twago general terms and conditions
status as of June 01, 2012
Welcome to twago!
twago is an online platform for high-quality services, which is operated by Team2Venture GmbH (hereinafter referred to as "twago"), Rosenthaler Straße. 51, 10178 Berlin, Germany. twago enables customers (hereinafter referred to as "buyers") and service providers (hereinafter referred to as "providers", collectively also referred to as "users") to negotiate services, orders ("projects") and to work with each other in the scope of contracts concluded between the users ("service contracts"). Buyers can post projects, compare providers, manage projects and evaluate providers. Providers can present themselves to buyers via a profile, view projects, submit bids, negotiate conditions, manage projects and evaluate buyers. With twago, Team2Venture GmbH provides the corresponding platform for users.
The General Terms and Conditions (hereinafter referred to as "GTC") shall apply to all contracts between users and twago.
- User contract
- Service contracts
- Access to twago
- Right of cancellation for consumers
- Use of the online platform
- Invoicing, payment conditions, credit balance
- Circumvention prohibition
- Duration and termination of the contract
- Consequences of contract violations by users
- Warranty and liability
- Extrajudicial dispute settlement
- Final provisions
§1 user contract
subject matter of the contract
This contract shall regulate access to the online platform twago for the purposes described in the preamble of these GTC, where users can introduce themselves and contact each other. twago creates, operates and maintains the online platform; however, it itself does not actively act as an agency / mediator between users. The subject matter of this agreement shall exclude third party services / applications embedded in the platform (e.g. payment processing services). A separate contractual relationship shall be established with such third parties.
conclusion of contract
The user concludes a contract with twago by way of the online registration procedure and upon using the activation link in the verification E-mail sent by twago.
membership and fees
Access to the online platform is free of charge for buyers. For providers, twago offers several types of both free and paid membership models with a respectively different scope of functions/access rights for users.
The applicable prices and the respective scope of services for the membership models can be viewed in our fee schedule.
Upon conclusion of a service contract regarding the execution of a project, the provider shall pay twago a service fee in the amount of a percentage of the total order value of the project. twago's claim for payment of this fee shall arise upon use of the online platform and the amount shall become due once the buyer and the provider have concluded a service contract.
The service fee must also be paid throughout the duration of the 12 month exclusivity period if following service contracts are agreed upon (see §7 clause 4). This service fee must also be paid, if the service contract is undertaken in breach of the circumvention prohibition (see §7 clause 1).
All users must be persons of legal capacity, who are at least 18 years of age. Solely eligible to conclude contracts with twago as providers are those contractors, i.e. natural or legal persons or legally constituted partnerships, who act in an independent professional or business capacity when concluding legal transactions.
actions of natural persons
If a natural person does not act on its own behalf, then it shall guarantee to twago that it is authorised or commissioned by the user to execute the respective action.
§2 service contracts
The creation and negotiation of projects, the related contract conclusion and the fulfillment of the contract are solely the responsibility of the participating users. The users are also responsible for ensuring that the projects are in accordance with German law and the law of the respective users. Users shall negotiate their projects independently with each other. For this purpose, twago provides users with the necessary infrastructure; however, twago shall not act as representative of any user and shall not become a contract party in a service contract concluded between a buyer and a provider.
formation of service contracts
The service contract is concluded when the buyer submits a non-binding project offer, for which the provider can apply by submitting a similarly non-binding initial bid. Subsequently, the customer sends a binding offer to the provider via the button "award provider". The provider is automatically informed about the submission of the binding offer. He can accept the project by clicking on the button "Confirm and Accept Project". The buyer is informed about the acceptance of the project. Herewith, the service contract between the buyer and the provider shall be considered as concluded.
content of the service contracts
Users are free to formulate the service contracts among themselves as they wish; however, the content of the service contracts may not contradict these Terms and Conditions. The behavior of the users in fulfilling their service contracts influences the reputation of twago. Therefore the users assume an obligation towards twago to comply with and properly execute the concluded service contracts. In particular, this means that any concluded non-disclosure agreements must be observed, unless explicitly agreed otherwise between the service contract parties.
