General terms and conditions
1. scope of application & contracting parties
1.1. meinDienstplan offers its customers an online staff planning tool for creating and managing duty rosters. For visualization, meinDienstplan also offers the digital signage solution MeinPlayer.
1.2 These General Terms and Conditions (GTC) apply to all contracts concluded between meinDienstplan and your company as a client (in short "Client"), including those contracts concluded via the website of meinDienstplan. Deviating provisions shall only apply if they have been agreed in writing between meinDienstplan and the client. The client agrees that in case of doubt, the GTC of meinDienstplan are to be assumed in case of use of GTC by the client, even if the client's terms and conditions remain unchallenged.
1.3 The owner of the website www.meindienstplan.at as well as the contractual partner of the Client is MD meinDienstplan GmbH (in short "meinDienstplan").
2020 Hollabrunn, Austria
UID: ATU 72868916
1.4 Personal designations include women and men equally.
1.5 The customer confirms that the data provided are correct. By providing his VAT number, the Client confirms that he is an entrepreneur within the meaning of § 1 of the Austrian Commercial Code (UGB). Should anything to the contrary be found, meinDienstplan shall be entitled to withdraw from the contract at any time.
1.6 Subject to change: meinDienstplan is entitled to update and adjust the GTC ("Change"). The current GTC at the time of the conclusion of the contract, available at www.meindienstplan.at/at/agb, shall apply.
1.7 Place of performance & contract language: The place of performance shall be the Austrian registered office of meinDienstplan. Contract language is German.
2. offers and conclusion of contracts
2.1 All offers made by meinDienstplan on its website are subject to change and non-binding with regard to availability. For details of the packages, please refer to the service descriptions available at the time of ordering.
2.2 The presentation of the packages on the website does not constitute an offer by meinDienstplan. Only by placing an order the customer makes a binding offer.
2.3 A contract shall only be concluded if myServicePlan expressly declares its acceptance of the Client's offer in writing.
2.4 If myServicePlan submits an offer to the Client at the Client's request, myServicePlan shall be bound by it for 7 working days from the date of issue, unless otherwise agreed in writing.
3. services of meinDienstplan
3.1. meinDienstplan offers its clients the following services, among others:
- management of employee master data;
- creation of continuous shift planning;
- fully automatic creation of duty rosters;
- mobile app (Android and iOS) for employees and customers.
- easy clocking in and out at the meinDienstplan terminal via app or pin code;
- recording of working and break times;
- overview of the currently present team for management and shift supervisors;
- various export options for the recorded times.
- Information to the employees about current duty rosters and promotions via web to the MeinPlayer client and display on the monitor
- Management of the data to be displayed directly on MeinDienstplan or via the MeinPlayer web interface which is part of MeinDienstplan and optionally also offered as a stand-alone page, provided that on the part of the customer only the MeinPlayer package is ordered and used.
3.2 Details can be found in the respective service description and the package selected by the customer. The contract shall be based exclusively on the services described here and in the respective service description.
3.3 The services of meinDienstplan are operated as a web-based SaaS or cloud solution. The software relevant for the execution of the contract is stored on the servers of meinDienstplan or a service provider commissioned by meinDienstplan. The client does not receive any right to the software.
4. obligations of the customer
4.1 The client must keep his account and contact details up to date at all times in order to be informed accordingly of any material changes and amendments to the contract. Information and notifications sent by meinDienstplan to the e-mail address last provided by the client shall be deemed to have been validly delivered.
4.2 The Client shall protect his Account from unlawful use by taking technical and organizational measures in accordance with the current state of the art. Suspected misuse must be reported to meinDienstplan without delay. MeinDienstplan is not subject to any obligation to investigate in this regard. The client must take appropriate precautions to ensure that its employees do not misuse the access provided to them.
4.3. meinDienstplan endeavors to design the services offered in accordance with the current legal requirements (in particular with regard to the Working Hours Act). Nevertheless, the responsibility for any violations of labor and social laws and regulations or collective bargaining agreements lies solely with the client. meinDienstplan does not verify or guarantee the legality of the specific use of the services offered by meinDienstplan by the client and recommends external verification in case of doubt.
4.4 The client is not authorized to modify or reprogram the services, systems or platforms offered by meinDienstplan on his own authority. Should the client nevertheless do so, this shall be his sole responsibility and he shall indemnify and hold harmless meinDienstplan. Any claims by meinDienstplan (e.g. for damages or injunctive relief) remain unaffected.
4.5 Depending on the service package, the customer is given the option to create account accesses for employees. The Customer shall be liable for the conduct of its employees as for its own. The customer remains the sole contractual partner.
