General terms of use

§1 Definition of terms

(1) The following terms defined in § 1 apply in the entire context of these general terms and conditions (hereinafter: "GTC") without explicit reference to the definitions in the further course. (2) Services are services provided by Aplano GmbH to the customer in the context of using the "Aplano" software, as agreed in the terms and conditions. (3) Software means the software made available to the customer by Aplano GmbH under the brand name "Aplano", in all its forms (IOS app, Android app, web browser application, Aplano API). Instead of the term “software”, the terms “platform”, “software solution”, “application” or “app” are optionally used in the same sense of the word. (4) Product (alternatively: "Offer") refers to the total offer consisting of services and software.

(5) Aplano is the brand name under which the product is sold. The term can also be placed as a prefix in front of the terms used to clarify the affiliation of a service or software to the Aplano offer (e.g. "Aplano software"). If the term is used alone, it is to be understood as a synonym for the product itself. (6) The customer is an entrepreneur (within the meaning of § 14 BGB) on whose behalf the registration (see § 3) for the product was carried out. Accordingly, the contractual partner of Aplano GmbH to whom these terms and conditions are addressed is referred to as "customer". (7) Employees are natural persons who are employed by or are members of the customer. The term here includes both "employees" and "freelancers". (8) Users are employees who have been assigned ("added") to the customer on the Aplano platform. Users interact with the platform via their user account and can thus carry out their duty planning tasks.

(9) Administrators are users to whom the customer has granted authorization to use all functions and aspects of the Aplano platform. The customer is represented on the platform by one or more "administrators". Administrators are able to assign ("add") additional users to the customer. (10) Managers are users who have received special authorizations from administrators within the platform in order to manage shifts across users. (11) Update is the term for the introduction of a new product version in which software aspects (including software functionalities, the graphical user interface "GUI", the design, the API) are added, modified or removed. (12) Usual business hours are Monday to Friday between 9:00 a.m. and 6:00 p.m., German time calculation. Holidays at the Hamburg location are excluded. (13) The following abbreviations are also used in the course of the terms and conditions: "i.a." stands for "among other things", "e.g." stands for "for example", "cf." stands for "compare", "e.g." stands for "for example".

§2 Scope

(1) The following terms and conditions apply to all services and software solutions associated with the Aplano product that are made available to the customer by Aplano GmbH. (2) The registration for the use of the system by the customer means that the customer accepts the applicability of these terms and conditions (cf. § 3). (3) These terms and conditions are the sole conditions under which Aplano GmbH permits the customer to use the product. Any general terms and conditions on the part of the customer and other terms and conditions resulting from trade, customs, practices or business processes are hereby expressly contradicted. (4) If there is any uncertainty regarding the interpretation of one or more provisions of the General Terms and Conditions, the declaration must be made "in the spirit" of these provisions. (5) Should a situation arise between the parties that is not regulated in these terms and conditions, this situation must be assessed in terms of these terms and conditions.

§3 Registration and conclusion of contract

(1) The following terms and conditions apply to all services and software solutions associated with the Aplano product that are made available to the customer by Aplano GmbH. (2) The registration for the use of the system by the customer means that the customer accepts the applicability of these terms and conditions (cf. § 3). (3) These terms and conditions are the sole conditions under which Aplano GmbH permits the customer to use the product. Any general terms and conditions on the part of the customer and other terms and conditions resulting from trade, customs, practices or business processes are hereby expressly contradicted.

(4) The offer of Aplano GmbH permits the use of the software exclusively for entrepreneurs within the meaning of §14 of the German Civil Code (BGB). (5) In accordance with §3 Section (4), registration may only be carried out by an entrepreneur himself or by a person authorized to represent the entrepreneur. (6) If Aplano GmbH subsequently determines that the data entered in the registration process were incomplete or incorrectly provided or that the registration was carried out by a person who is not authorized to register in accordance with §3 Section (5), Aplano GmbH is entitled, irrespective of its other rights, to terminate the contractual relationship with the customer without notice. However, Aplano GmbH endeavors to clarify the matter with the customer beforehand in order to refrain from termination without notice at its own discretion. (7) Aplano GmbH is also entitled to refuse registration without giving reasons with a notice period of 24 hours from the time the registration is completed. (8) The contract is concluded for an indefinite period.

§4 Scope of services

(1) Aplano GmbH provides the customer with a duty scheduler software solution via the "Aplano" offer, with which he can carry out his duty planning and the associated personnel planning digitally and independently. (2) The product is sold as Software-as-a-Service ("SaaS"; "Cloud Software") and therefore requires a continuous internet connection on the part of the customer and his employees for interaction with the software. The product can therefore neither be used offline nor as a stand-alone installation. (3) The product range of the software is subject to constant change and can therefore not be firmly or conclusively defined. The customer receives services that correspond to the functionality of the software in its latest version. The software is made available to the customer "as is".

