1. Object and Scope
1.1 These general terms and conditions (“GTC”) apply to all contractual relationships between Pawlik Recruiters GmbH, Neue Straße 25, 14163 Berlin, registered in the Commercial Register of the Hamburg District Court under HRB 112727 (“PAWLIK”) and the Client (“Client”, and PAWLIK and the Client together also the “Parties”). The GTC only apply if the Client is an entrepreneur (§ 14 of the German Civil Code, Bürgerliches Gesetzbuch, “BGB”), a legal entity under public law or a special fund under public law.
1.2 The GTC shall apply in the version valid at the time of conclusion of the contract, which shall be made available to the Client upon conclusion of the contract. The current version of the GTC can be accessed free of charge at www.pawlik-recruiters.com/contact/agb/.
1.3 These GTC also apply to any future contract between PAWLIK and the Client, without the need for explicit reference to their inclusion in each individual case.
1.4 These GTC apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Client shall only apply to the extent that PAWLIK has given its consent to their application in writing. This requirement of consent applies in any case, for example even if the Client refers to its general terms and conditions in the context of an order confirmation and PAWLIK does not expressly object to their inclusion.
2. PAWLIK's Services and the Client's Obligation to Cooperate
2.1 PAWLIK’s Services
2.1.1 PAWLIK's services within the meaning of these GTC include (i) the search for, and presentation of, suitable candidates for positions to be filled at the Client or any of its Affiliated Companies (“HR Consulting”), (ii) personnel diagnostics and (iii) mentoring. The exact content and scope of the services to be provided by PAWLIK will be specified by the Parties in each individual case in a separate order in writing or in text form (“Order"). In these GTC “Affiliated Companies” mean companies affiliated with another company within the meaning of § 15 of the German Stock Corporation Act (Aktiengesetz, “AktG”).
2.1.2 As part of HR Consulting, PAWLIK searches for candidates who are, based on the requirements of the job profile jointly developed by PAWLIK and the Client, suitable to fill the positions specified in the Order (“Vacant Position(s)“) at the Client or its Affiliated Companies . PAWLIK does not guarantee that suitable candidates can be found for the Vacant Position(s).
2.1.3 The services to be provided by PAWLIK will in no event include advice in legal matters.
2.2 The Client’s Obligations to Cooperate
The Client shall provide PAWLIK in a timely manner with all information and documents required for the performance of the services to be rendered by PAWLIK. It is the Client’s own responsibility to comprehensively and finally check the references, qualifications and suitability of the candidates presented by PAWLIK. The Client must inform PAWLIK immediately in text form if and when the Client has made an offer to a candidate presented by PAWLIK for the conclusion of an employment contract as well as if and when the candidate has accepted the offer.
3. Order
3.1 PAWLIK will submit an offer to the Client that is specifically tailored to each individual case. A legally binding Order can only be concluded on the basis of such an offer and only if during the term of acceptance stated in the offer (i) the Client has accepted the offer in writing and (ii) PAWLIK has received the Client’s declaration of acceptance. If no specific term of acceptance is stated in the offer, the Client may only accept the offer within a period of four (4) weeks.
3.2 The services described on PAWLIK's websites do not constitute a legally binding offer, but only contain non-binding information.
4. Remuneration
The amount and method of payment of the remuneration to be paid by the Client for PAWLIK’s services shall be determined in accordance with the agreements made in the respective Order. In addition, the following provisions shall apply:
4.1 If it is agreed in the Order that PAWLIK's remuneration for HR Consulting ("Consulting Fee") shall be calculated on the basis of a certain Annual Gross Target Salary, the following shall apply in addition:
a) The "Annual Gross Target Salary" is the annual gross salary that the Client or an Affiliated Company agrees upon with a candidate presented by PAWLIK at the time of such candidate’s employment for the first full year of employment, taking into account all remuneration components, including performance-related/variable components. Non-performance-related salary components, such as non-cash benefits (for example company cars), foreign or other allowances, are taken into account at their taxable value. Performance-related salary components, such as management bonuses or other bonuses, are taken into account at their value if targets are fully met, and non-cash benefits are taken into account at their monetary value.
b) The amount of the Consulting Fee shall generally be determined by multiplying the annual gross target salary actually agreed upon with the candidate ("Actual Annual Gross Target Salary") by the percentage or proportion that is specified in the Order for the determination of the Consulting Fee. If the Parties have additionally specified a "Minimum Fee" in the Order and if the amount of the Minimum Fee is higher than the amount determined on the basis of the Actual Annual Gross Target Salary, the Consulting Fee shall, in deviation from sentence 1 of this letter b), correspond to the Minimum Fee.
