General Terms and Conditions (GTC) for the Provision of Project Services by Randstad Professional Consulting GmbH

Clause 1: Regulatory Purpose and Scope

(1) Randstad Professional Consulting GmbH (hereinafter referred to as “Randstad”) with headquarters in 80687 München (Germany), Landsberger Straße 187, shall be the contractual partner of these General Terms and Conditions (hereinafter referred to as “GTC”) and any individual orders. Randstad intends to commission the Contractor with the provision of services for selected customers (hereinafter referred to as “Customer”). Any commissioning shall be based on Project Agreements concluded between Randstad and the Contractor. The Project Agreements shall define the services owed by the Contractor, in particular with regard to contents, scope, remuneration and the expected term. Randstad shall not be obliged to call up services.

(2) The Parties agree that these GTC shall form an integral part of each Project Agreement. The respective Project Agreement shall apply primarily. 

(3) The termination of an existing Project Agreement shall not affect the validity of this GTC.
 

Clause 2: Order Fulfillment and Performance Standard

(1) The Contractor shall provide the services described in the Project Agreement in connection with the performance of the customer project agreement concluded between Randstad and the Customer of Randstad and end customers (companies or business units, hereinafter referred to as “End Customer”) designated in the Project Agreement. The Contractor shall act as a subcontractor on behalf of Randstad. The Contractor shall not be entitled to represent Randstad vis-à-vis the Customer or the End Customer or to perform actions in relation to the Customer or the End Customer with effect for or against Randstad.

(2) The Contractor shall provide its services at its own responsibility and, in providing the services, shall not be subject to instructions or directives from Randstad or the Customer of Randstad as regards execution, place or time of performance and choice of the place of work, but shall comply with requirements that are necessary for the contractual provision of the project services as specified in the Project Agreement. Where the provision of the service on site is objectively necessary and Randstad is bound by contract to provide its services on site, the Contractor shall provide its service at the site as agreed in the Project Agreement. The Contractor shall take account of the interests of the Customer and End Customer and shall abide by their technical guidelines and safety regulations.

(3) The Contractor shall notify Randstad immediately, if the Contractor, for whatever reasons, (i) does not take up or (ii) discontinues its work for the Customer or End Customer, or (iii) is rejected by the Customer or End Customer. The Parties agree that a right to refuse to take up or discontinue work cannot be derived from the aforementioned notification obligations.

(4) Randstad shall not provide any work equipment and space for the service provision. The Contractor shall bear its own costs arising during the order fulfillment, unless otherwise agreed in the Project Agreement.

(5) The Contractor warrants that it will provide services as an independent entrepreneur. The Contractor shall provide its services either itself or by members of its own staff, by independent subcontractors or their staff (hereinafter collectively referred to as “Service Providers”) as specified in the Project Agreement or selected by the Contractor with due regard to at least equivalent skills (e.g.: qualifications, experience), and shall provide proof of the equivalence at the request of Randstad. The Contractor warrants that it and any Service Providers have the qualifications communicated by the Contractor to Randstad (e.g. in the Randstad Profile). If a Service Provider is replaced due to the non-existence of communicated or proven qualifications, the time expenditure for the familiarization of another Service Provider with projects already started or with a transfer from the Contractor shall not be invoiced. The familiarization period shall be coordinated in individual cases between the Contractor and Randstad taking account of the interest of the Customer and End Customer.

(6) The Contractor undertakes to obligate any Service Provider before deployment to comply with the provisions of these GTC (in particular with regard to secrecy, data privacy, and customer protection) as well as with the provisions of the Project Agreement, accordingly in writing; the Contractor shall provide proof of the compliance with such obligation at the request of Randstad.

(7) The Contractor shall provide its services in accordance with the standards of proper professional practice and using state-of-the-art science and technology. At the request of Randstad, the Contractor shall promptly inform Randstad in writing on the status of the project to enable Randstad to properly execute the contract with its Customer.

Clause 3: Remuneration and Credit Memo Procedure 

(1) In case of a remuneration based on the expenditure of time, the Contractor shall record its work by the minute. The Contractor shall submit to Randstad statements of activity in the form as required by the Project Agreement form and file them in the Randstad Portal provided for this purpose. The Contractor undertakes to submit to Randstad a proof of the services provided via the Randstad Portal (i) on the last working day of each service month, but at the latest by the 3rd working day after the end of the service month, or (ii) in the case of clause 3(1), 5th sentence of the GTC, immediately after acceptance of the services. The Contractor’s claim to remuneration shall arise only upon Randstad ’s receipt of a complete and correct Statement of Activity containing all details necessary for the processing and having been confirmed by the Customer’s project manager in the Randstad Portal (“approved” status in the Randstad Portal). However, if an acceptance is required, the claim to remuneration shall not arise before this acceptance has been performed. The Parties exclude the application of Sec. 649 BGB (German Civil Code).

