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General terms and conditions for the usage of the www.yoummday.com client portal

§ 1 – General / Scope

(1) The online platform www.yoummday.com is operated by

Yoummday GmbH
Represented by the executive
Dr. Klaus Harisch, Pablo Harisch and Lion Harisch
Belgradstrasse 68, 80804 Munich
Telephone: +49 89 23023600
Email: info@yoummday.com

-referred to below as “Yoummday” -

(2) Insofar that the general terms and conditions are not transmitted in written form, they are available for download under the internet address www.yoummday.com.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.

(3) Yoummday has the right to further develop or change these conditions of use at any time and without providing a reason. Yoummday will announce the changed conditions of use to all registered clients by email. In the case that the client does not object to the new conditions of use within two weeks from receipt of the notice the new conditions of use are held to be agreed. In the case of objection the previous conditions of use are still held to be agreed. Yoummday has the right in this case to cancel the contract for use with a two week period of notice. There is no need to provide a further reason for this. Yoummday will indicate the legal consequences referred to above in the announcement email.

§ 2 – Service description

The www.yoummday.com portal enables its registered users to provide language services over telecommunication systems. Insofar Yoummday offers its users the following services:

(1) ONE

A registered user  (referred to below as “client“) can, within the framework of the “ONE“ product issue orders for telephone services or those which it wants to process  use the technical infrastructure and software on the www.yoummday.com portal to operate a Call Center with its own employees. Insofar the telephone connections for

  • Inbound
  • Outbound and
  • Webchats are enabled

Furthermore, various Quality Assurance Tools as well as comprehensive statistics and reporting are available for the client.

Taking up the technical infrastructure and software on the www.yoummday.com portal is free for the client. There are only fees for arranging appointments for:

  • Outbound calls as well as
  • a telephony volume, insofar that it exceeds 100,000 minutes per month.

Details about this are regulated in § 5 Para. 1 of these terms and conditions.

(2) PLUS

The “PLUS“ product expands the service scope of “ONE“, as it enables  the registered client to book the registered providers of telecommunication services (referred to below  as “Talents“) on the  www.yoummday.com portal as extra Call Center Agents.

Insofar Yoummday only acts as an online market place, on which the Talents can offer their various services, in particular in the language services area via telecommunication systems, as well as clients being able to offer their orders. Insofar the www.yoummday.com portal provides the platform for the presentation and bidding for these offers as well as the managing of the close of contract by accepting the declarations of the Talents and the clients. In detail: Yoummday provides the following services:

  • Yoummday brokers the close of contract for the services between the respective Talent and the client via the www.yoummday.com portal. The www.yoummday.com portal is thus only the platform for the presentation and bidding of offers from Talents and clients.
  • Yoummday accepts bookings on behalf of the respective Talents and ensures the proper management of the service. Yoummday also takes over possible recission of contracts and the complete complaints management.
  • Yoummday provides the communication interface for the execution of the services from Talents and takes over the invoicing on their behalf.

Yoummday receives a fee for this service which is dependent upon the minutes actually used in the telephone connections within the framework of the order processing. In addition, Yoummday receives a brokerage commission at the rate of 21% on the nett price (excluding sales tax) agreed between the client and the Talent for bonus payments.

Details about this are regulated § 5 Para. 2 of these terms and conditions.

IMPORTANT INFORMATION

  • Yoummday is within the framework of the “PLUS“ product not the contractual partner of the services offered but only the broker and technical interface between the Talent and client. Thus it is never obliged to provide the service agreed between Talent and client.
  • The client or the Talent is solely responsible for the content and description of the service offer, in particular the composition.
  • The general terms and conditions mutually recognised by both these parties are applicable to the closure and execution of the service contract agreed between the client and the Talent, insofar that no deviant regulations have been made .

(3) PRO

The registered clients have the possibility to outsorce the management of their virtual Contact Centers within the framework of the “PRO“ product offered by Yoummday. Insofar this offers the following services:

  • Selecting the suitable Talent Profiles for the client‘s project,
  • Design and execution of online training for the client’s product or service,
  • Monitoring and coordinating the Talents in their daily work,
  • Planning the Talent deployent times in such a way that the agreed Service Level Targets are regularly exceeded,
  • Steering according to the qualitative and quantitative Key Performance Indicators (KPIs) given by the client

It is necessary for the client to close a special contract with Yoummday to take up this product. The exact service scope is individual resulting from the service descriptins, the order forms as well as the price lists which form the basis of the contract between the client and Yoummday. There can also be overriding particulars to the above conditions arising from the service descriptions.

§ 3 – Registration/Closing the contract

(1) Client registration on the www.yoummday.com portal is necessary to close a contract with a Talent. The client on closing a registration accepts the conditions of use according to these general terms and conditions. The client thus has the right to use the yoummday.com platform to take up the services offered by yoummday.com under the regulations made in these general terms and conditions.

