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General Terms and Conditions of business for Talents on the www.yoummday.com portal

§ 1 – operatoR

The www.yoummday.com online platform is operated by
Yoummday GmbH
represented by the Executive Dr. Klaus Harisch, Lion Harisch and Pablo Harisch
Belgradstrasse 68, 80804 Munich
Germany
Telephone: +49 89 23023600
Email: info@yoummday.com
- referred to in the following as Yoummday -

§ 2 – scope of the general terms and conditions of business

(1) Using the www.yoummday.com portal inclusive of all services from Yoummday is exclusively subject to the following general terms and conditions of business. Other general terms and conditions of business deviating from these general terms and conditions of business are not applicable, unless the opposite is expressly stated on the part of Yoummday.

(2) Yoummday has the right to further develop or change these general terms and conditions of business at any time without grounds. Yoummday informs all registered providers by email about the changed conditions of use. In the case that the user does not object to the new conditions of use within two weeks after receipt of notice, the new conditions are counted as agreed. In the case of objection the previous conditons of use are counted as continuing to be agreed. Yoummday has the right in this case to cancel the contract with a notice period of two weeks. A ground for this is unnecessary.

§ 3 – Description of services

1) Yoummday offers the technical platform to operate a market place on which registered service providers  (referred to in the following as “Talents“) and purchasers (referred to in the following as “customers“) are provided with the possibility of closing contracts for varied services, in particular from the area of  language services via telecommunication systems. Insofar the Talents can after previous registration present their service offers and compete for work on the www.yoummday.com web plaftorm. The closure of the sontract comes about the acceptance of the statements of the Talents and the customer through Yoummday.

(2) In doing so, Yoummday is not a contractual partner of the services offered but functions solely as an intermediary and technical interface between the Talent and customer. The respective Talent is solely responsible for the content, the description and execution of the service offers.

(3) Yoummday presents the communication interface for the execution of the service of the Talent and takes over the invoicing in its name and on its behalf. Yoummday receives an intermediary commission for this service from the customer.

(4) Yoummday receuves bookings in the name of and on behalf of the Talent and ensures the proper processing of the service. Yoummday may also take over possible reversed transactions from contracts and the complete complaints management.

§ 4 – Registration/closing the contract

(1) Your registration on the  www.yoummday.com portal is necessary for the offering of services.  
The registration process starts as you register with the provision of your name, your email address and a password on the www.yoummday.com portal by clicking on the registration button. On registration you have to consent to these general terms and conditions of business for Talents and the data protection statement from Yoummday. Likewise, for checking the fulfilment of the General Data Protection Regulation (GDPR), you have to expressly state your consent to the recording of your talks carried out on the telephone and to an order-related recording of your webcam via the Yoummday platform. In doing so you give your offer to close a contract to use the www.yoummday.com portal under the provisions of these general terms and conditons of business.
The Yoummday Onboarding Team, within the framework of this registration process checks whether you sufficiently fulfil the requirements of Yoummday. Insofar the closure of a data protection contract between you and Yoummday is necessary. Following that the Onboarding Team from Yoummday checks your technical equipment, your communication skills, your organisational pre-conditions as well as the securing of the fulfilment of the data protection provisons.
Your participation in the registration process is voluntary and can be stopped by you at any time. You are however, obligated on registration to provide correct data which is asked of you, in particular full address data and email address.
You are liable for the correctness of the information provided on registration as well as for its completeness. Should Yoummday establish or should suspicious facts arise that the information provided is false or partly complete Yoummday has the right to delete the affected account without prior notice and providing a period of grace and to cancel possible existing contracts without notice.  
The registration is closed as soon as the check by the Yoummday Onboarding Team has been successfully carried out. You then receive a corresponding confirmation by email from Yoummday.
You have no right to register. Yoummday has the right to reject the offer for registration without providing grounds.  Insofar, legal recourse is excluded unless a decision to reject by Yoummday infringes a mandatory law.

(2) A contract of use for the use of the www.yoummday.com portal under the provisions of these general terms and conditions of business for an unlimited time is closed on the receipt of the confirmation email. The contract begins with the activation of the account.
You then have the right to use the www.yoummday.com portal to apply for work with and to carry out your services for the customer. You are however obligated to use the portal solely to offer your services.  It is forbidden to transfer your registration data to third parties to use the portal.
Should the data you provided change you are obligated to immediately change the data in the portal. You guarantee that all the information provided by you, in particular the address, payment data and email address is always correct and up-to-date.

(3) Both parties have the right to end the contract of use at any time with a two-week cancellation period. All mutual rights and obligations continue to exist until the cancellation. Previously received duties of payment also continue to exist after cancellation. Possible received contracts to provide services with end customers contine to exist.
A right to cancellation without notice exists, particularly in the caes of providing incomplete or false data for the registration and/or in the case of delays in payment and/or in the case of other breaches of duty by the Talent within the framwork of using the portal.
The cancellation is admissible by email, fax, and in written form.

(4) You are liable for all services carried out over your registration account according to these and the general terms and conditons of business for the customer. You are fully liable for the activitis of your employees when you deploy them.