§3 access to twago
account and profile
Users are required to create an account in order to be able to create a profile and access the online platform. Each user may have a maximum of one account as buyer and one account as provider. Use of the online platform is only possible if the mandatory information is provided. Users are obliged, inter alia, to specify a user name and a password ("login data"). In addition, users must provide a valid E-mail address, which shall simultaneously serve as the means of communication between the user and twago.
profile data and updates
The user assures that the data used for the creation of his account and profile is accurate and complete. If a user's profile data has changed, the user is obliged to immediately update his profile on the online platform. twago has the right to inspect the specified account and profile data; however, it is not obliged to do so.
confidential processing of login data
The user is obliged to handle his login data with care, to process it confidentially and to prevent abuse of the login data by third parties. In particular, this means that login data must be protected against unauthorised disclosure, alteration, unauthorised access or attacks, regardless of their kind.
binding user account
The account is bound to the user and may not be transferred to third parties without the explicit consent of twago. Similarly, unless explicitly approved by twago, users are not authorised to allow third parties to access their accounts by using their login data.
Users are obliged to perform daily backups of all data (e.g. profile data, project descriptions, offers etc.) related to their use of twago to such extent as is necessary.
§4 right of cancellation for consumersback to top
§5 use of the online platform
obligation for the observance of legal requirements
Users can take advantage of various services when using the online platform. This includes, e.g. the function to send messages to other users and the possibility to design one's own content, in particular, content related to projects and service contracts (e.g. pictures, texts). The user is obliged to observe applicable law while using the online platform (including, in particular, criminal, competition and youth protection law) and not to violate the rights of third parties (in particular trademark rights, copyrights, personal rights and data protection rights). In particular, this also means that the user may not send advertising messages (spam messages in particular) without the consent of the recipient. If the content set up by the user includes hyperlinks to websites of third parties, the user shall ensure that he is authorised to use these hyperlinks and that the websites to which a link is established are compliant with applicable law and the rights of third parties within the context of sentence 3.
prohibition of fake offers and bids
It is crucial for twago that only seriously minded offers and bids are published. Therefore, users are prohibited from publishing offers or bids as putative buyers or putative providers, without intending to fulfill such offers or bids.
When a user wishes to inform a third party about the existence of twago by means of the recommendation function provided on the online platform, this user has to first ensure that the third party agrees to the receipt of this message.
On its platform, twago provides an evaluation system through which users can express their opinions on other users with whom they have performed a project. Users are obliged to submit their evaluation in a truthful and as well-balanced and objective manner as possible. twago has the right to delete evaluation entries; however, it is not obliged to do so. There shall be no general control of submitted evaluations.
granting of rights
The user shall grant twago a non-exclusive, temporally and spatially unlimited right of use of the provided content. twago has the right to use and dispose of the content at any time. In particular, this includes reproduction rights, distribution rights, public information rights as well as the right of public accessibility.
guarantee of proprietorship
The user guarantees that he is the owner of all rights related to the setting up of content on the online platform and that he is legally capable of effectively granting the rights specified in paragraph e. to twago. Furthermore, the user guarantees that the content is not protected by the rights of third parties, who could prevent the contractual granting of rights. Moreover, the user guarantees that the content is already published or that the copyright owner will not take legal action against publications by the user on the online platform. The user guarantees that the use of the content in the scope of this contract does not violate any personal rights of third parties and, in particular, that any represented persons agree to the contractual use of the content.
indemnity against claims of third parties
Upon twago's first request, the user shall release twago from any liability in connection with claims of third parties, including, in particular, claims regarding the violation of copyrights, competition rights, trademark rights, data protection and personal rights, which may arise due to the use of the online platform by the user. The user must immediately notify twago if he receives information that a third party intends to take legal action in connection with the use of the online platform. twago has the right to institute appropriate measures to defend itself against the claims of third parties or to pursue its own claims. The user's own measures must be agreed with twago in advance. This release of liability also includes the reimbursement of the relevant costs, which twago shall incur/has incurred in the course of asserting its legal rights.
blocking and deletion of content
twago is entitled to block access to individual content or to delete this content at any time. This shall apply, in particular, if such content is suspected of violating applicable law or the rights of third parties, or if projects have been fully completed.
rights to the online platform
All rights related to the online platform (in particular copyrights) belong to twago. The user is obliged to observe this and undertakes not to use parts of the platform or any other content whatsoever himself - personally or commercially - beyond the options provided to him in the scope of use of the online platform. This means, in particular, that users shall not use data and information that has come to their attention through the online platform beyond communication within the scope of an existing project or the payment for a completed project. In particular, it is prohibited to use such information for advertising, sending unsolicited e-mails or for other unacceptable purposes.
prohibition of technical interfering with the platform
The user must abstain from all actions which might manipulate, interfere with and/or overload the operation of the online platform or the supporting technical infrastructure and its functions/means of access. In particular, this includes the following:
the use of software, viruses, robots, scripts or databases in connection with the use of the online platform
the blocking, overwriting, modification, copying of data and/or other content, unless this is necessary for the proper use of the online platform.
