General terms and conditions of business for clients using the www.yoummday.com portal
§ 1 – General / coverage
(1) The online platform www.yoummday.com is operated by
Represented by the executive
Dr. Klaus Harisch, Pablo Harisch, Lion Harisch and Frank Moser
Infanteriestraße 11a, House E2, 80797 Munich
Telephone: +49 89 231660000
- referred to in the following as “Yoummday” -
(2) Use of the www.yoummday.com portal including all services, other services and deliveries is formed exclusively on the basis of the following general terms and conditions. Differing terms and conditions from the client will not be accepted.
Insofar that the general terms and conditions are not conveyed in written form, they are available for download under the internet address www.yoummday.com.
(3) Yoummday has the right to further develop or change these conditions of use at any time in the future and without providing grounds. Yoummday will inform all registered clients by email about the changed conditions of use at least 15 days in advance unless Yoummday is subject to a special legal duty or has to address unforeseen and threatening cyber security risks. In the case that the client does not object to the new conditions of use within two weeks of receiving 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 of use without further grounds with two weeks’ notice. A further ground is not needed. Access to the registered user’s account will be blocked in the case of termination.
§ 2 – description of Services
The www.yoummday.com portal enables its registered users to provide language services via telecommunication facilities. Insofar Yoummday offers its users the following services:
Within the framework of the “ONE“ product a registered user (referred to in the following as “client“) can award or process orders itself for telephone services, using the technical infrastructure and software on the www.yoummday.com portal to operate a Call Center with its own employees. Insofar telephone connections for
- Outbound and
- Webchats are enabled.
Furthermore, there are a variety of Quality Assurance Tools available to the client as well as comprehensive statistics and reporting.
Using the technical infrastructure and software on the www.yoummday.com portal is exempt from charges for the client. There are merely appointment fees due for
- outbound calls as well as
- a telephone volume, insofar that it exceeds 100,000 minutes per month.
Details about this are regulated in § 5 Para. 1 of these general terms and conditions.
The “PLUS“ product extends the service scope in “ONE“ as it enables the registered client to book the provider of telecommunication services which is registered on the www.yoummday.com portal (referred to in the following as “talents“) as an extra Call Center agent.
Insofar Yoummday solely acts as an online marketplace, on which the talents can offer their different services, in particular from the language services field via telecommunication facilities, clients can also offer their orders. The www.yoummday.com portal in this respect provides the platform for the presentation and bidding of these offers as well as for managing the closure of contracts through accepting the declarations of the talents and the clients. The following services provided by Yoummday thereby in detail:
- Yoummday brokers the closure of contract for 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 the offers from the talents and clients.
- Yoummday accepts the booking on behalf of the respective talent and ensures the proper transaction of the service. Yoummday also takes over possible reversed transactions for contracts and the whole complaint management.
- Yoummday presents the communication interface for the services of the talents and takes over the billing on their behalf.
Yoummday receives a fee for these services which is dependent upon the actual minutes of telephone connection within the framework of the order processing. In addition, Yoummday receives a brokerage fee at the rate of 21% to the net price (excl. turnover tax) agreed between the client and the talent for bonus payments.
Details about this are regulated in § 5 Para. 2 of these general terms and conditions.
- Yoummday is not the contractual partner for the services offered within the framework of the “PLUS“ product but rather merely the broker and technical interface between the talent and client. Thus, it is never obligated to provide the services agreed between the talent and client.
- In each case, the client or talent is solely responsible for the content and description of the services offers, in particular their quality.
- The mutually recognised general terms and conditions are in force for the closure and carrying out of the service contract agreed between the client and the talent insofar that no differing arrangements have been agreed in these general terms and conditions.
Within the framework of the “PRO“ product Yoummday offers the registered client the opportunity to outsource the management of its virtual Contact Center. Insofar the following services are offered:
- Selecting the suitable talent profile for the client project,
- conceptual design and carrying out online training for the client’s product or service,
- monitoring and coordinating the talents in their daily work,
- planning the talents‘ working time in such a way that agreed service level targets are regularly exceeded.
A closure of a special client contract with Yoummday is necessary to use this product. The exact scope of service results in individual cases from the description of services, 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 priority conditions resulting from the conditions at hand.