(4) Aplano GmbH is not obliged to document the current status of the software or to explain the product or its use to the customer. The customer is responsible for familiarizing himself with the software, its scope or product updates, e.g. using the means described in §4 Section (5). It is also the responsibility of the customer to determine whether the product is suitable for the customer's operational use and whether it meets the customer's requirements. (5) Aplano GmbH offers the customer free use of the software with a limited number of functions via §8 Section (1). Furthermore, Aplano GmbH endeavors to give the customer options so that he can inform himself about the current scope of the software at any time without obligation. This includes, among other things, the product information stored on the Aplano website.

§5 Software-Updates

(1) Aplano GmbH makes every effort and is entitled to further develop the product during the term of the contract at its own discretion by means of "updates" in order to guarantee the stability, functionality, profitability and future viability of the offer. (2) Aplano GmbH is entitled to adjust, change or remove all aspects of the Aplano product at any time and without the customer's consent. (3) Aplano GmbH is solely entitled to decide on the continuation of all aspects of the Aplano product, including all functionalities, the user interface and the API. The customer has no right to influence the further development of the Aplano product. (4) The customer may contact Aplano GmbH with suggestions for product improvement without obligation, without any claims for the implementation of these suggestions being derived from this. It is entirely up to Aplano GmbH to decide how to proceed with any suggestions for product improvement.(5) After the introduction of a new product version by means of an "update", the customer has no right to continue using an earlier product version. (6) If an "update" causes the deletion of customer data from the system or makes it necessary, Aplano GmbH is entitled to remove the customer data in the course of the update without the customer having to agree. However, Aplano GmbH will make every effort to inform the customer of this at an early stage, if possible.

§6 Cancellation

(1) Ordinary cancellation of the contract can be made by the customer or Aplano GmbH at any time without giving reasons by email. (2) The notice period is 14 days to the end of a monthly billing cycle. The billing cycle begins with the booking of a fee-based subscription. (3) The right to extraordinary cancellation for good cause remains unaffected.

§7 Obligations of the customer ("duty to cooperate")

(1) The customer is obliged to provide all users with a system environment that Aplano GmbH requires for the use of the product. (2) The use of the product requires the following system environment: A Chrome, Firefox or Safari browser, the version of which is not older than one year, is required to use all websites that can be visited in the browser. To use the iOS app, a major iOS version is required that is not older than one year. A major Android version that is not older than one year is required to use the Android app. A continuous internet connection with a minimum bandwidth of 16 Mbit / s download speed and 2 Mbit / s upload speed.

No browser plugins may be used that limit the functionality of the website (in particular no so-called "pop-up blockers" or "advertising blockers" (3) The customer is obliged to check personal data that is managed via the platform for conformity with the General Data Protection Regulation (GDPR) and to remove the data from the software independently in the event of any violations. If an independent correction is not possible, he must contact the Aplano GmbH support and inform them of the matter so that they can take the necessary steps. Any storage of unsuitable personal data via the software represents a failure on the part of the customer, which Aplano GmbH cannot be blamed for. If, for example, an employee leaves the company, it is the customer's responsibility to remove all non-useful personal data from the software. (4) Unavailabilities of the system (cf. § 10) must be reported by the customer to Aplano GmbH immediately after they become known by email, a support form or by telephone. If a report by telephone is not possible, the report must be made in text form.

(5) The customer is obliged to inform Aplano GmbH immediately in text form of any malfunctions or software errors that prevent or complicate the use of the software and to provide comprehensible descriptions in this regard. (6) The customer is obliged to support Aplano GmbH to an appropriate extent in identifying and correcting errors in the event of malfunctions. (7) Aplano GmbH is entitled to provide the customer with temporary remedial measures within a reasonable framework by means of error workarounds in order to remedy the actual error cause later.

§8 Fees & Billing

(1) The use of the software by the customer is free of charge with a limited number of functions. (2) A monthly fee per user is due for customers who are liable to pay. The exact information on the prices can be found on the website. (3) The monthly fee for newly created users of paying customers is due in full in the month in which the user was added. (4) If a user of a paying customer is deactivated, the user fee must be paid in full, including the month in which the user was deactivated. (5) Invoices are to be paid within 14 (fourteen) days from receipt of the invoice by the customer.

§9 Liability

(1) Aplano GmbH has unlimited liability for damage caused to the customer by intent or gross negligence on the part of Aplano GmbH. (2) Aplano GmbH is liable for simple negligence, except in the case of injury to life, limb or health, only if essential contractual obligations (cardinal obligations) are violated. Liability is limited to the contract-typical and foreseeable damage, but at most to an amount equal to 50% of the total annual user fees that the customer of Aplano GmbH incurred in the last 12 (twelve) months prior to the action or omission that led to the damage has led, has paid. (3) Liability for indirect and unforeseeable damage, loss of production and use, lost profit, lack of savings and financial loss due to claims by third parties is excluded in the case of simple negligence - except in the case of injury to life, limb or health.

