Version dated 12.9.2019
HOGO Group –
General Terms and Conditions for Employee Leasing
1.1 These General Terms and Conditions (hereinafter: “GT&Cs") shall apply to all legal relationships in the field of employee leasing, personnel consulting, consulting services (and related activities) between a company of the HOGO Group on the one hand and its respective customers (e.g. employers) on the other hand; irrespective of whether the customer is a natural person or a legal entity.
1.2 In the interest of easier readability, these GT&Cs do not distinguish between the feminine and masculine form. The use of the masculine form refers to both genders.
1.3 In this context, the companies of the HOGO Group are HG Consulting GmbH (FN 371426 s, hereinafter: "HGC"), HOGO Holding GmbH (FN 519053p) (hereinafter: "HH"), HOGO GmbH (FN 262358 x, hereinafter: "HOG") and HOGO Bau Solution GmbH (FN 108445 d, hereinafter: "HBG") as well as Lokdrive GmbH (FN 493814 y, hereinafter: "Lokdrive") and HOGO Rail Service GmbH (FN 506719 a, hereinafter: "Rail Service") (HGC, HH, HOG, HBG as well as Lokdrive and Rail Service hereinafter: the "HOGO Group" or the "HOGO Companies" or simply “We"). These GT&Cs apply to all the above companies and their business activities. However, contracts are only concluded by one company at a time; nothing in these GT&Cs establishes a
(joint) liability on the part of the other companies of the HOGO Group.
1.4 The GT&Cs shall be deemed to be accepted upon conclusion of the contract, at the latest upon use of the service, and shall become an integral part of the contract concluded between us and the respective customer.
1.5 Vis-à-vis customers who qualify as entrepreneurs within the meaning of the Austrian Commercial Code (hereinafter: “Entrepreneur Customers"), these GT&Cs shall also apply to all future transactions, even if no express reference is made to them in individual cases, in particular in the case of future supplementary or follow-up orders.
1.6 The version of the GT&Cs that is available on the website of the HOGO Companies (www.hogo.cc) at the time of the respective conclusion of the contract shall apply to Entrepreneur Customers.
1.7 We provide deliveries and other services exclusively on the basis of the GT&Cs. The customer's general terms and conditions of business or the customer's terms and conditions of purchase shall only apply if these have been expressly confirmed by us in writing. A reference to the customer's general terms and conditions of business or the customer's terms and conditions of purchase that are attached or can be retrieved or obtained at a specific location shall not be deemed to be an express written confirmation. The customer's general terms and conditions of business or the customer's terms and conditions of purchase shall be deemed to be waived and are expressly contradicted by reference to these GT&Cs. This clause (1.7) applies only to Entrepreneur Customers.
2.1 Unless expressly stated otherwise, all quotes for the leasing of employees within the scope of the Collective Agreement for the Construction Industry shall be deemed to have been made exclusively by HOGO Bau Solution GmbH (FN 108445 d, HBG), and all other quotes shall be deemed to have been made exclusively by HOGO GmbH (FN 262358 x, HOG).
2.2 Unless expressly agreed otherwise, all contracts for the leasing of employees within the scope of the Collective Agreement for the Construction Industry shall be concluded with HOGO Bau Solution GmbH (FN 108445 d, HBG), and all other contracts for the leasing of employees shall be concluded with HOGO GmbH (FN 262358 x, HOG).
2.3 All our quotes are subject to change.
2.4 The contract shall be concluded either by both contracting parties signing the quote or by us issuing a written order confirmation; in any case, however, by the actual commencement of the employment of the employees leased or procured by us.
2.5 In the absence of a remuneration agreement, the employer shall owe us an appropriate remuneration which, in case of doubt, shall be based on our most recent quote, taking into account any cost increases that have occurred since then (in particular labour cost increases). In any case, our quotes are based exclusively on the information that was known to us at the time the quote was made. Information that subsequently emerges or becomes known to us (e.g. emergence of circumstances that would justify a higher classification) shall entitle us (irrespective of fault on the part of one of the contracting parties) to adjust prices (also retroactively) vis-à-vis Entrepreneur Customers.