The up to date contact details of twago are available on the platform. The details indicated in the user profile are deemed as the contact details of the user. Declarations sent to these contact details via E-mail or fax are deemed as received upon sending, via post two days after sending if no later receipt is proven.
The user acknowledges that declarations transmitted via E-mail between him and twago or other users are deemed as absolutely effective declarations of intent. An E-mail is considered as originating from the holder of the sender address, except counterevidence is provided.
§6 invoicing, payment conditions, credit balance
English-language invoices are available on the platform in electronic form. The user has the right to send an E-mail to firstname.lastname@example.org and request a German translation of twago's general invoice template. Furthermore, providers based in Germany have the right to request that an invoice be sent to them by post for a processing fee of EUR 4.95. This request must be sent within 6 months of the date of issue of the E-mail to email@example.com and it must include the user name, invoice number and full address of the user. twago is not obliged to save invoices after a period of 6 months.
The due dates of fees can be found in the respective invoice. Unless specified otherwise, invoices are due for payment immediately. In order to receive payment, twago has the right to use external service providers for payment processing and to individually determine the accepted payment methods. In the case of charge backs caused, for example, by insufficient credit card limits or coverage, a fee in the amount of EUR 25 shall become due to cover the cancellation costs incurred by twago. This fee is immediately due for payment together with the remaining open amount. The user is permitted to provide proof that no such damage has arisen or that the damage is significantly lower.
interest on late payments and reminder fees
In case of overdue payments, twago reserves the right to claim interest for late payment for the overdue period in the amount of 8% per year or, accordingly, the lower interest rate if lower interest caps have been legally established. twago shall charge a reminder fee of EUR 4.95 for each legitimate reminder.
All users are able to pay their fees using their twago credit. The user can deposit funds into their credit balance at any time. As long as the user has a positive credit balance, services on the online platform will be deducted from their twago credit balance.
Any deposits will be held in individual twago credit accounts for every user. The online platform enables users to check their twago credit accounts at any time. The balance of the account is non-binding and does not imply a financial right of claimant against the online platform.
§7 circumvention prohibition
circumvention of twago
If a buyer posts a project on the online platform, both the provider and the buyer are obliged to conclude their service contract for this project via the online platform. Users are obliged not to carry out projects by circumventing the online platform and without paying the service fee as described in § 1 c. The declaration of a too low contractual volume with the intention of reducing the service fee shall also be considered a circumvention in breach of this contract.
Should a user request that a contract be concluded in breach of the regulation of the previous paragraph, this circumvention request must be declined and the proper contract conclusion via the online platform referred to. Users should immediately inform twago about any circumvention requests by sending an E-mail to firstname.lastname@example.org.
publication of contact data outside approved areas
The communication with other users about project offers published on the online platform may only take place via the online platform. The users are obliged to enter their contact information only in the fields that are specifically provided for this purpose in their profiles and not in other, publicly accessible fields such as in project descriptions or bids, regardless of their form.
In case the users have initiated contact or agreed upon a service contract via the online platform, twago demands service fees for any following projects undertaken between the same users within a 12 month period, dating from the date whereupon the original contract was signed. The service fee is calculated at the standard percentage rate of the project volume. The users are obliged to contract any following projects within this period via the online platform. In case the users cannot access the online platform, e.g. they have deactivated their account with the online platform, they are obliged to inform the online platform about any following project by any means possible.