(4) GDPR Home Solution
Within With the GDPR Home Solution product Yoummday enables the client, to connect its own Contact Center to the Home Office in conformance with data protection. Insofar Yoummday provides the following services:
- Personal onboarding: Yoummday checks whether all requirements, which are demanded for Home Office work conforming to data protection for each of the client’s individual employees are fulfilled. The employee’s spatial as well as technical work surroundings are examined for this. Furthermore, Yoummday trains the employees in the correct behaviour and use of their own hardware and software to conform to data protection. This step results in a distinct proof of identity through viewing official documents (for example personal ID / passport).
- Technical infrastructure: Furthermore, Yoummday provides the client with a technical infrastructure through which a legally compliant Home Office connection can be guaranteed at all. Access to the client’s system takes place via an encrypted VPN connection.
- Authentication: Each employee must be geo-referenced via a Yoummday smartphone application as a further security measure in order to receive access to the VPN. Should an error occur here, for example through false referencing, the employee must be manually activated by a supervisor after the reason has been checked. In addition, a Typing DNA module (recognizing typing behaviour) must be connected ahead for an optimal authentication process for the password entry. Finally, a continuous and fully automized connection quality check takes place during an active VPN connection.
§ 3 – Registration / Closure of contract
(1) Client registration on the www.yoummday.com portal is necessary for closure of a contract with a talent. The client accepts the general terms and conditions by closing a registration. The client thus has the right to use the www.yoummday.com platform services offered on the www.yoummday.com platform subject to the arrangements made for use in these general terms and conditions.
(2) Yoummday exclusively accepts companies and statutory bodies as a client, not however consumers. The following in particular are held as companies in the sense of this regulation:
- traders, (e.g., sole traders, business partnerships, corporations),
- members of the professions (e.g., doctors, lawyers, tax consultants, accountants) as well as
- farming and forestry operations.
The client is obligated to enter its current turnover tax number as proof of entrepreneurship. Companies located outside the European Union can also provide proof by specifying a D-U-N-S Number.
(3) The client is obligated on registration to specify the current and correct data requested in particular the full address and email address.
The client is liable for the accuracy of the information provided on registration as well as for its completeness. Should Yoummday establish or reasonable grounds for suspicion arise that information given is false or incomplete Yoummday has the right to delete the account affected without notice and periods of grace and to terminate possible existing contracts without notice.
(4) Registration is completed immediately upon the Client closing the registration with the registration button. The client makes an offer to close a contract for usage of the www.yoummday.com portal under the conditions of these general terms and conditions on completion of registration. The contract for usage of the www.yoummday.com portal under the general terms and conditions is closed upon receival of the confirmation email from Yoummday.
(5) Each portal usage, in particular taking up the services offered on Yoummday takes place with the conditions of these general terms and conditions.
(6) The client has no entitlement to registration. Yoummday has the right to refuse the offer for registration without providing grounds.
(7) The client upon registration is entitled and also obligated to use the portal solely for itself.
Forwarding registration data to third parties to use the portal is prohibited. Should the data specified upon registration change the client is obligated to make the change immediately in the portal.
The client with the aid of its name or email address as well as the password chosen can log in to the portal at any time with the “Login“ button. The client has access to its personal or other data which it has specified for Yoummday or has been generated whilst using these services in the “My Account“ field.
(8) The registered client is liable for all services ordered via its registration account. This is particularly applicable to companies which make their account available to their employees. The respective company is responsible that all registered account users, especially employees have the right to use the account. Yoummday does not have the obligation to check this.
(9) Yoummday enables the client upon registration to forward its data to the talent selected. Further, Yoummday has the right to send the client newsletters and advertising information, insofar that the client has expressly consented upon registration.
(10) The registered client is then only not liable for the services provided under its account insofar as it has informed Yoummday in due time about the loss of access data or other reasonable grounds for suspecting abuse. Multiple registrations are prohibited.
(11) A contract for usage of the www.yoummday.com portal for an indefinite period is closed upon completion of registration. The contract begins with the account activation. Both parties have the right to terminate the contract of use at any time with a two week notice period. All mutual rights and duties remain in force until termination. Payment obligations already made continue after termination. In the case of termination by Yoummday, Yoummday is obligated to repay a credit balance. This does not apply in the case of termination by the client. The right for termination without notice by both parties remains unaffected.
