GTC

Version from 3.4.2024

HOGO Group - General Terms and Conditions for Temporary Employment and Recruitment Services

1. APPLICATION

1. 1. These General Terms and Conditions (hereinafter referred to as: "AGB") apply to all legal relationships in the field of personnel leasing, personnel recruitment, personnel placement, personnel and management 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; regardless of whether the customer is a natural person or a legal entity.
   2. In the interests of easier readability, no distinction is made in these GTC between the masculine and feminine forms. The use of the masculine form refers to both genders.
   3. In this context, the companies of the HOGO Group are MONTEL GmbH (FN 371426 s, hereinafter referred to as: "MONTEL"), HOGO Holding GmbH (FN 519053p) (hereinafter referred to as: "HH"), HOGO Time Solution GmbH (FN 262358 x, hereinafter referred to as: "HTS") and HOGO Bau Solution GmbH (FN 108445 d, hereinafter referred to as HOGO Bau Solution GmbH: "HBS") and Lokdrive GmbH (FN 493814 y, hereinafter referred to as Lokdrive: "Lokdrive"), HOGO Rail Service GmbH (FN 506719 a, hereinafter referred to as: "Rail Service") and HOGO Professionals GmbH (FN 544947 v, hereinafter referred to as: "HPG") (MONTEL, HH, HTS, HBS as well as Lokdrive, Rail Service and HPG, hereinafter referred to as the "HOGO Group" or the "HOGO companies" or simply "we"). These GTC apply to all of the aforementioned companies and their business activities. However, contracts are only concluded by one company at a time; nothing in these GTCs establishes (joint) liability on the part of the other companies in the HOGO Group.
   4. The GTC shall be deemed accepted upon conclusion of the contract, at the latest upon utilization of the service, and shall become an integral part of the contract concluded between us and the respective customer.
   5. In relation to customers who have entrepreneurial status within the meaning of the Austrian Commercial Code (hereinafter referred to in short as: "Entrepreneur customers"), these GTC 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.
   6. For business customers, the GTC apply in the version that is available on the website of the HOGO companies (www.hogo.cc) at the time the contract is concluded.
   7. We provide deliveries and other services exclusively on the basis of the GTC. General terms and conditions of the customer or the customer's terms and conditions of purchase shall only apply if they 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 called up or obtained at a specific location shall not be deemed to be an express written confirmation. General terms and conditions of the customer or the customer's terms and conditions of purchase shall be deemed waived and are expressly contradicted by reference to these GTC. This point 1.7 only applies to business customers.

