General Terms and Conditions 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, Pablo Harisch and Frank Moser
Infanteriestraße 11a, Haus E2, 80797 Munich
Germany
Telephone: +49 89 231660000
Email: info@yoummday.com
- referred to as “Yoummday“ in the following -

§ 2 – scope of application of these terms and conditions

(1) Use of the www.yoummday.com portal including all Yoummday services is formed exclusively on the basis of the following general terms and conditions. Differing terms and conditions are not applicable unless the opposite is expressly declared on the part of  Yoummday.

(2)  Yoummday has the right to further develop or change these general terms and conditions in the future at any time  and without providing grounds. Yoummday will inform all registered users by email at least 15 days in advance about the changed conditions of use unless Yoummday is subject to a special legal duty or has to address unforeseen and threatening cyber security risks. In the case that a user does not object to the new conditions of use within two weeks of accessing the notice the new conditions of use are held as agreed. In the case of objection, the former conditions of use are held as agreed. In this case Yoummday has the right to terminate the contract with two weeks’ notice. In  the case of termination, the access to the registered user’s account is blocked.

§ 3 – Description of services

1) Yoummday offers the technical platform to operate a marketplace on which registered service providers (referred to in the following as “talents“) and purchasers (referred to in the following as “clients“)  are granted the opportunity to close contracts for different services via telecommunication facilities in particular those from the language services field. Insofar the talents after previous registration can present and market their service offers on the www.yoummday.com web platform. The closure of contract arises through acceptance of the declarations by the talents and the clients through Yoummday.

(2)  Yoummday does not become the contractual partner for the services offered but merely functions as a broker and technical interface between the talent and client. Each talent is solely responsible for the content, the description and carrying out the service offers.

(3) Yoummday provides the communication interface for carrying out the talent’s service and takes over the billing on behalf of and in the name of the talent. Yoummday receives a brokerage commission from the client for this service.

(4) Yoummday takes bookings on behalf of and in the name of the talent and ensures the proper transaction of the service. Yoummday also takes over possible reversal transactions for contracts and the whole complaints management.

§ 4 – Registration / closURE of contract

(1) Your registration on the www.yoummday.com portal is necessary to offer services.  
The registration process begins when you specify your name, your email address, and a password on the www.yoummday.com portal through clicking on the registration button. You have to agree to these general terms and conditions for talents and the data protection declaration from Yoummday when registering. Similarly, you have to explicitly give your consent to checking the fulfilment of the General Data Protection Regulation (GDPR) for recording your telephone dialogues on the Yoummday platform and your webcam contract related recording. Thus, you make an offer to close  a contract of use for the www.yoummday.com portal under the conditions of these general terms  and conditions.
In the framework of the registration process the Onboarding Team from Yoummday checks whether  you satisfy the demands from Yoummday. Insofar closing a data protection contract between you and Yoummday is then necessary. Following that the Onboarding Team from Yoummday checks your technical equipment, your communication skills, your organisational conditions as well as ensuring the fulfilment of legal data protection conditions.
Your participation in the registration process is voluntary and can be broken off at any time by you.  You are however obliged on registration to specify correct and complete data requested in particular the complete address data and email address.
You are liable for the correctness of the information specified as well as for its completeness on registration. If Yoummday establishes or grounds for suspicion arise that the information specified is false or incomplete Yoummday has the right to delete the account affected without previous notice and without a period of grace and to terminate possible existing contracts without notice. 
The registration is complete as soon as the checking by the Onboarding Team from Yoummday has been successfully carried out. You receive a corresponding confirmation from Yoummday by email.
You have no right to register. Yoummday has the right to refuse the offer to register without giving grounds. Recourse to courts is insofar excluded unless that a decision to refuse by Yoummday breaches a mandatory law in force.

(2) A contract of use for the www.yoummday.com portal is closed under the conditions of these  general terms and conditions and for an indefinite time with access to the confirmation email. The  contract begins with the activation of your account.
You then have the right to use the www.yoummday.com portal to market and carry out your services with the clients. You are however obligated to use the portal exclusively to offer your services. Forwarding the registration data to third parties to use the portal is prohibited.
You can log on to the portal at any time with the “My Profile“ button by means of your name or your email address as well as the password you have selected. You have access in the “My Account“ area to your personal or other data which you provide to Yoummday or which is generated through use of these services.
If you change the specified data, you are obligated to make the change immediately in the portal. You guarantee that all the information provided by you in particular the address, payment data, and email address is always current and correct.