The Minimum Fee can be specified as a fixed Euro amount. Alternatively, the parties can specify a calculatory Annual Gross Target Salary in the Order which, in their view, represents a realistic salary for the candidate sought and the Vacant Position ("Planned Annual Gross Target Salary"). In this case, the amount of the Minimum Fee is determined by multiplying the Planned Annual Gross Target Salary by the percentage or proportion that is specified in the Order for the determination of the Consulting Fee.
c) In principle, the Consulting Fee shall be paid in three installments ("Three Installment Model") during the term of the Order, unless payment in two installments ("Two Installment Model") or another method of payment has been agreed upon in the Order.
d) Unless otherwise agreed upon in the Order, the following shall apply:
(1) In case of the Three Installment Model, the first two installments of the Consulting Fee shall each amount to one third (1/3) of the Minimum Fee, while the third installment shall be the amount of the Consulting Fee calculated on the basis of the Actual Annual Gross Target Salary (but at least the Minimum Fee), minus the first two installments.
(2) The first installment of the Consulting Fee shall be earned and payable upon Client's signature of the Order.
(3) In case of the Three Installment Model, the second installment of the Consulting Fee shall be earned and payable upon PAWLIK's presentation of the first candidates for the Vacant Position, but no later than two months after the Client has signed the Order.
(4) The final installment of the Consulting Fee shall be earned and payable in full only if an employment contract is signed between the Client or one of its Affiliated Companies and a candidate for the Vacant Position presented by PAWLIK (regardless of whether the initiative to hire the candidate comes from the Client or its Affiliated Company or the candidate).
e) If the Client or an Affiliated Company hires a candidate presented by PAWLIK for the Vacant Position only within twelve (12) months after the termination of the Order, the Client shall owe the Consulting Fee, if and to the extent it exceeds the remuneration paid by the Client for the HR Consulting up to that point.
4.2 If during the term of the Order or within twelve (12) months after the termination of the Order the Client or any of its Affiliated Companies hires not only one, but one or more additional candidates presented by PAWLIK for the Vacant Position, or if candidates presented by PAWLIK are hired for positions other than the Vacant Position (these additionally hired candidates, the "Additional Candidates"), the Client shall owe as remuneration for each Additional Candidate an additional remuneration, the amount of which shall be determined in the same way as the amount of the remuneration owed for the first Candidate, unless otherwise agreed upon in the Order; for clarification purposes: If a Consulting Fee was agreed upon for the first candidate on the basis of the Annual Gross Target Salary, a Consulting Fee shall also be due for each Additional Candidate, which shall be determined on the basis of the Actual Annual Gross Target Salary agreed upon with the respective Additional Candidate.
4.3 In the event of termination of the Order by one Party, the following shall apply with regard to the remuneration:
a) In the event of an ordinary termination of the Order by one Party, the installments already paid shall remain with PAWLIK and the Client shall also owe in addition (i) any installments already due but not yet paid at the time of receipt of the notice of termination and additionally an amount equal to 50% of the installments still outstanding at that time or the fee still outstanding at that time, as well as (ii) the remuneration for services agreed upon in addition to the HR Consulting and/or optional additional services agreed upon relating to the HR Consulting, if and to the extent that these (additional) services have already been rendered, on a pro rata basis.
b) In the event of an extraordinary termination for good cause by PAWLIK, the Client owes (i) the Minimum Fee less any installments already paid by the Client as well as (ii) the remuneration for services agreed upon in addition to the HR Consulting and/or optional additional services agreed upon relating to the HR Consulting in the full amount.
4.4 All remuneration owed by the Client shall be subject to value added tax at the statutory rate.
5. Costs and Expenses
5.1 Costs and expenses, in particular travel, accommodation and catering costs, including any costs for inviting and entertaining candidates, shall be reimbursed by the Client in each case in the amount specified in the Order. Costs and expenses for which the Order does not contain any information, and which are necessary and reasonable for the provision of the service shall be reimbursed by the Client upon being provided with proof of the expenditures.
5.2 All costs and expenses shall be reimbursed by the Client plus any value added tax at the statutory rate.
6. Invoicing and Due Date
6.1 Invoices issued by PAWLIK are due and payable within a period of ten (10) days after receipt.
6.2 If the Client fails to pay an invoice when due, the Client shall be in default no later than thirty (30) days after receipt of the invoice. PAWLIK's right to constitute default earlier by a separate payment reminder remains unaffected. During the period of default, the amount due shall be subject to interest at the applicable statutory default interest rate.
6.3 The above provisions shall not affect the assertion of further claims for damages caused by default.
7. Changes to the Order
Changing the profile of requirements for HR Consulting during the term of the Order by the Client is only permissible if the Parties agree in advance to adjust the remuneration in order to take into account any additional expenses for PAWLIK caused by the change. This does not apply if the change does not lead to any significant additional expenses for PAWLIK; such changes are permissible without adjusting the remuneration.
8. Term and Termination of the Order
8.1 The Order has an indefinite term that begins after both Parties have signed the Order. The Order ends automatically when an employment contract between the Client or any of its Affiliated Companies and a candidate presented by PAWLIK for the Vacant Position has been signed, and otherwise if it is terminated.