4.6 The client must always secure its data and content uploaded to the platforms of meinDienstplan and managed by meinDienstplan itself in accordance with the latest state of the art and protect it from manipulation. meinDienstplan enables the client to do this accordingly by means of data exports (reports) and regulated access via separate user accounts. Accordingly, meinDienstplan shall only be liable for the loss or manipulation of the client's data and content in the event of at least gross negligence (cf. also item 5 below, in particular 5.2) and only if this could not have been avoided by reasonable security measures taken by the client.
4.7 The client shall indemnify and hold harmless meinDienstplan in this context with respect to any claims by third parties or by employees of the client. The client shall not make the software provided by meinDienstplan or the respective services available to third parties unless this has been agreed in writing with meinDienstplan.
5 Warranty, liability and compensation
5.1 The client undertakes to notify meinDienstplan immediately in writing of any defects in the performance of the service, failing which such defects shall lapse. The assertion of claims under warranty law shall expire in any case within six months. The client must prove that the defect was present at the time of handover.
5.2. meinDienstplan shall be liable for personal injury caused by the at least slightly negligent and unlawful conduct of meinDienstplan. Beyond that, meinDienstplan shall only be liable if the client can prove at least gross negligence on the part of meinDienstplan.
5.3 In particular, meinDienstplan shall not be liable for indirect damages, lost profits, loss of interest, missed savings, consequential and pecuniary damages or damages from third-party claims.
5.4 If - for whatever case - a penalty has been agreed at the expense of meinDienstplan, it shall be subject to the judicial right of mitigation and the assertion of damages in excess of the penalty shall be excluded by mutual agreement.
5.5 Any liability of meinDienstplan shall become statute-barred six months after the client becomes aware of the damage and the damaging party, and in any case three years after the service or delivery has been provided.
5.6 Any recourse claims made against meinDienstplan under the title of "product liability" within the meaning of the Austrian Product Liability Act (PHG) shall be excluded unless the party entitled to recourse proves that the defect was caused in the sphere of meinDienstplan and was at least due to gross negligence.
5.7 If the Client is unable to use the services obtained from meinDienstplan properly because he does not comply with the instructions and operating recommendations given to him, the Client may not derive any claims from this.
6. set-off and retention
6.1 Offsetting against claims of meinDienstplan with counterclaims - of any kind whatsoever - is excluded.
6.2 Justified complaints shall not entitle the Customer to retain the entire invoice amount, but only an appropriate part thereof.
7.1 Necessary maintenance work or updates shall be carried out between 00:00 and 06:00 hours as far as possible and shall be limited to a necessary minimum. The customer will be notified at least 48 hours in advance, unless it cannot be organized otherwise due to short-term necessity.
7.2. meinDienstplan guarantees an availability of its services and systems, depending on the availability guaranteed by the server provider, of 99.6% on an annual average. Excluded from this are times when the systems cannot be reached due to technical or other problems beyond the control of meinDienstplan (e.g. force majeure, failure of the internet provider, etc.), as well as the times described in point 7.1.
7.3 In the event that the promised availability pursuant to Section 7.2 is not achieved, the customer shall have the option to withdraw from the contract after prior written reminder within 14 days. Such withdrawal shall not result in the reclaimability of payments made up to that point, nor shall the customer incur any claims for damages as a result (cf. Section 5, in particular Sections 5.2 and 5.3).
7.4 The Customer shall ensure a sufficient Internet connection and the necessary technical requirements within its IT system.
7.5. meinDienstplan may restrict access to the services if the security of the services offered, the maintenance of network integrity, in particular the avoidance of serious disruptions to the network, the software or stored data so require. meinDienstplan is not liable for force majeure.
8. contract term and termination
8.1 Unless otherwise agreed in writing, the contract shall be concluded for an indefinite period. Ordinary termination may be declared in writing by either party at any time, unless a minimum term has been agreed. The notice period is 2 months to the last day of the month. Unless expressly communicated otherwise, the termination always applies only to the respective service package addressed.
8.2 In the event of a minimum term, the contract shall be extended by the same minimum term if the client does not give written notice of termination to meinDienstplan by the last day of the month in compliance with a 6-month notice period.
8.3 If individual packages are cancelled, the packages that continue to be purchased shall be charged at the price applicable to them for individual purchases.
8.4 The right to extraordinary termination for good cause remains unaffected. In the event of extraordinary termination by meinDienstplan, all packages agreed with the client are covered in case of doubt. Good cause exists for meinDienstplan in particular in the following cases:
- Unlawful use of the software and applications offered by meinDienstplan;
- Violations of the law by exploiting the software provided by meinDienstplan;
- If the client's behavior may cause lasting damage to the reputation and/or business reputation of meinDienstplan, its clients or business partners;
- If there are justified doubts about the economic performance of the customer, if the financial circumstances of the customer deteriorate significantly or if invoices are not paid in full despite a reminder and the setting of a grace period of at least 14 days;
- If the customer turns out to be a consumer contrary to his promise (point 1.5).