(3) Both parties have the right to terminate the contract for use at any time with a 30-day notice period. All mutual rights and duties continue to the termination. Obligations to pay which have already been entered into also exist after the termination. Possible contracts to provide services which have already been entered into with end clients continue.
The right for termination without notice on the part of Yoummday exists in particular in the case of entering incomplete or false data for the registration and/or in the case of default of payment and/or in the case of other breaches of duty by the talent in the framework of using the portal.
You have the right to terminate the contract of use without notice if Yoummday limits its services, suspends them, or ends them. Yoummday will inform you of this at least 15 days in advance and give detailed grounds for these measures.
The termination is only admissible per email, fax, and in written form.

(4) You are liable for all the services carried out over your registration account according to these and the general terms and conditions for the clients. If you hire employees, you are fully  liable for their activities.

(5) Upon registration, you authorize Yoummday to forward your data to the selected client. Further, Yoummday has the right to send you newsletters and advertising information insofar as you have expressly consented to this upon registration.

§ 5 – offer and closure of contract

(1) Insofar as you enter service offers on the www.yoummday.com portal there is in principle only a request to the Yoummday clients to take up the offers.
As soon as the client has finished the whole booking process and triggered a booking with costs you authorize Yoummday full power of attorney to confirm the contract on your behalf and in your name. The contract between you and the client arises as soon as Yoummday has sent the contract confirmation by mail to the client.
Thus, Yoummday is not liable for the correctness of the information specified by you as the provider. You are solely liable for this. Yoummday takes over a plausibility check within the framework of hosting the service offer, however liability for this only arises from gross negligence and intent.

(2) You have the opportunity to use your own general terms and conditions within the framework of forming the contract. In this case you are obliged to ensure that your general terms and conditions correspond to the consumer protection laws and are not anti-competitive.
In the case of breach of this duty and in the case that third parties claim against Yoummday due to this breach, you release Yoummday from all third-party claims.

§ 6 – right of cancellation

(1) If the client is a consumer, he/she can cancel the contract.
Yoummday will accept the cancellation on your behalf and in your name and take over the reversal transaction management. You as a provider are obliged to support Yoummday to the full extent with all necessary measures.

(2) Insofar as claims from the client for repayment of remuneration for services exist you are obliged to repay these to Yoummday. Yoummday will return these to the client.

(3) Yoummday takes over the whole reversal transaction management in the case of cancellation of contract.  
You as the provider are obliged to support Yoummday to the full extent.
In the case that extra expenses arise through breach of your duty of support, Yoummday has the right to bill you the corresponding extra costs according to the normal hourly rates.

§ 7 – Prices and terms of payment

(1) As a talent you have the right to set your own offer prices for your service. The price agreed between you and the client is always applicable in an individual case.
In this respect, you can agree with the client upon a price which depends on the time that you actually call on behalf of the client. Insofar every minute started is applicable.
Furthermore, you can also agree other or extra special payment models with the client. These include:

  • success models (in particular special payments for successful contract closures by the talent in favour of the client),   
  • reaching target models (e.g., dependent upon the acceptance quote), 
  • differing models (e.g., bonus-malus payments dependent upon previously agreed targets) or 
  • additional payment for work on Sundays and public holidays as well as night work.

(2) Yoummday in principle receives a fee for providing your technical infrastructure which is dependent upon the actual minutes used in telephone connections per calendar month in the framework of the order transaction. Furthermore, Yoummday receives a brokerage commission amounting to 21% plus statutory turnover tax on all special payments for special services which are guaranteed to you by the client. These fees and commissions are directly paid to Yoummday by the client in addition to your fee, which means that you are paid 100% of your fee. The client bears all the fees.

(3) Yoummday offers  a so-called Affiliate Programme  on its www.yoummday.com portal. Registered Affiliate Partners  can broker talents for the portal on this. The Affiliate Partner receives a commission for brokerage work which is between 1% to 5%  of the brokered talent’s actually achieved nett turnover dependent upon the monthly turnover. The commission is due for at least 3 months and a maximum of 6 months.
This commission is in principle to be borne by you. Yoummday calculates the commission and forwards it to the Affiliate Partner. The commission is then subtracted from your remuneration.

(4) Yoummday takes over the client billing on your behalf and in your name for the services provided. Insofar Yoummday gives the client an invoice on your behalf and in your name and receives the payment for you in trust.

