General Terms and Conditions for Providers on the Portal

Section 1 – General / Scope of application

The following general terms and conditions serve as the exclusive basis upon which services (including all incidental services) are offered on the portal, www.yoummday.com. Divergent terms and conditions and/or purchasing terms and conditions of the provider are not accepted.
If these general terms and conditions are not transmitted in written form, then they will be available for downloading from the website, www.yoummday.com.

Section 2 – General information

The online platform, yoummday.com, is operated by
Yoummday GmbH
represented by and through its managing director, Dr. Klaus Harisch Marktstr. 17, 80802 Munich
Telephone: 089/34077422
Email: info@yoummday.com
-hereinafter referred to as “Yoummday” -
Yoummday is an online marketplace on which providers offer various services, particularly in the field of voice services via telecommunication systems. Yoummday is a platform on which the offers and deals from these service providers (hereinafter referred to as “Providers”) are presented and promoted.
Yoummday is broker and technical interface between Providers and customer.
You, as Provider, have sole responsibility for the content and the description of the service offers, including the composition thereof.
As Provider, you have the opportunity to use your own general terms and conditions during the process of forming the contract. As Provider, you are obligated to ensure that such general terms and conditions comply with consumer protection laws and are not anti-competitive.
In the event that this obligation is breached and in the event that Yoummday becomes subject to third-party claims based on the breach, you agree to indemnify Yoummday with respect to all third-party claims
For purposes of implementing the Provider’s service, Yoummday shall make the communication interface available and handle the billing and settlement. As consideration for this service, Yoummday will receive a brokerage commission from the customer.
Yoummday shall broker via its web platform the formation of a contract with the respective customer. Thus, www.yoummday.com serves merely as a platform for presenting and promoting the offers and for managing the contract formation by collecting the declarations made by the Provider and the customer.
Acting under your order as Provider, Yoummday collects the bookings and works to ensure that the service is duly handled. Yoummday also handles situations that could call for a rescission of and restitution under the contracts and handles the overall complaint management.
Yoummday is always simply the broker, however.
Yoummday is authorized to continue developing and/or modifying these terms of use at any time and without any reason. Yoummday shall via email inform all registered Providers about the modified terms of use. In the event that the Provider fails to object to the new terms of use within two weeks from the receipt of the notice, the new terms of use will be deemed to have been agreed. In the event an objection is raised, the prior terms of use will still be deemed agreed. In that case, Yoummday will be entitled to terminate the contract upon two weeks’ notice. No additional reason is necessary. Yoummday will note the aforementioned legal consequences in an
informational email.

Section 3 – Registration/Contract formation

In order to offer services, the Provider is required to be registered on the portal, www.yoummday.com. Upon completing the registration process, you accept, as Provider, the terms applicable to the provider under these general terms and conditions.
As Provider, you furthermore also accept the general terms and conditions that Yoummday concluded with the customers of the portal.
Those general terms and conditions also apply with respect to the relationship between you and Yoummday, to the extent that the following general terms and conditions do not prescribe different rules.
Upon completing the registration, you will be entitled, as Provider, to use the portal,www.yoummday.com, for promotional purposes and for implementing your service with the customers.
During the registration process, the Provider will be obligated to furnish the requested data correctly, including the complete address data and email addresses.
As Provider, you warrant that the information submitted during the registration is correct and complete. If Yoummday determines, or certain suspicious facts [Verdachtsmoment] suggest, that the information provided is false or incomplete, then Yoummday will be entitled to delete the relevant account without prior notice and without granting a grace period and to terminate any existing contracts without notice.
The registration will be completed when you, as Provider, have completed the registration by pressing the registration button. Upon completing the registration, you, as Provider, are making an offer to conclude a contract for using the portal, www.yoummday.com, pursuant to the provisions of these general terms and conditions. Upon receiving the Yoummday confirmation email, the contract for using the portal, www.yoummday.com, will be concluded pursuant to the provisions of these general terms
and conditions.
Any use of the portal, including the offering of the services, will be thereupon governed by these general terms and conditions.
The Provider does not have a right to demand registration. Yoummday is entitled to reject the offer for registration without having to furnish any reasons.
Upon registration, the Provider is both entitled and obligated to use the portal for itself in order to offer its service. Any disclosure of the registration data for the use of the portal by a third party is prohibited. If the data provided by the registered Provider changes, then that customer will be obligated to immediately enter the change in the portal.
The registered Provider must guarantee that all statements made during the registration including address, payment data and email addresses, are up-to-date and correct.
The registered Provider will be liable for all services that are performed through its registration account based on these general terms and conditions and the general terms and conditions for the customer. If you deploy workers, then you will be fully liable for their work.
Upon registration, the Provider authorises Yoummday to share its data with selected customers. Yoummday is furthermore entitled to send newsletters and marketing information to the Provider, to the extent that the Provider had expressly consented thereto during the registration.
The completion of the registration will effectively form a use contract [Nutzungsvertrag] regarding the utilization of the portal, www.yoummday.com, for an indefinite period of time. The contract will commence when the account is activated. Both parties are entitled to end the use contract at any time upon providing two weeks’ notice. All mutual rights and obligations will continue until the termination is complete. Any previously incurred payment obligations will remain binding even after the termination. Any concluded contracts regarding the performance of services with end customers will remain binding.
A right to terminate without notice will exist specifically when incomplete or false data had been entered for the registration and/or when there has been a late payment and/or the Provider has otherwise violated a duty in connection with the use of the portal.
The notice of termination may be given via email, facsimile and in written form.

