Full terms and conditions for Companies

 

1. Scope of application

1.1. Moyyn UG haftungsbeschränkt (“Moyyn”), ℅ Factory Berlin, Lohmühlenstraße 65, 12435 Berlin, Germany operates the website www.moyyn.com (“Website”) and the recruitment services offered on said website (“Service(s)”).The business relationship between Moyyn and the contracting party (“Client”), including any future business relationship, is governed exclusively by these Terms and Conditions, unless supplemented and amended by specific terms or provisions relating to certain products.

1.2. Moyyn herewith rejects any other terms and conditions of the Client. They shall not apply, unless Moyyn explicitly agrees to such other terms and conditions in writing. The foregoing also applies if and to the extent that the scope of the Client’s terms and conditions extend beyond the scope of these Terms and Conditions.

1.3. Moyyn may amend these Terms and Conditions after issuing a relevant notice. Such amended Terms and Conditions shall then apply exclusively to the future business relationship with the Client. Any such amendments shall be deemed as accepted by the Client, unless the Client objects in writing within six (6) weeks of announcement of the notice of amendment. Moyyn undertakes to make the Client aware of this condition when giving notice of amendment.

2. Subject of the contract

2.1. Moyyn offers clients the opportunity to find suitable candidates (“Candidate(s)”) quickly and transparently for Permanent employment 

Moyyn’s services help reduce both costs and time spent on application and/or selection processes.

2.2. Clients are only liable to make commission payments as set out in Sections 6 and 7 below, if a Candidate is subsequently employed by the Client or a contract has been concluded between the Client and Candidate as specified in Sections 4 and 5 below.

2.3. Moyyn has the right to offer its services to anyone, including potential competitors of the Client. Protection from competition is excluded.

2.4. Moyyn does not carry out any background checks on Candidates or information provided by them. However, Moyyn reserves the right to carry out such checks at any time. The Client is responsible for verifying Candidates’ skill sets, experience and references prior to offering permanent employment or project work.

3. Contract conclusion

3.1. The Client creates an account on the Website. The Client’s account will be activated as soon as the access email sent to them by Moyyn. 

3.2. The Client confirms that they have provided correct, truthful, complete and up-to-date information, disclosed their true identity and that they have only created one Client account for use on the Website. The foregoing also applies when the Client has registered on the Website via third-party sites such as Github, LinkedIn or Twitter and has used the information stored on said sites. Moyyn reserves the right to refuse access to the account and use of the site in the event of the Client having provided false, incorrect, outdated or incomplete information.

3.3. Following activation of their account by Moyyn, the Client is able to search for suitable Candidates for permanent employment as set out in Section 

4. Application process and offers of permanent employment

4.1. As soon as a Candidate has created a profile and it has been activated, and possibly vetted, by Moyyn, said Candidate is visible to all Clients looking for workers with the relevant profile. The Client is then able to invite the Candidate via email or phone to initiate the application process without any legal obligation (“Invitation”). Every Invitation must include the proposed salary and, if applicable, job description. 

4.2. Once the Client has identified a suitable Candidate on the Website, they undertake to either communicate with said Candidate exclusively via the Website during the application process, or to provide Moyyn with regular progress reports on the Candidate’s application at least every seven (7) days.

4.3. Any binding offers of employment the Client wishes to make to a Candidate at the end of the application process may be communicated verbally, by post or email. Whether or not the Client and Candidate enter into a contract with each other is down to these parties alone. Moyyn does not guarantee that contracts between a Client and a Candidate will be concluded.

4.4. Upon conclusion of the contract between the Client and the Candidate, the Client is then liable for commission payments as specified in Section 6 below of these Terms and Conditions.

4.5. The application process shall be deemed complete when (i) the Client and the Candidate enter into a contract with each other, or (ii) the Client or (iii) Moyyn declare the application process to be complete on the Website (“Completion of the Application Process”).

declare the selection process to be complete on the Website (“Completion of the Selection Process”).

5. Relocation services

5.1. The clients can also take the relocation services offered by Moyyn (MyHelpBuddy) if required. Any candidate selected by the client can incur additional relocation costs which shall be supported by the client if necessary.

6. Pricing

6.1. The Client must pay commission to Moyyn for the recruitment of a Candidate to a permanent position in case of Pay per hire model. For Basic model, the monthly pricing has to be made in advance to get access to the platform. Once the monthly subscription is completed, if required, the client can continue the job offer for next 30 days by subscribing once again. If the client does not renew it within the last day, the job will be automatically removed and access to the candidates will be restricted.

6.2.1. For Pay per hire model, an upfront fee or a reduced upfront fee based on the concluded contract is due as soon as the contract is concluded. The upfront fee will be deducted from the commission after a successful hire. The upfront fee is non-refundable. The commission to be paid to Moyyn becomes due immediately upon conclusion of a contract between the Client and Candidate. The foregoing also applies in the following events:

1. a) The contract between the Client and the Candidate has been concluded under a condition precedent.

2. b) The Client and the Candidate enter into a contract within twelve (12) months of Completion of the Application Process, irrespective of a concrete offer of employment having been made at the time.

