a company having registered for a “Company” user account on the website https://moberries.com and accepted this Partner Agreement by clicking on the respective button “[I accept the Terms & Conditions Partner Agreement and data protection agreement.]” on the website https://www.moberries.com,
(hereinafter referred to as “Partner”)
Schwedter Str. 9a, 10119 Berlin, Germany, registered with the commercial register of the local court of Berlin Charlottenburg under HRB 165716 B,
(hereinafter referred to as “MoBerries”)
Whereas Partner is looking for potential employees for one or more open positions in its company who meet Partner’s requirements, and MoBerries is prepared to provide Partner with or propose to Partner such suitable individuals within the scope of the MoBerries Platform under the Partner Agreement.
Whereas Partner is prepared to advise individuals, who had previously applied for employment at Partner without MoBerries’ involvement but have been rejected (“Rejected Partner Applicants”), to register with MoBerries and to apply for registration as a candidate in MoBerries’ database.
Now therefore, Partner and MoBerries (hereinafter individually referred to as “Party” and jointly as “Parties”) agree as follows:
1.1 This Partner Agreement shall apply exclusively. Any terms contradicting or deviating from or amending those provided for in this Partner Agreement, in particular Partner’s general terms and conditions, are hereby contradicted. Deviations or amendments shall be deemed accepted by MoBerries only if MoBerries expressly agrees to them in writing.
1.2 Partner shall have the right to initiate Candidate Searches in accordance with Section 1.3, which MoBerries shall perform pursuant to this Partner Agreement. One or several Candidate Searches may be active at the same time.
1.3 To initiate a Candidate Search, Partner shall provide a request for a Candidate Search to MoBerries using the relevant input mask on the MoBerries Website, specifying the type and category of position (junior, mid-level, senior or C-level position) offered to the Candidate (“Position”) and the profile of the Candidate requested (“Job Description”), and all other additional requirements (if any).
1.4 Subject to the provision stipulated in section 2.2, during a period of one (1) month after receipt of the request (“Search Period”), MoBerries will search for Partner with individuals who meet Partner’s Job Description and other requirements (if any). The search will be limited to MoBerries’ database and all individuals recorded in it (“Candidate Search”). Following the Search Period, the results of this Candidate Search will be provided to Partner (each individual specified to Partner as eligible is hereinafter referred to as a “Candidate”. If, within the context of these results, MoBerries provides an Applicant who is already known to Partner, Partner shall be obligated to reject the provision of this Applicant in writing or in text form.
1.5 Partner shall treat information on the Candidates provided to it by MoBerries as confidential, not disclose such information to any third parties and use it only in accordance with applicable laws and only for the purposes of the respective recruitment for the open position. Any separate agreement between Candidate and Partner regarding a further use of the information shall remain unaffected.
1.6 If the PArtner has chosen a free subscription plan without a monthly fee, MoBerries will, in the course of making the results available, disclose the fee payable to each Applicant in accordance with and under the conditions of paragraph 5.2.
2.1 During the Term of this Partner Agreement, Partner is obligated to advise Rejected Partner Applicants to apply with MoBerries for registration as candidate in MoBerries’ database. For this purpose, MoBerries will provide a personalized hyperlink to Partner, which the Rejected Partner Applicants shall use to register as candidates in MoBerries’ database (“Personalized Hyperlink”).
2.2 If the agreement with Partner provides for a Free of Charge Subscription Plan without Monthly Fee, MoBerries can make the performance of the first Candidate Search for Partner conditional upon the Partner providing proof of its compliance with the obligation stipulated in Section 2.1 upon request in appropriate form to MoBerries. Separate proof is usually not required if MoBerries has received an initial request for entry in the MoBerries database from a Rejected Partner Applicant via the corresponding Personalized Hyperlink.
3.1 MoBerries will enable Partner to preview Candidates’ relevant data, whereupon Partner can “Accept” or “Reject” each Candidate within the scope of MoBerries’ Platform via “[click]” each such preview within the scope of MoBerries’ Platform is referred to as an “Intro” up to the maximum number of Intros permitted under Partner’s subscription level (see Section 5.5).
3.2 Once Partner has “Accepted” a Candidate, MoBerries will provide Partner with the Candidate’s full data, so that Partner will be able to contact the respective Candidate and to recruit such Candidate for the Position. It is not permitted to disclose this data to third parties (e.g. Partner affiliates). Section 1.5 shall apply mutatis mutandis.
