Only the German version of the below terms is legally binding (see German Website or PDF below). The English version is solely provided for the convenience of shyftplan's English speaking customers.
GENERAL TERMS AND CONDITIONS FOR THE USE OF SHYFTPLAN
1. SCOPE AND DEFINITIONS
1.1. These General Terms and Conditions (hereinafter referred to as "GTC") of shyftplan GmbH, Ritterstraße 26, 10969 Berlin, e-mail: firstname.lastname@example.org, (hereinafter referred to as "shyftplan") constitute the exclusive basis for the use of the services offered on the internet platform under the domain https://shyftplan.com (hereinafter referred to as "platform, portal or website"), unless explicitly stated otherwise.
1.2. Within the scope of the service contract the customer accepts these general terms and conditions as solely authoritative for the legal relationship with shyftplan. Deviating or conflicting general terms and conditions of the customer are not recognized by shyftplan, unless shyftplan has explicitly agreed to them in writing.
1.3. In the context of these GTC, User means a user account that is stored on the platform. It is possible that a user corresponds to a natural person, but this is not mandatory. A user can also be stored in the portal as a dummy account (without its own login).
1.4. In the context of these GTC, Employee means a User who has been assigned the rights (e.g. by an administrator in the User profile) of the Employee. Among other things, this enables the user's attendances and absences to be scheduled in the platform.
1.5. In the context of these GTC, Manager refers to a user who has been assigned the corresponding rights (e.g. by an administrator in the user profile) of the manager. Any assignment of manager rights, including the scheduling of employees and viewing rights to shift schedules, define a user as a manager. A manager can be an employee and a manager at the same time.
2. CONCLUSION OF CONTRACT
2.1. A contractual relationship with main service obligations is established by offer and acceptance in the form of a written service contract (esp. e-mail and in writing; clause 2.2.), which refers to these GTC.
2.2. Within the scope of the conclusion of the contract in text form, the content and scope of the contract shall be based on the services agreed in the text, which shall be specified by these GTC. In addition, agreements deviating from the GTC may be made in the service contract. In cases of doubt, the provision of the service contract shall take precedence.
2.3. Services in the sense of number 3. of these GTC are offered by shyftplan exclusively for entrepreneurs in the sense of § 14 BGB. The customer confirms with the conclusion of the contract that he acts in exercise of his commercial or independent professional activity and uses the shyftplan services for this purpose. If the customer acts as a representative of another person, he assures that the represented person is acting in the exercise of his commercial or independent professional activity and uses the shyftplan services for this purpose.
3. SCOPE OF SERVICES
3.1. The shyftplan services facilitate the work organization of companies as well as the communication between companies and their employees. The shyftplan offer currently includes the following paid services:
Shift planning for companies and their employees or freelancers (hereinafter referred to as "shift planning", section 3.2.1.)
Evaluation of working times (hereinafter referred to as "Evaluation", section 3.2.2.)
Time stamp clock for recording the attendance hours (hereinafter "time stamp clock", clause 3.2.3.)
Time account for recording varying working times (hereinafter "working time account", section 3.2.4.)
Export of the relevant wage data (hereinafter "wage export", section 3.2.5.)
3.2. The respective scope of services is described in more detail below.
3.2.1. Shift Planning: The services of shyftplan within the service of shift planning include the provision of a platform that enables the customer to perform the following functions via the input of data:
Creation of shifts including start, end and break times,
manual time recording of shifts per employee,
assignment of employees to the created shifts,
application of employees to the designated shifts,
providing of print views of the shift schedule,
planning of vacation times and times of other absences (e.g. sickness, maternity leave, parental leave) including the possibility to enter and process vacation requests,
"Dashboard" for internal open communication between employees and the company.
3.2.2. Evaluation: The shift data available via shyftplan can be evaluated directly with the function Evaluation on the platform. The service of shyftplan within the service Evaluation includes the electronic provision of various data available on the portal, which refer to an employee and a calendar month. The evaluation shows, among other things, the start and end of working hours as well as break times. This is based on the data stored on the portal with regard to a company and its employees, in particular the shift schedules from which the employee's working hours are derived. If, in addition, the time stamp clock function has been contractually agreed, the actual working hours resulting from this can also be recorded. It is the sole responsibility of the customer to check the existing data for correctness and completeness of content before further use. The data is additionally provided in a file format (e.g. *.csv) to enable export from the portal.
