General Standard Terms and Conditions
Presentation of Candidates to Clients for Employment
Version of October 24, 2019
1.1. Client – the person, firm or corporate body, their affiliates, agents, representatives or employees to whom Global IT Talents – a service offered by United Mobile Services GmbH – hence forward named “Employment Agency” – Presents a Candidate;
1.2. Candidate – the person presented by the Employment Agency to the Client for an Employment;
1.3. Employment – the occasion on which the Candidate accepts an offer of work, employment or any other use of the Candidate by the Client or by any Third Party to whom or to which the Candidate was Presented by the Client (whether with or without the Employment Agency’s knowledge or consent) on a permanent or temporary basis, independent of how such offer was made or accepted;
1.4. Employed and Employs shall be considered according to the above;
1.5. Presentation means:
1.5.1. The interview of a Candidate in person, by telephone, or any other audio or video call environments or
1.5.2. The handing over of curriculum vitae (CV) and/or anonymized and/or non-anonymized information about the Candidate.
1.5.3. The time of the Presentation shall be considered to be the earlier of (1.5.1) and (1.5.2) above;
1.6. Presented and Presents shall be considered according to the above;
1.7. Anonymized – the processing of personal data in such a manner that the personal data are no longer attributed to a specific data subject;
1.8. Regulations – the applicable German and EU laws and references to a particular Regulation contained therein;
1.9. Remuneration – includes base salary or fees, guaranteed and/or anticipated bonus and commission earnings, allowances, inducement payments, shift allowances, location weighting and call-out allowances, the benefit of a company car and all other payments or emoluments payable to or receivable by the Candidate for services rendered to or on behalf of the Client. Where the Client provides a company car, a generic amount of 8.000 Euro will be added to the salary in order to calculate the Employment Agency’s fee;
1.10. Terms – the General Terms and Conditions of Business as further defined with clause 2;
1.11. Third Party – any company or person who is not the Client. This includes subsidiary and associated companies of the Client
1.12. Search Request – an explicit commissioning of the Employment Agency by the client to find and present a candidate for a specific vacancy. The search request may define arrangements for the fees of the agency. Upon placement of the search order, the present Terms and Conditions shall be deemed accepted, and the placement agency shall commence the search.
1.13. Placement Offer – Offer for the presentation of a candidate by the Employment Agency without an explicit search order. The placement offer can make arrangements for the fees of the Employment Agency. Upon acceptance of the Placement Offer, these Terms and Conditions are deemed to be accepted and the Employment Agency will present the candidate (s).
2. General Terms and Conditions of Business
2.1. These Terms, together with a Search Request or Placement Offer, constitute the entire agreement between the Employment Agency and the Client relating to the subject matter of the Agreement.
2.2. Deviations from the provisions made in these terms and conditions may be agreed in the search order or placement offer and have priority.
2.3. These Terms represent the entire agreement between the Employment Agency and the Client in relation to the subject matter hereof and are deemed to be accepted by the Client and to apply by virtue of:
2.3.1. Presentation to the Client of a Candidate
2.3.2. Employment by the Client of a Candidate
2.3.3. Handing over of information about the Candidate by the Client to any Third Party
2.3.4. Client’s interview or request to interview a Candidate
2.4. These Terms apply whether or not the Candidate is Employed by the Client for the same type of work as that for which the Presentation was originally effected.
2.5. The Terms supersede all previous agreements between the parties in relation to the subject matter hereof.
2.6. These Terms prevail over any other terms of business or purchase conditions put forward by the Client.
2.7. The Client authorizes the Employment Agency to act on its behalf in seeking Candidates and, if the Client so requests, shall advertise for such Candidates through such methods as are agreed with the Client.
3. Employment Agency’s Obligations
3.1. For Search Requests: The Employment Agency shall use reasonable endeavors to introduce one or more suitable Candidates to meet the requirements of the Client for any particular vacancy. The Employment Agency cannot guarantee to find a suitable Candidate for each vacancy.
3.2. Without prejudice to clause 3.3 below, the Employment Agency shall use reasonable endeavors to ascertain that the information provided by the Employment Agency to the Client in respect of the Candidate is accurate.
3.3. The Employment Agency accepts no responsibility in respect of matters outside its knowledge and the Client must satisfy itself as to the suitability of the Candidate.
3.4. Subject to a separate Schedule agreed and signed by the Employment Agency and the Client, the Employment Agency may take over actions to support the Client in obtaining some of the documents or permits mentioned in clause 4.1 below. The Employment Agency is not offering any warranty whatsoever that the respective document or permit will be obtained.
