Terms and Conditions governing the use of the software or tool 'Trakkboard' from Trakken GmbH

between the Trakken Web Services GmbH (hereafter 'Trakken') and you or the legal entity you (hereafter 'Customer') are authorized to represent. Please read these Business Conditions thoroughly and with care. By downloading the software or the tool provided by Trakken, the Customer declares that the following terms and conditions (hereafter 'Agreement') are binding and recognizes their validity.

1 General

The software or the tool bases on a use of the Google tool 'Google Analytics' and represents provision of a service from Trakken to the Customer. The software or the tool enables the display of select indices acquired through Google Analytics in the software provided by Trakken. This involves accessing Google Analytics API.
Use of the software or the tool assumes that the Customer has a 'Google Analytics Account' and has provided the required software account information.

2 Use

2.1 The use of the software or the tool requires the Customer to download the software or the tool provided for such purpose by Trakken and install it on his server or computer. The Customer is also required to register a valid email address to which an individually generated licence key can be sent.
2.2 Before the Customer downloads the software or the tool and installs it on his computer or server, an email with an individual licence key will be sent. This key, together with entry of an email address and an additional individual password, registers the Customer to use the software or the tool. Trakken will only save the licence key and entered email address. The email address is required to send the licence key and to send any information regarding future software updates by email. Paragraph 6.2 of this Agreement is applied to the handling of the data saved thereby.
2.3 The Customer agrees to be informed by Trakken of future software updates by email.
2.4 In order for the data from Google Analytics to be used via the API of the software or the tool provided by Trakken, the Customer must register once again with his Google Analytics 'Log-in Data' for the corresponding use of the software or the tool. Because this registration is made by the Customer, this data will not be saved by Trakken. It is by no means possible for Trakken to access the Customer's Google Analytics data, since further data communication is exclusively between Google Analytics and the Customer.
2.4 The Customer affirms he is entitled to use Google Analytics.
2.5 The customer undertakes to use the tool Google Analytics only within the restrictions of the applicable business conditions from Google; this is particularly applicable to the corresponding data protection provisions.

3 Fees

Excluding amendment to the conditions stated in Section 13, use of the tool is free of charge.

4 Right of Use

4.1 Trakken hereby grants the Customer the restricted, revocable, non-exclusive, non-sublicenceable and non-transferable right to install, reproduce and use the software or the tool solely to the extent required to use the tool or the software for one or more websites controlled by the customer (hereafter 'Website').
4.2 The customer shall not permit either himself or a third party to:
(1) copy, alter, adapt, translate or otherwise create derivative works of the software and/or the documentation;
(2) reverse engineer, disassemble, or decompile the software provided by Trakken or to attempt to discover the software source code in any other manner (except where specifically permitted by ยงยง 69d and 69e UrhG);
(3) rent, sublicence, lease, sell or assign the tool or software or otherwise transfer the associated rights (or purport to do any of the same);
(4) remove any proprietary notices or other labels in or on the software or which are otherwise placed by the service;
(5) use, save, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the service or the software;
4.3. Subject to paragraph 4.2 of this Agreement, the Customer will use the tool or software for his own internal purposes and will make neither the software nor the service available to others, particularly not for timesharing, application service provision or service bureau use.
4.4 The Customer (and all third parties granted access to the tool or the software by the Customer) will undertake to comply with all laws and other regulations applicable to the use of and access to the software or the tool.
4.5 The Customer will not provide access to the software or the tool to third parties. However, the Customer may (at own risk) provide access to the reporting functions of the software to third parties assuming the Customer does not directly or indirectly charge a service fee for granting such access and provided that the Customer remains responsible for such third party use of any information or other material provided by the Customer.
4.6 The licence granted above and the Customer's right of use of the service will terminate immediately if the Customer fails to comply with the terms of this Agreement. In such cases the provisions of Section 12 will apply.

5 Confidentiality

5.1 Confidential information includes any information and documentation disclosed by one party to another which is either marked 'confidential' or is by its nature confidential, particularly information regarding operational processes, business relationships, expertise and work results.
5.2 The parties to this Agreement agree to maintain silence regarding such confidential information as is described above. Confidential information will not include any information which can be demonstrated to have already been in possession of the receiving party when this Agreement is closed or which is independently developed by third parties without infringing upon any confidentiality agreement, statutory regulations or official orders, that is known to the general public when this Agreement is closed or becomes known thereafter, insofar as this does not involve an infringement of this Agreement or which must be disclosed due to a legal duty to disclose or an order of a court or authority. Insofar as is permitted and to the extent possible, the recipient who is obligated to disclose information will inform the other party in advance and grant them the opportunity to proceed against the disclosure.
The parties to this Agreement will only allow those advisers who are bound by professional secrecy or those upon whom corresponding obligations were imposed prior to the confidentiality obligations of this Agreement access to confidential information. Further, these parties will only disclose confidential information to those employees who require such information for the execution of this Agreement; these employees are also obliged to maintain secrecy within the scope permitted by labour legislation after termination of their employment.

