1. Scope
1.1. These General Terms and Conditions (GTC) regulate all legal and business relationships between SIMAX Personal & Montage GmbH, hereinafter referred to as SIMAX, and the employing company, hereinafter referred to as the employee.
1.2. SIMAX and the employee agree that these General Terms and Conditions apply not only to the first legal transaction, but also expressly to all further transactions, in particular subsequent and additional orders, even if no express reference was made to them in the individual case. These General Terms and Conditions and other provisions of the individual contract continue to apply even if SIMAX provides workers beyond an originally agreed or intended end date or if the request for workers was made verbally. Oral agreements between the contracting parties are replaced by the written contract. When the contract is concluded, or at the latest when the services are used, the General Terms and Conditions are deemed to have been accepted.
1.3. SIMAX declares that it only wants to conclude contracts based on the current version of these General Terms and Conditions, which are available at www.simax.at/agb. Any contractual conditions of the employer are expressly contradicted. These only apply if this is expressly agreed in writing. If, in exceptional cases, the validity of other contractual conditions is agreed, their provisions only apply to the extent that they do not conflict with individual provisions of these General Terms and Conditions. Non-conflicting provisions in the Terms and Conditions will survive side by side. Agreements made in framework agreements take precedence over these General Terms and Conditions to the extent that they contradict the provisions of these General Terms and Conditions; Otherwise, the framework agreements are supplemented by these General Terms and Conditions, unless expressly agreed otherwise in writing. Actions on our part to fulfill the contract are in no way to be viewed as consent to different contractual conditions.
1.4. By signing the order confirmation or an offer from SIMAX, the employee declares that he agrees to the content of these General Terms and Conditions. The employee acknowledges that SIMAX will repeat these General Terms and Conditions at any time upon the request of the employee. The General Terms and Conditions can also be accessed and printed out on the SIMAX website at www.simax.at/agb.
1.5. Changes and additions to these General Terms and Conditions and the individual contract must be made in writing to be legally valid. Electronically transmitted documents with a reproduced handwritten signature (fax, scanned documents, etc.) or electronically transmitted documents with a qualified electronic signature meet the written form requirement. Mere emails, on the other hand, do not meet the written form requirement. This written requirement can only be waived in writing. It is noted that there
are no additional agreements to these General Terms and Conditions.
1.6. Employees hired out by SIMAX are neither entitled to submit or receive declarations of intent and knowledge for SIMAX nor to collect debts.
2. Conclusion of contract
2.1. Offers from SIMAX are subject to change. The contract is concluded either by signing the offer or order confirmation by the employer or by sending a written order confirmation from SIMAX or - without signing these documents - by taking up employment of the hired workers.
2.2. The start and duration of the work assignment, the qualifications of the hired workers and the location of the work assignment are determined exclusively from the contract documents signed by both contracting parties or from the order confirmation from SIMAX.
2.3. If workers are hired out for an unlimited period, the employer must terminate the contract in writing at least fourteen working days before the last day of employment of the respective worker, unless the contracting parties have expressly agreed otherwise in writing. Receiving notification of the last day of operation at SIMAX is sufficient and relevant.
2.4. Commitments, assurances and guarantees on our part or agreements that deviate from these General Terms and Conditions in connection with the conclusion of the contract only become binding with our written confirmation.
3. Scope of services
3.1. SIMAX employs workers to be hired out to third parties and, in its own and independent organization, takes over the provision of workers to the employer. The transfer takes place exclusively on the basis of these General Terms and Conditions and taking into account the legal provisions, in particular the Temporary Employment Act (AÜG).
3.2. The subject of temporary employment is the provision of workers, not the provision of specific services. The hired workers work under the leadership, instructions and responsibility of the employer. In particular, SIMAX does not owe any work success whatsoever.
3.3. SIMAX is entitled to replace workers listed in contract documents or those already hired out with other equivalent persons at any time.
4. Fees, payment terms
4.1. The amount of the respective fee is determined from the offer made by the employer or from the order confirmation from SIMAX. If an order is placed without a prior offer from SIMAX, SIMAX can claim a fee that corresponds to its usual conditions or an appropriate remuneration.
4.2. If the remuneration provisions for the hired workers change after the order has been placed due to legal or collective agreement adjustments, SIMAX is entitled to increase the agreed fee to the same extent as the remuneration increase. If workers are employed beyond an agreed or expected end date, the fee provisions also apply beyond this date.
4.3. The fee stated in the offer or order confirmation is due plus statutory sales tax. Unless otherwise agreed, SIMAX is entitled to weekly billing. The fee must be transferred to the SIMAX account upon receipt of the invoice without any deductions and free of charge.