2. CONCLUSION OF CONTRACT

1. 1. Unless expressly stated otherwise, all offers for the provision of labor within the scope of the collective agreement for the construction industry and the construction industry are exclusively considered offers of HOGO Bau Solution GmbH (FN 108445 d, HBS) and all other offers are exclusively considered offers of HOGO Time Solution GmbH (FN 262358 x, HTS).
   2. Unless expressly agreed otherwise, all contracts for the provision of labor within the scope of the collective agreement for the construction industry and the construction industry are concluded with HOGO Bau Solution GmbH (FN 108445 d, HBS), all other contracts for the provision of labor are concluded with HOGO Time Solution GmbH (FN 262358 x, HTS).
   3. Unless expressly agreed otherwise, all offers for the placement of "professionals" - i.e. the placement of employees with a monthly basic salary of more than EUR 3,000 gross - are considered offers of HOGO Professionals GmbH (FN 544947 v, HPG) and all other offers for the placement of employees exclusively as offers of HOGO Holding GmbH (FN 519053 p, HH).
   4. Unless expressly agreed otherwise, all contracts for the placement of "professionals" - the placement of employees with a monthly basic salary of more than EUR 3,000 gross - are concluded with HOGO Professionals GmbH (FN 544947 v, HPG), all other contracts for the placement of employees are concluded with HOGO Holding GmbH (FN 519053 p, HH).
   5. All our offers are subject to change.
   6. The contract shall be concluded either by the signing of the offer by both contracting parties or by the issue of a written order confirmation by us; in any case, however, by the actual commencement of employment of the workers provided or arranged by us at the customer's premises.
   7. In the absence of a remuneration agreement, the Employer shall owe us an appropriate leasing fee in the case of temporary employment, which in case of doubt shall be based on our most recent offer, taking into account any cost increases that have occurred since then (in particular wage cost increases). In any case, our offers in the area of temporary employment are based exclusively on the information that was known to us when the offer 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 any fault on the part of a contracting party) to adjust prices (also retroactively) vis-à-vis contractor customers.
   8. In the absence of a remuneration agreement in the event of a personnel placement, the customer shall owe us an appropriate placement fee for each employee placed, which in case of doubt shall be based on our most recent offer, taking into account the expenses incurred since then in connection with the personnel placement (in particular travel expenses). In any case, our offers in the field of recruitment are based exclusively on the information (in particular the requirements profile and job advertisement) that was known to us when the offer was made.
   9. Promises, assurances and guarantees on the part of a company of the HOGO Group or agreements deviating from these GTC in connection with the conclusion of the contract shall only be binding on entrepreneur-customers in the event of written confirmation.
   10. We are entitled to unilaterally adjust the fee for business customers during the term of the contract if and to the extent that the cost factors on which our calculation is based (e.g. wage costs) increase during the term of the contractual relationship. We may increase our profit mark-up in line with the development of the 2015 consumer price index.

3. OUR PERFORMANCE OBLIGATIONS IN THE CASE OF TEMPORARY EMPLOYMENT

1. 1. We provide our services in the field of temporary employment in accordance with the applicable statutory regulations, in particular the Temporary Employment Act (AÜG) and the relevant applicable collective agreement, which for the field of temporary employment is the collective agreement for the temporary employment industry (AKÜ-KV), as amended.
   2. The object of temporary employment is the provision of workers, not the provision of specific services. The leased employees work under the management, instruction and responsibility of the Employer. We do not owe any kind of work success.
   3. The Employer is obliged to monitor, instruct and control the leased worker. We are only obliged to contractually obligate the leased worker to comply with the instructions of the Employer.
   4. The Employer shall be obliged to check the suitability and qualifications of the leased workers immediately after commencement of employment, but in any case within the first six working hours, and to report any defects in writing. Complaints (notices of defects) must be communicated to us within the aforementioned six-hour period at the latest (obligation to give notice of defects), otherwise all claims of the Employer for replacement as well as any other warranty claims and claims for damages and claims arising from an error regarding the absence of defects are precluded (time limit). For defects which only become apparent at a later point in time and which would not have been recognizable upon careful inspection at the time of commencement of work (and which were not actually recognized), a period of six working hours from the time the defect becomes apparent shall apply for notification of defects, failing which all claims of the Employer for replacement as well as any other possible warranty and compensation claims and claims arising from an error regarding the absence of defects shall be precluded (limitation period).
   5. In the event of a justified complaint, we shall replace the goods with a suitable worker within three days. Any further claims (e.g. claims for damages) do not exist and are excluded by mutual agreement.
   6. If a leased employee has to testify as a witness in proceedings, the Employer must release the employee without forfeiting the entitlement to remuneration and this shall not affect our entitlement to remuneration.

4. OBLIGATIONS OF THE EMPLOYEE IN THE CASE OF TEMPORARY EMPLOYMENT

1. 1. 1. The Customer shall be responsible for all employee obligations under the provisions of the AÜG and other labor law standards and, insofar as employee protection regulations, equal treatment requirements and the like are affected, also for employer obligations. He is therefore obliged in particular to comply with the provisions of employee protection law, employment law for foreigners and working time law. In the event of a breach of these obligations, the customer shall fully indemnify and hold us harmless.
      2. We must be notified immediately if a leased employee violates their duties. In the case of sick notes, the leased employee must be informed that a sick note must also be submitted to us.

