These general terms and conditions (hereinafter the “General Terms and Conditions”) govern all contractual and/or pre-contractual relations between Malt Community S.L., a Spanish public limited company with registered office in Velázquez, 64-66 - 7ª, 28001, Madrid, and holder of tax identification number B-87944641 (hereinafter referred to as "Malt" or the "Company") and the participant in the Business Referral Programme (hereinafter referred to as the “Referring Freelancer”) as defined below.
Malt and the Referring Freelancer are hereinafter referred to individually as the "Party" or collectively as the "Parties".
The following definitions and rules of interpretation apply to these General Terms and Conditions.
Assignment: means an assignment performed by a Freelancer, through the Malt Marketplace, for a Customer, for a minimum value of €3,000 VAT excluded.
Business Referral Programme: means Malt’s standard referral programme applicable from time to time, under which Freelancers registered on the Malt Marketplace have the opportunity to earn rewards where they identify and successfully refer to the Malt Marketplace new freelancers or new assignments for Customers that would not otherwise have been referred to Malt/through the Malt Marketplace, with the view:
(i) for a new freelancer to successfully complete an Assignment through the Malt Marketplace, or
(ii) for the new Assignment being successfully completed through the Malt Marketplace.
Confidential Information: means information whether written or oral, of a business, financial or technical nature which is marked or otherwise indicated as being or is, or ought reasonably to be, known to be confidential and which is disclosed by Malt to the Referring Freelancer or otherwise comes to the Referring Freelancer’s attention in preparation for or in the course of or in connection with the Referring Freelancer’s involvement in this Agreement and/or the Business Referral Programme.
Customer: means a person who is registered with the Malt Marketplace for the purposes of identifying and appointing freelancers to carry out assignments for it.
Customer Assignment Referral: means where the Referring Freelancer, through the Business Referral Programme, establishes contact between Malt and a Customer with a requirement for a specific assignment that could be undertaken by Freelancers, and which results in that assignment being successfully added to the Marketplace and undertaken by one of Malt’s Freelancers through the Marketplace. The referral only works if Customer has not already submitted the same Assignment to Malt or has done searches on the Marketplace in order to submit the Assignment to Malt.
Customer Assignment Referral Fee: in respect of a Customer Assignment Referral means an amount equivalent to 5% of the Malt Transactional Value for the specific Assignment referred to Malt as part of the Customer Assignment Referral.
Freelancer: means any individual or legal entity operating as a freelancer and offering services to customers via the Marketplace.
Freelancer Referral: means where the Referring Freelancer, through the Business Referral Programme, establishes contact between Malt and afreelancer who is realizing an assignment for a Customer outside the marketplace. As a result of the referral, that freelancer successfully invoices the Assignment he/she is already working on with the Customer through the Marketplace. For the avoidance of doubt, there is no Freelancer Referral when the Customer and the freelancer have already worked together through the Marketplace before the referral.
Freelancer Referral Fee: in respect of a Freelancer Referral means an amount equivalent to 2% of the Malt Transaction Value for the first Assignment processed through the Malt Marketplace for the relevant Freelancer.
Malt Transactional Value: in respect of an Assignment means the revenue invoiced by the Freelancer to the Customer for that Assignment, excluding any taxes.
Marketplace: means the website located at www.malt.es which Malt operates for linking up freelancers and customers, the use of which is governed by the Malt general terms and conditions of use and sale available online at https://www.malt.es/legal.
Referral Fee: means a Customer Assignment Referral Fee and/or Freelancer Referral Fee as the case may be.
2.1 The General Terms and Conditions shall commence on the date on which the Referring Freelancer accepts the General Terms and Conditions in order to participate in the Business Referral Programme. The General Terms and Conditions shall continue, subject to earlier termination in accordance with its terms, until it is terminated by either Party giving to the other not less than 30 days’ prior written notice.
2.2 Malt shall be entitled to terminate the General Terms and Conditions immediately on written notice to the Referring Freelancer where:
a) the Referring Freelancer is in breach of the General Terms and Conditions; or
b) Malt decides to cease to operate the Business Referral Programme.
3.1 Subject to compliance by the Referring Freelancer with these General Terms and Conditions, Malt shall permit the Referring Freelancer to take part in the Business Referral Programme during the term as defined in article 2.
3.2 Malt shall be entitled to suspend the Referring Freelancer’s participation in and access to the Business Referral Programme at any time on notice to the Referring Freelancer:
a) where and for so long as the Referring Freelancer is in breach this Agreement; or
b) where Malt reasonably considers that the acts and/or omissions of the Referring Freelancer may have an adverse effect on Malt, any member of Malt's group or its or their business or reputation.
3.3 For the avoidance of doubt, Malt shall be entitled to reject any proposed freelancers or assignments referred by the Referring Freelancer in Malt's sole discretion.
4.1 Subject to the remaining provisions of this article 4, where the Referring Freelancer makes a Customer Assignment Referral or Freelancer Referral to Malt in accordance with this Agreement during the term as defined in article 2, then the Referring Freelancer shall be entitled to receive a Customer Assignment Referral Fee or Freelancer Referral Fee (as the case may be) from Malt for that referral.