6 Privacy

6.1 The Customer will not associate (or permit any third party to associate) any data gathered from Customer Website(s) (or such third party website(s)) with any personally identifying information originating from the use of the tool or the software. The Customer will comply with all applicable data protection and privacy laws relating to Customer use of the tool or the software and the collection of information from visitors to Customer websites.
6.2 The Customer agrees that Trakken and its wholly owned subsidiaries may retain information over the use of the tool or the software by the Customer, including information made accessible during download of the tool or the software or made accessible to Trakken in any other form within the use context of the tool or the software or the context of this Agreement.
Trakken undertakes to prevent access of third parties to this information, unless Trakken
(1) has Customer consent;
(2) concludes that it is required by law or has a good faith belief that such disclosure is reasonably necessary to protect the rights, property or safety of Trakken, its users or the public; or
(3) concludes that it is required by law or has a good faith belief that such disclosure is reasonably necessary to protect the rights, property or safety of Google, its users or the public. When this is done, it is subject to agreements that oblige those parties to process such information only in accordance with Trakken instructions and in compliance with this Agreement and appropriate confidentiality and security measures.

7 Indemnification

The Customer agrees to indemnify Trakken, its agents, affiliates, directors, officers, employees and partners against any loss, liability or cost arising out of
(1) the Customer's violations of any applicable laws, rules or regulations in connection with the Customer's use of the service;
(2) any Customer failure to conform to Google's business conditions;
(3) any breach of the provisions of this Agreement by any third party to whom the Customer provides access to the Customer's account or the reporting functions of the software; and
(4) any claim against Trakken made by any third party in conjunction with the third party's access to the Customer's account or the use of the software or the tool.

8 Limitation of Liability

8.1 Trakken is unrestrictedly liable according to the legal regulations for all health or bodily damages resulting from deliberate or gross negligence as well as for any damages and for all other damages resulting from deliberate or gross negligence or fraudulent intent. Trakken is also unrestrictedly liable for any damages falling under the Product Liability Act and in the event that a warranty is assumed.
8.2 For those damages that are not recognized by paragraph 8.1 and are caused by simple or ordinary negligence, Trakken is liable if this negligence represents an infringement of an essential contractual duty which makes possible the execution of this Agreement at all and on whose compliance the Customer can legitimately trust (cardinal obligations). Trakken restricts its liability to contract-typical, foreseeable damages.
8.3 In cases of slightly negligent infringements of duties under this Agreement not recognized either by paragraph 8.1 or paragraph 8.2 (insignificant contractual obligations), Trakken is liable towards customers, limited to contract-typical, foreseeable damages.
8.4 Any additional liability is hereby excluded.

9 Use of the Tool or the Software by Third Parties

9.1 If the Customer provides access to the tool or the software or any portion thereof to any third party, whether or not authorised to do so by Trakken or its wholly owned subsidiaries as described in Section 6 of this Agreement or in any other way, the terms and conditions of Section 7 of this Agreement are applicable.
9.2 If the Customer uses the tool or the software on behalf of any third party, the Customer will represent and warrant to Trakken that
(1) the Customer is fully authorised to act on behalf of such third party and to bind such third party to this Agreement;
(2) as between that third party and the Customer, such third party owns all right, title and interest in and to the customer data in any relevant account(s).
9.3 Without prejudice to paragraph 10.2, the Customer shall ensure that each such third party complies with the terms of this Agreement as if it were a party hereto in substitution for the Customer. Any information of any such third party that is considered confidential shall be treated as confidential by the Customer and shall not be disclosed to any other third party. Without prejudice to the foregoing, the Customer agrees not to disclose any customer data belonging to any third party on whose behalf the Customer uses the tool or software, without the prior written consent of such third party.

