1. Preamble

The Licensor is a software manufacturer and provides software that enables customers to plan and manage their service resources. The Provider will submit a binding offer or accept the Customer’s binding offer only if the Customer is a company or a person acting in the exercise of their trade, business, or profession. The contract may then be concluded under the terms contained in this document as follows:

The submission of the offer constitutes the Provider’s binding offer to enter into a contract with the Customer in accordance with the provisions of this agreement. The Customer is entitled, but not obliged, to accept this offer. Acceptance is declared by the Customer signing the offer and transmitting the signed offer electronically or by post. Alternatively, acceptance may also be declared by a confirmatory email without returning a signed copy.

2. Definitions

  1. “Agreement” means this contract, which also includes any order form and/or offer and/or product documentation and/or terms stated on the Provider’s website where further information about features is available.

  2. “Affiliate” means any company or business entity that is controlled by a party to this agreement, that controls a party to this agreement, or that is under common control with a party to this agreement. In this context, “control” means direct or indirect ownership of more than 50% of the voting shares of a company or, if such shareholding is not present, the ability to directly or indirectly influence or determine the management and business policies of such company. For clarity: holding companies, parent companies, sister companies, and subsidiaries are considered affiliates.

  3. “Content” means all content processed in the software by the Customer and an authorized user, including but not limited to data in the form of texts, tracked working times, or other content.

  4. “Authorized User” means a person authorized to access the software and view and/or edit content in the software and who (i) may be the Customer itself if the Customer is a natural person, or (ii) if the Customer is a legal entity, an employee and/or contractor of the Customer who has been granted access to the software on behalf of the Customer in the course of providing services to the Customer.

  5. “Effective Date” means the date on which this agreement commences.

  6. “Offer” means an offer provided by the Provider to the Customer, containing the Provider’s binding offer to conclude a contract with the Customer under the terms of this agreement.

  7. “Product Documentation” means a document or website where the Provider describes the features and system requirements of the software.

  8. “Software” means the software product defined in the product documentation with the features agreed upon in this agreement.

3. Provider’s Obligations

  1. The Provider grants the Customer access to the software via the internet. The Provider is not responsible for establishing and maintaining a connection between the Provider’s server and the Customer’s internet access.

  2. The Provider grants the Customer the software license as defined in the section “Scope of License.”

  3. The Provider offers support in accordance with the section “Support and Service Levels.”

  4. The elimination of faults and damages caused by improper handling by the Customer, third-party interference, or force majeure is not covered by this agreement but may be commissioned as professional services on a case-by-case basis.

  5. The Provider is obliged to inform the Customer by email about any new software features.

  6. After the contract ends, the Provider will delete all Customer data unless the parties explicitly agree otherwise at the Customer’s request.

4. Support and Service Levels

  1. The Customer receives support by email or in-app in case of software malfunctions.

  2. Support is available on business days between 10:00 and 17:00. Business days are Monday through Friday, excluding public holidays at the Munich location and December 24 and 31.

  3. The Provider guarantees 98% availability per contract year. Available means that use of the software is possible or impossible for reasons outside the Provider’s control and responsibility.

  4. The Provider is entitled to carry out maintenance work between 22:00 and 07:00 for up to 10 hours per calendar month. Unavailability during these maintenance windows is not counted toward contractual availability.

5. Scope of License

  1. From the Effective Date, the Provider grants the Customer a non-exclusive, non-transferable, worldwide, irrevocable (during the term) right to use the software within the limits of this agreement, which may also be defined in the respective package or offer.

  2. The Provider offers the CoffeeCup Pro package. The package entitles the Customer to use the software at the price per authorized user per month indicated on the website and with the features described there for CoffeeCup Pro.

  3. The number of billable authorized users is determined by the actual number of user licenses (seats) assigned to the Customer account.

  4. The Customer may add more authorized users at any time by purchasing additional seats through the software. If the expansion does not occur on the first of the month, the license fee for that month will only be charged pro rata.

  5. Unless otherwise agreed, the Customer may also reduce the number of seats at any time by removing unneeded seats from their account. The reduction becomes effective at the start of the next billing interval following the reduction.

  6. The software license may only be sublicensed to affiliates of the Customer.

  7. The Provider may provide the Customer with the software as part of a proof of concept (POC) for an agreed period and fee under the conditions defined in this section (test license). The test period ends with the expiration of the agreed term.

  8. The Customer may access the data stored in the software via the API provided by the Provider.

6. Onboarding Workshops; Professional Services

  1. Upon request, the Provider will also provide product-related services, e.g. customization, training, support services, data migration, feature requests, creation of a POC for requirements assessment and adjustments (“Professional Services”).

  2. Feature requests are generally not developed exclusively for the Customer. The commissioned function will, at the Provider’s discretion and subject to other agreements, be made available to all customers. Besides the rights defined under Section 5 “Scope of License,” the Customer acquires no ownership, usage, or exploitation rights to the commissioned function. The Provider may adapt or remove the function at its discretion. Refunds are not granted for this.

  3. The commissioning of Professional Services may also be informal, e.g., by phone or email.

  4. Professional Services are generally chargeable and billed at the hourly rate stated in the offer.

  5. The Provider is entitled to use subcontractors for Professional Services.

  6. Any travel expenses incurred by the Provider will be reimbursed as follows:

    • Travel costs will be reimbursed at actual proven cost, but no more than: (a) for car trips, €0.39 per kilometer driven; (b) for train travel, the cost of a second-class ticket; (c) for flights, only the cheapest economy-class fare.

    • Accommodation costs will be reimbursed at actual proven cost, capped at €150.00 per night.