4.4. If the employee does not object to the invoice in writing within 10 days of receipt, it is deemed to have been approved and recognized with regard to the hours charged and the amount of the fee.
4.5. An entitlement to deduct a discount granted by SIMAX (in an individual contract) does not change the immediate due date of the amount reduced by the discount. The behavior of SIMAX, in particular a failure to assert the claim reduced by the discount within the discount period, does not constitute a waiver by SIMAX of the right to assert the claim or a tacit change to the contract. Payments without entitlement to a discount remain unaffected. Payment commitments made by the employer are not binding for SIMAX
4.6. In the event of late payment, the employee must pay 12% interest per annum. In the event of late payment, the employer must reimburse SIMAX for all appropriate and necessary costs incurred as a result, such as, in particular, expenses for reminders, collection attempts and any legal or out-of-court legal fees. If the payment deadline is exceeded, even if only for a single partial service, any compensation granted (discounts, discounts, cash discounts, etc.) will expire.
4.7. The employee is not entitled to set off claims or demands against SIMAX against the fee for hiring out the workers, unless the employee's claims have been determined by a court or recognized by SIMAX in writing. There is no right of retention of the fee owed for hiring out workers.
4.8. The basis for billing the fee is the timesheets (worksheets) to be signed by the employee or his assistants on site at least once a week after the end of working hours. If the timesheets are not signed by the employee or his assistants, SIMAX is entitled - but not obliged - to have the timesheets signed bindingly by the employee's customer if it is used for a third party. When the timesheet is signed by the employee, his assistants or the employee's customer, the hours worked become legally binding. If the employee's customer does not sign the timesheets, SIMAX's records form the basis for billing. The employee bears the burden of proof that the hours listed in SIMAX's records were not actually worked.
4.9. In the event of delays in payment or a deterioration in the employee's creditworthiness, SIMAX is entitled to stop providing services completely or to make further provision of services dependent on an advance payment.
5. Rights and obligations of SIMAX and the employer
5.1. The employee is obliged to comply with all legal provisions, in particular the Employee Protection Act, the Temporary Employment Act, the Employment of Foreign Nationals Act and the Working Hours Act in the currently applicable versions as well as the relevant collective agreements. If the employee violates statutory or collective agreement provisions, the employee will indemnify and hold harmless SIMAX for any resulting disadvantages.
5.2. The employer is obliged to inform us in writing in good time before the start of the assignment about the dangers associated with the job to be filled for our employees, the suitability and the required specialist knowledge required for the job or activity, as well as the need for suitability and follow-up examinations.
5.3. The employer is obliged to take the necessary instruction, education and hazard prevention measures (protective clothing, etc.) and to provide the hired workers with the necessary proper and safe tools, equipment, work supplies and occupational safety equipment at the employer's expense. Any costs of any legally required or operational medical examinations are borne by the employee.
5.4. The employee is entitled to provide instructions, instructions and supervision with regard to the hired workers and must train and instruct the workers in the handling of the equipment and machines. Written evidence of necessary training or instruction must be presented to SIMAX upon request and all necessary information must be provided to SIMAX.
5.5. The employer will only use the hired workers in accordance with the qualifications agreed in the individual agreement and in the area of activity provided there. He will not give the respective workers instructions on activities for which they are not qualified.
5.6. The employer must provide the hired workers with lockable boxes and rooms free of charge for personal belongings, in particular clothing and any hand tools and other equipment provided by SIMAX, during their work.
5.7. If the hired workers are not used for reasons for which SIMAX is not responsible, the employee remains obliged to pay full remuneration. This also applies if the hired employees are not used due to an unavoidable event.
5.8. The employer undertakes not to poach workers from SIMAX unless a corresponding written agreement is made between SIMAX and the employer.
5.9. Due to Section 9 AÜG, workers will not be transferred to companies affected by strikes or lockouts. The employee must therefore inform SIMAX of such circumstances immediately.
5.10. SIMAX is entitled to enter the place of work at any time and to obtain the necessary information in order to check whether the employee is complying with his obligations.
5.11. If a worker is absent for whatever reason or does not appear at the agreed location, the employer must inform SIMAX immediately. In such cases, SIMAX will ensure that a worker is made available as quickly as possible.
6. Early termination of the contract
6.1. SIMAX is entitled to terminate the contract prematurely without observing deadlines or dates if there is an important reason. An important reason exists in particular if
a) the employee is more than seven days in arrears with a payment that the employee is obliged to make to SIMAX, despite a reminder;
b) the employee violates legal or contractual provisions despite being asked to comply with them;
c) the employee does not fulfill his duty of management, supervision or care towards the hired workers;
d) insolvency proceedings are opened against the employee's assets or the opening of such proceedings is rejected due to a lack of cost coverage;
e) a strike or lockout occurs in the employee's company; or f) SIMAX's services are not provided due to force majeure, illness or accident of one or more workers.