10 Service

10.1 The tool or the software is provided 'as is' and Trakken grants no warranties therefor excepting the liability recognized in Section 8 of this Agreement. Without limiting the generality of the foregoing, Trakken does not represent or warrant that
(1) the use of the software or the tool will meet the Customer's requirements or be uninterrupted, secure or error-free;
(2) that defects will be corrected;
(3) that the software or the tool is free of viruses or other harmful components; or
(4) that the use of the software or tool and any information made available through them (including the reports) will be correct, accurate, timely or otherwise reliable.
No conditions, warranties or other terms including any implied terms as to satisfactory quality, fitness for purpose or conformance with description apply to the software or the tool except to the extent that they are expressly set out in this Agreement.

11 Rights

11.1 Trakken shall own all rights, titles and interests, which include but are not limited to all intellectual property rights to the tool or the software (and any derivative works or enhancements thereof). All rights in and to the tool or the software not expressly granted to the Customer in this Agreement are hereby expressly reserved and retained by Trakken.
11.2 Without limiting the generality of the foregoing, the Customer agrees not to (and to not allow any third party to)
(1) use the trademarks, service marks, trade or business names, logos, domain names, other distinctive brand features or any other copyrighted material or other proprietary rights owned by Trakken and which are associated with the service without the express written consent of Trakken;
(2) register, attempt to register or assist any third party to register or attempt to register any trademark, service mark, trade or business name, logo, domain name, other distinctive brand feature or any other copyrighted material or proprietary right associated with the service or with Trakken, otherwise than in the name of Trakken and with prior express written consent from Trakken.
(3) to remove, obscure or alter any notice of copyright, trademark or other proprietary right notice appearing in or on any item included with the service.

12. Term and Termination

12.1 This Agreement shall commence on the date when the Customer accepts these terms and conditions as specified above and shall remain in force unless terminated by either Party at any time for any reason, with a period of notice of 7 days.
12.2 The right of both parties to terminate the Agreement on substantial grounds without notice remain unaffected.
12.3 Upon any termination or expiration of this Agreement, Trakken will cease providing the tool or the software, and the customer will delete all copies of the tool or the software in their possession and certify to Trakken within three business days of such termination that such deletion has been carried out.

13. Amendment to the Terms and Conditions

Trakken reserves the right to change or modify any of the terms and conditions contained in this Agreement at any time, by informing the Customer of such amendment in written form, provided amendment to this Agreement is reasonable to the Customer when Trakken interests are taken into account. If the Customer continues to use the software or the tool following such notification, insofar as the Customer has not explicitly objected to the amendments within a period of time set by Trakken, the Customer will be deemed to have accepted such amendment.

14 Right and Consequences of Revocation

Customers of contracts for the provision of other services are granted a right of revocation as recognized in this Section. Hereafter the Customer may revoke his contract declaration in written form, i.e. by letter, fax or email, within one month without giving reasons. The time limit begins at the time the right of revocation is disclosed, yet not before the day the contract is closed and not before the business information obligations stated in Section 312c paragraph 2 German Civil Code in conjunction with Section 1 paragraphs 1, 2 and 4 of German Civil Code - InfoV as well as the business obligations according to Section 312e paragraph 1 sentence 1 in conjunction with Section 3 BGB - InfoV are fulfilled. Timely despatch of the revocation shall be deemed sufficient for compliance with the revocation term.
Revocations shall be sent to:

Trakken Web Services GmbH
Willy-Brandt-Str. 47
20457 Hamburg Germany
trakkboard@trakken.de

The right of revocation expires prematurely when this Agreement has been completely fulfilled by both sides at the explicit desire of the customer, before the customer has exercised his right of revocation.

In the case of a valid revocation, the mutually received services shall be returned and any received benefits (i.e. advantages or interest) surrendered. If the customer cannot return all or part of the received goods or if they are returned in an impaired condition, the customer may be obligated to provide compensation accordingly.

15 Miscellaneous

15.1 There are no oral, verbal or written ancillary agreements. Modifications and amendments to this Agreement must be in written form. The same is also valid for amendment to or cancellation of this Section. Electronic documents lacking a qualified electronic signature as recognized by the German Electronic Signature Act do not fulfil the requirement of written form.
15.2 Customer terms and conditions are not applicable.
15.3 Any dispute or matter arising out of or connected with this Agreement is subject to German law under exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
15.4 The place of performance is Hamburg, Germany. Exclusive jurisdiction and legal venue shall be Hamburg when the customer is a commercial businessman or legal entity of public law.
15.5 If a regulation of this Agreement should become ineffective or infeasible, the remaining regulations herein shall not be affected. The parties undertake as of now to replace the invalidated clause with a mutually agreed regulation that most closely resembles the intent of the invalidated section in legal and economic terms. The same is valid when necessary to close any loopholes in this Agreement.