8.2 The Client may terminate an Order with a cause at any time (ordinary termination). An ordinary termination by PAWLIK is permissible for the first time after the expiration of twelve (12) months after the conclusion of the Order. The right to extraordinary termination pursuant to Section 8.3 shall remain unaffected. Services rendered up to the time of termination shall be remunerated accordingly; with regard to the remuneration for HR Consulting, furthermore Section 4.3 shall apply. Costs and expenses incurred shall also be reimbursed in full in the event of termination.
8.3 Each Party shall be entitled to extraordinary termination of an Order for good cause. Good cause shall be deemed to exist in particular if one Party breaches an essential contractual obligation and fails to remedy the breach within one (1) week despite being requested to do so by the other Party.
An important reason that entitles PAWLIK to extraordinary termination, exists in particular if
a) the Client is insolvent;
b) the opening of insolvency proceedings against the Client's assets has been applied for;
c) the Client is in default of payment;
d) the Client does not fulfill its contractual obligations to cooperate and as a result PAWLIK's performance of its services becomes impossible or substantially more difficult.
An extraordinary termination by PAWLIK does not affect PAWLIK's right to demand the full amount of the remuneration owed and to claim damages.
8.4 Each notice of termination must be in text form (§ 126b BGB) and becomes effective upon receipt by the other Party.
8.5 Termination of the Order shall not affect any claims that have already arisen or any subsequent claims pursuant to Sections 4.1e) and 4.2.
9. Liability
9.1 The provisions of statutory law shall apply to the Client's claims for breach of a contractual or non-contractual obligation, unless otherwise stated below.
9.2 PAWLIK is liable without limitation for claims by the Client for damages if this claim is based on an intentional or grossly negligent breach of duty by PAWLIK, its legal representatives or fulfilment agents. In case of simple negligence PAWLIK is liable only
a) for damage resulting from injury to life, limb, health,
b) if Pawlik has assumed a guarantee or fraudulently concealed a defect,
c) for damages resulting from the breach of essential contractual obligations (cardinal obligations). In the event of a breach of essential contractual obligations, PAWLIK's liability shall be limited to the amount of the foreseeable damage typical for the contract. Essential contractual obligations are obligations whose fulfilment enables the proper execution of the contract in the first place and on whose compliance the contractual partner regularly relies and may rely. Apart from this, all claims for damages are excluded.
9.3 The limitations of liability under para. 2 shall also apply in favor of Pawlik's legal representatives and fulfilment agents if claims are asserted directly against them.
9.4 If the Client desires a higher insurance by a liability insurer, the Client has to inform PAWLIK about this. In this case, the Client shall bear the costs of the higher insurance, if such insurance can be obtained.
10. Exclusivity
The Client undertakes not to commission any third party besides Pawlik with the HR Consulting described in the Order during the term of the Order.
11. Set-off and Rights of Retention
11.1 The Client may only offset claims by PAWLIK against claims that are undisputed or have been legally established.
11.2 The Client shall only be entitled to assert a right of retention or a right to refuse performance on the basis of undisputed counterclaims or counterclaims confirmed by a final and binding court decision from the same contractual relationship from which PAWLIK's payment claims originate.
12. Confidentiality
12.1 The Parties mutually agree to maintain confidentiality towards third parties about the conclusion of the Order and its content as well as about all Confidential Information (as defined below). They agree not to pass on the Confidential Information to third parties, or to use the Confidential Information, without the express consent of the other Party, unless this is necessary to carry out the Order or to fulfil legal obligations. This confidentiality obligation is valid for a period of five (5) years after the end of the Order.
12.2 "Confidential Information" within the meaning of these GTC shall be all information, data, memos, analyses, compilations, studies, documents, know-how or other documents of any kind whatsoever (whether transmitted orally, in writing, electronically or in any other manner and whether marked as confidential or not) which one Party receives from the other Party, from any of its Affiliated Companies or from any of its directors, employees or consultants in respect to, or in connection with, the Order, and any memorandum, analysis, compilation, study, document or other material (written or otherwise) prepared or to be prepared by the Party receiving the Confidential Information and containing such information.
Confidential Information does not include information
a) that is already public knowledge or becomes public knowledge during the term of the Order without the Party receiving the information, or any of its Affiliated Companies or managing directors, employees or consultants being responsible for its disclosure to the public;
b) that the Party receiving it can prove they already knew or had in its possession at the time of disclosure, and were not made known to it directly or indirectly with the obligation to maintain secrecy in this respect or become known to it during the term of the Order without breach of a confidentiality agreement, statutory regulations or official orders.
13. Final Provisions
13.1 Contracts between PAWLIK and the Client shall be governed by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.
13.2 The place of jurisdiction for all disputes arising from contractual relationships between the Client and PAWLIK is the registered corporate seat of PAWLIK.
13.3 The contract shall remain binding in its remaining parts even if individual points are legally invalid. The invalid or unenforceable provision shall be replaced by a provision which economically and legally comes as close as possible to what the Parties intended with the original provision. This shall also apply to any gaps in the contract.
Status 12/2023