General Terms and Conditions for Using the Portal

Section 1 – General / Scope of application

The following general terms and conditions serve as the exclusive basis upon which the portal, www.yoummday.com, including all services and other deliverables, may be used overall. Divergent customer terms and conditions are not accepted.
If these general terms and conditions are not transmitted in written form, then they will be available for downloading from the website, www.yoummday.com.

Section 2 – General information

The online platform, yoummday.com, is operated by
Yoummday GmbH
represented by and through its managing director, Dr. Klaus Harisch
Marktstr. 17, 80802 Munich
Telephone: 089/34077422
Email: info@yoummday.com
-hereinafter referred to as “Yoummday” -
Yoummday is an online marketplace on which providers offer various services, particularly in the field of voice services via telecommunication systems. Yoummday is the platform on which the offers and deals from these service providers (hereinafter referred to as “Providers”) are presented and promoted.
Yoummday is not the contractual party to the offered services, but merely a broker and technical interface between Providers and customer.
The relevant Provider has sole responsibility for the content and the description of the service offers, including the composition thereof.
Unless otherwise stipulated in the general terms and conditions set forth below, the general terms and conditions of the relevant Provider will govern the engagement of that Provider.
For purposes of implementing the Provider’s service, Yoummday shall make the communication interface available and handle the billing and settlement. As consideration for this service, Yoummday will receive a 21% brokerage commission from the customer.
Yoummday shall broker via the web platform, www.yoummday.com, the formation of a contract between the respective Provider of the service and the customer. Thus, www.yoummday.com serves merely as a platform for presenting and promoting the Provider’s offers and for managing the contract formation by collecting the declarations made by the Provider and the customer.
Acting on behalf of the Provider in question, Yoummday collects the bookings and works to ensure that the service is duly handled. Yoummday also handles situations that could call for a rescission of and restitution under the contracts and handles the overall complaint management.
Nevertheless, Yoummday always acts merely as the broker (both contractually and technically) and never acts as Provider and is therefore never itself under a duty. Upon the customer’s registration on the platform, www.yoummday.com, a contract is formed between Yoummday and the customer relating to the use of the platform, not to the respective service itself.
Yoummday is authorised to continue developing and/or modifying these terms of use at any time and without any reason. Yoummday shall via email inform all registered customers about the modified terms of use. In the event that the customer fails to object to the new terms of use within two weeks from the receipt of the notice, the new terms of use will be deemed to have been agreed. In the event an objection is raised, the prior terms of use will still be deemed agreed. In that case, Yoummday will be entitled to terminate the use agreement [Nutzungsvertrag] upon two weeks’ notice. No additional reason is necessary. Yoummday will note the aforementioned legal consequences in an informational email.

Section 3 – Registration/Contract formation

To form a contract with a Provider, the customer must register on the portal, www.yoummday.com. Upon completing the registration process, the customer accepts the terms of use in accordance with these general terms and conditions. The customer is thereupon entitled to use the platform, www.yoummday.com, in accordance with the provisions prescribed in the general terms and conditions for engaging the services offered on yoummday.com.
During the registration process, the customer will be obligated to provide the requested data correctly, including the complete address data and email addresses.
The customer warrants that the information submitted during the registration is correct and complete. If Yoummday determines, or certain suspicious facts [Verdachtsmoment] suggest, that the information provided is false or incomplete, then Yoummday will be entitled to delete the relevant account without prior notice and without granting a grace period and to terminate any existing contracts without notice.
The registration will be completed as soon as the customer has completed the registration by pressing the registration button. Upon completing the registration, the customer is making an offer to conclude a contract for using the portal, www.yoummday.com, pursuant to the provisions of these general terms and conditions. Upon receiving the Yoummday confirmation email, the contract for using the portal, www.yoummday.com, will be concluded pursuant to the provisions of these general terms and conditions.
Any use of the portal, including any engagement or utilization of the services offered on Yoummday, will be thereupon governed by these general terms and conditions.
The customer does not have a right to demand registration. Yoummday is entitled to reject the offer for registration without having to furnish any reasons.
Upon registration, the customer is both entitled and obligated to use the portal but only for itself. Any disclosure of the registration data for the use of the portal by a third party is prohibited. If the data provided by the registered customer changes, then that customer will be obligated to immediately enter the change in the portal.
The registered customer must guarantee that all statements made during the registration including address, payment data and email addresses, are up-to-date and correct.
The registered customer will be liable for all services that are authorized through its registration account. The foregoing applies above all to enterprises that make their accounts available to their employees. The relevant enterprise is itself responsible for ensuring that all persons using the registration account, including employees, are authorized to use the account. Yoummday has no obligation to monitor the aforementioned.
Upon registration, the customer authorises Yoummday to share its data with selected Providers. Yoummday is furthermore entitled to send newsletters and marketing information to the customer, provided that the customer had expressly consented thereto during the registration.
The registered customer will not be liable for services that are authorized through its account, but only if it had notified Yoummday in a timely manner about the loss of the access data or about other suspicious circumstances suggesting abuse. Multiple registrations are prohibited.
The completion of the registration will effectively form a use contract regarding the utilization of the portal, www.yoummday.com, for an indefinite period of time. The contract will commence when the account is activated. Both parties are entitled to end the use contract at any time upon providing two weeks’ notice. All mutual rights and obligations will continue until the termination is complete. Any previously incurred payment obligations will remain binding even after the termination. In the event Yoummday terminates, Yoummday will be obligated to repay a credit. The foregoing will not apply if the customer terminates. Both parties reserve the right to terminate without notice [fristlose Kündigung].
A right to terminate without notice will exist specifically when there has been an objectionable review, when incomplete or false data had been entered for the registration and/or when there has been a late payment and/or the customer has otherwise violated a duty in connection with the use of the portal.
The notice of termination may be given via email, facsimile and in written form.