5. PREGNANCY OF A WORKER PROVIDED TO THE CUSTOMER

1. 1. The employer is obliged to inform the hirer immediately if he becomes aware of the pregnancy of a worker hired out to his company.
   2. From the time the employer becomes aware of the pregnancy of an employee transferred to the employing company, the employer is not permitted to terminate the transfer and return the pregnant employee to the transferor until the beginning of the employment ban of the expectant mother (§ 3 MSchG).
   3. If there is a risk to the health of a pregnant leased employee in the employing company, the employer must take the necessary measures by reorganizing the working conditions in order to eliminate any risk to the employee. Reorganization can be, for example, the interruption of work through additional breaks. If it is not possible to change the working conditions, the employer must take the necessary measures to change the job of the pregnant leased employee.
   4. The employer must always deploy a pregnant leased employee in his company in accordance with the agreement made with the transferor. Any changes made by the employer to the working conditions must therefore be within the scope of the agreement made with the transferor. A pregnant leased employee does not have to accept changes to her working conditions or a change of job if these do not correspond to the working conditions set out in the notice of assignment (with regard to place of work, use and working hours).
   5. If there is a change in the employment of the pregnant leased employee in the employing company due to the pregnancy of a leased employee, the Employer must inform the Lessor of this immediately. In this case, the Employer shall be entitled to reduce the agreed transfer fee - the hourly rate agreed with the transferor for the provision of the employee - by EUR 3.00 per hour.
   6. The Employer must observe the employment restrictions of the Maternity Protection Act for the duration of the assignment of a pregnant employee to his company. The employer is therefore not permitted to employ pregnant leased workers beyond the normal daily working hours stipulated by law and collective agreement. The Employer is also not permitted to assign pregnant temporary workers to heavy physical work or night work.
   7. The employer is also obliged to allow pregnant employees to lie down and rest under suitable conditions during working hours (§ 8a MSchG).
   8. In the event of a breach of the obligations arising for the Employer from Section 5 of these GTC, the Employer shall fully indemnify and hold the Transferor harmless.

6. WORKING TIME AND HOURLY RECORDS FOR TEMPORARY WORKERS

1. 1. In the case of temporary employment, our claim to remuneration shall be calculated on the basis of the hours worked in accordance with the terms and conditions agreed in the individual contract and these GTC on a case-by-case basis, provided that the hours worked shall be understood to mean all hours in which the respective temporary employee was actually available to the Employer (i.e. irrespective of whether the Employer used the employee or not).
   2. For the first day of an assignment, irrespective of the actual work performed, the entire working day (in accordance with the working time model in the employing company) is always invoiced.
   3. The documentation of the hours worked can (but does not have to) be done via written time records. Unless otherwise instructed by us, the form provided by us must always be used for this purpose. The form must be signed by the employee's superior (foreman, lot manager, head of department, etc.) (hereinafter referred to as the "Supervisor") must countersign the form. The countersignature by the supervisor constitutes an acknowledgement by the Employer of the accuracy of the hours stated on the form. The Employer expressly warrants and represents that the countersigning supervisors have sufficient power of representation to make such an acknowledgment; we may rely on its effectiveness.
   4. In the event that the supervisor refuses to countersign the time sheets, the Employer is obliged to explain to us in writing within two working days of the time sheets being submitted by us or the employee provided why the countersigning of the form was refused and to state precisely how the time sheets are (in his opinion) incorrect (obligation to give notice of defects). In the event that the Employer fails to comply with this obligation to give notice of defects, the time records shall be deemed to have been approved and recognized even without the Employer's countersignature and any objection to their accuracy shall be precluded.
   5. For the avoidance of doubt, the signing of time sheets by our employees does not constitute an acknowledgement of their accuracy. In particular, in the event that it turns out at a later date that the type and scope of 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 charge based on the actual work performed. We are entitled to assert such subsequent invoicing up to six months after becoming aware of the underlying circumstances and up to three years after the date of the original invoice.
   6. It is also clarified that we are not obliged to keep records of working hours, but that we only do so in our own interest. The obligation to keep records of working hours applies exclusively to the employer in accordance with § 26 AZG.