3. c) The Client introduces the Candidate to another person or company within twelve (12) months of Completion of the Application Process and the Candidate is subsequently employed by said other person/company.

6.2.2. Should the Client conclude contracts of employment with several Candidates identified by Moyyn for a particular placement, the Client must pay a commission for each Candidate employed.

6.2.3. Commission amounts due for Candidates recruited for permanent employment:

The Client has the choice of two different models on which commission for permanent staff is based. The Client may change which model they choose with every successful recruitment.

1) The Client chooses to pay a one-off commission of fifteen per cent (15%) of the annual gross salary (“Fixed Annual Gross Salary”) agreed in any employment contract concluded with a Candidate recruited via Moyyn. The term Fixed Annual Gross Salary includes the annual gross salary, the entire variable portion of the salary, all performance and annual bonuses, as well as any other benefits that make up the complete job offer. 

Even if a Client agrees on a salary with a Candidate that is below the usual market rate in return for equity or shares in the business and/or (virtual) options thereto, Moyyn reserves the right to use the Fixed Annual Gross Salary originally offered by the Client during the application process on the Website as a substitute reference for calculating the commission due. 

a.) In the event that the contract of employment between the Client and the Candidate is terminated within three (3) months of the date of the contractually agreed start date (e.g. notice, termination agreement), the Client undertakes to notify Moyyn accordingly within ten (10) days of the end of said contract of employment. In this case, the Client is entitled to reclaim 50% commission paid to Moyyn, provided that

• the Client has notified Moyyn in writing of the termination of the contract within ten (10) days of the date of the contract ending, and

• the contract was terminated on grounds relating to the Candidate’s person or conduct.

b.) In the event that the contract of employment between the Client and the Candidate is terminated within six (6) months of the date of the contractually agreed start date (e.g. notice, termination agreement), the Client undertakes to notify Moyyn accordingly within ten (10) days of the termination of said contract of employment. In this case, the Client is entitled to reclaim twenty five per cent (25%) of the commission paid to Moyyn, provided that

• the Client has notified Moyyn in writing of the termination of the contract within ten (10) days of the date of the contract ending; and

• the contract was terminated on grounds relating to the Candidate’s person or conduct.

The Client’s claim for repayment shall no longer be valid (in the sense of a resolutory condition) in the event that the Client or a company affiliated with the Client (as defined in Sections 15 et seqq. of the German Stock Corporation Act (AKtG)) reinstates or employs the Candidate within twelve (12) months of the date of the contract termination, or if the Candidate starts to work on a freelance basis for the Client or an affiliated company (as defined in Sections 15 et seqq. AKtG).

6.2.4. The entitlement to reclaim part or all of the commission paid, as set out in Section 6.2.3 above is a voluntary undertaking by Moyyn. Therefore, Moyyn reserves the right to offer vouchers for further services up to the amount claimed. Any amounts reclaimed by the Client are due for payment within fourteen (14) days of the Client claiming a repayment from Moyyn.

6.2.5. The Client undertakes to notify Moyyn immediately once they have entered into a contract with a Candidate and of the content of said contract by providing suitable evidence. Moyyn shall provide the Client with an online form, which the client undertakes to complete immediately. 

In the event that the Client fails to provide all necessary information and evidence thirty (30) days prior to the date the contractually agreed employment is due to start, Moyyn reserves the right to use the Fixed Annual Gross Salary originally offered by the Client during the application process on the Website as a reference basis for calculating any commission due. Furthermore, commission model 6.2.3. 1) above will be applied by default.

 

6.2.6. All commission is calculated exclusive of the applicable value added tax.

6.2.7. Moyyn will send an invoice for its services to the Client by the start of the agreed employment at the latest. The invoice amount is due immediately, at the latest by the first day of the agreed employment, and payable in full within thirty (30) days of receipt of invoice. The date on which the amount due is credited to Moyyn’s bank account determines the timeliness of the invoice settlement. Interest shall be charged on any overdue amounts at a rate of eight per cent (8%) above the base interest rate prevailing at the time the payment became overdue. In this event, the Client has the right to provide counterevidence to prove that Moyynsuffered no, or less, damage than claimed.

6.2.8. Offsetting with Client’s counterclaims is excluded, unless such counterclaims are either undisputed or have been declared final and absolute by a court of law in favour of the Client. The same applies to the exercise of rights of retention.

7. Client’s obligations

The Client undertakes to notify Moyyn immediately if a contract of any kind whatsoever is concluded with a Candidate as a result of using Moyyn’s services and/or Website. The Client undertakes further to disclose to Moyyn the key terms of said contract (salary/daily rate/compensation, date of conclusion of contract etc.). The provisions above apply mutatis mutandis to (i) contracts concluded between Candidates and a company affiliated with the Client (as defined in Sections 15 et seqq. of the German Stock Corporation Act (Aktiengesetz, AktG)), (ii) new contracts concluded between Candidates and a company affiliated with the Client (as defined in Sections 15 et seqq. AktG), within twelve (12) months of the date of the end of the application/selection process as defined under Section 5.2.3. 1) above, and (iii) for Clients.