3.2.3. Time stamp clock: A digital time stamp clock can be started from a manager account on the platform after activating this function. In this time stamp clock, every employee who has been activated for this function can log in with his ID. The times of clocking in and clocking out are then transferred to the recording of the shift in order to record the actual working time worked as precisely as possible. The scope of services within the Time stamp clock per employee service is the recording of an employee's working hours in a calendar month through this function.
3.2.4. Working time account: The Working Time Account service enables the Customer to electronically record the hours worked for its employees and to reconcile them with the contractually agreed working hours. The scope of services of a working time account for an employee includes the provision of an electronic overview on the portal, which shows the difference between the contractually agreed working time to be stored by the customer (incl. vacation, sickness and overtime regulations) and the working time actually worked. The recording of the working hours actually worked is automated via shift planning (section 3.2.1.) or, if activated, via the time stamp clock (section 3.2.3.). The hours worked can be corrected manually.
3.2.5. Wage export: The function "Wage export" allows the export of payroll relevant data of one or more employees in CSV- format. The file itself must be adapted to the respective format requirements of the various payroll programs. Within the scope of the wage export, the scope of services of the function includes per employee:
Master data of the employee
Changes in the employee's master data compared to the previous payroll month
Employee's gross wages - payroll type 1 (forecast): In payroll type 1, wages are paid to employees based on the forecast values for the current month. The correction values are automatically carried over to the next month.
Employee's gross wages - payroll type 2 (direct): In payroll type 2, wages are paid to employees based on actual gross wages incurred at the beginning of the following month.
3.3. shyftplan does not give any guarantee or other warranty with regard to the uninterrupted availability, accessibility and functionality of the platform, especially if the cause lies outside the sphere of control of shyftplan. However, shyftplan commits itself to keep its technical facilities serving for the operation of the platform functional within the scope of customary technical standards and to adapt them to the state of the art and the usage behavior of its customers to a reasonable economically justifiable extent. The customer has to accept temporary restrictions in the availability of the platform when carrying out necessary maintenance work.
4. PERFORMANCE, REMUNERATION AND DEADLINES
4.1. The remuneration of the service provision by shyftplan is calculated according to the number of users on the portal for whom services are activated on the basis of the contract according to section 2. of these GTC. Employees and managers are always considered separately. Activation refers to a technical process that enables the Customer to use the contractually agreed services pursuant to section 3 of this Agreement for all of its Users on the Portal with one or more company accounts. The activation takes place automatically and does not require any further cooperation of the Customer. The customer is free to decide whether to use the services and for which users he makes use of the activated options on the portal and to what extent. In return, shyftplan's remuneration is not reduced by the fact that the client only makes use of a part of the services or does not make use of any services in the sense of section 3. of these GTC.
4.2. The contractual relationship shall generally be for an indefinite period. A minimum contract term may be provided for. If no minimum contract term is stipulated, both parties may terminate the contractual relationship at the end of a calendar month. The notice of termination must be received by the other party in text form no later than one week before the end of the calendar month with which the contractual relationship is to end.
4.3. If a minimum term is provided for in the contract, shyftplan is obliged to activate the contractually agreed services at the agreed conditions for the duration of the contract term. Section 10.2 of these GTC remains unaffected. A contractual relationship with a minimum contract period can only be terminated by both parties at the end of the minimum contract period. The notice of termination must be received by the other party in text form no later than three months prior to the end of the minimum contract term, unless a different notice period is included in the contract. Otherwise, the contractual relationship shall be continued on the same terms and conditions, with the agreed minimum contract term starting anew (Section 4.5. shall remain unaffected). The right to extraordinary termination for good cause shall always remain unaffected for both parties.
4.4. It may be agreed in the Contract that a certain minimum remuneration is to be paid regardless of the number of Employees and Managers on the Portal ("Base Price")1. The base price to be paid monthly includes a number of employee and manager licenses defined in the service agreement. Additional users will be charged according to the contractually agreed prices. The transfer of unused but charged users to another billing month is not possible.
4.5. If a minimum contract term has been agreed, the monthly base price to be paid shall apply for the entire duration of the minimum contract term. In the event of an automatic extension of the minimum contract term pursuant to section 4.3. of these GTC, the contractually agreed base price shall also be maintained for the new minimum contract term. The number of invoiced licenses for additional employees and managers shall also remain in effect for the new minimum contract term. Notwithstanding the above, the customer may reduce the number of additional users in the calendar month prior to the end of the notice period by notifying email@example.com in writing before the end of the notice period. For this purpose, the number of additional users differentiated by employees and managers must be specified in the e-mail for the new contract term. It should be noted that the customer must ensure that by the end of the previous contract term the users assigned to the company account are also reduced accordingly to the number then applicable for the new minimum contract term.
