Terms of use for the free tier
1. Provider and scope
1.1 The provider is OptWare GmbH, Prüfeninger Straße 20, 93049 Regensburg, Germany ("OptWare"). The commercial register details and the managing directors authorised to represent the company are set out in the imprint.
1.2 These terms apply to the free use of the "Smart Workforce Planning" application (the
"application") in an environment provided by OptWare under
<firma>.swp.optware.de (the "environment"), including the portal at
swp.optware.de (the "portal").
1.3 The offer is addressed exclusively to entrepreneurs within the meaning of section 14 of the German Civil Code, to legal persons under public law and to special funds under public law. Use by consumers is excluded. By registering, the customer confirms that they act in the exercise of their commercial or independent professional activity.
1.4 Terms of the customer that deviate from these do not become part of the contract, even if OptWare does not expressly object to them.
1.5 For the processing of personal data that the customer processes in their environment, the data processing agreement (the "DPA") entered into at registration applies in addition. In matters of data protection law the DPA takes precedence over these terms.
2. Conclusion of the contract, approval reserved
2.1 The presentation of the offer in the portal is not a binding offer. By submitting the registration form the customer makes an offer to conclude a contract of free use.
2.2 The contract comes into being only when OptWare approves the registration and provides the environment. OptWare reviews every registration manually before provisioning and may reject it without giving reasons. There is no entitlement to the provision of an environment. Requests are usually handled within one working day; this is not a commitment.
2.3 Registration requires truthful information about the company and the contact person, a confirmed e-mail address and acceptance of these terms and of the DPA. The registering person must be authorised to represent the customer.
2.4 OptWare may limit the total number of environments in operation and put registrations on a waiting list.
2.5 The acceptance of these terms and of the DPA is stored with a timestamp on the registration record. Both texts remain permanently available at swp.optware.de/nutzungsbedingungen and swp.optware.de/avv; the provisioning e-mail names these addresses. On request OptWare additionally provides the contract text in written form.
3. Scope of services
3.1 For the term of the contract OptWare provides the customer with its own environment of the application, with its own database and its own internet address, for use through a web browser ("software as a service"). There is no entitlement to the software itself.
3.2 The environment is limited to up to 100 users. The limit is enforced technically in the sign-in service: further sign-ups and invitations are refused once it is reached. The customer may set a lower limit in the settings of their environment; a higher limit requires a separate agreement.
3.3 Use is not limited in time and requires no payment details. OptWare reserves the right to discontinue the free tier in future or to move it into a paid offer; section 9 applies.
3.4 The functional scope follows from the version of the application provided at the time and from the service description in the portal. OptWare may develop the application further and change, add or discontinue functions as long as the core purpose — workforce and shift planning — is preserved. OptWare announces material restrictions in written form with reasonable notice.
3.5 The following are in particular not part of the service: customer-specific adjustments and interfaces, training, consulting, data migration, on-call duty, response times or support with committed deadlines. Requests to info@optware.de are handled where possible; there is no entitlement to this.
4. Availability, maintenance, changes
4.1 OptWare operates the platform with the care of a prudent businessperson but owes no particular availability. No service level agreement is agreed. The offer serves to try the application out.
4.2 Where maintenance is expected to affect use, OptWare announces it, as far as possible, 48 hours in advance by e-mail or in the portal. OptWare may carry out urgent security measures at any time without prior notice, even if this interrupts use.
4.3 OptWare may roll out new versions of the application during use. A rollout can cause short interruptions.
4.4 OptWare may pause the provisioning of new environments at any time.
5. Backups — important notice
5.1 In the free tier OptWare creates no backup of the content of the customer environment. Only the platform components OptWare needs in order to operate the service are backed up (in particular the user directory). In the event of malfunction, incorrect operation, deletion by the customer or a failure of the infrastructure, the data entered in the environment may be lost irretrievably.
5.2 The customer is therefore responsible for exporting the data they enter at reasonable intervals and keeping it outside the environment. For this purpose OptWare provides, in the settings of the environment, an export in a structured, machine-readable format that the customer can request and download at any time.
5.3 For the loss of data OptWare is liable only in accordance with section 10 and, where liability exists, at most in the amount of the effort that would have been necessary for restoration had the customer kept a proper backup.
5.4 Anyone who needs to work productively and needs backed-up data should use the paid OptWare platform ("OptWare Hub"), which includes backup and restore.
6. Accounts, credentials, administration
6.1 The customer manages the users of their environment themselves. They choose the sign-in mode (open registration, restriction to one e-mail domain, invitation only), may design their own sign-in page and may connect their own identity provider (SSO).
6.2 The customer ensures that only authorised persons gain access, keeps credentials secret, withdraws permissions without delay when someone leaves, and informs OptWare without delay of any sign of misuse.
6.3 Actions carried out through an account of the customer count as actions of the customer to the extent the customer is responsible for them.
6.4 The customer is responsible for the content they configure on their own sign-in page (logo, colours, texts) and for the lawfulness of a connected SSO integration.