2.6 Promises, assurances and guarantees on the part of a company of the HOGO Group or agreements deviating from these GT&Cs in connection with the conclusion of the contract shall only become binding vis-à-vis Entrepreneur Customers in the event of written confirmation.
2.7 We shall be entitled to unilaterally adjust the remuneration vis-à-vis Entrepreneur Customers during the term of the contract if and to the extent that the cost factors on which our calculation is based (e.g. labour costs) increase during the term of the contractual relationship. We are allowed to increase our markup in line with the development of the consumer price index in 2015.
3. OUR PERFORMANCE COMMITMENTS
3.1 We provide our services in compliance with the applicable statutory provisions, in particular the Austrian Employee Leasing Act (AÜG), as well as the applicable collective agreement, i.e. the collective agreement for the employee leasing industry (AKÜ-KV), in the current valid version.
3.2 The object of employee leasing is the provision of employees, not the provision of specific services. The leased employee shall work under the guidance, instruction and responsibility of the employer. We do not owe any work success whatsoever.
3.3 The employer shall be obliged to supervise, instruct and control the leased employee. We are only obligated to contractually obligate the leased employee to comply with the instructions of the employer.
3.4 The employer shall be obliged to check the suitability and qualifications of the leased employee immediately after the commencement of employment, but in any case within the first six working hours, and to give written notice of any shortcomings. Complaints (notices of shortcomings) shall be notified to us within the aforementioned six-hour period at the latest (obligation to notify shortcomings), otherwise all claims of the employer for replacement as well as other possible warranty claims, claims for damages and claims arising from an error as to the absence of shortcomings shall be precluded (limitation period). For shortcomings which only become apparent at a later point in time and which would not have been recognizable upon careful inspection on the occasion of the commencement of work (and which were not actually recognized), a period of six working hours from the time the shortcoming becomes apparent shall apply for the notification of shortcomings, otherwise all claims of the employer for replacement as well as other possible warranty claims, claims for damages and claims arising from an error as to the absence of shortcomings shall be precluded (limitation period).
3.5 The employer shall have no claim to a specific employee (this shall also apply explicitly if the name and identity of the leased employee are stated in the quote and/or the order confirmation). We are entitled to replace leased employees with other equally suitable employees at any time. In the event of a justified complaint, We shall replace the employee with a suitable employee within three days. Further claims (e.g. claims for damages) are not valid and are excluded by mutual agreement.
3.6 Insofar as a leased employee is required to testify as a witness in a proceeding, the employer shall give the employee time off without forfeiting the right to remuneration and this shall not affect our right to remuneration.
4. OBLIGATIONS OF THE CUSTOMER
4.1 The customer shall be obliged to comply with all obligations under the provisions of the AÜG and other labour law standards and, insofar as employee protection provisions, equal treatment provisions and the like are concerned, also with the employer's obligations. He is therefore obliged in particular to comply with the provisions of employee protection law, the law on the employment of foreign nationals and the law on working hours. In the event of a breach of these obligations, the customer shall fully indemnify and hold us harmless.
4.2 We must be notified immediately if a leased employee violates his or her duties. In the event of sick leave, the leased employee must be informed that he or she must also report sick leave to us.
5. WORKING HOURS AND TIME SHEETS
5.1 Our entitlement to remuneration shall be calculated on the basis of hours worked in accordance with the terms and conditions agreed in the individual contract on a case-by-case basis and these General Terms and Conditions; this shall be subject to the proviso that hours worked shall be understood to mean all hours during which the respective leased employee was actually available to the employer (thus irrespective of whether the employer used the employee or not).
5.2 For the first day of deployment, regardless of the actual work performed, the entire working day (in accordance with the working time model in the employing company) shall always be charged.
5.3 The documentation of the hours worked can (but does not have to) take place via written time sheets. For this purpose, unless otherwise instructed by us, always use the form provided by us. The form must be countersigned by the Supervisor in the employing company (foreman, lot manager, head of department, etc.) (hereinafter: “Supervisor"). Countersignature by the Supervisor shall constitute an acknowledgement by the employer of the accuracy of the hours indicated on the form. The employer expressly represents and warrants that the countersigning Supervisors have sufficient authority to make such acknowledgment and We may rely on its effectiveness.