4.6. After a termination has come into effect, all stored data relating to the company accounts concerned will be deleted. Excluded from this is such data for which legal regulations mandate a longer retention period. The provisions of sections 4. and 5. of these GTC shall remain unaffected.
1Corresponds to minimum purchase/minimum sales in old contracts
5. BILLING, DUE DATE AND INVOICING
5.1. shyftplan invoices the services activated, used or otherwise invoiced according to clause 4. of these GTC and the resulting fee immediately after the end of a calendar month. shyftplan records the employees and managers actually assigned to the customer on the portal according to clause 4. of these GTC on a monthly basis and bases the calculation of the fee on the agreed fee per assigned user per company account. A User shall be deemed to have been assigned to a company account for the first time in a calendar month. If a user is deleted from a company account, this will not be taken into account until the beginning of the next calendar month. If an employee is converted to a manager within a month, he is considered a manager for this month; a conversion of a manager to an employee is taken into account at the beginning of the next calendar month.
5.2. The invoice amount is due and payable without deductions within 14 days after receipt of the invoice to be issued by shyftplan by the customer. The client may authorize shyftplan to debit amounts due from his account by credit card or by direct debit.
5.3. Objections against the invoice can only be asserted by the customer against shyftplan within a period of two weeks after receipt of the invoice. In the event that the service provision is not fully effected until after receipt of the invoice, the time limit in this respect does not begin until the end of the service provision.
5.4. Deviating from clause 5.1. shyftplan is entitled to demand an advance payment already at the beginning of the contract period ("advance payment"), if this has become part of the contract. For the calculation of the advance payment the agreed base price plus already agreed additional users will be charged in advance for the whole minimum contract period. If, during the minimum contract term, the customer assigns additional employees and managers to the company account over and above the users included in the base price and the agreed additional users, an advance payment must also be made in full for these users. The amount of the advance payment results from the contractually agreed remuneration per additional User for the entire remaining term of the contract. shyftplan will issue the corresponding invoice after the end of the month in which additional Users have accrued (for clarification: clause 5.1. sentence 3, 4 and 5 remain unaffected and continue to apply). If the actual number of users of the customer on the portal is reduced during the minimum contract period, shyftplan is not obliged to refund advance payments or parts thereof. If a new minimum contract period starts, the advance payment for the new minimum contract period is based on the base price and the additional users according to clause 4.4. and clause 4.5.
5.5. In case of doubt, the contractually agreed remuneration is to be understood excluding value added tax, unless otherwise stated.
6. CONTRACT AMENDMENTS
6.1. The customer agrees that its silence in response to an offer to amend the contract, subject to the conditions set out below, shall be deemed to constitute consent.
6.2. Changes of the contract can only be offered by shyftplan to the customer for a valid reason. If the Customer does not object to the offered contract amendments within six weeks after receipt, the Customer's silence shall exceptionally be deemed as consent.
6.3. Valid reasons are in particular obvious editorial errors in the GTC, changes in legislation and/or jurisdiction, new technical developments and standards, currency conversions or other equivalent reasons.
6.4. The same applies if shyftplan discontinues or changes individual services in whole or in part.
6.5. shyftplan shall notify the customer of the offered changes in text form (to the customer's specified e-mail address), stating the effective date. shyftplan shall send the notice of change to the customer within a reasonable period of time, i.e. at least six weeks before the changes become effective. shyftplan shall inform the customer in the notice of change about the approval effect of his silence, the reason for the change and the consequences of an objection.
6.6. If the customer objects to the offered change within the reasonable period of time, the contract will be continued with the old terms and conditions. In this case shyftplan reserves a special right of termination.
6.7. The above provisions shall apply analogously to amendments to the order processing agreement (cf. section 8.2 of these GTC).