6.2. Regardless of the right to terminate the contract with immediate effect, if the employer defaults on payment, SIMAX is released from any performance obligation and is entitled to immediately dismiss the hired employees at the employer's expense.
6.3. If the contract is terminated prematurely for reasons within the employer's control or if SIMAX's employees are recalled for such a reason, the employee cannot assert any claims against SIMAX, in particular for warranty or damages.
7. Warranty
7.1. SIMAX guarantees that the workers provided have given their consent to being transferred to third parties and are ready to work. SIMAX only owes a special qualification of the workforce if this is expressly stated in the mutually signed offer or in the order confirmation, otherwise an average qualification is deemed to be agreed.
7.2. SIMAX only guarantees the qualifications of the workers that can be verified by inspecting the certificates of the hired workers.
7.3. Immediately after the start of the hiring-out, the employer is obliged to check the hired workers' qualifications and willingness to work. If a hired worker does not meet the agreed qualifications or willingness to work, any defects must be reported to SIMAX immediately in writing with precise details, but in any case within 48 hours, otherwise claims for warranty and compensation are excluded.
7.4. If there is a defect for which SIMAX is responsible and the employee demands
improvement in a timely manner, this will be provided by replacing the relevant worker within a reasonable period of time.
7.5. The employee must also provide evidence of any defects in the first six months after hiring out the workers.
7.6. In the event of any other loss, the employee's warranty and compensation claims must be asserted in court within six months.
8. Liability
8.1. SIMAX selects employees with commercial care based on their general suitability to meet the employee's requirements. Unless otherwise agreed, SIMAX is only responsible for the average professional and technical suitability of the employee. If this obligation is violated, SIMAX is only liable to the employee for personal injury and property damage caused directly by the employee's fault in the selection, but only to the extent that SIMAX committed intentional or grossly negligent breaches of care during the selection and the employee's lack of suitability for the employee is not already the case was recognizable. In particular, SIMX is not liable for damages incurred directly by the employee, indirect damages, consequential damages, mere financial losses or lost profits. SIMAX is not liable for loss, theft or damage to tools, drawings, samples, devices and other items provided. This is particularly true if the hired worker is entrusted with money, securities, valuable or sensitive items.
8.2. Before putting vehicles or devices into operation for which a permit or authorization is required, the employee must check the existence of the corresponding permit or authorization. If the employee fails to carry out this check, claims of any kind against SIMAX are excluded.
8.3. In the event of dismissal or replacement of workers, any claims whatsoever against SIMAX are excluded. If the employee is responsible for the early termination of the contract or the dismissal of workers, he is liable to SIMAX for the resulting disadvantages. In these cases, the employee must pay the fee until the originally intended or agreed end of the assignment.
8.4. SIMAX is not liable for any failure or delay in work, particularly in the event of force majeure, illness or accident of the hired worker. There is no liability for consequential and financial losses, loss of production caused by hired workers and for penalty obligations that the employee has entered into towards his customer.
8.5. SIMAX is liable for damages resulting from injury to life, body or health in accordance with statutory provisions. Furthermore, liability is limited to gross negligence and intent on the part of SIMAX. Compensation for lost profits and damage to the employee's assets by SIMAX is excluded in any case.
8.6. The employee is liable to SIMAX for all disadvantages that it suffers as a result of a breach of a contractual obligation to be fulfilled by the employee.
8.7. Liability is limited to the maximum liability amount of any liability insurance taken out by us.
8.8. Any claim for damages by the customer expires six months after the customer becomes aware of the damage and the person causing the damage, but at the latest after one year after handover of the goods
9. General
9.1. The competent court for A-4600 Wels has exclusive jurisdiction to decide all disputes arising from this contract.
9.2. The place of performance for the hiring out of labor and the payment of the employee is the headquarters of SIMAX in Wels.
9.3. The employee and SIMAX agree exclusively to the application of the substantive law of the Republic of Austria, excluding the conflict of laws and the UN Convention on Contracts for the International Sale of Goods. This also applies to the question of the conclusion of this contract and to the legal consequences of its aftermath.
9.4. Should individual provisions of these General Terms and Conditions or the individual agreement be or become ineffective or unenforceable, this will not affect the validity of the remaining provisions. Instead of the invalid or unenforceable provision, the contracting parties agree to the validity of an effective provision that corresponds as closely as possible to the economic purpose of the original provision.
9.5. The employer must immediately notify SIMAX in writing of any changes to the company, address, legal form or other relevant information.
Wels, on February 4th, 2024