Section 4 – Offers and contract formation

Any service offers that you enter on the portal, www.yoummday.com, generally constitute nothing more than a request to the Yoummday customers to issue their own offers.
As soon as the customer has gone through the entire booking process and has triggered a chargeable booking, you will grant Yoummday the authority to confirm the contract in your name. The contract between you and the customer will be formed as soon as Yoummday has sent the contract confirmation by mail to the customer.
Yoummday is not thereby warranting that the information provided by you, as Provider, is correct. Only you, as Provider, warrant and assume liability for the information.
Yoummday will undertake a plausibility review in connection with hosting the service offer, but any liability for such review will be based only on gross negligence and an intentional act or omission.

Section 5 – Prices and terms of payment

Yoummday is generally entitled to determine the service pricing on its own and may also modify this pricing at any time.
Upon registering as Provider on the portal, www.yoummday.com, you accept this price charging right of Yoummday.
As a rule and as consideration for its brokerage work, Yoummday will receive a commission totaling 21 percent of the net revenue (plus value added tax) from the customer.
When taking receipt of the payments through the selected means of payment of the customer, Yoummday is acting under your power of attorney to collect funds.
Yoummday will forward to you any cash funds that were claimed through the service, Yoummday shall continue to manage any unused, advance payment credits. A right to this does not exist.
On the Provider’s side, there is also no right to perform services in exchange for the cash funds administered in trust [treuhänderisch].
If a customer payment is not made, then you will be responsible for collecting your fee claim on your own. Yoummday will generally not incur any liability here. If, for whatever reason, a claim is asserted against you demanding the repayment of any service fees received, then you alone will be subject to litigation as a defendant. No  recourse claims against Yoummday will be available.

Section 6 – Liability for defects in quality and legal title Provider and Customer

(1) Yoummday is not a service provider and will therefore not be liable for any defects in the quality and legal title of the booked service.
Only you, as the booked Provider, are responsible for such defects.
You warrant, however, that your good or service will be free of defects in accordance with the general standards of the service offered and the contractual provisions. The statutory warranty period applies.
As Provider, you warrant that all statutory requirements will be met, specifically those under the telecommunications laws, the Federal Data Protection Act, the requirements under the tax laws, including the proper remittance of turnover tax.
(2) If the customer is an entrepreneur or enterprise [Unternehmer], then its warranty claims will be limited, at your discretion, to curing the defect or providing substitute delivery. We have excluded more extensive claims for compensatory damages, particularly consequential damages arising from the defect.
(3) If the customer is a consumer, then the customer will have the option to decide whether to seek subsequent performance [Nacherfüllung] in the form of a defect cure or substitute delivery. As Provider, you will be entitled, however, to reject the selected form of subsequent performance, to the extent such remedy would trigger disproportionate expense and/or costs.
(4) If two attempts at subsequent performance fail to yield a successful outcome, then the subsequent performance will be deemed to have failed. In that case, the customer will be entitled to its rights under the law.
(5) With respect to any warranty claims, claims for compensatory damages, repayment claims for paid fees regarding the booked service, you alone, as the Provider, will be responsible and subject to litigation as a defendant. Any customer claims shall be directed to you as the Provider.

Section 7 - Liability for defects in quality and legal title Yoummday and Provider

In the relationship between you, as Provider, and Yoummday, the following warranty provisions apply:
(1) Yoummday shall act to ensure that the portal duly functions in accordance with the standards and state of technology.
Yoummday cannot rule out that parts of the portal may break down for technical reasons. Thus, an unencumbered use of the portal without any downtimes cannot be warranted.
Any right to compensation for consequential damages is precluded.
Yoummday is generally not liable for damages that were not caused through the use of the portal itself or that were caused by another service of Yoummday.
Yoummday will specifically not be liable for any lost profits and other pecuniary damages sustained by the Provider.
(2) More extensive customer claims, regardless of the legal basis for such claims, are precluded. This limitation of liability does not apply to the extent that the damage is based on an intentional act or omission or on gross negligence or malicious conduct or to the extent that there is a personal injury. If compensatory damage claims should arise at that point, then these claims will be barred by prescription one year after the service work has been completed. A prerequisite for all warranty claims is that you, as Provider, give all reasonable support in remedying the mistake, particularly in reporting the defect in a comprehensible manner immediately after discovering it. If you
report a defect which does not exist or for which you yourself are responsible, then you will be liable for any costs incurred thereby to the extent you acted negligently.