(12) There is a right to terminate without notice particularly in the cases of provision of an inadmissible evaluation, on provision of 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 client within the framework of usage of the portal.
(13) The termination is admissible by email, fax, and in written form.
§ 4 – Offers and closure of contract
(1) All service offers on the www.yoummday.com portal merely represent a non-binding request to provide offers through the client.
(2) Booking a service must be triggered through a mouse click on the “yoummday.com/you/mod/“ link.
The client can find the exact details of the service and the booking in the Dialogue Basket.
The booking process is first closed when the client triggers the “Order“ button.
The client gives a binding offer to book the service on the conditions offered when triggering 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 contract confirmation is forwarded to the client.
Thus, the contract is formed through this email confirmation.
Yoummday thus acts on power of attorney and on behalf of the talent selected.
(4) The contract between the client and the talent selected is formed on the conditions offered with the confirmation by email.
Thus, Yoummday is not liable for the correctness of the information provided by the talent selected.
The talent is solely liable for this. Yoummday takes over a plausibility check within the framework of hosting the service offer, there is only liability for this from gross negligence and intent.
§ 5 – Prices and terms of payment
(1) There are only appointment fees for the “ONE“ product for
- outbound calls as well as
- a used telephone volume, insofar it exceeds 100,000 minutes per calendar month.
The amount of the appointment fees is dependent upon the type and length of the respective telephone connections. They are 0.9 Cent per minute plus statutory turnover tax for connections within the German landline network. They can be considerably higher if the dialogue transfer takes place
- on special rate numbers,
- in foreign networks or
- in a mobile network.
The daily termination fees can be called up at any time in your customer portal.
(2) There are fees for each talent booked and fees and commission for Yoummday under the “PLUS“ product:
The level of fees for a talent is according to the individual price agreed between a client and a talent.
In this respect the parties can agree upon a price which is dependent upon the time that the talent has actually telephoned on behalf of the Client. Each minute started is important in this respect.
Furthermore, the client and the talent can also agree other or extra special payment models. These include
- success models (especially special payments for successful contract closures by the talent in favour of the client),
- reaching targets models (e.g., dependent upon the acceptance rate),
- differing models (e.g., bonus-malus payments dependent upon previously agreed target setting) or
- additional payment for work on Sundays and public holidays as well as night work.
Additionally, Yoummday receives a fee for providing the technical infrastructure which is dependent upon the actually used minutes of telephone connection per calendar month within the framework of the order transaction.
This commission is graduated as follows:
Respective minutes per calendar month plus statutory turnover tax
|from 0 to 50,000||0.15 €|
|from 50,001 to 100,000||0.14 €|
|from 100,001 to 200,000||0.13 €|
|from 200,001 to 400,000||0.11 €|
|from 400,001 to 800,000||0.09 €|
|from 800,001||0.06 €|
Furthermore, Yoummday receives a brokerage commission at the amount of 21% plus statutory turnover tax for all special payments which the client confers to a talent for special performances.
The basis for assessment for the brokerage commission is the net price (without turnover tax) agreed between the client and the talent for the special payment. The client is obligated to provide Yoummday with the exact amount of the bonus payment. This notification to Yoummday is to take place without delay or take place at the latest however up to the third workday after the end of a calendar month.
(3) There are special fees due for the GDPR Home Solution product each with statutory turnover tax:
- personal onboarding: 90 € per employee
- technical infrastructure and authentication: 0.009 € per VPN minute.
(4) The client accepts in principle that it is obligated to pay in advance. It receives a payment credit through its obligation to pay through its selected means of payment in advance which is claimed by the selected talent through the services provided.
(5) Yoummday has the right after the credit is used to make further provision of its services dependent upon a further payment in the form of topping up the credit. Further, the talent also has the right to use the whole credit through its services. There is no right for repayment of unused payment credits.
(6) The client is offered the following online payment services for payment:
- credit card (Mastercard, Visa, American Express)
- bank transfer
- direct debit
The following applies in the case of direct debit:
In the case that the client selects the direct debit process the invoice amount is due immediately and is collected by a service provider possibly used by Yoummday from the current account provided by you at the financial institution provided by you. The Client provides Yoummday or its service provider with a SEPA company direct debit mandate in which it instructs its financial institute to honour the direct debit.