7. USE OF SHYFTPLAN
7.1. The customer bears full responsibility for the data he enters on the website and his usage behavior.
7.2. The use of the platform is permitted within the scope of the intended use and the applicable law of the Federal Republic of Germany. Thereafter, the Customer shall refrain from any violation of law or any misuse, in particular the misuse by means of automated software (for example scripts) as well as the unauthorized copying and the unauthorized use of information accessible on the Website are prohibited. The customer may retrieve data via the shyftplan API, but this must be done within a reasonable scope (maximum 50 requests per minute per customer, maximum 1,000 requests per hour per customer). If this scope is exceeded, shyftplan reserves the right not to answer the requests. Permitted Use: The shyftplan API is intended for use by developers to create software applications that enhance or complement shyftplan's services, and to develop new products and services that are not in direct competition with shyftplan. Customers are authorized to use the shyftplan API to access and retrieve data, content and functionality made available through the API. In contrast, the following uses of the shyftplan API are strictly prohibited:
a. Using the API to replicate or compete with shyftplan's Services, or to develop a product that is substantially similar to or in direct competition with the Services.
b. Using the API in a manner that harms or disrupts shyftplan's services, or disrupts or damages shyftplan's servers, networks or systems.
d. Using the API for any unlawful or unethical purpose or in a manner that violates any applicable law, regulation or industry standard.
7.3. The customer has to protect his access data to the customer account against unauthorized use by third parties. He notifies shyftplan immediately in case of indications for a misuse of his customer account.
7.4. shyftplan only checks the content of the information entered by the customer on the website if it has gained knowledge or a suspicion based on facts of concrete illegal content.
7.5. Information with which the customer violates the applicable law of the Federal Republic of Germany or the rights of third parties may be blocked by shyftplan without prior notice until the facts are clarified; this also applies in case of justified suspicion. shyftplan furthermore reserves the right to temporarily or permanently block the customer on the platform. shyftplan will always give the customer a warning beforehand, setting a deadline, and request the elimination of the illegal condition.
8. DATA PROTECTION
8.1. The Customer warrants to shyftplan that the personal data communicated by him on the platform have been collected, processed and transmitted to shyftplan in accordance with the legal provisions, in particular the European Data Protection Regulation (EU 2016/679) (GDPR) of the Federal Data Protection Act (BDSG) and the Telemedia Act (TMG), and may be transmitted by shyftplan to third parties (in particular tax consultants and payroll accountants) to the extent necessary for the fulfillment of the contractual obligations, in particular that any information obligations according to Art. 13, 14 GDPR have been fulfilled by the Customer. The transmitted personal data will be processed by shyftplan exclusively in compliance with the legal provisions.
8.2. If shyftplan processes personal data on behalf of the Customer when providing the Services, the Parties undertake to enter into a commissioned processing contract pursuant to Art. 28 GDPR (see contract in the company profile). The order processing contract is the subject of the contractual relationship between the parties.
9.1. Claims of a customer for damages are excluded. Excluded from this are claims for damages of the customer from the injury of life, body, health or from the violation of essential contractual obligations (cardinal obligations) as well as the liability for other damages, which are based on an intentional or grossly negligent breach of duty of shyftplans, its legal representatives or vicarious agents. Essential contractual obligations are those whose fulfillment is necessary to achieve the goal of the contract.
9.2. In case of violation of essential contractual obligations shyftplan is only liable for the contract-typical, foreseeable damage, if this damage was caused by simple negligence, unless it concerns claims for damages of the customer due to injury of life, body or health.
9.3. The restrictions of clauses 9.1. and 9.2. shall also apply in favor of shyftplan's legal representatives and vicarious agents if claims are asserted directly against them.
9.4. The customer indemnifies shyftplan from all claims of third parties, which are based on violations of the customer against rights of third parties or legal regulations, including reasonable legal defense. This only applies insofar as shyftplan is not at fault.
10. OFFSETTING AND RIGHT OF RETENTION
10.1. The customer shall only have a right of set-off if its counterclaims have been legally established or are undisputed.
10.2. shyftplan is entitled to temporarily exclude the customer from the use of all services offered on the platform as long as the customer is in default of payment (right of retention). Conversely, the customer is only authorized to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
11. FINAL PROVISIONS
11.1. The law of the Federal Republic of Germany shall apply to the exclusion of the provisions of the UN Convention on Contracts for the International Sale of Goods and international private law.
11.2. If the customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction is the registered office of shyftplan (currently Berlin).
11.3. Should individual provisions of this contract be or become invalid in whole or in part, the validity of the remaining provisions shall remain unaffected. In the event of an invalid provision, the parties undertake to negotiate an effective and reasonable replacement provision which comes as close as possible to the economic purpose pursued by the contracting parties with the invalid provision.
11.4. Insofar as only the masculine designation of a person has been chosen in these GTC, this is solely for the sake of readability.