4.2 The Referring Freelancer shall only be entitled to a Referral Fee in respect of a Customer Assignment Referral or Freelancer Referral (as the case may be) where Malt determines (in its sole discretion) that:
a) in the case of a Customer Assignment Referral, the Assignment was referred to the Malt Marketplace solely as a result of the Customer Assignment Referral and would not have been referred to the Malt Marketplace and the Customer Assignment Referral not been made by the Referring Freelancer; or
b) in the case of a Freelancer Referral, the Freelancer registers with the Malt Marketplace solely as a result of the Freelancer Referral and would not have registered for the Malt Marketplace and the Freelancer Referral not been made by the Referring Freelancer.
4.3 The Referring Freelancer shall not be entitled to any Referral Fee in respect of any Customer Assignment Referral or Freelancer Referral (as the case may be):
a) made before the acceptance of the General Terms and Conditions or made after these General Terms and Conditions terminate;
b) not made through the formal Business Referral Programme portal made available by Malt from time to time; or
c) not made in accordance with the Business Referral Programme rules, systems, policies, processes and procedures specified by Malt from time to time (and for the avoidance of doubt Malt shall be entitled to change these at any time).
4.4 No Referral Fees shall be payable in respect of:
a) any Assignment which is placed through the Marketplace and which value is below €3,000 VAT excluded; or
b) any Freelancer registered on the Malt Marketplace or Assignments placed through the Marketplace other than in accordance with (and using) the formal Business Referral Programme rules, systems, policies, processes and procedures specified by Malt from time to time.
4.5 Where any Assignment lasts for longer than 12 months, then the relevant Referral Fee shall only be payable in respect of Malt Transactional Value obtained in respect of the first 12 months of the Assignment. For the avoidance of doubt, the starting date of the 12 months is the acceptance of the Freelancer’s quote by the Customer and the end date is the validation of the last activity report by the Customer within the first 12 months.
4.6 Referral Fees shall be due and payable monthly in arrears within 30 days after the end of the month in which Malt obtains the relevant Malt Transactional Value.
4.7 Referral Fees are exclusive of VAT.
4.8 Malt shall be entitled to set off any amounts that the Referring Freelancer may owe Malt at any time against any Referral Fees.
5.1 The Referring Freelancer has no authority (and shall not hold itself out as having authority) to bind Malt in any way. The Referring Freelancer is not entitled to and shall not make or give or purport to make or give any representations, warranties or other statements or promises on behalf of Malt.
5.2 The Referring Freelancer shall not make or give any representations, warranties or other statements on the Referring Freelancer's own behalf concerning the Malt’s services which are not set out in the Malt Marketplace or Malt’s then current marketing material.
5.3 The Referring Freelancer shall:
a) act in good faith and shall not make any inaccurate or misleading statements or act unlawfully or unethically in any way in connection with the Business Referral Programme and/or any actual or potential Customer Assignment Referrals or Freelancer Referrals. Nor shall the Referring Freelancer do anything that may damage the goodwill or reputation of Malt or any member of Malt's group or its or their business.
b) comply with Malt’s rules, policies and procedures in place from time to time in relation to the Business Referral Programme.
c) comply with any legislation applicable regarding anti-corruption and bribery.
d) not engage in any activity, practice or conduct which would constitute either a tax evasion facilitation offence.
e) be certified on the Marketplace as having a compliant legal status, including having good standing with regard to reporting and payment obligations to social organizations
6.1 The Referring Freelancer undertakes that it shall not at any time (whether during the term of this Agreement or at any time after it terminates for any reason), disclose to any person any Confidential Information except as permitted by article 6.2.
6.2 The Referring Freelancer may disclose Malt's Confidential Information:
a) to its employees, officers, representatives, subcontractors or advisers who need to know that information for the purposes of exercising the Referring Freelancer's rights or carrying out its obligations under or in connection with this Agreement. The Referring Freelancer shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses Malt's Confidential Information comply with this article 6; and
b) as may be required by law, to a court of competent jurisdiction or any governmental or regulatory authority.
6.3 The Referring Freelancer shall not use Malt’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.
The Referring Freelancer commits to have obtained the explicit and informed consent of the Freelancer or of the Customer, to transmit their data to Malt in the context of the participation to the Freelancer Referral or to the Customer Assignment Referral, so that they have reasonable expectations to be contacted by Malt to register on the Marketplace.
The manner in which data related to the use of the Marketplace and any other interaction with the Company is processed is explained in the Data Protection Policy available here https://www.malt.es/about/privacy.
8.1 Neither party shall be in breach of these General Terms and Conditions nor liable for delay in performing, or failure to perform, any of its obligations under these General Terms and Conditions if that delay or failure result from events, circumstances or causes beyond its reasonable control.
8.2 The Referring Freelancer shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under these General Terms and Conditions without Malt’s prior written consent.
8.3 Malt may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under these General Terms and Conditions.
8.4 These General Terms and Conditions constitute the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
8.5 Each party agrees that it shall have no remedies for any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in these General Terms and Conditions.
8.6 No variation of these General Terms and Conditions shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
8.7 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:
a) Waive that or any other right or remedy.
b) Prevent or restrict the further exercise of that or any other right or remedy.
9.1 Any notice given to a party under or in connection with this Agreement shall be in writing and shall be:
a) delivered by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
b) sent by email to the address.
9.2 Any notice shall be deemed to have been received:
a) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
b) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this article 9.2(b), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
9.3 If any provision or part-provision of these General Terms and Conditions is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If that modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this article shall not affect the validity and enforceability of the rest of these General Terms and Conditions.
9.4 These General Terms and Conditions and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of France.
9.5 The courts of Paris shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these General Terms and Conditions or its subject matter or formation (including non-contractual disputes or claims).