4. Client’s Obligations
4.1. The Client is responsible for obtaining work permits and/or such other permission to work as may be required, for the arrangement of medical examinations and/or investigations into the medical history of any Candidate, and satisfying other requirements, qualifications or permission required by law of the country in which the Candidate is engaged to work.
4.2. For Search Requests: To enable the Employment Agency to comply with its obligations under clause 3 the Client undertakes to provide to the Employment Agency details of the position which the Client seeks to fill, including the type of work that the Candidate would be required to do; the location and hours of work; the experience, training, qualifications and any authorization which the Client considers necessary or which are required by law or any professional body for the Candidate to possess in order to work in the position and any risks to health or safety known to the Client and what steps the Client has taken to prevent or control such risks; date the Client requires the Candidate to commence work; the duration of the work; duration of employment; type and extent of travel activities or changing locations; required languages.
4.3. For Search Requests: The Client shall provide details of the minimum rate of remuneration, expenses and any other benefits that would be offered; the intervals of payment of remuneration and the length of notice that the Candidate would be entitled to give and receive to terminate the employment with the Client.
4.4. The Client shall inform the Employment Agency of any information it has that suggests it would be detrimental to the interests of either the Client or the Candidate for the Candidate to work in the position that the Client seeks to fill.
4.5. The Client shall inform the Employment Agency within 3 working days where it receives details of a Candidate from the Employment Agency, which it has already received from another Employment Agency in relation to the same vacancy. If no such notification is given by the Client then, in the event of an Employment, the Client agrees the Employment Agency is entitled to charge a fee in accordance with clause 5.2. Is exclusively the Client’s responsibility to check whether the Candidate has already been presented in advance by another party or has already personally applied for the specific position.
4.6. For Search Requests only: From the date of placement of the Search Request through the Employment or earlier termination of these Terms, neither the Client nor their affiliates, agents, representatives or employees shall solicit, authorize the solicitation of, or enter into any agreement or discussions with any Third Party concerning any offer or possible offer for a Third Party to Present Candidates for Employment as defined therein or with respect to any similar service.
4.7. The Client agrees to notify the Employment Agency as soon as possible (and in any event, not later than 7 days from the date of the offer or from the date the Employment takes effect; whichever is earlier) of any offer of an Employment which it makes to the Candidate.
4.8. The Client agrees to notify the Employment Agency immediately that its offer of an Employment of any type to the Candidate has been accepted and to provide details of the Remuneration to the Candidate.
4.9. The Client agrees to pay the Employment Agency’s fee within the period set out under clause 5.2.
4.10. The Client shall not, and shall not seek to cause the Employment Agency to unlawfully discriminate in relation to the services provided by the Employment Agency to the Client in connection with these Terms and shall disclose any and all information requested by the Employment Agency in the event a Candidate makes a complaint to the Employment Agency.
5.1. Presentations of Candidates are confidential. Where the Client discloses to a Third Party any details regarding a Candidate Presented to the Client by the Employment Agency that Third Party subsequently Employs in any form the Candidate within 12 months from the date of the Presentation, the Client shall pay the Employment Agency’s fee as set out in clause 5.3 and there shall be no entitlement to any partial or total refund to the Client or Third Party.
5.2. The Client shall pay the Employment Agency a fee calculated in accordance with clause 5.3 where it Employs, whether directly or indirectly, any Candidate Presented by or through the Employment Agency within 12 months from the date of the Employment Agency’s Presentation.
5.3. The fee is calculated on the basis of a written agreement between the parties in a Search Request or a Placement Offer; when no such written agreement is in place a generic fee calculated as 25% of the Candidate’s Remuneration applicable during the first 12 months of the Employment. The Employment Agency will charge additional VAT on all the fees, costs and charges according to the clause 5.
5.4. In the case of each Candidate, there is a minimum fee of 5.000 Euro.
5.5. Where the amount of the actual Remuneration is not known or disclosed, the Employment Agency will charge a fee calculated in accordance with clause 5.3 on the maximum level of remuneration applicable for the position or type of position the Candidate had been originally submitted to the Client for and/or comparable position in the general marketplace.
5.6. Where the Employment is for a fixed term of less than 12 months, the fee in clause 5.3 will apply pro-rata.
5.7. Where the Employment is extended beyond the initial fixed term or where the Client re-Employs the Candidate within 12 months from the date of planned or actual termination of the first Employment, the Client shall pay a further fee based on the Remuneration applicable for the period of Employment following the initial fixed term period up to the termination of the second Employment or until the Candidate has been engaged for a total of one year.
