General Terms and Conditions for Talents on the portal
§ 1 - Operator
The online platform www.yoummday.com is operated by the
represented by the managing directors
Dr Klaus Harisch, Pablo Harisch, Frank Moser and Claas van Delden
Infanteriestrasse 11A, 80797 Munich
Phone: +49 89 231660000
- hereinafter referred to as "yoummday".
§ 2 - Scope of these General Terms and Conditions
(1) The use of the portal www.yoummday.com including all services of yoummday is exclusively subject to the following General Terms and Conditions. Any other General Terms and Conditions that deviate from these General Terms and Conditions shall not apply, unless expressly stated otherwise by yoummday.
§ 3 - Performance specification
(1) yoummday provides the technical platform for operating a marketplace on which registered providers of services (hereinafter referred to as "talents") and clients (hereinafter referred to as "customers") are given the opportunity to conclude contracts for various services, in particular from the area of communication services via telecommunications equipment. In this respect, the talents can present and advertise their service offers on the web platform www.yoummday.com after prior registration. The conclusion of the contract is then effected by yoummday's acceptance of the declarations of the talents and the customers.
(2) yoummday does not become a contractual partner of the services offered, but merely acts as a technical interface between talent and customer. The respective talent is exclusively responsible for the content, description and implementation of the service offers.
(3) yoummday provides the communication interface for the performance of the Talent's service and handles the billing on behalf and in the name of the Talent. For this service, yoummday receives a commission from the customer.
(4) yoummday accepts bookings on behalf and in the name of the talent and ensures the proper processing of the service. yoummday also takes over possible reversals of contracts and the entire complaint management.
§ 4 - Registration/Conclusion of Contract
(1) In order to offer services, your registration on the portal www.yoummday.com is necessary.
As part of the registration process, yoummday's onboarding team will check whether you meet yoummday's requirements. In this respect, the conclusion of a data protection contract between you and yoummday is necessary first. Subsequently, the onboarding team of yoummday checks your technical equipment, your communication skills, your organisational requirements as well as the assurance of compliance with data protection regulations.
Your participation in the registration process is voluntary and you can cancel it at any time. However, when registering, you are obliged to provide the requested data correctly, in particular complete address data and e-mail address.
You are liable for the accuracy of the information provided during registration and for its completeness. If yoummday discovers or suspects that the information provided is incorrect or incomplete, yoummday is entitled to delete the account in question without prior notice and without setting a grace period and to terminate any existing contracts without notice.
The registration is completed as soon as the verification by yoummday's onboarding team has been successfully carried out. You will then receive a corresponding confirmation from yoummday by e-mail.
You have no right to register. yoummday is entitled to refuse the offer of registration without giving reasons. Legal recourse is excluded in this respect, unless a rejection decision by yoummday violates mandatory applicable law.
(2) Upon receipt of the confirmation e-mail, a contract of use for the use of the portal www.yoummday.com is concluded for an indefinite period of time under the conditions of these General Terms and Conditions. The contract begins with the activation of your account.
You are then entitled to use the portal www.yoummday.com to advertise and perform your services with the clients. However, you are obliged to use the portal exclusively for yourself to offer your services. Passing on registration data for the use of the portal by third parties is prohibited.
Using your name or e-mail address and the password you have chosen yourself, you can log in to the portal at any time via the "My Profile" button. In the "My Account" section, you will then have access to your personal or other data that you provide to yoummday or that is generated in the course of using these services.
If the data you have provided changes, you are obliged to make the change in the portal without delay. You warrant that all details provided by you, in particular address, payment details and email address, are always up-to-date and correct.
(3) Both parties are entitled to terminate the user contract at any time with a notice period of 30 days. All mutual rights and obligations shall continue to exist until termination. Payment obligations already entered into shall continue to exist after termination. Any contracts entered into for the provision of services with end customers shall continue to exist.
A right to termination without notice on the part of yoummday exists in particular in the cases of the entry of incomplete or incorrect data for registration and/or in the case of default of payment and/or in the case of other breaches of duty on the part of the Talent within the framework of the use of the portal.