§8 duration and termination of the contract
duration of the contract
The duration of the contract depends on the selected membership of the service provider.
contract extension and cancellation period
The duration of the contract shall be automatically extended if the contract is not cancelled by one of the contract parties by 12.00 o'clock pm of the final day of the contract period or if the user has announced a change of membership.
change of membership
Providers may change their type of membership at any time. In case of an upgrade to a membership with a larger scope of functions, the change shall become effective immediately. Unused fees shall not be reimbursed or credited. A downgrade to a membership with a lesser scope of functions is effective at the end of the current period, after 12.00 o'clock pm of the final day of the current period.
fee changes by twago
Should twago decide to adjust its fees for the various types of membership, the providers who are affected by this adjustment shall, at the end of their individual contract periods, automatically be placed at the level with the lowest scope of functions and may then immediately implement a change of membership.
Both twago and the users have the extraordinary right to cancel the contract for cause. For twago, there shall be good cause to cancel this contract particularly during the first ten days after the contract has been concluded and whenever twago has the right to demand lump sum damages in accordance with § 9, if the user does not comply with claims for remuneration despite receiving a reminder, and/or sustainably violates his obligations according to clauses 2 c, 3 b, 5 a, c, d and/or j of this contract. In such cases, twago also has the right to prevent the user from accessing the online platform without terminating the contract.
consequences in the event of contract termination
After termination of the contract, the user shall no longer be allowed access his user account and cannot view data, messages, files or other content stored on the platform. twago has the right to delete content. twago has the right to continue providing its services in order to conclude any open transactions with other users. twago reserves the right to inform other users about the termination of a contractual relationship. Once a contract is terminated and/or a user is suspended by twago as per para. e, this user shall not be permitted to re-register. The regulations of § 7 will remain unaffected by a contract termination.
§9 consequences of contract violations by users
lump sum damages
The user (or users as joint debtor) is obliged to pay a flat-rate amount of damages for certain violations against the GTC, which are defined in more detail in para. b, unless these users are not responsible for the corresponding violation. This shall not affect twago's right to claim further damages. Users are allowed to provide proof that no damage has been incurred or that the incurred damage is significantly lower.
amount of the lump sum payment
If the user violates the circumvention prohibition of § 7, para. a - c, the amount of the lump sum payment as per para. a shall be three times the service fee charged as per § 1, para. c. In case that the user is a consumer, the lump sum as per sentence 1 shall be reduced to the amount of one service fee. The decisive factor for the determination of the amount of the service fee to be charged shall be the customer's idea of the price/budget or, if higher, the highest bid entered for the project.
The amount of the lump sum payment according to para. a shall amount to EUR 500 if the user violates
the prohibition against the submission of fake offers as per § 5, para. b.
the prohibition against renewed registration after cancellation or suspension by twago as per § 8 para. f
the prohibition against the registration of more than one account as buyer and/or provider as per § 3, para. a
§10 warranty and liability
twago shall endeavour to provide a failure-free operation of the online platform and allow users access to the stored data. Naturally, this is limited to services within twago's control. Nonetheless, the user explicitly acknowledges that it is not technically feasible for twago to offer complete, 100% availability. Notwithstanding, twago shall still endeavour to keep the online platform available for as long as possible. Users shall not have the right to file claims regarding availability. In particular, twago reserves the right to restrict access to the online platform, completely or partially, temporarily or permanently, due to maintenance works, capacity considerations and due to events, which are beyond twago's control. Individual users are also not allowed to pursue claims with regard to the preservation of certain functions and services by twago.
limitation of liability
In case of slight negligence, twago may only be held liable for the violation of contract-essential obligations (cardinal obligations), for personal injuries and according to the provisions of the Product Liability Law. For the remaining part, twago's pre-contractual, contractual and extra-contractual liability is limited to intent and gross negligence. This limitation of liability shall also apply in such cases where a vicarious agent of twago is at fault.
scope and purpose of the collection, processing and use of personal data
upon visiting twago's website
upon visiting twago's website
Each time someone visits our website, our servers temporarily store information about the accessing agent in a log file. In the course of this procedure, the following data is collected and stored, without any action on your part, until the time of automatic deletion: the IP address of the accessing computer, the date and time of access, the name and URL of the retrieved file, the website from which access is made, the operating system of your computer and the browser used by you as well as other technical data, the name of your Internet Access Provider, your language configuration and geographical origin.
