions and the masculine form is used throughout; the word in question refers to both genders.