5.4 In the event that the Supervisor refuses to countersign the time sheets, the employer shall be obliged to explain to us in writing, within two working days from the date of submission of the time sheets by us or by the leased employee, why the countersigning of the form was refused and to specify in what way the time sheets are (in his opinion) incorrect (obligation to give notice of shortcomings). In the event that the employer fails to comply with this obligation to give notice of shortcomings, the time sheets shall be deemed to have been approved and acknowledged even without counter-production by the employer, and any objection to their correctness shall be precluded.
5.5 By way of clarification, it is noted that the signing of time sheets by our employees does not constitute an acknowledgement of their accuracy. In particular, in the event that it should turn out at a later date that the nature and scope of the employment of the leased employee was incorrectly recorded in the time sheets to our disadvantage, for whatever reason, We shall be entitled to make a subsequent settlement on the basis of the work actually performed. We shall be entitled to claim such subsequent settlement up to six months after becoming aware of the underlying circumstances and up to three years after the date of the original settlement.
5.6 It is further clarified that We are not obliged to keep time sheets, but that We keep them exclusively in our own interest. Pursuant to § 26 AZG, the obligation to keep working time sheets applies exclusively to the employer.
6. SETTLEMENT, INTEREST ON ARREARS AND RECOVERIES
6.1 We generally invoice on a monthly basis; however, We are also entitled to invoice at shorter intervals. Invoicing is carried out exclusively by electronic means. The customer undertakes to disclose his email address to be used for this purpose. The delivery of the invoice by email is sufficient; any employee or other representative of the Entrepreneur Customer who handled the order correspondence with us is also passively authorized to deliver the invoice.
6.2 Unless otherwise agreed, the term of payment shall be 8 days (with one day of grace).
6.3 Entrepreneur Customers shall be obliged to check the correctness of invoices submitted by us within seven days of receipt and to notify us in writing in the event of (alleged) inaccuracies. In the event that We do not receive any notification/objection within the aforementioned period, all objections to the correctness of the invoice and the invoice items contained therein shall be precluded and can no longer be raised.
6.4 Payments shall be made exclusively to the bank accounts notified by us. Cash payments are not permitted and do not discharge debts. Under no circumstances are the employees leased by us authorized to collect debts, and payments to them are not debt discharging.
6.5 The employer shall provide the leaser with its VAT number at the beginning of the order. The services rendered will be invoiced plus 20% value added tax. If the tax liability is transferred to the employer pursuant to § 19 para. 1a UStG (Value Added Tax Act)1994 (construction services), the customer shall notify us of the transfer of the tax liability, as a result of which the settlement shall be made without VAT.
6.6 Insofar as We collect due claims vis-à-vis Entrepreneur Customers, the Entrepreneur Customer shall indemnify and hold us harmless from any costs, expenses and other expenditures in connection with the collection of our claims.
6.7 For extrajudicial debt collection, the lawyers intervening on our behalf shall be entitled to reimbursement of costs in accordance with the provisions of the Lawyers' Fees Act (RATG) and the Autonomous Fee Criteria (AHK), whereby, in deviation from the aforementioned legal sources, it is agreed that simple extrajudicial demand letters shall be reimbursed in accordance with tariff item 2 and detailed extrajudicial demand letters shall be reimbursed in accordance with tariff item 3A (in each case without a standard rate) and the Entrepreneur Customer shall be obliged to reimburse this amount.
6.8 Vis-à-vis Entrepreneur Customers, interest on arrears shall be charged at the statutory default interest rate.
6.9 We advise against granting advances on wages or other loans to the employees We lease. However, insofar as a customer decides to grant an advance on wages or a loan, this must be communicated to us immediately on the one hand, so that We can take this into account in the payroll accounting, if necessary, as a gesture of goodwill. Under no circumstances, however, shall We be obligated to take into account or reimburse wage advances or other credits granted to leased employees without our consent, nor shall We be liable in any way whatsoever for such advances or credits. The leased employees do not have any power of representation to legally bind us.