(4) Aplano GmbH cannot be held liable for internet or mobile phone provider costs incurred by the customer or his employees through the use of the Aplano product. (5) Aplano GmbH does not give any guarantee or other warranty with regard to the uninterrupted availability, freedom from defects or functionality of the product (cf. § 10). However, it endeavors to maintain the availability of the product at all times, to correct system errors and failures as quickly as possible and also to prevent them in advance. (6) Aplano GmbH is not liable for damage, failures or deficiencies in the software that have arisen as a result of non-compliance with obligations to cooperate (§ 7). Aplano GmbH is also released by the customer from third-party claims that arise from a breach of the obligations specified in § 7.

(7) Any further liability than in this contract is excluded, regardless of the legal nature of the asserted claim. However, the above liability limitations or exclusions do not apply to a legally mandated strict liability (e.g. in accordance with the Product Liability Act) or the liability from a no-fault guarantee. (8) Insofar as the liability according to §9 Section 2 and §9 Section 3 is excluded or limited, this also applies to the personal liability of the employees, workers, representatives, organs and vicarious agents of Aplano GmbH.

§10 Availability and response time

(1) The customer is aware that, according to the current state of the art, despite the greatest care and diligence, program errors and system-immanent malfunctions cannot be ruled out with certainty. (2) The customer is also aware that disruptions can occur due to events beyond the control of Aplano GmbH (e.g. power outages, disruptions in public communication networks, force majeure). (3) The customer is also aware that the installation of updates (see § 5) and regular maintenance work on the software result in the system being unavailable. (4) Aplano GmbH guarantees the customer a minimum availability of the software of at least 98% per calendar year. This does not apply to disruptions within the meaning of §10 Section (2). Also excluded are disruptions within the meaning of §10 Section (3), insofar as they are outside of normal business hours or were notified to the customer in accordance with §10 Section (5).

(5) Aplano GmbH will inform the customer at least 48 hours in advance by email about a planned unavailability of the software, provided that it will be within normal business hours. (6) Maintenance work and updates are usually carried out outside of normal business hours, mostly between 11:00 a.m. and 4:00 a.m. German time calculation. (7) If the customer reports a malfunction within the meaning of §7, Section (4), Aplano GmbH will endeavor to respond within 24 hours and begin troubleshooting. If the fault report is received outside of normal business hours, Aplano GmbH will begin to rectify the fault on the next possible working day. (8) In the event of a reported, proven non-availability ("disruption"), Aplano GmbH will reimburse the contractual partner for the usage fees for the period of non-availability.

§11 Intellectual Property

(1) All aspects of the Aplano product, including those that will be developed in the future or subsequently added to the offer, are subject to copyright and are the property of Aplano GmbH, unless otherwise stated. (2) All intellectual property rights that arise through Aplano GmbH in connection with the Aplano product in the course of providing services for the customer are considered the property of Aplano GmbH. (3) The customer retains full rights to all data stored by him and his users. (4) In the event that the offer should be discontinued by Aplano GmbH, all stored customer data (§ 11 Paragraph 3) will be made available to the respective customer as an export. The customer will be informed of this beforehand. (5) The customer is not permitted in any way to gain access to the source code or the internal data memory of the software. He is strictly forbidden to decompile the source code ("reverse engineering"), to copy, view or analyze it, regardless of whether parts of the code are available or accessible in compiled form or non-compiled form ("script form").

(6) The use of all tools (in particular "Debugger", "Code Inspector", "Decompiler", "Dev-Tools") by the customer or third parties for the purpose of disclosing the source code of the software or for accessing the software's data storage is hereby strictly prohibited. (7) Aplano GmbH reserves the right to punish all violations of the handling of intellectual property described here with full severity.

§12 Referencing

(1) Aplano GmbH is entitled to publicly identify the customer as its customer, in particular for marketing purposes, without the customer's consent being required. (2) To identify the customer, Aplano GmbH may use his company name and logo on its website, in advertising materials, information brochures and in direct marketing.

§13 Support

(1) Aplano GmbH endeavors to process problem cases, product questions or other requests for help on the part of the customer and to provide assistance. (2) Aplano GmbH is not obliged to offer or deliver assistance to the customer in using the product. (3) If Aplano GmbH decides to provide assistance, it is entirely up to Aplano GmbH to decide to what extent and how to do this.

§14 Confidentiality

(1) The parties are obliged to maintain confidentiality for all information provided within the framework of the business relationship, regardless of the form. The parties are also obliged to equally oblige all third parties they involve to perform their services to secrecy.

§15 Changes of our terms

(1) Aplano GmbH is free to change these terms and conditions at any time. (2) In order to give the customer a reasonable response time, any changes to the terms and conditions will be communicated to the customer in writing six weeks in advance of their taking effect. (3) If the customer does not explicitly object to the change to the GTC within a period of two weeks from receipt of the notification of change in writing, this will be considered as tacit approval of the change. (4) The receipt in text form at Aplano GmbH is decisive for a possible objection by the customer. (5) If the customer objects to the changes to the General Terms and Conditions in due time, Aplano GmbH is free to terminate the contract as soon as possible.

§16 Final provisions

(1) Only German law is applicable to this contract. (2) The registered office of Aplano GmbH is hereby agreed as the place of jurisdiction for all disputes arising from or in connection with the contract.