Section 4 – Offers and contract formation

All service offers made on the portal, www.yoummday.com, constitute merely a non-binding request for the customers to make offers.
In order to book a service, you must simply click the link “yoummday.com/you/mod/”.
Your dialogue shopping cart [Gesprächswarenkorb] contains the precise details about the service and the booking.
The booking process will not be completed until you have clicked the button “authorize”.
By pressing this button, you are, as the customer, making a binding offer to book the service in accordance with the offered terms and conditions.
Yoummday transmits the booking data to the Provider. The contract will be formed as soon as the booked Provider confirms the contract with Yoummday. Yoummday will forward this contract confirmation to the customer. The contract is thereupon formed by virtue of this email confirmation.
Yoummday is thereby acting by authority and on behalf of the selected Provider.
Upon the email confirmation, a contract will be formed between you and the selected Provider based on the offered terms and conditions.
Yoummday is not thereby warranting that the information provided by the selected Provider is correct. Only the Provider is warranting the information. Yoummday will undertake a plausibility review in connection with hosting the service offer, but any liability for such review will be based only on gross negligence and an intentional act or omission.

Section 5 – Prices and terms of payment

The stated net prices (excluding value added tax) apply.
Yoummday charges a 21% commission on these net prices.
As customer, you accept as a rule that you are obligated to discharge (perform) your duties first [vorleistungspflichtig]. Through the selected means of payment, you will receive through your obligation to perform first a payment credit that will be claimed through the utilisation of the service through the Provider.
After using up the credit, Yoummday will be entitled to condition any continued performance of its services on receiving an additional payment in the form of a credit replenishment. The Provider also has the right to use up the entire credit by performing its services. There is no right to reclaim payment credits that were not used.
The following online payment services are made available to you for payment:

Where payment is made by direct debit, the following applies:
If you select the direct payment scheme, then the invoiced amount will be due immediately and will be collected by a service provider [Dienstleister], whom we may also decide to engage, from the giro account that you have identified at the indicated bank. To this end, you agree to grant our service provider a SEPA direct debit mandate, pursuant to which you shall direct your financial institution to honour the direct debit.
Or creditor identification number is: DE98ZZZ00001905516
You can claim the chargeback of the amount but only within a period of eight weeks. The exclusionary period begins to run on the date of the debit. If you have insufficient funds in your giro account to cover the amount to be collected, then your financial institution will be under no obligation to honour the payment. Partial amounts will not be collected. By identifying the giro account, you simultaneously express the affirmation that you have authority over the giro account to issue a direct debit and will act ensure that the account has the necessary funds to cover the payments. In the event there is a return debit, you hereby declare your consent to having us resubmit the direct debit for encashment. If once again the payment fails, then you will be obligated to pay for the return debit costs triggered by the failed attempts. Furthermore, in that case a processing fee of EUR 5.00 will be due for payment.
If a payment transaction fails and the agreed amount ultimately does not get paid, then you will be obligated to rectify the payment without undue delay. The default will commence on the date of the booking. Beginning on that date, Yoummday will be entitled to demand interest equal to 1% over the respective base interest rate per month.
If you as customer are a commercial enterprise, then the interest will equal 1.5% over the respective base interest rate per month.
In connection with taking receipt of the payments through the selected means of payment, Yoummday is acting under the Provider’s power of attorney to collect funds. Yoummday will forward to the Provider any cash funds that it receives and that correspond to the utilization of the service, but shall do so after deducting its own fees. Yoummday is obligated to hold any unused, advance payment credits in trust [treuhänderisch]. The credit will also be available to the customer for the engagement of other Providers who offer their services on the platform, yoummday.com. A claim for the repayment of pre-paid fees generally does not exist, unless Yoummday would discontinue its overall service. In the event the service is not used, account management (banking) fees totalling EUR 3 for each quarter of the non-use will be charged.
The aforementioned clause will not apply in the event the contract is cancelled. In the event the contract is cancelled within the statutory exclusionary periods, the customer will be entitled to a refund of amount deposited.
Yoummday is entitled and obligated to select the same repayment method by which the payment was made.
In any given case, Yoummday shall review whether a contractual relationship is being formed with the customer on an invoice basis. This applies above all to any longer-term business relationship or to customers who book more than 10 Providers under a single job order.

Section 6 – Liability for defects in quality and legal title

(1) Yoummday is not a service provider and will therefore not be liable for any defects in the quality and legal title of the booked service.
The booked Provider is responsible for such defects.
Upon offering its service on www.yoummday.com, the Provider warrants, however, that its good or service will be free of defects in accordance with the general standards of its service and the contractual provisions. The statutory warranty period applies.
The Provider warrants that all statutory requirements will be met, specifically those under the telecommunications laws, the Federal Data Protection Act, the tax laws, including the proper remittance of turnover tax.
(2) If the customer is an entrepreneur or enterprise [Unternehmer], then the warranty claims will be limited, at the Provider’s discretion, to curing the defect or providing substitute delivery. More extensive claims for compensatory damages, particularly consequential damages arising from the defect, are precluded.
(3) If the customer is a consumer, then the customer will have the option to decide whether to seek subsequent performance [Nacherfüllung] in the form of a defect cure or substitute delivery. The booked Provider will be entitled, however, to reject the selected form of subsequent performance, to the extent such remedy would trigger disproportionate expense and/or costs.
(4) If two attempts at subsequent performance fail to yield a successful outcome, then the subsequent performance will be deemed to have failed. In that case, the customer will be entitled to its rights under the law. The right of rescission is waived, if the defect is only minor [geringfügig]. A defect will be considered minor specifically if the good or service is still fit to satisfactorily achieve its originally intended purpose.
(5) More extensive customer claims, regardless of the legal basis for such claims, are precluded. Neither Yoummday nor the booked Provider will be liable for any damages that did not impair the service itself. Above all, Yoummday and the booked Provider will not be liable for any lost profits or for other pecuniary losses sustained by the customer. This limitation of liability does not apply to the extent that the damage is based on an intentional act or omission, gross negligence or malicious conduct or to the extent that there is a personal injury. If compensatory damage claims should arise at that point, then these claims will be barred by prescription one year after the service work has been completed. A prerequisite for all customer warranty claims is that the customer provides all reasonable support in remedying the mistake, particularly in reporting the defect in a comprehensible manner immediately after discovering it. If the customer reports a defect which does not exist or for which the customer itself is responsible, then the customer of the booked Provider will be liable for any costs incurred thereby to the extent the customer acted negligently.
(6) Only the Provider will be responsible and subject to legal action as a defendant for any and all warranty claims, compensatory damage claims and claims to demand back the fees previously paid with respect to the booked service. Thus, any customer claims must be directed against the Provider.

Section 7 – Rights of use

If the subject matter of the service is a linguistic work [Sprachwerk] or some other intangible, legally protected interest [immaterielles Rechtsgut], then the booked Provider shall grant the customer merely a simple, non-transferable right of use [Nutzungsrecht] that may not be sub-licensed or sub-leased.

Section 8 – Use restriction setoff

The customer will not be entitled to use the engaged services until the fee for such use has been paid.
The customer will have a right to setoff only if the counterclaims have been determined res judicata, are not disputed or are recognised.
Rights to withhold counter-performance exist only if the claim and counterclaim are based on the same contractual relationship. If you are late (in default) in discharging your payment obligation to us (on whatever legal grounds), then all existing payment claims will become immediately due.