(5) Yoummday acts with written authority to receive money within the framework of the receipt of payments through the means of payment selected by the client.

(6) Yoummday forwards the amount of money which has been claimed through services to you. Deductions will be made in the case of a bank fee for transfer arising to the bank account provided by you as well as a brokerage commission for an active Affiliate Partner, insofar that this has actually become due. Insofar that the amounts deducted in forwarding are not yet exactly defined the deduction will take place in later payments in following months.

(7) The credit documents are produced on each 3rd of the month for the previous month. The payment of turnover generated through Yoummday takes place once a month and is on each 18th  of the following month. If the 18th  is not a working day the payment takes place on the following working day.

(8) A payment does not take place if the payment amount for a SEPA debit note is less than 5 EURO and for other transfer processes (in particular for foreign transfers) less than 50 EURO. Amounts below this are carried over into the invoicing for the following month. Their payments however only take place once.

(9) The payment only takes place to a bank account of which you are the sole owner. The account on which you have specified your personal Yoummday Account is insofar material to this. Insofar you assure Yoummday that no third party has an account power of attorney on this account.

(10) The right for payment of your remuneration is subject to the regular statutory period of limitation of three years. Insofar the statutory limitation regulations apply according to §§ 194 ff. of the German Civil Code (BGB).

(11) Unused credits paid in advance are further administrated by Yoummday. There is no right to these.
There is no claim on your part to provide services for the administration of money in trust.

(12) Should there not be a payment by the client you are responsible for collecting the fees demanded. Yoummday has in principle no liability.  Should you on special grounds have a claim for repayment of service fees received you have the capacity to be made a defendant. Any rights of recourse against Yoummday are excluded.

§ 8 – material and legal defect liability for TALENT and client

(1) Yoummday is not the contractual partner of contracts closed between talents  and clients and is thus not liable for material and legal defects in the booked service.
You are solely responsible for these as the booked talent for this.
You however guarantee the defect-free service according to general standards of the service offered and the contractual specifications. The legal guarantee period applies.
You as provider guarantee the fulfilment of all legal demands in particular the Telecommunication Act, the Federal Data Protection Act, the GDPR, and the tax regulations, in particular the proper payment of turnover tax.

(2) If the client is a company the warranty claim can be limited according to your choice to removal of defect or replacement. We have excluded further claims for damages this applies in particular to the damages consequential to defects.

(3) If the client is a consumer the client has the right to choose whether the supplementary performance takes place through removal of defect or replacement. You as the provider however have the right to refuse the supplementary performance chosen insofar that it is connected to a disproportional effort and/or expenses. A disproportional effort is  particularly assumed when the 
usability of the service provision is also fully guaranteed by the removal of a defect.

(4) Should two attempts at supplementary performance not succeed the supplementary performance is held as failed. The client then has the rights foreseen by law.

(5) You as provider are solely responsible and have the capacity to be made a defendant for any guarantee claims, claims for damages, and claims for repayment of remuneration paid in relation to the service booked. Each client claim is to be directed to you as the provider.

§ 9 – material and legal defect liability for YOUMMDAY and TALENT

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

(1) Yoummday ensures a properly functioning portal according to the state of technology.
Yoummday cannot exclude that it comes to a partial failure in the portal on technical grounds. Thus, unlimited use of the portal without failure times cannot be guaranteed.
Insofar that faults occur you have the right for supplementary performance. Any claim for replacement of damages consequent to defect is excluded. Yoummday in particular is not liable for lost profits and other financial damages which could occur for you.

(2) Furthermore, Yoummday is only liable to you for damages resulting from damages to health, life, or body when there is intent, gross, and minor negligence by their legal agent and/or vicarious agent for all other damages from contractual or non-contractual breach of duty only when there is gross negligence and intent by our legal representatives and/or agents or vicarious agents. Yoummday is not liable for tortious claims when the vicarious agents have been carefully selected. Any liability for loss of profit is excluded.

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

(4) Yoummday is only liable for loss of data in the case that Yoummday has failed to take usual appropriate, regular, and technical data protection measures or has acted with gross negligence or intent.

(5) Any limitation of liability is not applicable when guarantees are expressly taken over.

(6) Should there be liability claims against Yoummday according to the above regulations these will be limited to the amount of the existing commercial  liability insurance for Yoummday. These are under the statute of limitations one year after the completion of the service.