You have the right to terminate the User Agreement without notice if yoummday restricts, suspends or terminates its services. yoummday will give you at least 15 days' notice and provide detailed reasons for such action.
Notice of termination may be given by e-mail, fax and in writing.
(4) You are liable for all services carried out via your registration account in accordance with these and the General Terms and Conditions for Customers. If you use employees, you are fully liable for their activities.
(5) By registering, you authorise yoummday to pass on your data to the selected customer. yoummday is also entitled to send you newsletters and advertising information, provided that you have expressly consented to this during registration.
§ 5 - Offers and conclusion of contract
(1) If you post offers of services on the portal www.yoummday.com, this is in principle only an invitation to the customers of yoummday to submit offers.
As soon as the customer has gone through the entire booking process and triggered the booking with costs, you grant yoummday the authority to confirm the contract on your behalf and in your name. The contract between you and the customer is concluded as soon as yoummday has sent the contract confirmation to the customer by e-mail.
yoummday is not liable for the correctness of the information provided by you as the provider. You are solely liable for this. yoummday carries out a plausibility check as part of the hosting of the service offer, but liability for this only exists in the case of gross negligence and intent.
(2) You have the option of using your own General Terms and Conditions within the framework of the conclusion of the contract. In this case, you are obliged to ensure that your general terms and conditions comply with consumer law and are not anti-competitive.
In the event of a breach of this obligation and in the event that a claim is made against yoummday by a third party for the breach, you will indemnify yoummday against all third party claims.
§ 6 - Right of withdrawal
(1) yoummday will accept a revocation on your behalf and in your name and take over the entire revocation management. As a supplier, you undertake to fully support yoummday in all necessary measures.
(2) Insofar as service fee repayment claims exist against the customer, you are obliged to repay these to yoummday. yoummday will refund these to the customer.
(3) In the event that additional expenses are incurred due to the breach of your duty to cooperate, yoummday is entitled to charge you for the corresponding additional costs according to the usual hourly rates.
§ 7 - Prices and terms of payment
(1) As a talent, you are entitled to set the offer prices for your service yourself. In individual cases, the price agreed between you and the client always applies.
In this respect, you can agree on a price with the customer that depends on the time you actually spend on the phone on behalf of the customer. In this respect, each minute that has elapsed is decisive.
You can also agree other or additional special payment models with the customer. These include, for example:
- Success models (in particular special payments for successful contract conclusions of the talent for the benefit of the client),
- Success models (in particular special payments for successful contract conclusions of the talent for the benefit of the client),
- Supplements for work on Sundays and public holidays as well as night work.
(2) yoummday generally receives a fee of 29% plus statutory VAT on all net fees (excluding VAT) that the customer grants you for your services for providing its technical infrastructure and for brokering the conclusion of the contract. This fee is to be paid by the client directly to yoummday in addition to your fee, this means that 100% of your fee will be paid to you.
(3) yoummday will invoice the customer for the services provided by you on your behalf and in your name. In this respect, yoummday invoices the customer on your behalf and in your name and accepts the customer's payment in trust for you.
(4) yoummday acts on your authority to receive money when accepting payments via the customer's chosen means of payment.
(5) yoummday will forward to you the amounts of money that have been used through the service. If applicable, a bank fee will be deducted from this, which is incurred when the money is transferred to the bank account specified by you, as well as a brokerage commission for an affiliate partner who has become active, insofar as these have actually become due. If the deduction amounts are not yet precisely determined at the time of forwarding, the deduction will be made in subsequent payments in subsequent months.
(6) The invoices to the customers are issued on every third working day of a month for the previous month. The payment of the turnover generated via yoummday takes place once a month, namely on the 18th of the following month. If the 18th is not a working day, the payment will be made on the following working day.