5.8. The travel costs pertaining to a given Candidate resulting from the placement process have to be paid by the Client. For this purpose, the Client will inform the Employment Agency about the current travel expense policy for Candidates at the beginning of the cooperation.
5.9. Charges incurred by the Employment Agency at the Client’s written request in respect of advertising or any other matters will be charged to the Client in addition to the fee and such charges will be payable whether or not the Candidate is Employed.
6.1. Except in the circumstances set out in clause 5.1, 5.8 and 5.9, no fee is incurred by the Client until the date of Employment on which date the Employment Agency will be entitled to render an invoice to the Client for its fees.
6.2. The Employment Agency shall raise invoices in respect of the charges payable and the Client agrees to pay the amount due within 30 days of the date of the invoice.
6.3. All invoices will be deemed to be accepted in full by the Client in accordance with the payment terms stated within clause 6.2 unless the Client notifies the Employment Agency in writing within 5 days of the amount the Client disputes and the reason the Client disputes that amount. In the event the Client does so notify the Employment Agency that it wishes to dispute part of an invoice, the Client shall pay the undisputed part of the invoice within the agreed payment terms and shall co-operate fully with the Employment Agency in order to resolve the dispute as quickly as possible.
6.4. The Employment Agency reserves the right to charge 1,5 % interest on invoiced amounts overdue.
7. Partial refunds
7.1. Where the Client qualifies for a partial refund in accordance with clause 7.2 and 7.3, and the Employment of the Candidate is terminated by the Client or the Candidate within the time periods specified below, the Client shall be entitled to a partial refund of the introduction fee as follows, unless otherwise specified in the Search Request or Placement Offer:
|Duration of Employment||Percentage of Fee to be rebated|
|a) Less than 1 week||80%|
|b) 1 week to less than 2 weeks||70%|
|c) 2 weeks to less than 3 weeks||60%|
|d) 3 weeks to less than 4 weeks||50%|
|e) 4 weeks to less than 5 weeks||40%|
|f) 5 weeks to less than 6 weeks||30%|
|g) 6 weeks to less than 7 weeks||20%|
|h) 7 weeks to less than 8 weeks||10%|
7.2. One or more Each of the following conditions and the condition stated in clause 7.3 must be met in order for the Client to qualify for a partial refund:
7.2.1. the candidate has terminated the employment.
7.2.2. the Client must notify the Employment Agency that the Candidate’s Employment has ended within 7 days of the ending of the Employment or within 7 days of notice being given to end the Employment, whichever is earlier; or
7.2.3. the Candidate’s Employment is not terminated by reason of redundancy or re-organization or change in strategy of the Client; or
7.2.4. the Candidate did not leave the Employment because he/she reasonably believed that the nature of the actual work was substantially different from the information the Client provided prior to the Candidate’s acceptance of the Employment; or
7.2.5. the Candidate did not leave the Employment as a result of discrimination or other acts against the Candidate; or
7.2.6. the Candidate was not at any time in the 12 months prior to the start of the Employment engaged in any way or hired (whether on a permanent or contract basis) by the Client.
7.2.7. The Employment Agency’s invoice for the fee must have been paid within the payment terms in accordance with clause 6.2.
7.3. Where the Client re-Employs the Candidate either on a consultancy, employment or indirect basis, any partial refund paid to the Client under paragraph 7 in respect of that Candidate, shall be immediately repaid to the Employment Agency by the Client.
8. Liability and Indemnity
8.1. The Employment Agency shall not be liable under any circumstances for any loss, expense, damage, delay, costs or compensation whether direct, indirect or consequential which may be suffered or incurred by the Client arising from or in any way connected with the Employment Agency seeking a Candidate for the Client or from the Presentation or Employment of any Candidate by the Client or from the failure of the Employment Agency to introduce any Candidate or from the Client’s disclosure to a Third Party of any details regarding a Candidate.
8.2. The Employment Agency shall not be liable for failure to perform its obligations under these Terms if such failure results by reason of any cause beyond its reasonable control.