Section 8 – Rights of use

If the subject matter of the service is a linguistic work [Sprachwerk] or some other intangible, legally protected interest [immaterielles Rechtsgut], then you, as Provider, shall grant the customer merely a simple, non-transferable right of use [Nutzungsrecht] that may not be sub-licensed or sub-leased.
Upon registering and transmitting your information about your service, you grant Yoummday the simple, non-transferable right (which may also not be sub-licensed) to publish your data on the portal and to use such data for other, contractually required purposes.
These rights of use will end when the contract between you and Yoummday ends.

Section 9 – Recording conversations

The provider gives its consent to having all conversations, which are held with Yoummday customers, recorded on the agent’s side for quality assurance purposes.

Section 10 – Setoff

You will always have a right to setoff, but only if the counterclaims have been determined res judicata, are not disputed or are recognised.
Rights to withhold counter-performance exist only if the claim and counterclaim are based on the same contractual relationship. If you are late (in default) in discharging your payment obligation to us (on whatever legal grounds), then all existing payment claims will become immediately due.

Section 11 – Third-party rights

(1) You are responsible for ensuring that your offers do not infringe any third-party rights. In the event rights have been infringed, you will be liable to the customer and possibly to Yoummday for any damages incurred, including consequential damages.
In the event that third parties enforce certain claims against Yoummday, you will be obligated to indemnify Yoummday with respect to all third-party claims.
(2) Any and all data and information that is exchanged between us will be deemed strictly confidential, even if that designation has not been expressly given, and such data and information must be used solely in connection with this contract to attain the contractual purpose.
The confidential information must be held in the strictest confidence and may not be disclosed to any third party. The confidential information may be used only to the extent that it is urgently required for the contractual purpose.
The contracting parties are prohibited from using and exploiting the information, data and documents in a manner that is inconsistent with the purpose of the business relationship.
All confidential information may be neither published nor exploited for purposes that are not commercially intended nor may it be used in some other manner.

Section 12 – Limitation of liability

IN NO EVENT WILL YOUMMDAY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR SPECIAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA, LOST PROFITS OR BUSINESS INTERRUPTION, ARISING FROM, OR RELATING TO THESE GENERAL TERMS AND CONDITIONS OR THE PLATFORM, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF YOUMMDAY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
YOUMMDAY'S TOTAL CUMULATIVE LIABILITY ARISING FROM, OR RELATED TO THESE GENERAL TERMS AND CONDITIONS OR THE PLATFORM WILL NOT EXCEED THE FEES ACTUALLY PAID TO THE PROVIDER DURING THE PERIOD OF TWELVE MONTHS PRECEDING THE DAMAGING EVENT.
THE PROVIDER UNDERSTANDS AND AGREES THAT THE FOREGOING LIABILITY LIMITATIONS ARE ESSENTIAL ELEMENTS OF THE GENERAL TERMS AND CONDITIONS AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THE MATERIAL AND ECONOMIC TERMS WOULD BE SUBSTANTIALLY DIFFERENT.
THE FOREGOING EXCLUSION SHALL NOT APPLY TO ANY LIABILITY ARISING OUT OF OR IN CONNECTION WITH: (I) DEATH OR PERSONAL INJURY; (II) FRAUDULENT MISREPRESENTATION; OR (III) YOUMMDAY'S LIABILITY IN CONNECTION WITH ANY TERMS THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.

Section 13 – Evaluations and reviews

Customers have the opportunity on “Yoummday” to evaluate (review) you as Provider. In reviewing the Provider, the Customer is obligated to make truthful statements. If Yoummday sees indicia that the review was untrue (i.e., it was either too favourable or too negative), then Yoummday has the right to delete the review. Yoummday is also entitled to delete any subjective or personal criticism, abusive criticism and criticism of an insulting nature. Yoummday is entitled to publish the review for all users of “Yoummday”. Yoummday may also reference the fact that the review is merely the opinion of the customer and not of “Yoummday”.
Yoummday will never be liable to you, however, on the basis of the customer’s violation of this clause.

Section 14 – Complaint management

Yoummday offers its users a complaint management service.
Complaints may be lodged against Providers on Yoummday and will be forwarded by Yoummday to you as Provider. The customer is also obligated to report any shortcomings, defective services and other grounds for complaint to Yoummday.
Yoummday is entitled to invoice you (pursuant to the customary rates) for the complaint management expense incurred on legitimate complaints.
If Yoummday requires the support of third-party service providers to handle the complaint, then you will be obligated to compensate Yoummday for these costs.

Section 15 – Applicable law, judicial forum, severability

(1) The laws of South Africa govern these general terms and conditions and the overall legal relationship between you and Yoummday.
(2) If the customer qualifies as a merchant within the meaning of the German Commercial Code, a governmental legal entity or a special public sector fund, then exclusive jurisdiction and venue for all disputes arising either directly or indirectly from the contractual relationship shall lie with the competent courts at Yoummday's registered office. Yoummday is also entitled, however, to bring legal action before the competent courts at the Provider’s place of business or residence.
(3) Should any provision of these general terms and conditions or a provision under any other agreements be or become invalid or contain gaps, then the validity of all other provisions or agreements will not be affected thereby.