7. OUR SERVICES FOR PERSONNEL PLACEMENT

1. 1. As an employment agency, we advise our clients on the search for and selection of suitable personnel. The details of the area of responsibility of a job to be filled at the client's premises and the personal and professional requirements profile of a worker to be placed with the client are worked out in consultation with the client as part of a recruitment contract.
   2. The mediation of a worker is exclusively the mediation of service contracts between the customer and the person named by us, whereby a service contract is concluded directly between the customer as employer and the worker mediated by us as employee.
   3. As an employment agency, we will endeavor to ensure that the workers placed by us have the knowledge and skills that correspond as closely as possible to the customer's requirements profile, but we cannot assume any guarantee or liability for specific knowledge, skills or qualifications of the workers placed. If no special agreements have been made regarding the qualifications of the employee, an average qualification shall be deemed to have been agreed.
   4. The customer must provide us with the information essential for the selection of personnel when placing the order. In particular, this includes the start date, expected duration and location of the work assignment, the required qualifications, the planned remuneration for the position to be filled and the associated collective agreement classification in the collective agreement applicable to comparable employees for comparable activities in the customer company.
   5. Under no circumstances does the recruitment service provided by us replace a thorough examination by the client of the candidates named by us. The client is obliged to check the suitability and qualifications of the persons proposed or named by us. By establishing an employment relationship between the client and the candidate proposed by us, the client confirms the provision of services by the recruitment agency in accordance with the contract and assumes sole responsibility for the selection made and for the future provision of services by the candidate.

8. BROKERAGE FEE

1. 1. We are entitled to a placement fee for each employee placed with the client, which is generally described and agreed in more detail in the placement contract to be concluded in each case. The placement fee depends on the position to be filled and the qualifications required. The establishment of an employment relationship between the client and a person proposed by us is deemed to be a successful placement.
   2. The basis for calculating the placement fee is the first annual gross remuneration of the employee placed, including all variable remuneration components such as bonuses, profit sharing, commissions, overtime allowances and other allowances; alternatively, the placement fee stated in the offer. Unless otherwise agreed, our agency fee is 25% of the calculation basis. If the customer does not provide us with a gross annual salary, the placement fee shall be calculated on the basis of an appropriate gross annual salary for comparable employees at the planned place of work. The client is obliged to provide us immediately with the data required for the correct calculation of the placement fee.
   3. The entitlement to the placement fee arises irrespective of whether employment of an employee named by us is planned full-time, part-time, as a freelancer or in any other form permitted by law. The annual gross remuneration shall be extrapolated to full-time in the case of part-time employment and any other type of employment.
   4. If an employee named by us is hired for a position other than the one originally notified to us by the client, the client shall nevertheless be entitled to the agreed placement fee in accordance with the aforementioned principles. The same applies in the event that an employment relationship is established between a company legally or economically affiliated with the client and a person proposed by us.
   5. Unless otherwise agreed, the entitlement to a placement fee is established by the conclusion of an employment relationship between the client and a candidate proposed by us or by the employee starting work, provided that a written employment contract is not concluded until a later date. It is irrelevant whether the employee proposed by us actually has the qualifications specified in the client's requirements profile or whether he or she deliberately provides false information. We are always extremely careful when checking applicants, but cannot be held liable for untruthful statements made by applicants. If one of the parties to the employment contract terminates the employment contract before the start of work, our claim to the placement fee and reimbursement of the costs of all other agreed and provided services shall nevertheless remain in force.
   6. Our entitlement to the placement fee shall also arise if an employment relationship is established between the client and a candidate proposed by us within 12 months of the presentation of an applicant profile. The client is obliged to notify us in writing of any type of employment of a candidate proposed by us within two weeks of the establishment of the employment relationship. Upon request, we are entitled to request a copy of the concluded employment contract.
   7. If the customer fails to notify us in due time in accordance with point 8.6, we shall be entitled to claim double the brokerage fee to which we are entitled.
   8. Should we ever name a candidate to the customer who has already applied to the customer independently of our activities before being named, the customer must inform us of this immediately. If this information is not provided and an employment relationship is entered into with this employee, the candidate shall be deemed to have been named by us.
   9. All expenses incurred in connection with the personnel placement, in particular travel expenses (e.g. official mileage allowance, train ticket, flight costs, hotel costs, daily/overnight allowances) shall be invoiced to the client according to the actual amount. This applies to our expenses as well as those of the employees proposed to the client.
   10. Additional expenses requested by the customer or advertisements or comparable services deemed appropriate by us shall be invoiced to the customer plus duties and taxes and shall be paid by the customer upon receipt of the invoice, irrespective of the successful conclusion of a service relationship.
   11. The customer is not entitled to offset claims or demands against us against the agency fee or to withhold it.
   12. If, at the customer's request, we provide services that are not included in the agreed object of performance, we shall be entitled to invoice the customer separately for these services. In the absence of an agreement to the contrary, reasonable remuneration shall be deemed to have been agreed.