(2) The services shall be settled with Randstad by the Contractor using the Randstad Portal; once the Contractor has agreed to the GTC, it is granted access to the portal. The Randstad Portal forms the technical basis for recording and submitting the Contractor’s services, for obtaining customer approvals and for settling the services.

(3) The remuneration shall be exclusively owed for actually rendered services. Periods during which the Contractor does not provide services, in particular due to vacation, illness, etc., shall not be considered. The Parties exclude the application of Sec. 616 BGB (German Civil Code).
If a maximum volume has been agreed, the maximum possible amount of the Contractor’s potential claim to remuneration shall be limited to the amount resulting from the hourly rate multiplied by the maximum volume (see No. 4 of Annex 1). If an approximate volume has been agreed, the maximum possible amount of Contractor’s potential claim to remuneration shall not be limited. In either case, Randstad shall not be obliged to call up Contractor’s services. 

(4) The remuneration agreed is in each case exclusive of the statutory VAT, if applicable. Bank charges for transfers to foreign countries shall be paid by the Contractor.

(5) Randstad and the Contractor agree on the settlement through the Credit Memo Procedure. Randstad as the recipient of the services shall not receive a bill. Randstad undertakes to issue a credit memo pursuant to Sec. 14 (2), 2nd sentence of UStG (German VAT Act) in the amount calculated as provided in clause 3(3) immediately after the status in the Randstad portal has changed to “approved”, and to transmit such credit memo to the Contractor. If the statements of activity are not received within four months (i) after the end of the service month or (ii) in the case of clause 3(1), 5th sentence, after a necessary acceptance, Randstad shall no longer be obliged to apply the Credit Memo Procedure. The Contractor’s right to bill verifiable services shall remain unaffected. If the Credit Memo Procedure is not applied by Randstad, the term of payment shall not commence until the receipt by Randstad of a proper verifiable bill of the Contractor. 

Clause 4: Required Permits, Taxes and Duties

(1) The Contractor shall be solely responsible for obtaining all permits (e.g. residence permit, work permit) – even where those permits relate to Service Providers – necessary for the acceptance and contractually agreed and legally compliant provision of the services owed by the Contractor and undertakes to maintain those permits as long as required. The Contractor hereby warrants to comply with this obligation and undertakes to provide proof of the fulfillment of this obligation at the request of Randstad. 

(2) The Contractor shall be responsible for the payment of any tax applicable on the remuneration and of any social security contributions. In particular, the Contractor shall also be responsible for paying VAT invoiced for its services to the tax office. 

Clause 5: Warranty and Liability

(1) The statutory provisions shall be applicable, unless otherwise provided in the respective Project Agreement. Moreover, if Randstad is held liable by the Customers and/or End Customers in connection with an insufficient performance on the part of the Contractor or a damage caused by a neglect of duty on the part of the Contractor, the Contractor shall support Randstad free of charge in fending off or satisfying such claims.

(2) The Contractor is expected to take out an indemnity insurance policy providing sufficient coverage of the risks associated with the execution of this Project Agreement (i.e. in particular including coverage of the legal consequences of bad performance).

(3) The Contractor shall indemnify Randstad against any claims raised against Randstad by third parties in connection with the performance rendered by the Contractor or by one of the Service Providers deployed by the Contractor. This shall not apply, if the Contractor is not responsible for the circumstances leading to third-party claims asserted against Randstad. 

Clause 6: Confidentiality and data protection

(1) The Contractor shall be obliged to treat as strictly confidential all information obtained in connection with the initiation and execution of the contract, including information on business affairs, business transactions, any know-how made available, documents, records, data as well as the contents of this Project Agreement, (hereinafter collectively referred to as “Confidential Information”). Confidential Information, regardless of whether it originates from Randstad, the Customer, the End Customer or a third party must be treated as confidential and kept safe. Any exploitation and/or use of such information for purposes other than the performance of the Project Agreement shall be subject to Randstad’s consent. 