(2) Yoummday solely accepts companies and legal entities under public law as clients, not however consumers. Recognised in particular as companies according to this regulation are:

  • Merchants (e.g. sole proprietors, trading partnerships, corporations),
  • Members of professions (e.g. doctors, lawyers, tax consultants, accountants) as well as
  • agriculture and forestry businesses.

The client is obligated to provide its current sales tax identification number on registration as proof of entrepreneurship. Companies which are located outside the European Union area can also provide evidence by providing a DUNS identification number.

(3) The client is obligated to provide current and correct information on registration in particular complete address data and email addresses.

The client is liable for the correctness of the information provided upon registration as well as for its completeness. Should Yoummday establish or or there are suspicious facts that the information given is false or incomplete Yoummday has the right to delete the affected account without previous notification or grace period notification and to cancel possible existing contracts without notice.

(4) The registration is closed as soon as the client closes the registration with the registration button. The client makes an offer to close a contract to use the www.yoummday.com portal under the conditions of these general terms and conditions on completion of the registration. The contract to use the www.yoummday.com portal under the conditions of these general terms and conditions is closed on receipt of the confirmation email from Yoummday.

(5) Any use of the portal, in particular taking up the services offered on Yoummday, takes place on  the condiitons of these general terms and conditions.

(6) The client has no right to register. Yoummday has the right to refuse the offer to register without grounds.

(7) The client has rights and also duties on registration to use the portal solely for itself. Transferring registration data for use of the portal by third parties is forbidden. Should the data given by registered clients change, they are obligated to immediately make the change in the portal.  

(8) The registered client is liable for all its services ordered through its registration account. This applies in particular to companies which make their account available to employees. The respective company is itself responsible for all registered account users, in particular employees having the right to use the account. There is no duty for Yoummday to check this.

(9) The client on registration authorises Yoummday to transfer its data to the selected Talent. Furthermore, Yoummday has the right to send Newsletters and advertising information to clients insofar that the client has expressly agreed to this upon registration.

(10) The registered client is only liable for its services ordered through its account insofar that it has timely informöed Yoummday about the loss of access data or other suspicious facts of misuse. Multiple registrations are forbidden.

(11) A usage contract for an unlimited period of time to use the www.yoummday.com portal is closed upon registration. The contract begins with the activation of the account. Both parties have the right to cancel the usage contract at any time with a two week period of notice. All mutual rights and obligations continue up to the cancellation. Obligations to pay which have already been received also continue to exist after cancellation. In the case of cancellation by Yoummday, Yoummday is obliged to repay a credit. This is not applicable in the case of cancellation by the client. The right to concellation without notice by both parties shall remain unaffected.

(12) A right to cancel without notice arises especially in the case of providing an unreliable evaluation, when providing incomplete or incorrect data for the registration and/or in the case of default of payment and/or in the case of other infringement of duty by the client in the frameowrk of using the portal.

(13) The cancellation is admissible by email, fax and in written form.

§ 4 – Offers and close of contract

(1) All service offers on the www.yoummday.com portal only present a non-binding request for the client to give offers.

(2) A booking for a service has to be triggered by a mouse click on the link“yoummday.com/you/mod/“ .

The client can find precise details of the service and the booking in the talk shopping cart.

The booking process is first closed when the client presses the “order“ button.

The client makes a binding offer to book the service on the conditions offered on pressing this button.

(3) Yoummday transfers the booking data to the Talent. The contract is formed as soon as the Talent booked confirms the contract to Yoummday. This confirmation of contract is furthered to the client by Yoummday. Thus the contract is formed through this email confirmation.

Yoummday in doing this acts with full powers and on behalf of the selected Talent.

(4) The contract between the client and the selected Talent at the conditions offered is formed with the email confirmation.

Yoummday is not liable in doing this for the correctness of the information given by the selected Talent. The Talent is solely responsible for this. Yoummday takes over within the framework of hosting the service offer a plausibility check, liability for this however only exists if there is gross negligence and wilful intention.

§ 5 – Prices and terms of payment

(1) Scheduling appointments commissions are only due for the “ONE“ product when

  • Outbound calls as well as
  • a used telephony volume, insofar that it exceeds 100,000 minutes per calendar month.

The amount of the scheduling appointments commission is depended upon the type and length of the respective telephone connections. It is 0.9 Cent per minute plus legal sales tax in the German landline network. It can be considerably higher when the connection takes place

  • on special rate numbers from service providers,
  • in foreign networks or
  • in the mobile telephone network.

A list of the respective current prices is under the link www.yoummday.com/Preisliste_für_Telefonverbindungen .

(2) The prices agreed between the client and the Talent booked are valid for the “PLUS“ product.  

In addition Yoummday receives a fee for the provision of its technical infrastructure which is dependent upon the actual minutes used for telephone connections per calendar month in the framework of the order processing.