9. TERMS OF PAYMENT, DEFAULT INTEREST AND COLLECTIONS

1. 1. In the case of staff leasing, we generally invoice on a monthly basis; however, we are also entitled to invoice at shorter intervals. The customer shall pay the leasing fee plus statutory VAT at the respective statutory rate, without any deductions and free of charges.
   2. In the case of personnel placement, the customer shall be issued with an invoice for the placement fee and all services associated with the specific placement of the employee. The placement fee shall be paid by the customer plus the statutory value added tax at the respective statutory rate, without any deductions and free of charges.
   3. Invoicing shall be carried out exclusively by electronic means in the case of both temporary employment and personnel placement. The customer undertakes to provide the e-mail address to be used for this purpose. Delivery of the invoice by e-mail is sufficient; any employee or other representative of the entrepreneur-customer who handled the order correspondence with us is also entitled to passive delivery.
   4. Unless otherwise agreed, the payment term for invoices issued to the customer is 8 days (with a bank working day respiro).
   5. Business customers are obliged to check the accuracy of invoices submitted by us within seven days of receipt and to notify us in writing of any (alleged) inaccuracies. In the event that we do not receive notification/objection within the aforementioned period, all objections to the correctness of the invoice and the invoice items contained therein are precluded and can no longer be raised.
   6. Payments are to be made exclusively to the bank accounts specified by us. Cash payments are not permitted and do not discharge the debt. Under no circumstances are the employees assigned by us authorized to collect and payments to them are not debt-discharging.
   7. The customer must provide us with his VAT number at the start of the order. The services rendered will be invoiced plus 20 % VAT. If the tax liability is transferred to the customer in accordance with Section 19 (1a) UStG 1994 (construction services), the customer must inform us of the transfer of the tax liability, as a result of which the invoice will be issued without VAT.
   8. Insofar as we collect receivables due from business customers, the business customer shall indemnify and hold us harmless against any costs, expenses and other expenses in connection with the collection of our receivables.
   9. For out-of-court debt collection proceedings, the lawyers intervening on our behalf shall be entitled to reimbursement of costs in accordance with the provisions of the Austrian Lawyers' Fees Act (RATG) and the Autonomous Fee Criteria (AHK), whereby, in deviation from the aforementioned legal sources, it is agreed that simple out-of-court demand letters shall be remunerated in accordance with tariff item 2 and detailed out-of-court demand letters in accordance with tariff item 3A (in each case without a standard rate) and the entrepreneur-client shall be obliged to reimburse this amount.
   10. Default interest at the statutory default interest rate shall apply to business customers.
   11. We advise against granting advances on wages or other loans to the workers we provide. However, if a customer decides to grant a wage advance or credit, we must be informed immediately so that we can take this into account in payroll accounting as a gesture of goodwill. Under no circumstances, however, shall we be obliged to take into account or reimburse advances on wages or other credits granted to leased workers without our consent, and we shall not be liable in this respect. Workers assigned to us have no power of representation to legally bind us.