4.1 Partner shall inform MoBerries without undue delay if the Position is no longer available.
4.2.1 Partner shall inform MoBerries without undue delay if Partner has filled a position with a Candidate provided by MoBerries and Accepted by Partner under Section 3.1. In this case, Partner shall notify MoBerries of the respective Candidate’s name.
4.2.2 If a Candidate provided by MoBerries within the meaning of Section 3.1 is Rejected by Partner, or if such Candidate is neither Accepted nor Rejected by Partner within the meaning of Section 3.1, and if Partner nonetheless concludes a temporary or permanent employment contract with such Candidate as a result of his or her provision by MoBerries, Partner shall inform MoBerries thereof without undue delay in accordance with the obligations under Section 4.2.1.
4.2.3 Partner hereby acknowledges and confirms that a contractual penalty in the amount of three (3) Monthly Fees according to Partner’s current subscription plan shall become due and payable under this Partner Agreement for each instance of negligent or intentional violation of the obligation stipulated in Section 4.2.1 or Section 4.2.2.
4.3.1 Partner shall inform MoBerries without undue delay if Partner has filled a position with a Candidate provided by MoBerries and Accepted by Partner under Section 3.1. In this case Partner shall notify MoBerries of the name of this Candidate and the category of the respective vacant position (junior, mid-level, senior or C-level position).
4.3.2 If a Candidate provided by MoBerries within the meaning of Section 3.1 is Rejected by Partner, or if such Candidate is neither Accepted nor Rejected by Partner within the meaning of Section 3.1, and if Partner nonetheless concludes a temporary or permanent employment contract with such Candidate as a result of his or her provision by MoBerries, Partner shall inform MoBerries thereof without undue delay in accordance with the obligations under Section 4.3.1.
4.3.3 Partner hereby acknowledges and confirms that a contractual penalty in the twofold amount of the performance-based fee provided for in Section 5.2 shall become due and payable under this Partner Agreement for each instance of negligent or intentional violation of the obligation of Section 4.3.1 or Section 4.3.2.
5.1 If Partner has chosen a Subscription Plan for Consideration, Partner shall pay a fixed monthly fee, depending on Partner’s subscription level as detailed below in this Section 5, per calendar month (“Monthly Fee”). In this case, if Partner has chosen a yearly billing cycle, MoBerries will charge the applicable Monthly Fees for the first twelve (12) months at the beginning of each yearly billing cycle. If Partner has chosen a monthly billing cycle, MoBerries will charge the Monthly Fee for each month at the beginning of the respective month. Invoices issued for the purposes of this Section 5.1 shall become due and payable within five (5) days of receipt of the respective invoice.
5.2 If the partner has chosen a free subscription plan without obligation to pay a monthly fee (pay per hire) and concludes a temporary or permanent employment contract with a candidate provided by MoBerries, the partner has a fee for the job and provision of this candidate to be paid in the amount indicated in the context of the provision of the results referred to in paragraph 1.6.
5.3 The remuneration shall become due and payable within five (5) days of conclusion of the employment contract and issue of the relevant invoice by MoBerries. MoBerries shall also be entitled to receive the fee if the permanent or temporary employment contract is concluded only after termination of this Partner Agreement, but on the basis of the Candidate’s job and his or her provision by MoBerries.
5.4 In each calendar month, Partner may submit the maximum number of Candidate Search requests permitted and perform the maximum number of Intros permitted as provided for by the relevant subscription level of Partner as described in Section 5.5.
5.5 In case Partner submits more Candidate Search requests and/or wishes to perform more Intros than the maximum provided for by Partner’s subscription plan, the Parties can agree on this in each individual case, provided that Partner will pay to MoBerries an additional fee, depending on Partner’s respective subscription level as set out below:
5.6 All amounts stated are exclusive of VAT.
|Subscription Level||Basic Version||Pro Version||Enterprise Version|
|Monthly Fee||EUR 390,-||EUR 1055,-||Custom|
|Maximum number of Job Descriptions||td 3||td 10||td unlimited|
|Multiple Department Logins||not included||not included||included|
|ATS Integration||not included||not included||included|
|Job Advertisement Campaigns||not included||not included||included|
* For yearly upfront payments we offer 10% Discounts.