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

§ 10 – right to usage

(1) If the object of services is a transferred linguistic work or other immaterial legally protected interest you as the provider transfer only a simple, non-transferrable, non-sublicensable and non-lettable right to use.

(2) On registration and transfer of your information about your service you grant Yoummday the simple, non-transferrable and non-sublicensable right to publish your data on the portal and use it for other purposes necessary to the contract. This does not include the right of Yoummday to market your data, goods, or services outside the portal.

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

§ 11 – recording dialogues

You give consent that all dialogues with the client from Yoummday on your part are recorded for quality control and speech recognition and agree with the so-called "silent monitoring" (trainer/quality assurance listens in).

§ 12 – set-off

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

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

§ 13 – third party rights

(1) You as the provider are responsible that you do not injure third party rights with your offers. In the case of injury to rights you are liable to the client and possibly to Yoummday for the resulting damages, in particular consequential damages.  
In the case that a third party enforces rights against Yoummday you are obligated to release Yoummday from all third-party claims.

(2) All data and information which is exchanged between you and Yoummday is even not expressly described as such strictly confidential and may only be used in the framework of the contract to fulfill the purpose of the contract.
The confidential information is to be kept strictly secret and not transferred to third parties. The confidential information may only be used insofar that it is urgently necessary for the purpose of the contract.
The parties to the contract are prohibited from any application and use of the information, data, and documents which does not correspond to the purpose of the business relationship. All confidential information may not be published nor used commercially outside the contract or disposed of in any other way.

§ 14 – evaluations

(1) Clients have the opportunity to evaluate you as a provider through the www.yoummday.com web platform. The client is obligated when evaluating the talent to give truthful information. If Yoummday has indications that the evaluation expressed is incorrect i.e., too positive, or too negative Yoummday reserves the right to delete the evaluation. Yoummday also has the right to delete unobjective criticism, abusive criticism, and types of insulting criticism. Furthermore, Yoummday has the right to make public the evaluation for all users of the www.yoummday.com portal. Yoummday may point out that the evaluation is exclusively the view of the client and does not reflect the opinion of Yoummday.

(2) You have the right to make a complaint about an evaluation according to § 15 of these general terms and conditions.

(3) Yoummday is however never liable to you for a breach of this clause by a client.

§ 15 – complaints MANAGEMENT

(1) Yoummday offers its users an internal complaints management  to enable a speedy and effective settlement of disputes. In this framework every registered user has the right to raise complaints about non fulfilment of legal duties, and technical problems as well as measures or behaviour by talents, clients or Yoummday.

(2) Each complaint is to be directed to Yoummday by email. The complaint must contain the complainant, the exact circumstances, especially the alleged inadequacies, defective services, or other grounds for complaint as well as the person to whom the complaint is directed.

(3) If the complaint is directed at another user Yoummday will immediately forward the complaint to the other party. The party then has the opportunity to give its view on the complaint to Yoummday within 7 days. Yoummday will then in all conscience within the framework of normal business decide as soon as possible about the complaint. Then the decision is clearly and understandably justified and communicated to both parties by Yoummday.

(4) If the complaint is directed against Yoummday, Yoummday will give its view on the complaint within at the latest 7 days. If Yoummday holds the complaint to be justified it is obligated to stop the criticised behaviour and remove its consequences.

(5) Should one party not agree with the decision it can also refer to a mediator, in order to enable a speedy and effective settlement of the dispute. We offer the opportunity to satisfactorily settle disputes through our cooperation with experienced conflict experts and mediators from the Federal Association for e-commerce and Mail Order Trading (bevh), without having a court trial which can be lengthy and expensive.
The bevh mediators come from an economic setting, have extensive experience with conflicts between companies and are certified according to the Mediation Law requirements. The bevh does not influence the mediation nor is it informed of the mediation process outcome. You can find the mediation organization here.
You can find further information about the mediation procedure, the costs, and the bevh mediators here.

(6) Yoummday has the right to bill the complaint management expenses to the losing party according to the normal rates. If Yoummday needs support form a third party to process the complaint the losing party is also obligated to refund the costs.

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

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

(2) Insofar as the client is a trader in the terms of the German commercial Code, a legal entity under public law or special fund under public law, Munich is the place of jurisdiction for all disputes directly or indirectly arising from this 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 or a condition in the framework of other agreements be or become invalid or have gaps, the effectiveness of all other provisions or agreements remains unaffected by this.

Munich, 01.03.2021

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