This data is collected and processed for the purpose of enabling visitors to use our website (to establish a connection), to permanently guarantee the security and stability of the system, to enable the technical administration of the network infrastructure and the optimisation of our internet offer as well as for internal statistical purposes. The IP address shall only be analysed in case of attacks against twago's network infrastructure and for statistical purposes.
upon the registration as a user with twago
Personal data for the creation and completion of the profile on twago is provided on a voluntary basis. Nonetheless, the accurate input of certain data is crucial. This data includes: a user name, a password, your name and if applicable the name of your company, your full address, your E-mail address and telephone number.
This data is necessary for the development and administration of twago, for checking the plausibility of the entered data and the user's legal capacity, i.e. his capacity with regard to the establishment, organisation of content, the maintenance and modification of the contractual relationship in the course of use of twago and for eventual inquiries. Furthermore, this data is essential for the preparation of the content of service contracts concluded via twago.
Using twago as a registered user
During the use of twago by registered users, we collect data for statistical reasons to ensure the uninterrupted functionality of twago, to fix malfunctions, for a better understanding of users' needs and subsequent product optimizations and personalization, and to display such data to other users. This includes, in particular, project postings or bids and if applicable payment information submitted by you and the entire correspondence with other users or with us via twago. Data concerning your membership with twago, if applicable including electronic copies of proof of declarations made in your profile, and your invoices are also stored. In particular, your E-mail address is used to send you e-mails regarding the project status, etc. In case of a separate consent, the E-mail will also be used to inform the user via E-mail about twago or current promotions or participate in surveys for market research purposes or quality assurance.
forwarding your personal data to third parties
Your personal data is forwarded/displayed to third parties, in particular to other users or affiliated companies, only to the extent that this is permitted by your profile settings, if it is indispensable for the conclusion or processing of service contracts or if it is specially marked as visible to third parties. Information that may be viewed by third parties includes, in particular, information about the projects that were posted or completed via the online platform up to that point of time and any submitted or received evaluations.
Beyond that, we shall forward your personal data to third parties only if there is a legal obligation for us to do so, in order to perform credit or address checks, to transmit information to credit reference agencies (for example in case of a contract termination due to delayed payments) and if it is necessary for the assertion of our rights, in particular for the enforcement of claims resulting from the contractual relationship.
disclosure, correction, blocking and deletion of your data
You may request information about your personal data at any time, or view and change such data in your public profile by logging in to the online platform. Your data shall be deleted upon termination of the contract.
We apply appropriate technical and organisational security measures in order to protect your personal data against manipulation, partial or full loss and against unauthorised access by third parties. Our security measures are continuously being improved in keeping with technological developments.
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§12 extrajudicial dispute settlement
In case of legal problems resulting from a service contract, the user must send a relevant substantiation of his claim/complaint to the other service contract party via the twago messaging center before initiating arbitration or court proceedings. The other service contract party is granted a 15-day period to state its opinion and resolve the conflict. The affected party may only initiate arbitration or court proceedings after the expiration of this period. This clause shall not apply if a consumer (pursuant to § 13 of the German Civil Code/BGB) is party to the service contract.
§13 final provisions
applicable time designation
For all time designations, time periods, dates and deadlines, the Central European Time and respectively the Central European Summer Time (CET / GMT+1 respectively CEST / GMT+2) shall be applicable.
invalidity of individual provisions
Should one or several provisions of these GTC be or become invalid, this shall not affect the validity of the remaining provisions.
applicable law and court of jurisdiction
The laws of the Federal Republic of Germany with the exclusion of the UN sales law shall apply. If the user is a commercial user, the place of jurisdiction for all disputes arising from or in connection with this contract, regardless of their legal foundation, shall be the registered office of twago at the time of conclusion of the contract.
authorisation to amend the contract
All alterations or additions to the contract must be made in writing (e.g. by e-mail). This shall also apply to amendments to these regulations. twago has the right to amend the contractual terms by observing a notice period of 28 days. If the GTC are amended, the user shall have the right to extraordinary termination, which must be enforced within one week of notification. If the user continues using twago this right to extraordinary termination expires. Log in to the platform is not considered as usage, whereas does in particular posting a project or a bid or any other active usage. This shall not affect the user's remaining termination options.
assignment and assumption of contract
twago has the right to assign this contract along with all rights and obligations to a company of its choice. The assignment shall become effective 28 days after the user has been notified. If this contract is assigned, the user shall have the right to extraordinary termination, which must be enforced within one week of notification.