General Terms and Conditions
twago Products Terms and Conditions for Service Providers
As of: 12.03.2015
According to § 4 General Terms and Conditions concerning the use of the platform twago (“GTC”) the Team2Venture GmbH („twago”), Friedrichstraße 224, 10969 Berlin, Germany, offers its clients the option of purchasing service packages put together by twago (“twago products”). twago may use service providers as subcontractors for the creation of twago products and the performance of the twago services owed hereunder (“twago product-services”).
The following twago product terms and conditions for service providers (“twago product terms”) govern twago’s purchase of the twago product-services from service providers as well as the performance of the twago product-services by the service provider to the client, who purchases the corresponding twago product from twago. Unless otherwise provided the terms in these twago product terms shall have the meaning ascribed to them in the GTC.
twago reserves the right to modify, to amend or to redraft the twago product terms at any time and without giving reasons. The service provider will be informed about modifications, amendments or redrafts of these terms and conditions in sufficient time per e-mail (hereinafter referred to as „notice of change“). Should the service provider not object within two weeks of receiving the notice of change, the modified terms and conditions are considered approved. The service provider will be reminded of this in the notice of change.
- twago product service contracts
- Performance of service / damages / exemption
- Service provider remuneration
- Limitation of liability
- Final provisions
§ 1 twago product service contracts
1.1 Conclusion of twago product service contracts
The contract for the performance of the twago product-services between twago and the service provider („twago product service contract“) is concluded as follows:
After twago has put together a new twago product, service providers are able to make a binding offer to twago via the online platform for the performance of the twago product-services which can be derived from the relating product description. The offer must contain the following information:
- my price
- minimum price
“My price” designates the price for which the service provider would preferably perform the twago product-services. “Minimum price” designates the minimum price for which the service provider would perform the twago product-services.
On a daily basis twago will determine the average price of all “my price” declarations, which are contained in the offers made for the twago product by the service providers (“average price”). The sale price published for the respective twago product on the online platform is calculated as the average price plus potential additional charges for extras, a sales fee charged by twago and the respective applicable VAT.
Service providers who have a minimum price which lies above the average price cannot be considered for the sale of the twago product to the client and are informed of this accordingly by twago.
Service providers who have a minimum price which lies below or is equivalent to the average price will be informed by twago that they will be included in the list of pre-selected service providers for the twago product (cf. § 4.1 of the GTC).
The twago product service contract is concluded for the average price (“service provider remuneration“) as soon as a client orders the twago product from twago and twago has informed the service provider that it should perform the twago product-services for the client as twago’s subcontractor. In this case twago will inform the service provider of the client’s contact details.
1.2 Change in availability / deletion of the offer
As long as no twago product service contract has been concluded for the respective twago product, service providers included in the list of pre-selected service providers (cf. § 4.1 GTC) are able to delete their offer at any time or change their availability or the “my price” or “minimum price” provided by them, by carrying out the change or deletion accordingly via their account. A deletion of the offer or change in the availability shall take immediate effect, changes in the “my price” or “minimum price” information in contrast shall become effective from the next day.
1.3 Cessation of the twago product offer
twago can remove twago products offered on the online platform from the online platform at any time. In this case twago will inform those service providers who are listed in the relating service provider list that their offer for the performance of twago product-services is finally not included by twago. This shall not affect the validity of twago product service contracts which have already been concluded at this point in time.
1.4 Termination of the twago product service contract
twago has the right to terminate the twago product service contract by means of a one-sided notification to the service provider if the client who has purchased the corresponding twago product has made use of his statutory right of withdrawal and withdraws from the twago product contract (cf. § 4.2 GTC) concluded between him and twago. This shall not affect twago’s statutory rights to terminate.
§ 2 Performance of service / damages / exemption
As soon as a twago product service contract has been concluded with a service provider, the service provider shall upon request by twago duly perform the twago product-services for the respective client in accordance with the product description for the respective twago product. The service provider is in particular obliged to perform the twago product-services without fault, timely and taking into account the applicable statutory and other legal requirements.
Should the service provider not be able to duly perform the twago product-services (e.g. because he is not available for the timely performance of the services contrary to the information regarding availability provided by him) he shall pay lump sum damages to the level of the average price, unless the service provider is not responsible for the respective breach. This shall not affect twago’s right to assert further damages. The service provider may provide evidence that the damage has not occurred at all or only to a significantly lower extent.
Upon first demand the service provider shall release twago from all warranties and other claims by the client or a third party, which are made against twago in connection with the performance of the twago product-services. The service provider shall inform twago of any assertion of claims by the client or a third party relating to the performance of twago product-services which he becomes aware of without undue delay. twago itself may, but is not obliged to take such measures as seem appropriate for the defense against third party claims or for the pursuit of their rights. The service provider shall coordinate with twago concerning his own measures in advance. The exemption also includes the compensation of reasonable costs which twago has incurred due to the pursuit of rights / defense of rights.
§ 3 Service provider remuneration
The service provider’s remuneration, on which basis the twago product service contract was concluded, is due for payment to the service-provider’s twago-wallet (cf. § 9.4 of the GTC) following performance in due form of the twago product-services.
§ 4 Limitation of liability
In case of slight negligence, twago will only be liable in case of violation of contract-essential obligations (cardinal obligations), whereby the liability in this case shall be limited to the amount of contract-typical, foreseeable damage. Otherwise, the pre-contractual, contractual and extra-contractual liability of twago is limited to cases of intent and gross negligence, as well as to damages due to loss of life, bodily injury or damage to the health of a person. The liability for damages which occur despite undertaking a guarantee for the condition of the work, as well as the liability according to the German Product Liability Act remain unaffected. The limitation of liability also applies if the damage is the fault of an agent of twago.
§ 5 Final provisions
twago commits to treat “my price“ and “minimum price“ information communicated to twago by the service provider confidential and to not make this information known to the service provider’s competitors.
5.2 Applicable time designation
All times, periods of time and terms are stated in Central European Time, resp. Central European Summer Time (CET / GMT+1 resp. CEST / GMT+2).
5.3 Applicable law and court of jurisdiction
The laws of the Federal Republic of Germany, under exclusion of the UN Sales Convention (CISG), shall apply. If the service provider is a merchant, the competent court for all disputes arising from or in relation to these twago product terms and the twago product service contract shall be the company headquarters of twago at the time of the contract conclusion, irrespective of the legal grounds.
5.4 Contract transfer
twago has the right to transfer this contract with all rights and duties to a company of its choice. This transfer becomes effective after 28 days from communication to the service provider. With the transfer of this contract to another company, the service provider is granted an extraordinary termination right which must be enforced within one (1) week of transfer communication.