(5) On registration your authorise Yoummday, to transfer your data to selected customers. Furthermore, Yoummday has the right to send you newsletters and advertising information insofar that you have expressly consented to this on registration.

§ 5 – offers and closing the contract

(1) Insofar that you install service offers on the www.yoummday.com portal this in principle only represents an invitation to the customers of Yoummday to make offers.
As soon as the customer has finished the  complete booking process and activated a  booking with costs, you authorise  Yoummday to act on your behalf and in your name to confirm the contract. The contract between you and the customer is established as soon as Yoummday has sent the confirmation of contract to the customer by email.
In doing so Yoummday is not liable for the correctness of the information provided by you as a provider. You are solely liable for this. Yoummday, within the framework of hosting the service offer takes over a plausibility check, there is however, only liability for this is in the case of gross negligence and wilful intent.

(2) You have the possibility within the framework of the formation of the contract to apply your own general terms and conditions of business. You are in this case obligated to ensure that your general terms and conditions of business correspond to the consumer rights laws and are not anticompetitive.
In the case of breach of this duty and in the case of thrid party claims against  Yoummday due to this breach, you release Yoummday from all third party claims.

§ 6 – cancellation right

(1) If the customer is a consumer he/she can cancel this contract.
Yoummday is to accept the cancellation on your behalf and in your name and take over the reversed transactions management.  
You as a provider are obliged to fully support Yoummday in all necessary measures.

(2) Insofar that there are claims from the customer for repayment of service fess you are obligated to repay these to Yoummday. These are to be refunded to the customer by Yoummday.

(3) Yoummday takes over the complete reversed transaction management in the case of cancellation of the contract.  
You as the provider are obligated to fully support Yoummday in doing this.
In the case that additional expenses arise through breach of your duty of support Yoummday has the right to invoice you for the corresponding additional expense according to usual hourly rates.

§ 7 – Prices and terms of payment

(1) You as a Talent have the right to determine your offer prices yourself. The price agreed between your and the customer is always valid in individual cases.

(2) Yoummday in principle receives an intermediary commission at the amount of 21 per cent of the nett income generated plus VAT from the customer.

(3) Yoummday offers a so-called Affiliate Program on its www.yoummday.com portal. Registered Affiliate Partner can act as intermediaries for Talents on the portal in accordance with this program. The Affiliate Partner receives an intermediary comission which is between 1% to 5% of the nett monthly income actually generated by a Talent which has been intermediated by them. This commission is due for a minimum of 3 months and maximan of 6 months. This commission is in principle to be borne by you. Yoummday calculates the commission and transfers it to the Affiliate Partne. The commission is then deducted from your remuneration.

(4) Yoummday takes over the invoicing on your behalf and in your name for the services provided by you to the customer. Insofar Yoummday creates an invoice on your behalf and in your name for the customer and receives the payment for you in trust.

(5) Yoummday acts with its power of attorney to receive payment within the framework of the receipt of payments via the customer‘s chosen method of payment.

(6) Yoummday transfers the respective amounts of meoney which have been claimed through the service to you. In the case that there is bank fee due for the transfer to the bank account provided by you it will be deducted as will the intermediary commission for the work of an Affiliate Partner, insofar that these have actually become due. The commission is in principle to be borne by you when you have been gained through an Affiliate Partner.
Insofar that the amonts deducted by transfer have not been precisely established the deduction will take place in later payments in the following months.

(7) The credit documents are created on each 03. of the month for the previous month. The payment of income generated via Yoummday takes place once a month and this is on the 18. of the following month. If the 18. is not a workday the payment takes place on the next following workday.

(8) A payment does not take place when the the amount to be paid in a SEPA direct debit mandate is less than 5 EURO and for other transfer processes (in particular in foreign transfers) under 50 EURO. Amounts which are less than this will be included in the invoicing for the following month. The payment is, naturally, made only once.

(9) The right for payment of your credit is subject to the regular statutory period of limitation of three years. Insofar the legal statutory period of limitation according to §§ 194 ff. the German Civil Code is valid.

(10) Payments in advance which have not been used are further administrated by Yoummday. There is no right to these.
There is no right on your part to provide services for money administrated in trust.

(11) Should there not be a payment by the customer you are solely responsible for the collection of your outstanding fee. Yoummday is in principle not liable. Should you be claimed against for repayment of service fees received on other grounds you have the capacity to be made a defendent. Every right of recourse against Yoummday is excluded.

§ 8 – material and legal defect liability TALENT and customer

(1) Yoummday is not a contractual partner of the contracts closed between Talents and customers and thus is not liable for material and legal defects of the services booked.
You as the Talent booked are solely responsible for this.
You however, guarantee a defect-free service according to the general standards of the service offered and the contractual regulations. The legal guarantee period is valid
You as provider guarantee fulfilment of all legal demands, in particular the Telecommunication Act, the Federal Data Protection Act, the General Data Protection Regulation, and the tax regulations, in particular the proper payment of turnover tax

(2) If the customer is a business the guarantee claims according to your choice can be limited to removing defects or replacement deliveries. Further claims for compensation for damages have been excluded by us in particular to damages as a result of defects.