The Yoummday creditor ID is: DE98ZZZ00001905516.
(7) The client can simply claim the reversal debit for the amount within eight weeks. This is however not possible in the case of a company direct debit mandate. The term starts with the date of liability. Should the client’s current account not cover the amount to be taken there is no obligation for the client’s financial institute to honour it. Part amounts are not collected. The client on providing the current account also declares at the same time the confirmation that it can provide the current account up to the bank collection and will also ensure that the necessary cover is on it. In the case of a reversal debit the client declares its agreement at all times that Yoummday is allowed to resubmit the direct debit for payment. Should it again not come to payment the client is obligated to pay all the reversal costs triggered by the failed attempts. Furthermore, in this case an administration fee at the amount of 5.00 Euro is due for payment.
(8) Should a payment process fail and it should not come to payment of the amount agreed the client is obligated to immediately make good the payment. The default starts with the day of booking. Yoummday has the right from this day to demand interest for default at the amount of 1.5% above the basic interest rate per month.
(9) Yoummday acts within the framework of acceptance of payments through the means of payment selected with the written authority to receive money for the talent. Yoummday forwards the amounts of money received to the talent according to the use of services and with deduction of its commission. Yoummday administrated unused advance payment credits in trust. The credit is also available to the client to use other talents, which offer their services on the yoummday.com platform. There is in principle no claim for repayment of the remuneration paid in advance unless Yoummday were to completely stop its service. In the case of not using the services there are account handling charges at the amount of 3 € per quarter of disuse.
(10) The aforementioned clause is invalid in the case of cancellation of the contract. In the case of cancellation of the contract within the legal period the client has a claim for repayment of the amount paid in.
(11) Yoummday has the right and obligation to select the same means of repayment as that on which the payment took place.
(12) Yoummday checks in individual cases whether a contractual relationship with the client was entered into on an invoice basis. This applies in particular for a longer business relationship or for clients, which have booked more than 10 Talents within the framework of an order.
§ 7 – material and legal defect liability in the product “PLUS“ framework
(1) Yoummday is not a service provider within the framework of the “PLUS“ product, thus is not liable for material and legal defects in the services booked. The talent booked is solely responsible for this.
The defect-free service is guaranteed according to the general standards of its service and the contractual specifications when offering its services on the www.yoummday.com portal. The legal guarantee period applies.
The Talent guarantees the fulfilment of all legal requirements, in particular the Telecommunication Act, the Federal Data Protection Act, and the tax regulations, in particular the proper payment of turnover tax.
(2) The client guarantee claims are limited to removal of defect or replacement after selecting the talent booked. Further claims for damages are excluded, this applies in particular to consequential harm caused by a defect.
(3) If two supplementary performances are unsuccessful the supplementary performance is held as failed. The client then has its legal rights foreseen for this case. The right of withdrawal is excluded insofar as a defect is immaterial. There is immateriality, in particular when the fitness for purpose of good or service is not impaired.
(4) Further client claims no matter on which legal ground are excluded. Neither Yoummday nor the talent booked are liable for damages which do not arise from the service. Yoummday and the talent booked are not liable particularly for lost profits or other financial loss of the client. These limitations of liability do not apply insofar that the cause of damage is based on intent, gross negligence or fraudulent behaviour or there is personal injury. Should there be claims for damages these lapse one year after completion of the service. The condition for all guarantee claims by the client is that the client provides all reasonable cooperation to correct the error, in particular notifying the defect in an understandable way immediately after recognition of it.
When the client notifies a defect, which is not a defect or that the client itself is to represent, the client is liable to the talent booked for the costs resulting from this insofar that it has acted negligently.
(5) The talent is solely responsible and has the capacity to be made a defendant for each guarantee claim, claim for damages, repayment claim for the remuneration paid in relation to the service booked. Each claim by the client is to be directed against the talent.
§ 8 – right to use
If the object of service is a transferred is a linguistic work or another immaterial legally protected interest the talent only transfers a simple non-transferable, non-sublicensable, and non-lettable right to use.