8.5 Failure - knowingly or not - to take advantage of a possible termination by meinDienstplan does not constitute approval of the respective conduct.
8.6 In the event of immediate, extraordinary termination by meinDienstplan, meinDienstplan may immediately terminate the client's access to its packages. The client shall not incur any claims as a result (cf. Item 5, in particular Items 5.2 and 5.3).
9. prices and payment
9.1 The respective package prices are available on the website of meinDienstplan. All prices are net prices without VAT in case of doubt.
9.2 The usage fee is due at the beginning of each billing period (optionally monthly, semi-annually or annually). Any invoices from meinDienstplan are due in each case without deduction within two weeks.
9.3 The Client agrees to receive its invoices at the contact address provided by it exclusively electronically. If the client requests that a paper invoice be sent, meinDienstplan shall be entitled to charge a processing fee of 3.50 plus VAT per invoice.
9.4 Default interest & collection costs: In the event of default in payment, 10% p.a. shall be charged. meinDienstplan reserves the right to claim damages in excess thereof. In addition, the client shall bear the costs incurred by the necessary intervention of a lawyer in accordance with RATG.
9.5 Payments received by meinDienstplan shall first be credited against interest, then against interest and ancillary charges, and finally against the outstanding principal.
10. severability clause
10.1 Should any provisions of this Agreement be or become void or ineffective, this shall not affect the validity of the remaining provisions. The void or ineffective provision shall be reinterpreted or supplemented in such a way that the economic purpose intended by the void or ineffective provision is achieved in the best possible way. This also applies to any loopholes.
11. choice of law & place of jurisdiction
11.1 Austrian law shall apply exclusively to the exclusion of the provisions of the IPR. The applicability of the UN Convention on Contracts for the International Sale of Goods is excluded. The application of any terms and conditions of the customer is excluded by mutual agreement.
11.2 The place of performance for all claims and the exclusive place of jurisdiction for all disputes arising out of or in connection with this agreement shall be the competent court in Hollabrunn, Austria. meinDienstplan may, at its option, also bring legal action against the client at the client's general place of jurisdiction.
12. possibility of change and price adjustment clause
12.1 Reservation of right to make changes: meinDienstplan is entitled to change or amend the GTC, the services offered and the service descriptions with reasonable notice (at least six weeks) if this is objectively justified and reasonable for economic reasons (e.g. increase in employee costs, change in technical framework conditions) or due to changes in case law or legislation. Unless the client proves an unreasonable disadvantage in consideration of the circumstances and interests of meinDienstplan in the form of a written and justified objection at least one week before the changes take effect, neither a right of termination nor other claims shall accrue to the client.
12.2 Price adjustment: It is expressly agreed that the value of the receivables plus ancillary receivables of meinDienstplan shall remain stable. The consumer price index of the respective preceding year published monthly by Statistics Austria or an index replacing it shall serve as a measure for calculating the stable value. The index figure calculated for the month of the conclusion of the contract serves as the reference figure for the contract existing between meinDienstplan and the client. The fluctuation of this index figure shall form the basis for the new determination of the claim amount. All rates of change shall be calculated to one decimal place.
13. naming as reference
13.1 The client agrees to the naming of its company name as a reference on the website or in other documents or in any other externally effective communication by meinDienstplan. This also includes the use of the corresponding company logo.
13.2 The Customer may object to this use for the future at any time and without stating reasons. There shall be no claim to destruction of advertising material already produced and/or circulated. The legality of the (company) name or logo used until then shall not be affected by the revocation.
13.3 If naming the Customer as a reference is not permissible due to other contractual obligations of the Customer, this shall be announced by the Customer in the form of an objection as per Section 13.2.
14. data protection & use of your employee data
14.2 With regard to any transfer of employee data, the Client declares to meinDienstplan that it complies with all data protection requirements applicable at the time of the transfer, both under the Client's respective national data protection law and under the data protection law applicable at the location of meinDienstplan. In particular, the client confirms to have duly informed the persons affected by the transfer and - if necessary - to have obtained a valid consent from them and not to violate any other rights of third parties.
14.3 Only the Client is the responsible party within the meaning of Art 4 Z 7 DSGVO for its Employee Data. Insofar as meinDienstplan is a processor within the meaning of Art 4 Z 8 DSGVO, meinDienstplan shall conclude a corresponding order processing agreement with the Client.
14.4 The Client shall indemnify and hold harmless meinDienstplan in the event that the latter breaches its obligations under the contract with meinDienstplan or any statutory or official requirements.