7. Obligations and prohibitions
7.1 The customer uses the application only within these terms and applicable law. The following are prohibited in particular:
- circumventing the user limit, for instance by creating several environments for the same organisation or by shared group accounts,
- reselling, subletting or providing the environment to third parties that do not belong to the customer's company,
- load tests, penetration tests, security scans or automated bulk access without OptWare's prior written consent,
- measures that impair the platform or the environments of other customers, and any attempt to access other customers' data,
- uploading unlawful or infringing content or content containing malware,
- reverse engineering, decompilation or circumvention of technical protection measures, unless permitted by law.
7.2 Special categories of personal data. The customer must not enter special categories of personal data under Art. 9 GDPR — in particular health data or information about trade union membership or religion — into the environment. Absences must be marked in a neutral way only (such as "absent" or "not available"); free-text fields must not contain information about health, illness or comparable circumstances. The customer instructs the people who plan in their environment accordingly. The application is designed to work without such information; it is not necessary for workforce and shift planning in the free tier.
7.3 The customer ensures that they are entitled to process the employee data they enter, in particular that a legal basis exists, that the data subjects have been informed and that, where applicable, the works council's co-determination right under section 87 (1) no. 6 of the German Works Constitution Act has been observed.
7.4 The customer indemnifies OptWare against third-party claims that are based on a culpable breach of the obligations under this section 7, including reasonable costs of legal defence.
8. Blocking
8.1 OptWare may block access to the environment in whole or in part where
- there is a concrete suspicion of a serious breach of section 7,
- the environment poses a danger to the platform, to other customers or to third parties, or
- an official or judicial order requires it.
8.2 OptWare informs the customer about the block without delay, as far as legally permitted, and lifts it as soon as the reason no longer applies. The block is limited to what is necessary.
9. Term, inactivity, termination
9.1 The contract runs for an indefinite period.
9.2 The customer may terminate at any time without notice, by e-mail to info@optware.de. They may pause the environment themselves in the settings at any time; the final deletion is carried out by OptWare after the termination, because it cannot be undone.
9.3 OptWare may terminate the contract in written form with 30 days' notice. The right to terminate for cause in the event of a serious breach of section 7 remains unaffected.
9.4 Inactivity. If nobody signs in to the environment for 30 days, it is paused. If nobody signs in for a further 30 days, the environment and all data it contains are deleted. Before each of the two steps OptWare informs the registering person 7 days in advance by e-mail to the address on file.
9.5 Effect of termination. When the termination takes effect, the right of use ends. OptWare deletes the environment including database, database user and configuration as well as the associated user accounts at the latest 30 days after termination. The customer is obliged to export the data they need before termination. After that period, restoration is impossible.
9.6 On request OptWare provides an export of the data in a structured, machine-readable format before the deletion. Such a request must be made at the latest 14 days after termination. Independently of this, the customer can download the export under section 5.2 themselves until the deletion.
10. Liability
10.1 As the use is free of charge, OptWare is liable — subject to section 10.2 — only for intent and gross negligence.
10.2 OptWare is liable without limitation for damage arising from injury to life, body or health, in cases of fraudulent intent, where a guarantee has been given and in cases of mandatory statutory liability. Liability under Art. 82 GDPR remains unaffected.
10.3 For the loss of data, section 5.3 applies in addition.
10.4 OptWare accepts no liability for the content the customer processes in their environment or for the lawfulness of that processing.
11. Rights in the software, rights in the data
11.1 All rights in the application, the platform, the trademarks and the content of the portal belong to OptWare or its licensors. The customer receives a simple, non-transferable right, limited to the term of the contract, to use it through a browser.
11.2 The data entered by the customer remains attributed to the customer. OptWare uses it exclusively to perform the contract and on the customer's instructions within the framework of the DPA.
11.3 OptWare evaluates technical platform and usage metadata only, in aggregated, anonymous form, in order to improve and secure the offer. Personal data that the customer processes in its environment is not used for this purpose; for that data the DPA applies exclusively. No conclusions about the customer or about individual persons are drawn from them.
12. Confidentiality
Each party treats the other party's confidential information as confidential and uses it only to perform this contract. The obligation continues for three years after the end of the contract. Excluded is information that is publicly known, was developed independently or must be disclosed because of a statutory obligation.
13. Changes to these terms
13.1 OptWare may change these terms with effect for the future where this is necessary because of a change in the law, in case law, in the scope of services or in the technical framework, and the change does not unreasonably disadvantage the customer.
13.2 The changed terms are communicated to the customer in written form at least 30 days before they take effect. If the customer does not object before they take effect, they are deemed accepted; the notice states this expressly. If the customer objects, either party may terminate the contract with effect from the date the changes take effect.
14. Final provisions
14.1 German law applies, excluding the UN Convention on Contracts for the International Sale of Goods.
14.2 The exclusive place of jurisdiction for all disputes arising from this contract is Regensburg, Germany, where the customer is a merchant, a legal person under public law or a special fund under public law.
14.3 Amendments and additions must be made in written form. This also applies to changes to this clause.
14.4 The customer may transfer rights and obligations under this contract only with OptWare's prior written consent.
14.5 Should a provision be invalid, the validity of the remaining provisions is unaffected.
Questions about this: info@optware.de