8.3. The Client shall indemnify and keep indemnified the Employment Agency against any costs (including legal costs), claims or liabilities incurred directly or indirectly by the Employment Agency arising out of or in connection with these Terms including without limitation as a result of:
8.3.1. any breach of these Terms by the Client or by its employees or agents; and/or
8.3.2. any breach by the Client or Third Party, or any of its employees or agents, of any applicable statutory provisions including without limitation any statutory provisions prohibiting or restricting discrimination or other inequality of opportunity, immigration legislation and the Regulations; and/or
8.3.3. any unauthorized disclosure of a Candidate details by the Client or Third Party, or any of its employees or agents.
9. Termination and Term
9.1. Search Requests and Placement Offers end
9.1.1. if successful at the end of the partial refund period
9.1.2. at the latest after 12 months, if necessary, plus the partial refund period
9.1.3. with proper notice
9.1.4. with extraordinary termination in accordance with section 9.3
9.2. The regular notice period for Search Requests and Placement Offers is one month.
9.3. These Terms may be terminated by either Client and/or Employment Agency by giving to the other immediate notice in the event that either the Employment Agency or the Client goes into liquidation, becomes bankrupt or enters into an arrangement with creditors or has a receiver or administrator appointed or where the Employment Agency has reasonable grounds to believe the Client will not pay the Employment Agency’s invoice within the payment terms agreed within clause 6.2. In the case of extraordinary termination, all Search Requests and Placement Offers automatically end.
10. Equal Opportunities
10.1. The Employment Agency is committed to equal opportunities and expects the Client to comply with all anti-discrimination legislation as regards the selection and treatment of Candidates.
11.1. All information contained within these Terms shall remain confidential and the Client shall not divulge it to any Third Party except for its own employees and professional advisers and as may be required by law.
11.2. The Client shall not without the prior written consent of the Employment Agency provide any information in respect of the Candidate to any Third Party whether for Employment purposes or otherwise.
11.3. The Client agrees to comply with the General Data Protection Regulation and shall not cause or seek to cause the Employment Agency to breach the Regulation in connection with these Terms and shall provide any and all information requested by the Employment Agency in a timely manner to assist the Employment Agency to respond to a Data Subject access request.
11.4. Any personal data concerning a Candidate that is provided by the Employment Agency to the Client must only be used by the Client for the purposes of administration and internal management in relation to the supply of a Candidate to the Client. The Client will comply with any relevant provisions of the applicable data protection legislation and in particular in the principles of General Data Protection Regulation.
11.5. The Client guarantees that all persons, firms or corporate bodies, their affiliates, agents, representatives or employees which are in contact with The Employment Agency are informed in regard to the Employment Agency’s data protection declaration and have given their consent regarding the processing of personalized data for the cause of Employment. In regard to this topic the Client has no right to legally persecute The Employment Agency.
12.1. Any failure by the Client to enforce at any particular time any one or more of these Terms shall not be deemed a waiver of such rights or of the right to enforce these Terms subsequently.
12.2. Headings contained in these Terms are for reference purposes only and shall not affect the intended meanings of the clauses to which they relate.
12.3. No provision of these Terms shall be enforceable by any person who is not a party to it.
12.4. If any provision, clause or part-clause of these Terms is held to be invalid, void, illegal or otherwise unenforceable by any judicial body, the remaining provisions of these Terms shall remain in full force and effect to the extent permitted by law.
12.5. Any reference to legislation, statute, act or regulation shall include any revisions, re-enactments or amendments that may be made from time to time.
13.1. Any notices required to be given under these Terms (including the delivery of any information or invoice) shall be delivered by hand, sent by facsimile, e-mail or by post with confirmation of receiving, to the recipient at its fax number or address specified in these Terms (or as otherwise notified from time to time to the sender by the recipient for the purposes of these Terms).
13.2. Notices shall be deemed to have been given and served if:
13.2.1. delivered by hand, at the time of delivery if delivered before 5.00 pm CEST on a business day or in any other case at 10.00 am CEST on the next business day after the day of delivery; or
13.2.2. sent by facsimile or e-mail, at the time of dispatch if dispatched on a business day before 5.00 pm CEST or in any other case at 10.00 am CEST on the next business day after the day of dispatch, unless the transmission report indicates a faulty or incomplete transmission or, within the relevant business day, the recipient informs the sender that the facsimile or e-mail message was received in an incomplete or illegible form; or
13.2.3. sent by post with confirmation of receiving, at the time of receiving.
14.1. No variation or alteration of these Terms shall be valid unless approved in writing by the Client and the Employment Agency.
15. Applicable Law
15.1. These Terms shall be construed in accordance with German Law and the parties submit to the exclusive jurisdiction of the Court of Munich.