(7) No payment shall be made if the amount paid out is less than 5 EURO for a SEPA direct debit and less than 50 EURO for other transfer procedures (in particular for foreign transfers). Amounts below this will be included in the settlement of the following months. However, they will only be paid out once.
(8) Payment will only be made to a bank account held by you, your spouse or your own company. In this respect, the account that you have specified on your personal yoummday account is decisive.
(9) The claim for payment of your remuneration is subject to the regular limitation period of three years. In this respect, the statutory limitation provisions pursuant to §§ 194 et seq. of the German Civil Code (BGB) shall apply.
(10) There is also no entitlement on your part to provide services for the funds held in trust.
(11) If the customer does not make a payment, you are responsible for the collection of your fee claim. There is no liability on the part of yoummday. Should a claim be made against you for any other reason for repayment of service fees received, you alone have the right of recourse. Any recourse claims against yoummday are excluded.
§ 8 - Liability for material defects and defects of title Talent and customer
(1) yoummday is not a contractual partner of contracts concluded between talents and customers and is therefore not liable for material and legal defects of the booked service.
You as the booked talent are solely responsible for this.
However, you warrant that your performance is free from defects in accordance with general standards of the service offered and the contractual specifications. The statutory warranty period shall apply.
You as the provider guarantee the fulfilment of all legal requirements, in particular the telecommunications law, the Federal Data Protection Act, the Basic Data Protection Regulation, the tax law requirements, in particular the proper payment of VAT.
(2) If the customer is an entrepreneur, his warranty claims may be limited to rectification of defects or replacement delivery at your discretion. We have excluded further claims for damages; this applies in particular to consequential damage.
(3) If two attempts at subsequent performance are unsuccessful, the subsequent performance shall be deemed to have failed. The customer shall then be entitled to the rights provided by law for this case.
(4) You as the provider are exclusively responsible and passively entitled for any warranty claims, claims for damages, claims for repayment of the fee paid with regard to the booked service. Any claims of the customer are to be directed against you as the provider.
§ 9 - Liability for defects of quality and title yoummday and talent
In the relationship between yoummday and you as the supplier, the following warranty provisions apply:
(1) yoummday ensures a proper functioning of the portal according to the state of the art.
yoummday cannot exclude the possibility of partial failures of the portal due to technical reasons. An unrestricted use of the portal without downtimes can therefore not be guaranteed.
If defects occur in this respect, you only have the right to subsequent performance. Any claim for compensation for consequential damages is excluded. In particular, yoummday is not liable for lost profits and other financial losses that you may have incurred.
(2) Apart from that, yoummday is only liable to you for damages resulting from injury to health, life or body in case of intent, gross and slight negligence of its legal representatives and/or its vicarious agents, for all other damages resulting from contractual or non-contractual breaches of duty only in case of gross negligence and intent of our legal representatives and/or vicarious agents. yoummday is not liable for tort claims in case of careful selection of its vicarious agents. Any liability for loss of profit is excluded.
(3) Exclusions of liability under these General Terms and Conditions do not apply to claims under the Product Liability Act.
(4) yoummday is only liable for loss of data in the event that yoummday has grossly negligently or intentionally omitted reasonable, regular and technically customary data backup measures.
(5) Any limitation of liability shall not apply if express warranties have been assumed.
(6) Should liability claims exist against yoummday according to the above regulations, these are limited in amount to the business liability insurance existing with yoummday. These expire one year after completion of the service.
(7) The prerequisite for all warranty claims is that you, as the provider, provide all reasonable cooperation in the elimination of the defect, in particular that you report the defect in a comprehensible form immediately after it is detected. If you report a defect that is not a defect or for which you are responsible, you shall be liable for the costs incurred, provided that you have acted negligently.
§ 10 - Rights of use
(1) If the subject matter of the service is a transmitted linguistic work or other intangible legal asset, you as the provider shall transfer to the customer only a simple, non-transferable, non-sublicensable and non-rentable right of use.
(2) By registering and submitting your information about your service, you grant yoummday the non-exclusive, non-transferable and non-sublicensable right to publish your data on the portal and to use it for other contractually necessary purposes. This does not include the right of yoummday to market your data, goods or services outside the Portal.
