§ 1 Scope of Application
These general terms and conditions apply to all contracts concluded between the Client and Paychex GmbH ("Paychex") regarding deliveries and other services from Paychex. They apply in their current version for the entire duration of the existing business relationship with the client. Paychex will immediately inform the client in the event of a new version of the terms and conditions. The General Terms and conditions of the client are not part of the contract.
§ 2 Conclusion of Contract
Paychex offers are non-binding, unless it is otherwise expressly provided for in an offer. Contracts for payroll services and other agreements are not binding until confirmed in writing by Paychex. This also applies to subsequent changes and additions to such agreements.
§ 3 Subject Matter of the Contract, Services from Paychex
(1) Unless agreed upon otherwise, the subject of matter of the contract is the provision of the services specified in detail regarding the ongoing payroll settlement in the contract for payroll services ("Settlement") in accordance with the provisions of § 6 Clause 4 of the Tax Consultancy Act. Legal and tax services are not covered by the contract.
(2) Paychex will provide the services agreed upon in the contract by the settlement date and transmit the settlement data to the client.
(3) Paychex may issue partial invoices instead of the owed invoice if there is a significant reason. A significant reason exists, for example, if short-term changes in the law must be taken into account or staff shortages arise at Paychex, e.g. due to illness. Paychex will notify the customer in writing immediately that it will issue of partial invoices along with the explanation of the significant reason. In this case, Paychex will generate and send the complete invoice within a period of ten days from when the partial invoices were sent.
§ 4 Participation of the Client; Contractual Penalty
(1) The client is responsible for providing Paychex with all the contract information, data, and documents that are necessary for executing the contract. Paychex will explain to the customer whenever requested the information, data and documents that are required, without however bearing responsibility for determining in a particular case whether the client has fulfilled all the pay-roll-related settlement, service, information and reporting obligations as per the terms agreed upon with Paychex.
(2) The client will transmit to Paychex the information, data and documents necessary for executing the contract in written form, first at the inception of the contract and thereafter at least 2 working days prior to the agreed upon monthly settlement date, along with the instruction to process the data for the client. Where necessary, Paychex will provide the client with forms for the collection of data. The client is obliged to use the forms provided by Paychex.
(3) If the Client fails to comply with its monthly cooperation duties pursuant to para 1 and 2 of this section – whether in whole or in part – or if the Client fails to fulfill its cooperation duties in a timely manner, and if Paychex, as a result of this, is not able to provide the monthly payroll accounting in accordance with the contract, the Client shall be obliged to pay to PAYCHEX an adequate contractual penalty in the amount of 38 % of the average remuneration of the three preceding months, during which the Client still complied with its cooperation duties pursuant to para 1 and 2 of this section.
(4) Each violation of the monthly cooperation duties shall be considered as a separate violation, even if there is some sort of connecting link between the different violations (unter Ausschluss des Fortsetzungszusammenhangs). The contractual penalty shall not become due and payable if the Client is not responsible for the violation. Any claims for damages shall remain unaffected thereby; however, the contractual penalty shall be offset against any damages claims.
(5) The customer is responsible for compliance with the statutory retention period.
§ 5 Prices, Invoices, Payment Date, Remuneration in Case of Zero Payrol
(1) Unless agreed upon otherwise, all services of Paychex will be charged at the applicable rate according to the current price list, plus VAT.
(2) Paychex invoices for its services on a monthly basis. Paychex invoices are to be paid immediately upon receipt without any discounts.
(3) Due to persistent fixed costs, the base price for the generation of a payroll shall be invoiced to the Client even if the Client’s employees do not receive any remuneration/salary in the respective month (e.g. due to parental leave or incapacity to work, unless the employee receives payments on the basis of the Act for Continued Remuneration During Illness).
§ 6 Guarantee
(1) The client must inform Paychex of any deficiencies immediately after their discovery in written or electronic form, otherwise the guarantee is excluded. Insofar as Paychex fails to eliminate the indicated deficiencies in the framework of the subsequent performance within two weeks of receipt of the notice of the deficiencies, Paychex is entitled to another opportunity to rectify the deficiencies within a deadline to be set by the client, which shall not be less than two weeks. If the measures to remedy the deficiencies within this grace period are not successful, the rectification will be considered to have failed.
(2) The guarantee period is one year from the date of delivery or the performed service.
§ 7 Liability
Paychex is liable - irrespective of the legal grounds - to the following conditions:
(1) A system of unlimited liability exists (i) in the case of the willful or grossly negligent cause of damage; (ii) in the case of injury to life, body or health; (Iii) in accordance with the provisions of the Product Liability Act, and (iv) to the extent of an assumed guarantee.
(2) In the case of a negligent breach of a duty that is essential for achieving the aim of the contract and whose fulfillment the customer regularly relies and may rely (cardinal obligation), the liability is limited to the amount of the damage that may anticipated and is typical for the provision of payroll services.
(3) A liability that exceeds the liability described in § 7 paras. 1 and 2 does not exist for Paychex. The above provisions shall apply mutatis mutandis in case of a breach of duty by a vicarious agent (Erfüllungsgehilfe).
(4) Liability exists for the recovery of data only to the extent that such data loss occurs even though the client saved the data in accordance with all usual and reasonable precautions.
(5) The client is obliged to immediately report any damage to Paychex in writing or to have it recorded by Paychex, so that Paychex is informed as the earliest stage in order to minimize any damage, if possible.
§ 8 Force Majeure
Unforeseen, unavoidable and exceptional external events (force majeure), which make the services of Paychex more difficult or temporarily impossible, entitle Paychex to postpone the fulfillment of its obligations for the duration of the hindrance and a reasonable recovery period not exceeding three months. Force majeure includes in particular labor disputes, strikes, lock-outs, unpredictable disturbances, unavoidable raw material shortages, and all other events for which Paychex is similarly not responsible.
§ 9 Confidentiality
All information which is marked as confidential or to be viewed as confidential given the circumstances (Confidential Information) will be treated as confidential by both parties and not disclosed to third parties. This does not apply if the Confidential Information (i) was demonstrably already known to the recipient at the time of the conclusion of the contract, or is subsequently made known by a third party without a confidentiality agreement, legal regulations or administrative orders being violated as a consequence; (ii) is publicly announced at the conclusion of the con- tract, or is subsequently made public, to the extent that such a disclosure does not relate to a breach of the contract; or (iii) is required to be disclosed by law, order of a court, or an administrative authority. This obligation remains in force for five years after the termination of this contract.
§ 10 Consequences of Contract Termination
(1) In the event of termination, Paychex will make all documents, records, or copies - to the extent they have been archived - available to the client for collection, or if desired, send them to the client upon completion of any related work that requires completion. If the client does not pick up the documents, records and copies within three weeks after notification of their provision, Paychex has the right to destroy them.
(2) Paychex will subsequently erase all stored master data of the client and any other confidential information of the client.
§ 11 Limitation, Applicable Law, Jurisdiction
(1) Claims against Paychex expire one year after the origin of the claim and knowledge of the circumstances that gave rise to it insofar as liability is not based on intent, gross negligence, or injury of life, body, or health.
(2) This contract is subject exclusively to German law without the possibility of recourse to the UN Sales Convention.