§ 9 – right to use caveat set-off
(1) The client first has the right to make use the services as soon as the remuneration for this is paid.
(2) The client only has the right to off-set if the counterclaims are legally established, unchallenged, or recognized.
(3) Rights for repayment only arise when claim and counterclaim are based on the same contractual relationship. If the client is in default of payment to Yoummday no matter from which legal ground all existing accounts receivable are due immediately.
§ 10 – Third party rights
(1) Both the client and the talent are responsible for not damaging third party rights with their offers. The party causing damage is liable to the other party in the case of breach and possibly to Yoummday for resulting damages, in particular consequential damages.
(2) Alle data and information which is exchanged between the talent booked and the client, also when not expressly described as such, is strictly confidential and may only be used in the framework of the contract to achieve 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 insofar be used as far as it is urgently necessary for the purpose of the contract.
Each application and use of the information, data, and documents, which does not correspond to the purpose of the business relationship is prohibited for the contractual parties.
All confidential information may not be published or used externally to the business use or disposed of in any other way.
§ 11 – Limitation of liability
(1) Yoummday as well as the talent booked are liable for damage to health, life, or body when there is intent, gross and minor negligence by their legal representatives and/or agents, and all other damages from contractual or non-contractual breach of duty, only if there is gross negligence and intent by their legal representatives and/or agents or vicarious agents. Yoummday and the talent booked are not liable for tortious claims when the vicarious agents have been carefully selected.
(2) Exclusions of liability according to these general terms and conditions are not applicable for claims under product liability law.
(3) Yoummday is only liable for loss of data in the case that Yoummday had acted with gross negligence or intent in failing to take usual appropriate, regular, and technical data protection measures.
(4) Any limitation of liability is not applicable when guarantees have been expressly taken over.
§ 12 – Evaluations
(1) The client has the opportunity to evaluate the Talents booked via the www.yoummday.com portal. It is obliged when evaluating a talent to provide truthful information. If Yoummday has evidence that the evaluation expressed is not just, 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 www.yoummday.com portal users. Yoummday may also point out that the evaluation is solely the view of the client and not the opinion of Yoummday.
(2) The talent affected has the right to make a complaint about the evaluation according to § 14 of these general terms and conditions.
§ 13 – Law applicable, place of jurisdiction, partial nullity
(1) The law of the Federal Republic of Germany applies to these terms and conditions and the complete legal relationship between Yoummday and the client.
(2) Insofar that 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 exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. Yoummday however also has the right to sue in the location of the client.
(3) Should a provision of these terms and conditions or a provision within the framework of other agreements be or become invalid or have gaps, the effectiveness of all other provisions or agreements remain unaffected.
§ 14 – Complaints management
(1) Yoummday offers its registered users an internal complaints management in order to enable a speedy and effective settlement of disputes. Within this framework, every registered user has the right to make complaints about the non-compliance with legal duties and technical problems as well as measures of behaviours by talents, the client or Yoummday.
(2) Each complaint is to be made to Yoummday by email. The complainer must provide exact circumstances, especially the alleged inadequacies, defective services, or other grounds for complaint, as well as the person subject to the complaint.
(3) If the complaint is against another user Yoummday will immediately forward the complaint to the other party. This party then has the opportunity to give its view to Yoummday within 7 days.
Yoummday will then in all conscience within the framework of normal business operations decide as quickly as possible about the complaint. The decision will then be justified clearly and understandably and communicated to both parties.
(4) If there is a complaint 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 cease the behaviour addressed by the complaint and remediate its consequences.
(5) Should a party not agree with a decision it can also turn to a mediator in order to enable a rapid and effective dispute settlement. We offer the opportunity to satisfactorily settle disputes through our cooperation with experienced conflict experts and mediators in the Federal Association for e-commerce and mail order trading (bevh). This is without having a court trial which can be lengthy and expensive.
The bevh mediators come from an economic setting, have extensive experience of 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 result.
You can find the mediation organization here.
You can find further information about the mediation process, the costs, and the mediators here.
(6) Yoummday has the right to bill the complaint management expenses against the losing party according to the normal rates. If Yoummday needs support from a third party to process the complaint the losing party is also obligated to replace the costs.
Status: 1. März 2021