(2) The obligation to maintain confidentiality shall survive the termination of a Project Agreement. Randstad shall waive the obligation to maintain confidentiality if the Contractor shows a legitimate interest therein and provided that the interests of Randstad, the Customer, and the End Customer, as the case may be, are safe-guarded. 

(3) Clause 6 (1) and (2) shall not apply to Confidential Information (i) that was known to Contractor already prior to the conclusion of this Project Agreement without any action of Randstad, (ii) that is or becomes publicly known or accessible without any action of the Contractor, or (iii) that the Contractor is effectively obligated to disclose by judicial or administrative orders. The Contractor shall promptly notify Randstad of a disclosure obligation as defined in Sentence 1 (iii), provided that such notification is not legally inadmissible. 

(4) When the services are provided by the Contractor, Randstad shall have no obligations under the data protection regulations owed to the Customer and/or End Customer and shall not take any measures to secure compliance of any data protection obligations applicable to the Contractor. If the Contractor, within the scope of the service provision, is granted access to personal data of the Customer and/or End Customer or processes personal data of the Customer and/or End Customer, the Contractor shall ensure that it fulfills all applicable data protection obligations. Moreover, the Contractor shall take all data protection measures requested by the Customer and/or End Customer and required under the applicable data protection law (which may include the conclusion of a contract processing agreement with Randstad or the Customer and/or End Customer). Upon request, the Contractor shall provide to Randstad proof of its compliance with data protection obligations.  

Clause 7: Deliverables and Rights of Use

(1) Due to the contractual relationship between Randstad and its customers, Randstad is obliged to grant to them rights to the deliverables. The following provisions on grants and transfers of rights to deliverables serve the sole purpose the Contractor enabling Randstad to grant and transfer to the Customer such rights. Deliverables shall include (i) all information, documents and records, (ii) files, data collections and data processing programs in source code form and object code form, (iii) ideas, procedures, specifications, images, and (iv) all deliverables that are protected or protectable by intellectual property rights and haver been created or otherwise produced by the Contractor, its staff, the subcontractors deployed by the Contractor or such subcontractors’ staff in or in connection with the performance of the Agreement.

(2) The Contractor shall transfer to Randstad the property in all deliverables created under a Project Agreement. In addition, the Contractor grants to Randstad the perpetual, worldwide, irrevocable, exclusive, and transferable right to use and exploit all deliverables in any way and for all purposes. This grant of rights shall in particular comprise the right (i) to copy the deliverables on any media, (ii) to market, disseminate, advertise, change, adapt and translate the deliverables under any name, (iii) to publish and use the changes, adaptations or translations, (iv) to transfer the deliverables by means of wire or wireless (also in the interactive area) and feed them for this purpose into databases and electronic networks, store them therein and keep them ready and make them accessible to the public or to closed user groups, including via network, in the cloud and by storing them on terminals. This grant of rights also comprises the right to rent out the deliverables to third parties and grant sublicenses for each of the above-mentioned rights. The Contractor hereby also grants to Randstad the right to copy, disseminate and publicly reproduce the databases contained in the deliverables as a whole or a substantial part thereof according to type and scope as well as all other rights to which the manufacturer of a database is entitled.

(3) The use of open-source software shall be permitted only if the Contractor informs Randstad in advance in writing about such use and Randstad gives it consent to the use of the open-source software in writing. Where the Contractor provides services using open-source software, the Contractor shall comply with the applicable license terms. By way of derogation from clause 7(2), type and scope of the license (granted to Randstad) in deliverables created using open-source software are exclusively governed by the license terms applicable to the respective Open-Source-Software in the most extensive scope admitted by those terms. If the use of open-source software only relates to technically independent parts of the deliverables or if the relevant open-source license permits its application to specific parts of the deliverables for reasons other than technical independence, sentence 3 shall apply only to those parts of the deliverables, and clause 7(2) shall remain applicable in all other respects. 

(4) Randstad shall be entitled to the undisturbed use of the deliverables created in the context of this Project Agreement and in particular to exercise on behalf of the Contractor the right of publication, the right of recognition of the authorship, the right of being named as author, the right of prohibiting misrepresentations of the work, the right of accessing copies of the work and the rights of revocation pursuant to the Copyright Act.

(5) This clause 7 shall apply correspondingly to the transfer of the right to the patent, the entitlement to the grant of the patent and the right arising from the patent, if and to the extent that deliverables contain corresponding inventions. 