10. TAKEOVER OF TEMPORARY WORKERS

1. 1. If the leased worker is taken on by the Contractor-Customer as an employee or employee-like person in a contractual relationship for a specified minimum assignment period, the Contractor-Customer shall be charged an appropriate reimbursement of costs for the expenses incurred, depending on the duration of the assignment, the qualification of the worker and the recruitment effort.
   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 the avoidance of doubt, the minimum period of employment serves exclusively as a definition for the provisions of this clause 7, but not as a minimum contractual period for the contractual relationship existing between the customer and us.
   3. If a leased employee is taken on before the expiry of the deadlines specified in each case, the client shall be charged an appropriate reimbursement of expenses for the recruitment costs incurred in the amount of 25 % of the annual gross salary of the leased employee.
   4. The employment of the workers provided to us as employees or employee-like persons within the meaning of this Section 7. shall be deemed equivalent to the employment of the provided workers in the Employer's company via a company that operates in the same business area as we do (provision of personnel/assignment of workers).
   5. In the event that the client enters into a (freelance) employment contract with a candidate named by us within the deadlines specified in point 7.2 after the name has been announced for the first time, the client shall also pay a reimbursement of expenses amounting to 25 % of the annual gross salary of the headhunted employee.
   6. The calculation of the reimbursement of expenses is based on the gross monthly remuneration for full-time employment (in the case of part-time employment, the gross monthly remuneration is to be extrapolated to full-time) of the poached employee, rounded up to the nearest € 250. The gross monthly remuneration is made up of the gross monthly wage/salary (fixed salary) promised by or agreed with HOGO Time Solution GmbH for the employee taken on, plus overtime lump sums and pro rata special payments as well as expected 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.

11. DURATION OF A TEMPORARY EMPLOYMENT CONTRACT

1. 1. Unless an assignment for a specific duration is agreed in individual cases, the assignment of employees shall be for an indefinite period and may be terminated by either party subject to the agreed notice period at the agreed termination date. Unless otherwise agreed, a period of two weeks for workers and four weeks for salaried employees shall be deemed to have been agreed, and the last day of each month shall be deemed to be the agreed termination date.
   2. In addition, we have an ordinary right of termination that can be exercised at any time vis-à-vis business customers without observing deadlines. If this right of termination is exercised (and only in this case), we are obliged not to charge for the last three working days before termination of the contract.
   3. However, we are in any case entitled to terminate the contract prematurely without observing deadlines or dates if there is good cause. In this context, good cause 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 duty of management, supervision or care towards the leased workers, d) the customer fails to comply with its duty of care towards the leased workers, supervision or duty of care towards the leased workers, d) insolvency proceedings are opened against the customer's assets or the opening of such proceedings is refused for lack of cost coverage, or e) a strike or lockout takes place at the customer's premises 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.
   4. Furthermore, the Employer undertakes to bear all costs in connection with so-called "mass terminations" that trigger the early warning system pursuant to Section 45a AMFG at the AMS. This means that the Employer shall pay the agreed remuneration to the transferor for the duration of the blocking period pursuant to Section 45a (2) AMFG as well as for the subsequent statutory or collectively agreed notice period.

12. TERMINATION OF AN AGENCY AGREEMENT

A recruitment contract can be terminated by either party at any time subject to a 14-day notice period. If an employment contract is concluded between the client and a candidate named by us after termination of the recruitment contract, the recruitment fee is still due in full.