7. HIRING OF EMPLOYEES
7.1 If the leased employee is hired into a contractual relationship by the Entrepreneur Customer as an employee or person similar to an employee during a specified minimum deployment period, the Entrepreneur Customer shall be charged an appropriate cost reimbursement for the expenses incurred, depending on the duration of the leasing, the qualifications of the employee as well as the recruitment expenses.
7.2 The minimum period of employment for unskilled or semi-skilled employees is 6 full calendar months. The minimum period of employment for skilled workers is 9 full calendar months, and 12 full calendar months for commercial and technical employees. For clarification: The minimum term serves exclusively as a definition for the provisions of this section (7).; but not as a minimum term of the contractual relationship existing between the customer and us.
7.3 In the event that a leased employee is hired before the expiry of the respective deadlines stated, the customer shall be charged an appropriate reimbursement of expenses in the amount of 25% of the annual gross salary of the hired employee for the recruiting expenses incurred.
7.4 The employment of the leased employees in the employer's business via a company which is active in the same business area as We are (personnel provision/employee leasing) shall be deemed equivalent to employing employees leased to us as employees or persons similar to employees within the meaning of this section (7).
7.5 In the event that the customer enters into a (freelance) employment contract with a candidate named by us within the deadlines specified in clause 7.2 after the name has been provided for the first time, the customer shall also pay an expense allowance in the amount of 25% of the annual gross salary of the recruited employee.
7.6 The calculation of the reimbursement of expenses shall be based on the gross monthly salary for full-time employment (in the case of part-time employment, the gross monthly salary shall be extrapolated to full-time) of the recruited employee, rounded up to the nearest €250. The gross monthly remuneration shall consist of the gross monthly wage/salary (fixed salary) promised by or agreed with HOGO GmbH for the employee hired, plus flat-rate overtime payments and pro rata special payments as well as anticipated increases in the first year of service and the average of any commissions, bonuses and allowances in the first year of service. The minimum fee is €2,000.
8.1 Insofar as no leasing is agreed for a specific duration in individual cases, employee leasing shall take place for an indefinite period of time and may be terminated by either party at the agreed termination end date, subject to the agreed notice period. Unless otherwise agreed, a period of two weeks for blue-collar workers and four weeks for white-collar workers shall be deemed to have been agreed; and the last day of every month shall be deemed to have been agreed as the termination end date.
8.2 In addition, We shall have the right to terminate the contract at any time without notice vis-à-vis Entrepreneur Customers. When exercising this right of termination (and only in this case), We are obliged not to invoice the last three working days before the termination of the contract.
8.3 However, We shall in any case be entitled to terminate the contract prematurely without observing any periods or dates if there is an important reason. In this context, an important reason shall be deemed to exist in particular if a) the customer is more than 14 days in arrears with a payment despite a reminder, b) the customer persistently violates statutory or contractual provisions, official regulations or requirements, in particular employee protection regulations, c) the customer fails to comply with its management or supervisory duty, or duty of care towards the leased employees, d) insolvency proceedings are instituted against the assets of the customer or the institution of such proceedings is rejected for lack of cost coverage, or e) a strike or lockout takes place in the customer's business and no amicable solution can be found with the customer. If the contract is terminated due to the fault of the customer, no claims whatsoever can be asserted against us.
8.4 Furthermore, the employer undertakes to bear all costs in connection with so-called "mass terminations" which trigger the early warning system pursuant to Section 45a AMFG (Act on Employment Promotion) at the AMS (Employment Services). This shall be understood to mean that the employer shall pay to the leaser the remuneration agreed for the transfer both for the duration of the blocking period pursuant to Section 45a (2) AMFG and for the notice period to be observed thereafter in accordance with the law or the collective agreement.