(6) The grants and transfers of rights under this Agreement shall not be subject to any separate remuneration by Randstad but are compensated by the remuneration agreed in the Project Agreement. Any proceeds generated from the exploitation of rights shall be solely due to Randstad. 

Clause 8: Third-Party Rights

The Contractor warrants that its services and deliverables are free of third-party rights that would exclude or limit their exploitation/use by Randstad, the Customer and/or End Customer. Should the exploitation/use be limited or prohibited due to third-party rights, the contractor shall, at its option, either modify the deliverables in such a way that they no longer infringe the rights of third parties but still satisfy the purpose of the Agreement or else make the required rights of use available to Randstad. Any additional costs incurred in this connection shall be borne by the Contractor. Randstad, the Customer and/or the End Customer reserve their right to assert defects or damages under clause 5.

Clause 9: Return of Items

The Contractor shall keep all records, lists, files, or similar items (hereinafter collectively referred to as “Items”) created or received in connection with the performance of this Agreement safe and protect them from third party access. At the requested of Randstad and without request upon completion of the cooperation, the Contractor shall (i) return to the End Customer all Items received from the End Customer, and (ii) return to the Customer all other Items that Contractor has created or received from the Customer in connection with performing this Agreement. 

Clause 10: Notice of Termination 

(1) The term of a Project Agreement and the right to cancel such Agreement with due notice shall be provided in the Project Agreement; the Agreement shall end at the latest on expiry of the period for which it was concluded.

(2) A Project Agreement may be terminated without giving due notice within the period as provided in the Project Agreement, (i) if the Customer does not or does no longer accept the provision of services by the Contractor or a Service Provider deployed by the Contractor, unless Randstad is responsible for this, (ii) if the customer project agreement does not come about or is terminated early, unless Randstad is responsible for this, (iii) if circumstances occur in the person of the Contractor or of a Service Provider deployed by the Contractor that excludes the continuation of the project, (iv) if the Contractor or the Service Provider deployed by Contractor is not willing or is not able to provide evidence that taxes and duties have been paid – which evidence shall be deemed provided upon the submission of a clearance certificate to Randstad – or (v) if Randstad requests reasonable amendments to a Project Agreement required to adapt such Agreement to the customer project agreement, but Contractor refuses to accept such reasonable amendments.

Clause 11: Compliance with the Minimum Wage Law

(1) The Contractor assures to comply with the law on a general minimum wage (German Minimum Wage Law) and shall provide proof of this compliance at the request of Randstad. The Contractor undertakes to pay to its employees at least the statutory minimum wages and only to engage subcontractors who have also committed to pay to their employees at least the statutory minimum wages. 

(2) The Contractor shall indemnify Randstad against all claims raised against Randstad by third parties on the grounds of or in connection with any breach of the Minimum Wage Law by the Contractor or agents of the Contractor. 

Clause 12: Final Provisions and Severability Clause

(1) Amendments and supplements to and notices of termination of Project Agreements or Annexes thereto shall require written form or electronic form. The same shall apply to a waiver of the requirement of written form. Transmissions by fax or email shall meet the requirement of the written form; the ordinary electronic signature shall comply with the electronic form. Notices of termination may be transmitted by email, provided that the notice is sent to the recipient addresses designated by the Parties for this purpose. Notices of termination addressed to Randstad must be sent to billingsupport@randstad.de Notices of termination addressed to the Contractor must be sent to the email address of the administrative contact advised in the supplier’s master data sheet.

(2) These GTC including their updates through later amendments as well as the individual Project Agreements concluded with the Contractor constitute the entire agreement between the Parties on the relevant subject matter. Contrary contract terms of the Parties (e.g. general terms and conditions, terms of delivery or other terms and conditions) shall not be applicable.

(3) These GTC shall be governed by German law. The language of agreements shall be German. The Parties hereby exclude the applicability of the UN Convention on Contracts for the International Sale of Goods (CISG). The exclusive place of jurisdiction shall be Munich, provided that the Contractor is a businessman or has no legal venue in Germany. However, Randstad shall be also entitled to sue the Contractor at Contractor’s general venue. 

(4) Should these GTC be invalid or unenforceable in whole or in part, this shall not affect the remaining provisions. The invalid or unenforceable provisions shall be automatically replaced by those legally valid provisions that come closest to the economic intention of the Parties. This shall also apply in the case of a regulatory gap.

Status: 01.07.2024