13. WARRANTY

1. 1. In the case of labor leasing, the workers leased to the customer 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 for a special qualification of the leased employee or a certain quality of the work performed or a certain work success. We therefore only owe a special qualification of the leased worker if such a qualification has been expressly agreed in the contract. In the absence of any other agreement, we shall only be responsible for the average professional and technical suitability of the leased employee. If we do not make an express agreement regarding language skills, we shall only owe the minimum level of language skills absolutely necessary for the respective use of the leased worker (e.g. "construction site German" for use in the construction industry).
   2. Our customers are obliged to check the suitability, qualifications and language skills of the temporary worker immediately after the first assignment. Any defects must be reported within a period of six hours from the first assignment of a worker to us, otherwise claims for warranty and damages are excluded. Hidden and concealed defects or defects arising after the start of the assignment must be reported to us within three working days after they become known (defects due to non-appearance at the workplace, however, within six hours) otherwise claims for warranty and damages are excluded.
   3. In the area of personnel search and placement, we can only guarantee a proper approach to candidate selection. We accept no liability for ensuring that a candidate selected or recommended by us in accordance with an appropriate methodical procedure fulfills all the expectations placed in him by the client or achieves certain results. Should the client discover any defects in our services, he must notify us in writing within three working days.
   4. In general, only those properties that have been expressly agreed in writing shall be deemed to be conditional properties within the meaning of Section 922 (1) of the Austrian Civil Code (ABGB) vis-à-vis business customers. Compliance with other properties is excluded as far as legally possible. Furthermore, any and all warranties vis-à-vis entrepreneurial customers for usually assumed characteristics within the meaning of the
      § Section 922 (1) ABGB is excluded as far as legally possible.
   5. The presumption of defectiveness in accordance with § 924 ABGB is waived for business customers; defects must always be proven by the customer.

14 LIABILITY

1. 1. In principle, we shall not be liable for damage (property damage, theft, personal injury, financial loss) caused to the customer by employees provided or arranged by us in the course of their work for the customer or on the occasion of this work (this shall also expressly apply if the customer uses provided or arranged 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 in this respect, which must be asserted and proven by the customer in each case. The provision of § 1298 ABGB is waived for entrepreneur customers.
   2. Insofar as leased workers carry out business trips for the Employer with the Employer's own passenger cars, the Customer shall assume liability for any accidental damage to these passenger cars, the other party involved in the accident and/or third parties and expressly releases us from any liability. If the hired worker uses work equipment, machines, vehicles, etc. belonging to the client to perform their work, we shall not be liable for any damage caused to them or by them. Before handing over vehicles or machines to the leased worker, the Employer must check at its own responsibility whether the leased worker has the necessary authorization to drive or operate such vehicles or machines at the time of commissioning.
   3. We are also not liable for damages caused by the non-appearance of temporary workers (whether due to illness, an accident or for other reasons), unless we are at fault, which must be claimed and proven by the customer in each case. This shall also apply if the temporary workers do not appear on the first day. The provision of § 1298 ABGB is waived with regard to contractor customers. Any attribution to us of fault on the part of the leased workers shall also be waived in accordance with the provision of Section 1313a ABGB.
   4. In the event of a 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 point 14.4 is the more specific standard compared to all other liability provisions of these GTC and takes precedence over them in the event of contradictions.
   5. The limitation periods of § 1489 ABGB are shortened for business customers to the effect that claims for damages against a company of the HOGO Group must be asserted in court after six months from knowledge of the damage and the damaging party, but at the latest after five years from conclusion of the contract, otherwise the limitation period shall expire, whereby the out-of-court raising of an objection to a payment claim is expressly not to be regarded as an assertion.
   6. Liability towards entrepreneur-customers, regardless of the legal basis of liability (contract, tort, strict liability or other legal basis), is, as far as legally permissible, limited to the lower of the following three amounts: (a) the actual amount of cover of any liability insurance taken out by us, or (b) the contract value of the contract whose obligations the relevant HOGO Group company has breached, or (c) the amount of EUR 5,000 (five thousand euros). This limitation also applies with regard to damage to an item that we may have taken over for processing.
   7. Subject to any provisions to the contrary in these GTC, any liability towards the customer for production downtime, loss of 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.
   8. The exclusion of liability also includes claims against our employees as well as our representatives and vicarious agents due to damage caused to the customer without reference to a contract on their part with the customer.
   9. Before commissioning vehicles and/or machines, the customer is obliged to check the authorization to drive or operate such vehicles/machines at the time of commissioning, irrespective of any assurance given by us.
   10. In the event that a leased employee performs business trips for the customer with his own passenger car, the customer shall indemnify us against any liability in this connection.
   11. If and to the extent that the customer can claim insurance benefits for damages for which we are liable through his own insurance or insurance taken out in his favor (e.g. liability insurance, comprehensive insurance, transport, fire, business interruption and others), the customer undertakes to make use of the insurance benefits and limits our liability in this respect to the disadvantages suffered by the customer: Liability insurance, comprehensive insurance, transportation, fire, business interruption and others), the customer undertakes to make use of the insurance benefits and our liability shall be limited in this respect to the disadvantages incurred by the customer as a result of making use of this insurance (e.g.: higher insurance premiums).
   12. If penalties are imposed on us due to incorrect or incomplete information provided by the Employer on the basis of the Wage and Social Dumping Act, additional claims for payment are made and/or security payments are requested from the authorities, the Contractor-Customer shall be fully liable for these penalties, additional claims and for any resulting disadvantages for us.
   13. In the case of personnel placement, we are not liable for the selection made by the client of a candidate named by us or for the existence of the employment and residence permits required to work for the client's company. Furthermore, we are not liable for the accuracy of the information and documents provided by candidates, in particular with regard to qualifications.