6.1 This Partner Agreement (including the Subscription Plan chosen by Partner) shall become effective upon confirmation by clicking on the respective button “[I accept the Terms & Conditions Partner Agreement and data protection agreement.]” on the Website https://www.moberries.com and remain valid for the duration of twelve (12) months. If the Partner Agreement is not terminated by any party one (1) month prior to the expiry of its term, or any subsequent renewal term, in text form (email), it shall automatically be extended for a subsequent period of twelve (12) months.
6.2 The Parties’ right to extraordinary termination for cause remains unaffected. Any extraordinary termination shall be made in writing.
6.3 In particular, MoBerries is entitled to terminate the Partner Agreement for cause if Partner, despite prior written warning, fails to fulfill its obligations under Section 2.1 or violates one of its duties of information under Sections 4.2.1, 4.2.2, 4.3.1 or 4.3.2.
7.1 If Partner has applied for free use of the platform for testing purposes for a limited period ("Trial Period”) and this has been approved by MoBerries, Partner may use the platform and its functions free of charge to the extent approved by MoBerries.
7.2 The duration of any approved Trial Period shall not count towards any twelve (12) months’ term as set forth in Section 6.1.
7.3 During the Trial Period, all terms and conditions of this Partner Agreement (including, without limitation, Partner’s obligations pursuant to Section 2.1 of this Partner Agreement) will apply, provided that no Monthly Fee pursuant to Section 5 shall be due during the Trial Period.
7.4 The Parties may terminate the use of the Platform for testing purposes at any time by giving one (1) weeks’ notice in writing to the other party.
7.5 Upon the expiry of the Trial Period, MoBerries will approach Partner with an offer to enter into a Subscription as set forth in Section 5 above. Partner may accept this offer by choosing the respective Subscription Level on the Website.
7.6 During the Trial Period, Partner shall not be entitled to give a position to a Candidate of whom Partner has learned within the context of the Trial Period. Section 4.3.2 and the penalty provision stipulated in Section 4.3.3 shall apply mutatis mutandis.
8.1 The Parties undertake to keep strictly confidential and not to disclose to third parties any information relating to the other Party and its company, which is not public knowledge and which was made known to it under or in relation to this Partner Agreement, except to the extent necessary for the performance of this Partner Agreement. The details of the data privacy regime will be covered by the Data Privacy Confidentiality Agreement concluded between the Parties.
8.2 The right of use pursuant to Section 6.2 remains unaffected.
9.1 MoBerries cannot be held liable for the correctness, completeness or the content of or in any other respect for the information provided to and/or Partner by any Candidate, expect in cases of gross negligence or willful misconduct on the part of MoBerries.
9.2 In addition, MoBerries shall be liable for damages – on any legal grounds whatsoever – within the scope of liability for gross negligence and willful misconduct. In case of simple negligence, MoBerries shall only be liable for damage from injury to life, body or health as well as for damage from the not insignificant violation of a material contractual obligation (obligation the fulfilment of which is essential for the proper performance of the contract and on whose compliance the Partner regularly relies and may rely); in the latter case of the not insignificant violation of a material contractual obligation, MoBerries' liability shall be limited to the compensation of foreseeable, typically occurring damage.
For the duration of this Partner Agreement, Partner grants to MoBerries the right to use Partner’s name and logo for the purposes of indicating it as reference customer (e.g. on MoBerries’ website and in MoBerries’ online advertising materials).
11.1 This Partner Agreement constitutes the entire agreement between the Parties as to the subject matter hereof and shall substitute any previous contract and/or agreement, whether written or oral, in place between the Parties.
11.2 Any Amendments of this Partner Agreement, including this Section 11.2, shall only be valid if they are made in writing.
11.3 This Partner Agreement shall be governed by and interpreted under the laws of the Federal Republic of Germany, without regard to the UN Convention on the International Sale of Goods (CISG).
11.4 The place of performance and exclusive place of jurisdiction for all disputes arising out of or in connection with this Partner Agreement shall be Berlin, Germany. However, MoBerries shall also be entitled to bring an action before any other court of competent jurisdiction under the law. Mandatory legal provisions, in particular on exclusive competence of courts, shall remain unaffected.
11.5 Should individual provisions of this Partner Agreement be invalid, the validity of the remaining provisions of the agreement shall remain unaffected. An invalid provision shall be deemed to have been replaced by a valid provision most closely reflecting the intent of the Parties from the commercial aspect.