9.1 The leased employees are carefully selected by us. We guarantee the basic ability and willingness to work, as well as the general suitability of the leased employee for the agreed activity, but not a particular qualification of the leased employee or a specific quality of the work performed or a specific work success. We therefore only have a duty to ensure that the leased employee is specially qualified if such qualification has been expressly agreed upon in the contract. In the absence of any other agreement, We shall only be liable for the average professional and technical suitability of the leased employee. Insofar as We do not make any express agreement regarding language skills, We shall only have a duty to ensure that the leased employee has the minimum language skills that are absolutely necessary for the respective use of the leased employee (e.g. "construction site German" for use in the construction industry).
9.2 Our customers are obliged to check the suitability of the leased employee as well as the qualifications and language skills immediately after the start of the initial deployment. Any shortcomings must be reported to us within a period of six hours from the employee’s first day of deployment, otherwise claims for warranty and damages are excluded. Hidden and concealed shortcomings or shortcomings arising after the start of the deployment must be reported to us within three working days after they become known (shortcomings due to non-attendance at the workplace, however, within six hours), otherwise claims for warranty and damages are excluded.
9.3 In general, only those properties which have been expressly agreed in writing shall be deemed to be warranted properties within the meaning of Section 922 (1) of the Austrian Civil Code (ABGB) vis-à-vis Entrepreneur Customers. Compliance with other properties is excluded as far as legally possible. Furthermore, any warranty, as far as legally possible, for usually presupposed characteristics in the sense of
§ 922 para. 1 ABGB is excluded vis-à-vis Entrepreneur Customers.
9.4 The presumption of shortcomings according to § 924 ABGB shall be waived vis-à-vis Entrepreneur Customers; shortcomings must always be proven by the customer.
10.1 In principle, We shall not be liable for damage (property damage, theft, personal injury, financial loss) caused to the customer by leased employees in the course of their work for the customer or on the occasion of such work (this shall expressly also apply if the customer uses leased employees – with or without our knowledge – in connection with matters relating to the handling of money or securities or the handling of sensitive goods or dangerous tools), unless We are at fault for the selection thereof, which must be asserted and proven by the customer in each case. The provision of § 1298 ABGB is waived vis-à-vis Entrepreneur Customers.
10.2 Insofar as leased employees perform business trips for the employer using the their own cars, the customer shall assume liability for any accidental damage to these cars, the other party involved in the accident and/or third parties and shall expressly release us from any liability. If the leased employee uses the customer’s work equipment, machines, vehicles, etc. to perform his work, We shall not be liable for any damage to or resulting from them. Before handing over vehicles or machines to the leased employee, the employer shall check on its own responsibility whether the leased employee has the authorization required to drive or operate such vehicles or machines at the time of commissioning.
10.3 We are also not liable for damages caused by the non-appearance of leased employees (whether due to illness, accident or other reasons), unless We are at fault, which in any case must be claimed and proven by the customer. This also applies if the leased employees do not show up on the first day. The provision of § 1298 ABGB is waived vis-à-vis Entrepreneur Customers. Any attribution of the fault of the leased employees to us in accordance with the provisions of § 1313a of the ABGB shall also be waived.
10.4 Due to the breach of contractual or pre-contractual obligations, in particular due to impossibility, delay, etc., We shall only be liable for financial losses in cases of intent or gross negligence. This clause (10.4) is the more specific standard compared to all other liability provisions of these GT&Cs and takes precedence over them in case of contradictions.
10.5 The limitation periods of § 1489 ABGB shall be shortened vis-à-vis Entrepreneur Customers to the effect that claims for damages against a company of the HOGO Group shall be asserted in court after six months from knowledge of the damage and the damaging party, but no longer than after five years from the conclusion of the contract, otherwise subject to the statute of limitations, whereby the out-of-court raising of a plea against a claim for payment shall expressly not be deemed to be an assertion.
10.6 Vis-à-vis Entrepreneur Customers, liability, irrespective of the legal basis of the liability (contract, tort, strict liability or other legal basis), shall be limited, to the extent legally permissible, to the lower of the following three amounts: (a) the actual coverage amount of any liability insurance taken out by us, or (b) the contract value of the contract whose obligations the relevant company of the HOGO Group has breached, or (c) the amount of EUR 5,000 (Euro five thousand). This limitation shall also apply with regard to damage to an item which We may have accepted for processing.