(3) These rights of use end with the termination of the contract between yoummday and you.
§ 11 - Offsetting
(1) You are only entitled to a right of set-off if the counterclaims are legally established, undisputed or acknowledged.
(2) Rights of retention only exist if the claim and counterclaim are based on the same contractual relationship. If you are in default with a payment obligation towards us, regardless of the legal grounds, all existing claims shall become due immediately.
§ 12 - Third Party Rights / Confidentiality
(1) As a provider, you are responsible for ensuring that your offers do not infringe the rights of third parties. In case of infringement, you are liable to the customer and possibly to yoummday for any damages incurred, in particular consequential damages.
In the event that any third party asserts a claim against yoummday, you shall indemnify yoummday against all third party claims.
(2) All data and information exchanged between you and yoummday, even if not expressly designated as such, shall be considered strictly confidential and may only be used within the scope of the contract to achieve the purpose of the contract.
The confidential information shall be kept strictly secret and shall not be disclosed to third parties. The confidential information may only be used insofar as this is urgently required for the purpose of the contract.
The contracting parties are prohibited from any use and exploitation of the information, data and documents that does not correspond to the purpose of the business relationship.
All confidential information may not be published, used commercially or exploited in any other way.
§ 13 - Complaint management
(1) yoummday provides its registered users with an internal complaints management system to enable fast and effective dispute resolution. Within this framework, any registered user is entitled to raise complaints about non-compliance with legal obligations, technical problems and actions or behaviour of talents, customers or yoummday.
(2) Any complaint must be sent by e-mail to yoummday. For this purpose, the e-mail address firstname.lastname@example.org must be used. The complaint must contain the complainant, the exact facts of the case, in particular the alleged inadequacies, defective services or other grounds for complaint, as well as the person against whom the complaint is directed.
(3) If the complaint is against another user, yoummday will immediately forward this complaint to the other party. The other party will then have the opportunity to respond to the complaint to yoummday within 7 days. yoummday will then decide on the complaint in good faith as soon as possible in the normal course of business. The decision will then be clearly and understandably justified by yoummday and communicated to both parties.
(4) If the complaint is directed against yoummday, yoummday will respond to the complaint within 7 days at the latest. If yoummday considers the complaint to be justified, it is obliged to cease the conduct challenged by the complaint and to remedy its consequences.
(5) If a party does not agree with a decision, he or she can also turn to a mediator for a quick and effective dispute resolution. Through our cooperation with experienced conflict experts and mediators from the Bundesverband E-Commerce und Versandhandel bevh e.V. (German E-Commerce and Distance Selling Trade Association), we offer the possibility of settling disputes satisfactorily without having to initiate court proceedings, which can be lengthy and costly.
The bevh mediators come from a business environment, have extensive experience with conflicts between companies and are certified in accordance with the requirements of the Mediation Act. The bevh neither influences the mediation nor is it informed about the outcome of the proceedings. You can find the mediation rules here.
Further information on the mediation process, the costs and the bevh mediators can be found here.
(6) yoummday is entitled to charge the complaint management expenses to the losing party according to the usual rates. If yoummday requires the assistance of third parties for the handling of the complaint, the losing party is also obliged to reimburse yoummday for the corresponding costs.
§ 14 - Applicable law, place of jurisdiction, partial invalidity
(1) These Terms and Conditions and the entire legal relationship between yoummday and you shall be governed by the laws of the Federal Republic of Germany.
(2) Insofar as the customer is a merchant within the meaning of the German Commercial Code (Handelsgesetzbuch), a legal entity under public law or a special fund under public law, Munich shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. yoummday shall, however, also be entitled to file suit at the Talent's registered office.
(3) Should any provision of these Terms and Conditions or any provision within the scope of other agreements be or become invalid or incomplete, this shall not affect the validity of all other provisions or agreements.
Status: 1. October 2022