15. DATA PROTECTION AND CONFIDENTIALITY OBLIGATION

1. 1. The contracting parties shall treat any business and trade secrets that become known in the course of the cooperation as confidential for an unlimited period of time.
   2. Insofar as the leased employees gain access to trade and/or business secrets or confidential information of the customer, the customer shall immediately inform the respective company of the HOGO Group of this circumstance and we shall then contractually oblige our employees to protect the trade and business secrets of the employer (customer) (otherwise there is no obligation on our part in this regard). In any case, we assume no liability for compliance with confidentiality agreements by our employees and exclude all claims for damages in this regard. The customer is free to conclude its own confidentiality agreements with the leased employee.
   3. Insofar as we transmit personal data to our customers, in particular special categories of personal data or criminally relevant data of applicants, candidates, transferred or brokered employees, or if they process such data of transferred or brokered employees, the customer concerned must comply with the statutory provisions. This includes, among other things, the obligation not to transmit application documents and candidate data to third parties, to correct them if necessary and to delete/block them once the purpose no longer applies. By transferring personal data to the customer, the customer becomes the controller with regard to this 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 provision and deployment of temporary workers in the customer's own company or (iii) the fulfillment of the customer's legal obligations is not permitted and is hereby expressly prohibited.

16. FINAL PROVISIONS

1. 1. If a company of the client is affected by a strike or lockout, we must be informed immediately and in this case there is an immediate ban on employment of the leased workers in accordance with § 9 AÜG.
   2. Offsetting against our claims is only permissible if the customer's counterclaims have either been expressly recognized by us or have been legally established by a court of law. This provision shall only apply to business customers.
   3. Should individual parts of these GTC be invalid, this shall not affect the validity of the remaining parts. The companies of the HOGO Group and the entrepreneur-customer undertake already now - based on the horizon of honest contracting parties - to make a replacement provision that comes closest to the economic result of the invalid provision.
   4. Austrian law shall apply to the exclusion of the conflict of law rules of private international law and the UN Convention on Contracts for the International Sale of Goods.
   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 is the court with subject-matter jurisdiction for Wels.