10.7 Subject to any provisions to the contrary in these GT&Cs, any liability towards the customer for production stoppage, lost profit, frustrated expenses, loss of use, loss of contract or any other consequential damage as well as for contractual penalty obligations incurred by the customer shall be excluded.
10.8 The exclusion of liability also includes claims against our employees as well as our representatives and vicarious agents due to damage caused by them to the customer without reference to a contract on their part with the customer.
10.9 Prior to the commissioning of vehicles and/or machines, the customer is obliged to check the authorization to drive or operate such vehicles/machines at the time of commissioning; this is independent of any assurance given by us.
10.10 In the event that a leased employee performs business trips for the customer with his own car, the customer shall indemnify us against any liability in this regard.
10.11 If and to the extent that the customer can claim insurance benefits for damages for which We are liable through a damage insurance policy of its own or concluded in its favour (e.g.: liability insurance, hull insurance, transport, fire, business interruption and others), the customer undertakes to claim the insurance benefits and our liability shall be limited to the disadvantages incurred by the customer as a result of claiming this insurance (e.g.: higher insurance premiums).
10.12 If, due to incorrect or incomplete information provided by the employer on the basis of the Wage and Social Dumping Act, penalties are imposed on us, additional claims for payment are made and/or security payments are requested by the authorities, the Entrepreneur Customer shall be liable for these penalties, additional claims and for any resulting disadvantages to us to the full extent.
11. DATA PROTECTION AND CONFIDENTIALITY OBLIGATION
11.1  The contracting parties shall treat any trade and business secrets that become known in the course of the cooperation as confidential for an unlimited period of time.
11.2 Insofar as the leased employees gain access to company and/or business secrets or confidential information of the customer, the customer shall immediately notify the respective company of the HOGO Group of this circumstance and We shall then contractually obligate our employees to protect the company and business secrets of the employer (customer) (otherwise there shall be no obligation on our part in this regard). In any case, We do not assume any liability for our employees’ compliance with confidentiality agreements and We exclude all claims for damages in this respect. The customer is free to conclude its own confidentiality agreements with the leased employee.
11.3 Insofar as We transmit personal data, in particular special categories personal data or data relevant under criminal law of applicants, candidates or leased employees, or process such data of leased employees, the customer concerned shall comply with the statutory provisions. This includes, among other things, the obligation not to transfer application documents and data of candidates to third parties, to correct them if necessary and to delete/block them after the purpose has ceased to exist. With the transfer of personal data to the customer, the customer shall become the data controller with regard to such personal data within the meaning of the General Data Protection Regulation, (EU) 2016/679, (GDPR). The use of such personal data provided by us to the customer for purposes other than (i) the evaluation and selection of proposed candidates, (ii) the transfer and deployment of leased employees in the customer's own operations or (iii) the fulfilment of the customer's legal obligations is not permitted and is hereby expressly prohibited.
12. FINAL PROVISIONS
12.1 If a company of the customer is affected by a strike or lockout, We must be informed of this immediately and in this case there is an immediate ban on employment of the leased employees in accordance with § 9 AÜG.
12.2 Offsetting against our claims is only permissible if the customer's counterclaims have either been expressly acknowledged by us or these have been legally established by a court of law. This provision applies only to Entrepreneur Customers.
12.3 Should individual parts of these GT&Cs be invalid, this shall not affect the validity of the remaining parts. The companies of the HOGO Group and the Entrepreneur Customer already now jointly undertake – based on the horizon of honest contracting parties – to agree on a substitute provision that comes as close as possible to the economic result of the invalid condition.
12.4 Austrian law shall apply to the exclusion of the reference and conflict of laws rules of private international law and the UN Convention on Contracts for the International Sale of Goods.
12.5 The exclusive place of jurisdiction for all disputes arising from (or in connection with) the contractual relationship or future contracts between a company of the HOGO Group and an Entrepreneur Customer shall be the court with subject-matter jurisdiction for Wels.