In the event that the Client breaches the terms of this Section 8, they are obliged to pay a one-time penalty to the amount of seven point five per cent (7.5%) of the Fixed Annual Gross Salary or of the total compensation for freelance work originally offered to the Candidate by the Client during the application/selection process on the Website. Other claims which the contractual penalty is used to offset shall however remain unaffected.

8. Duration and termination

8.1. The Client may terminate the contract at any time without notice. Moyyn may terminate the contract at any time with a notice period of one (1) month to the end of the calendar month.

8.2. The right to cancel the contract without notice and with immediate effect for good cause remains unaffected by the foregoing. For Moyyn good cause constitutes:

• the Client providing false, incorrect, outdated or incomplete information on the Website and not correcting said information when requested to do so;

• the Client distributing or creating content that is degrading, violent, threatening, vulgar or xenophobic and that is likely to violate human dignity; or

• the Client breaching key provisions of this contract.

8.3. Notice of termination must be given in writing to be effective.

8.4. As a result of termination, the Client will be denied access to the Website, either immediately or at the end of the notice period. Any payment obligations that have already arisen remain unaffected by termination, for whatever legal reason.

8.5. The Client deleting their account shall constitute termination of the contract.

9. Liability of Moyyn

9.1. Moyyn’s liability is limited to its essential contractual obligations. Essential contractual obligations are those obligations that must be fulfilled to make performance of the contract possible in the first place and the fulfilment of which the contracting parties can ordinarily rely on.

9.2. The remainder of Moyyn’s liability is limited to gross negligence and intent in respect of non-compliance with any of its other duties, tort, breach of contract or culpa in contrahendo.

9.3. In the event of negligence, Moyyn‘s liability is limited to compensation amounts as were foreseeable and contract-specific at the time of conclusion of the contract, even in the event of non-compliance with essential contractual obligations.

9.4. Where Moyyn’s liability for damages is excluded or limited, this provision also applies to the personal liability of Moyyn’s legal representatives, employees, workers, staff or vicarious agents.

9.5. No limitations of liability shall apply in the event of injury to life, limb or health.

10. Intellectual property rights

10.1. Moyyn has the exclusive rights to all copyrights, trademark or other neighbouring/related rights to the Website that Moyyn makes available to the Client under the provisions of this contract. These rights are unrestricted in terms of place, limited in terms of time, non-exclusive and not transferable. Moyyn has obtained the relevant exploitation rights for third party rights. The Client’s right of use expires in any case with the end of the term of the contract as per Section 8.1 above.

10.2. The Client may not use the Website for purposes other than those offered by Moyyn. Neither are they permitted to activate functions on the Website not already activated, to transfer the rights of use to any third party, to allow third parties unauthorised access to the recruitment service offered by Moyyn, or to remove, modify or conceal references to Moyyn’s lawful neighbouring rights. Except in the cases permitted by law, the Client may not change, duplicate, decompile or translate Moyyn’s source code.

11. Third-party involvement

Moyyn reserves the right to appoint third parties to execute and/or effect part or all of the services it agrees to provide under the terms of this contract. Any Client data will be made available to such third parties only within the designated purpose of the contractual relationship.

12. Confidentiality

12.1. Both Moyyn and the Client undertake to treat as confidential all information relating to business transactions of the other party that come to their knowledge. Both parties undertake further not to disclose to third parties any contents of this contract, in particular any services owed hereunder. In order to safeguard the interests of either one or both contracting parties, disclosure of any of the contractual terms to third parties is only permitted with the other party’s prior explicit written consent, or when doing so is required by mandatory statutory provisions. The obligations above also apply to the period after the contract has been terminated. This only exception to this obligation is information that is already in the public domain at the time of becoming known, i.e. easily accessible by any third party; information that has, upon becoming known, been made available lawfully to a contracting party by a third party that is not subject to any confidentiality obligation vis-à-vis the other party in this respect; information that must be surrendered to a statutory authority or agency upon request; and information that needs to be communicated to legal or tax advisers, or other persons bound by a professional code of confidentiality, engaged by the other party for the purpose of providing advice.

12.2. Moyyn is entitled, however, to use the Client’s company name and identifying logo as a reference during and beyond the duration of the contract (for example, on the Moyyn and its services’s website, presentations and in Moyyn print and / or online promotional materials).

12.3. In the event of a culpable breach of the obligations set out in Sections 11.1 and 11.2 above, the party breaching its obligation(s) is liable to pay a penalty to be determined by the other party at its discretion or, in the event of a dispute, an amount determined by the competent court of law.

13. Final provisions

If the Client is an entrepreneur, public sector corporation or public-law special fund, the place of Moyyn’s registered office is agreed as the exclusive place of jurisdiction. The foregoing also applies if the Client has no statutory seat in Germany. These Terms and Conditions are governed by German law. In the event that a provision of these Terms and Conditions is found to be incomplete, or is or becomes unenforceable, the enforceability of the other provisions remains unaffected. In such a case, a provision shall be deemed to have been agreed which, in a permissible manner, comes closest to the intent of the contract.

Berlin, August 10, 2021