This commission is graded as follows:

Each minute per calendar month plus legal sales tax

from 0 to 50,0000.15 €
from 50,001 to 100,0000.14 €
from 100,001 to 200,0000.13 €
from 200,001 to 400,0000.11 €
from 400,001 to 800,0000.09 €
from 800,0010.06 €

The minute price for using the platform is automatically adjusted at the turn of the month based on the volume calculated in the previous month.

Furthermore Yoummday receives a brokerage commissiobn at the rate of 21% plus legal sales tax for bonus payments which the client guarantees for a Talent with special performance. This includes for example special payments for

  • successful contract closures by the Talent in favour of the client or

  • work on Sundays and public holidays as well as night work.

The basis for measuring the brokerage commission is the nett price (not including sfales tax) agreed between the client and the Talent for bonus payments.

(3) The client accepts in principle that it is obliged to pay in advance. The client receives a payment credit from the obligation to pay in advance via the chosen means of payment which is then claimed upon through the client laying claim to the services of the selected Talent.

(4) After using the credit Yoummday has the right to make further provision of its services dependent upon a further payment in the form of topping up the the credit. Furthermore the Talent also has the right to use the whole credit through its services. There is no claim for repayment of unused payment credits.

(5) Clients are offered the following online payment services for payment:

  • Credit card (Mastercard, Visa, AmericanExpress)
  • Bank transfer
  • Direct debit
  • PayPal

The following applies to direct debit:

n the case that the client chooses the direct debit process, the amount to be invoiced is due immediately and is collected, also possibly by a service provider deployed by Yoummday, from the giro account provided by the client at the financial institution provided by the client. The client gives Yoummday or its service provider a SEPA direct debit mandate for this, with which it instructs its financial institution to honour the direct debit mandate.

The creditor identification number for Yoummday is: DE98ZZZ00001905516

(6) The client can simply request the debit memo of the amount within eight weeks. This however is not possible in the case of a company direct debit.The period of notice starts with the date of the payment. Should the client‘s giro account not cover the amount to be collected, there is no duty for the client‘s financial institution to honour the payment. Part payments are not collected. The client on provision of its giro account  simultaneously declares the confirmation that it can provide a giro account on the date of collection and also ensure that this has the necessary cover. In the case of a return debit note the client expresses its continuing agreement that Yoummday is allowed to submit the direct debit for payment again. Should it once again not be paid the client is obliged to pay all the costs caused by the failed collection attempts. Furthermore an administration charge to the amount  5.00 EURO is due to be paid in this case.

(7) Should a payment process fail and there is no payment of the agreed amount, the client is obliged to immediately make up the payment. The default begins with the day of booking. Yoummday has the right from this day to demand interest for default at the rate of 1.5 % above the respective basic interest rate per month.

 (8) Yoummday acts within the framework of the acceptance of payments via the selected means of payment with power of attorney to receive payments for the Talent. Yoummday transfers the money amounts received to the Talent according to the usage of the services with subtraction of its commission.  Yoummday administrates unused payment in advance credits as a trust. The credit is also available to the client to take up other Talents which offer their services on the yoummday.com platform. There is in principle no return payment of the advance payments unless Yoummday werre to stop its complete service. In the case of not using the service there are account fees to the amount of 3 € per quarter of the non-use.  

(9) The aforementioned clause is not valid in the case of cancellation of the contract. In the case of cancellation of the contract within the legal period of notice the client has a claim for the repayment of the amount paid.  

(10) Yoummday has the right and obligation to select the same means for return payment as the means used to make the payment.

(11) Yoummday checks in individual cases whether a contractutal relationship on an invoice basis has been entered with the client. This applies in particular to a long-term business relationship or for clients who book more than ten Talents within the framework of an order.

§ 7 – Liability for material defect and deficiency in title in the framework of the “PLUS“ product

(1) Yoummday is not a service provider within the framework of the “PLUS“  product and thus is not liable for material defect and deficiency in title of the service booked. The Talent booked is solely responsible for this.

The Talent  however guarantees a fault-free service according to general standards and the contractual regulations when offering its services on the  www.yoummday.com portal. The legal guarantee period applies.

The Talent guarantees the fulfillment of all legal requirements in particular the Telecommunication Act, the German Data Protection Act, and the tax laws in particular the proper payment of the sales tax.

(2) The guarantee claims of the client are limited to removal of faults or supplementary performance according to the booked Talent’s choice. Further claims for damages are excluded, this applies in particular to damages arising from faults.

(3) Should two supplementary performance attempts not lead to success the supplementary performance is regarded as failed. The client then has the legal rights intended for this case. The right of withdrawal is exempted insofar that there is only a slight fault. There is a slight fault in particular when the fitness for purpose of the goods or service is not affected.