  7. Travel time will be billed at 50% of the hourly rate for Professional Services.

7. Customer’s Obligations

  1. The Customer may only use the software for the contractual purpose defined in Section 1 and the offer. In particular, no programming code may be entered into input fields.

  2. To ensure optimal use, the Customer is advised to access the software exclusively via standard browsers (Chrome, Internet Explorer, Firefox, or Safari) in their latest versions.

  3. The Customer must respect any third-party rights when importing and processing data.

  4. The Customer shall indemnify the Provider upon first request from all claims made by third parties against the Provider on the grounds that an action by the Customer infringes their rights.

  5. The Customer must provide accurate information about their company and software use at the time of contract conclusion and throughout the contract term and inform the Provider if this information changes.

  6. The Customer must keep login credentials secret and confidential and may not disclose them to third parties. The Customer must also ensure that authorized users do not share their credentials.

  7. The Customer is advised to back up entered data outside the software.

  8. If there is doubt about compliance with the license terms, the Provider is entitled to inspect the Customer’s business records directly or through a third party (e.g. lawyer, auditor, certified accountant) to verify correctness and completeness. Inspections take place during normal business hours. Unless there is suspicion of intentional misconduct, the Customer will be notified in advance. Inspection costs are reimbursed if discrepancies are found. The Provider may use data obtained during the inspection solely to enforce rights under this agreement or intellectual property.

  9. If claims are made against the Customer due to actual or alleged infringement of third-party rights resulting from contractual use of the software, for which the Provider may be liable, the Customer must promptly inform the Provider. The parties will coordinate the defense of such claims, with the Provider taking the lead as far as possible and permissible. The Customer will support the Provider. If the Provider does not give instructions within a reasonable time despite reminders, the Customer may handle the claims at its discretion.

8. Term

  1. Unless otherwise agreed, the contract has a term of 12 months. It may be terminated with one month’s notice to the end of the term. If not terminated in due time, the contract automatically renews for successive terms of the same length.

  2. Termination must be in writing to be valid. Text form (e.g., email) is sufficient.

  3. The right of either party to terminate for cause remains unaffected.

9. Fees; Billing; Payment Terms

  1. The license fee for using the software is due upon contract conclusion and thereafter in advance at the beginning of each term (see Section 8.1).

  2. If the Customer ordered a POC before contract conclusion under Section 6.1, they will receive a credit against the license fee equal to the fee already paid for the POC.

  3. Fees for Professional Services are due after delivery and invoicing unless otherwise agreed.

  4. If the Customer is in default of payment, the Provider may suspend the Customer’s access to the software.

  5. Invoices are sent to the Customer by email.

  6. All prices listed on the website and in the offer are net prices and do not include VAT.

  7. If an invoiced amount is not received by the Provider by the due date, statutory default interest applies, specifically nine percentage points above the ECB base rate per year.

10. Limitation of Liability

  1. The Provider is liable under this agreement only for damages (a) caused intentionally or by gross negligence by the Provider or its legal representatives or vicarious agents; (b) resulting from injury to life, body, or health caused by the Provider or its legal representatives or vicarious agents; (c) arising from the breach of an obligation essential to the proper performance of this agreement and on which the Customer regularly relies (cardinal obligations).

  2. In the cases under (a) and (b), liability is unlimited as provided by law. In other cases, liability is limited to €500,000 per damage event. If higher damages are foreseeable, the Customer must notify the Provider in time.

  3. In cases other than those listed above, liability is excluded regardless of legal basis.

  4. These rules also apply to personal liability of officers, employees, and vicarious agents of the Provider.

  5. Liability under the German Product Liability Act, guarantees, or fraudulent concealment remains unaffected.

  6. For Aerion Free customers, the Provider is only liable for intent and gross negligence.

11. Confidentiality

  1. The parties agree to maintain confidentiality of confidential information. Confidential information is information explicitly marked as confidential or constituting a trade secret under the German Trade Secrets Act. This obligation continues for 5 years after contract termination.

  2. This obligation does not apply to information:

    • already known to the recipient at contract conclusion, or later disclosed by third parties lawfully;

    • publicly known at contract conclusion or later made public not due to a breach;

    • required to be disclosed by law, court, or government order (with prior notice to the other party where possible).

    • Access to confidential information may only be granted to advisors bound by professional secrecy or prior confidentiality obligations, and to employees who need the information to fulfill this agreement, who must also be bound to confidentiality after employment ends.

12. Data Protection

The software may be used to process personal data. The Provider is prepared to conclude a data processing agreement with the Customer using the template provided in the annex. The Customer must sign and return the template to the Provider in writing or as a signed scan.

13. Reference Use

The Provider is entitled to name the Customer, including company name and logo, as a reference on the Provider’s website and in offline marketing materials such as flyers and product presentations.

14. Final Provisions

  1. This agreement, including annexes and explicitly incorporated components, constitutes the complete and exclusive understanding between the parties.

  2. German law applies, excluding international private law and the UN Convention on Contracts for the International Sale of Goods.

  3. For disputes arising from or related to this agreement (including validity), the courts in Munich shall have exclusive jurisdiction in the first instance.

  4. Amendments or supplements to this contract and waivers of rights must be in text form. This also applies to a waiver of the text form requirement.

  5. The Provider may amend the GTC if reasonable for the Customer. Changes will be communicated at least six weeks before taking effect. If the Customer does not object in writing or by email within one month of receipt, the changes are deemed accepted. This will be highlighted in the notice.

  6. The Provider is entitled to transfer this agreement, including rights and obligations, to third parties.

  7. If any provision of this contract is or becomes invalid or unenforceable, the validity of the remaining provisions shall not be affected. The parties agree to replace the invalid provision with a valid one that comes closest to the intended purpose. If invalidity is due to a performance or time measure, the nearest legally permissible measure shall apply.