(3) If the customer is a consumer the customer has the right of choice whether the supplementary performance is to take place through removing defects or replacement deliveries. You as provider however have the right to refuse the supplementary performance selected insofar that it is connected with a disproportional effort and/or costs.  A disproportional effort is to be assumed in particular when the service provison is also fully guaranteed by the removal of defect.

(4) Should two attempts at supplementary performance be unsuccessful, the supplementary performance is counted as failed.The customer then has the rights legally foreseen for this case.

(5) You as provider are solely responsible and have the capacity to be made a defendent for any guarantee claims, claims for damages, claims for repayment of fees in relation to the services booked. Each customer claim is to be directed to you as the provider.

§ 9 – material and legal defect liability YOUMMDAY and TALENT

The following guarantee regulations apply to the relationship between Yoummday and you as the provider:

(1) Yoummday ensures a properly funtioning portal according to the state of technology.
Yoummday cannnot exclude the possibility of possible stoppages arising in the portal. Thus an unrestricted use of the portal without stoppages cannot be guaranteed.
Insofar that defects occur, you only have the right to supplementary performance. Any claim to damages due to consequences of the defect are excluded. In particular Yoummday is not liable for loss of profit or other financial losses which could arise for you.

(2) Furthermore, Yoummday is not liable to you for damages to life, body and health with intent, gross and simple  negligence of your legal respresentatives and/or your agents in performance, for all other contractual or non-contractural breaches of duty, only for gross negligence and intent of our legal representatives and/or agents of performance or vicarious agents. Yoummday is with careful selection of its vicarious agents not liable for claims of tort. Any liablity for loss of profit is excluded.

(3) Exclusions of liability according to these general terms and conditions of business are not applicable to claims under the product liability law.

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

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

(6) Should liability claims arise against Yoummday according to the regulations above, these will be limited to the amoutn of the exisitng liability insurance for Yoummday. These lapse one year after ending the service performance.

(7) A pre-condition of all guarantee claims is that you as provider have provided all reasonable support to remove error, in particular notifying the defect in an understandable form immediately after recognition of it. If you notify a defect which is not a defect or for which you yourself are responsble you are liable for the costs resulting from this insofar that you have behaved negligently.

§ 10 – rights of use

(1) If the object of services is a transferred voice recording or other immaterial legally protected interest, you as provider transfer a simple, non-transferrable, non-sublicensible, and non-rentable right of use to the customer.

(2)  On registration and transfer of your information about your services you transfer only a simple, non-transferrable, non-sublicensible right to Yoummday to publish your data on the portal and use it for other, contractually necessary purposes.

(3) These rights of use end with the end of the contract between Yoummday and you.

§ 11 – recording talks

You consent to all talks with customers of Yoummday on your part being recorded for quality control and speaker recognition according to so-called "silent monitoring" lListening in by a trainer/quality assurance).

§ 12 – set-off

(1) You only have a set-off right when the counterclaims are legally established, unchallenged or recognised.

(2) The rights of retention only exist when claim and counterclaim rest on the same contractual relationship. Should you find yourself in default of a duty to pay no matter for which legal ground, all existing receivables are immediately due.

§ 13 – third party rights

(1) You as the provider are responsible for not injuring third party rights with your offers. In the case of injuring third party rights you are liable to the customer and possibly to Yoummday for damages which arise, in particular damages as a result of the injury.  
In the case that a third party enforces claims against Yoummday, you are obligated to release Yoummday from all third party claims.

(2) All data and information which is exchanged btween you and Yoummday 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 to be transferred to third parties. Confidential information may only be used insofar that 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.

§ 14 – evaluations

(1) Customers have the possibility to evaluate you as a service provider via the www.yoummday.com platform. The customer is obliged when evaluating the Talent to provide hruthful information. If  Yoummday has evidence that the evaluation expressed 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 also has the right to publish the evaluation for all users of the yoummday.com portal.  Yoummday may also indicate that the evaluation is solely a customer view and is not the opinon of Yoummday.

(2) Yoummday is however, never liable to you for a breach of this provision by a customer.

§ 15 – complaints MANAGEMENT

Yoummday offers its users complaints management.
Complaints against Talents can be entered via Yoummday and are transmitted to you as the Talent by  Yoummday. The customer is also obligated to report inadequacies, faulty services and other grounds for complaint to Yoummday.
Yoummday has the right to invoice you at customary rates for complaint management expenses for justified complaints.
Should Yoummday need the support of  third parties to process the complaint you are obligated to remunerate Yoummday for the corresponding costs.

§ 16 – law applicable, place of jurisdiction, partial nullity

(1) The law of the Federal Republic of Germany applies to these terms and conditions of business and the complete legal relationship between Yoummday and you.

(2) Insofar that the customer 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 indirectly arising from the contractual relationship. Yoummday however, also has the right to sue in the location of the Talent.

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

Munich, 01.04.2019

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