Section 9 – Third party rights

(1) The Provider is responsible for ensuring that its offers do not infringe any third-party rights. In the event rights have been infringed, the Provider shall be liable to the customer and possibly to Yoummday for any damages incurred, including consequential damages.
(2) Any and all data and information that is exchanged between the booked Provider and the customer will be deemed strictly confidential, even if that designation has not been expressly given, and such data and information must be used solely in connection with this contract to attain the contractual purpose.
The confidential information must be held in the strictest confidence and may not be disclosed to any third party. The confidential information may be used only to the extent that it is urgently required for the contractual purpose.
The contracting parties are prohibited from using and exploiting the information, data and documents in a manner that is inconsistent with the purpose of the business relationship.
All confidential information may be neither published nor exploited for purposes that are not commercially intended nor may it be used in some other manner.

Section 10 – Limitation of liability

IN NO EVENT WILL YOUMMDAY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR SPECIAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA, LOST PROFITS OR BUSINESS INTERRUPTION, ARISING FROM, OR RELATING TO THESE GENERAL TERMS AND CONDITIONS OR THE PLATFORM, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF YOUMMDAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
YOUMMDAY'S TOTAL CUMULATIVE LIABILITY ARISING FROM, OR RELATED TO THESE GENERAL TERMS AND CONDITIONS OR THE PLATFORM WILL NOT EXCEED THE FEES ACTUALLY PAID BY THE CUSTOMER DURING THE PERIOD OF TWELVE MONTHS PRECEDING THE DAMAGING EVENT.
THE PROVIDER'S CONDUCT OR RESPONSE MAY NOT BE ADEQUATE OR HELPFUL, AND THE INFORMATION PROVIDED BY THE PROVIDERS MAY BE INCORRECT OR NOT CURRENT. YOUMMDAY DOES NOT ASSUME ANY REPRESENTATION, WARRANTY OR GUARANTY IN THIS RESPECT. THE CUSTOMER USES THE PLATFORM AT ITS OWN DISCRETION AND RISK.
THE CUSTOMER UNDERSTANDS AND AGREES THAT THE FOREGOING LIABILITY LIMITATIONS ARE ESSENTIAL ELEMENTS OF THE GENERAL TERMS AND CONDITIONS AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THE MATERIAL AND ECONOMIC TERMS WOULD BE SUBSTANTIALLY DIFFERENT.
THE FOREGOING EXCLUSION SHALL NOT APPLY TO ANY LIABILITY ARISING OUT OF OR IN CONNECTION WITH: (I) DEATH OR PERSONAL INJURY; (II) FRAUDULENT MISREPRESENTATION; OR (III) YOUMMDAY'S LIABILITY IN CONNECTION WITH ANY TERMS THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.

Section 11 – Evaluations and reviews

You have the opportunity to evaluate (review) the Providers on “Yoummday”. In reviewing the Provider, you are obligated to make truthful statements. If Yoummday sees indicia that the review was untrue (i.e., it was either too favourable or too negative), then Yoummday has the right to delete the review. Yoummday is also entitled to delete any subjective or personal criticism, abusive criticism and criticism of an insulting nature. Yoummday is entitled to publish the review for all users of “Yoummday”. Yoummday may also reference the fact that the review is merely the opinion of the customer and not of “Yoummday”.

Section 12 – Applicable law, judicial forum, severability

(1) The laws of Germany govern these general terms and conditions and the overall legal relationship between Yoummday and the customer.
(2) If the customer qualifies as a merchant [Kaufmann] within the meaning of the German Commercial Code, a governmental legal entity [juristische Person des öffentlichen Rechts] or a special public sector fund [öffentlich-rechtliches Sondervermögen], then exclusive jurisdiction and venue for all disputes arising either directly or indirectly from the contractual relationship shall lie with the competent courts at [Yoummday's registered office]. Yoummday is also entitled, however, to bring legal action before the competent courts at the customer’s place of business or residence.
(3) Should any provision of these general terms and conditions or a provision under any other agreements be or become invalid or contain gaps, then the validity of all other provisions or agreements will not be affected thereby.

Section 13 – Complaint management

Yoummday offers its users a complaint management service.
Complaints may be lodged against Providers on Yoummday and will be forwarded by Yoummday to the Provider. The customer is also obligated to report any shortcomings, defective services and other grounds for complaint to Yoummday.