(4) Furhter claims from the client no matter from which legal ground are exempted. Neither Yoummday nor the booked Talent are liable for claims which do not arise from the service. In particular Yoummday and the booked Talent are not liable for the client’s loss of profit or other financial losses. This limitation of liablility does not apply insofar that the cause of damages is due to wilful intent, gross negligence or fraudulent behaviour or there are personal damages. Should there be these claims for damages they lapse a year after ending the service. The precondition for the guarantee claim of the client is that the client has provides all reasonable support to remove the fault in particular by notifying the fault in an understandable form immediately after recognising it. Should the client notify a fault that is not a fault or that the client itself is responsible for, the client of the booked Talent is liable for the costs resulting from it insofar that it had behaved negligently.

(5) The Talent is solely responsible for every guarantee claim, damage claims, claim for repayment of payments made in relation to the service booked and has the capacity to be made a defendent. Each claim of the client is to be directed to the Talent.

§ 8 – Usage rights

If the object of services is a transferred voice recording or other immaterial legally protected interest, the Talent booked  transfers only a simple, non-transferrable, non-sublicensible  and non-rentable right of use to the client.


§ 9 – Utilisation caveat set-off

(1) The client only first has the right of use for the services claimed as soon as the fee for this has been paid.

(2) The client is only entitled to a right of set-off if the counterclaims are legally established, undisputed or recognised.

(3) The rights of retention only exist when claim and counterclaim rest on the same contractual relationship. Shoud the client find itself in default of receivables against Yoummday no matter for which legal ground, all existing receivables are immediately due.

§ 10 – Third party rights

(1) The Talent is responsible for not injuring third party rights with its offers.  In the case of a rights violation the Talent is liable to the client and possibly Yoummday for the resulting  damages in particular consequential damages.

(2) All data and information which is exchanged between the Talent booked and the client is even when not expressly designated as such, strictly confidential and may only be used in the framework of the contract to achieve the purpose of the contract.  

Confidential information is to be kept strictly secret and not transferred to third parties. Confidential information may only be used insofar as it is urgently necessary for the purpose of the contract.

It is forbidden for the contractual parties to apply and use information, data, and documents which do not correspond to the purpose of the business relationship.

All confidential information may not be published nor used commercially or otherwise disposed of externally.

§ 11 – Limitation of liability

(1) Yoummday as well as the Talent booked are liable for damages arising from damaging health, life or limb with willful intent and gross and slight negligence by their legal representatives and/or vicarious agents, for all other damages arising from contractual or non-contractual infringements of duty; this is only for gross negligence and willful intent of their legal representatives and/or vicarious agents or agents in performance. Yoummday as well as the Talent booked are not liable for tort action claims if there is a careful selection of their vicarious agents.

(2) Disclaimers according to these general terms and conditions are not applicable for cliams based on product liability law.

(3) Yoummday is only liable for loss of data in the case that Yoummday failed to take the usual regular and technical data security measures due to gross negligence or willful intent.

(4) Any limitation of liability is not applicable when guarantees have been expressly taken over.

§ 12 – Evaluations

Clients have the possibility to evaluate the Talent booked via the www.yoummday.com portal. When evaluating a Talent, the client is obliged to give truthful information. If Yoummday has evidence that the evaluation stated is incorrect, i.e. too positive or too negative Yoummday retains the right to delete the evaluation. Yoummday also has the right to delete unobjective criticism, abusive criticism and types of insulting criticism. Yoummday has the right to publish the evaluation for all the www.yoummday.com portal users. Yoummday may also indicate that the evaluation is solely a client view and not the opinion of Yoummday.

§ 13 – Law applicable, place of jurisdiction, partial nullity

(1) The laws of the Federal Republic of Germany apply to these general terms and conditions and the whole legal relationship between Yoummday and the client.

(2) Insofar that the client is a merchant in the terms of the German Commercial Code, a legal entity under public law or special fund under public law, Munich is the exclusive place of jurisdiction for all disputes directly or indirectily arising from this contractual relationship. Yoummday  however also has the right to sue in the location of the client.

(3) Should a provision of these business terms and conditions or a condition in the framework of other agreements be or become invalid or have gaps, the effectiveness of all other provisions or agreements remain unaffected by this.

§ 14 – Complaints management

Yoummday offers its users complaints management.

Complaints against Talents can be entered via Yoummday and will be transmitted to the Talent by Yoummday. The client is also obligated to report inadequacies, faulty services and other grounds for complaint to Yoummday.

Information:

According to Guideline 2013/11 EU about alternative settlement of disputes in consumer matters as well as regulation No. 524/2013 about settlement of online disputes in consumer matters Yoummday points out that a settlement of possible disputes within the framework of online business with an EU-wide settlement of disputes procedure can be initiated on the following platform:

ec.europa.eu/consumers/odr/

Status: 1. February 2020

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