between Trakken Web Services GmbH (hereinafter referred to as “Trakken”) and you personally or the legal entity which you are authorised to represent (hereinafter referred to as “Customer“).
Please read this agreement carefully
1. Basic provisions
1.1 The following conditions apply for the use of TrakkBoard.
1.2 TrakkBoard is a software-based tool whose use is made available to the customer by Trakken as a service under this agreement.
1.3 Customers pursuant to the present General Terms and Conditions of Business are both consumers and entrepreneurs. A consumer is nay individual who concludes a legal transaction for a purpose that cannot be assigned to either his or her commercial or professional self-employment. An entrepreneur is every individual or legal entity or partnership with a legal identity that when concluding a legal transaction is conducting its commercial operations or its independent occupational activity.
1.4 The relationships between the contracting parties are governed by the valid law in the Federal Republic of Germany. With consumers, this choice of law applies only to the extent that the protection granted is not cancelled by mandatory provisions of the law of the state in which the consumer has his or her usual domicile.
1.5 The language of contract is english.
1.6 The provisions of the UN Convention on Contracts for the International Sale of Goods (CISG) do not apply.
2. Access to the tool
2.1 The access to TrakkBoard and/or the underlying software and its use requires that the customer registers on a website of TrakkBoard. For this purpose, the customer must provide Trakken with the information requested during registration, including his or her e-mail address (user name) and a password; this information must be up-to-date, complete and correct. With this data, the customer gains access to a customer area provided by Trakken online.
2.2 As part of individualized support, it is also possible that Trakken or one of Trakken’s contractual partners conducts this registration with the consent of and in coordination with the Customer.
2.3 The customer gives assurance that all information that he or she makes available to Trakken during registration is correct. The customer undertakes to indicate a valid e-mail address as part of the registration process.
2.4 The customer undertakes to treat his or her password and the user name as confidential. In particular, the customer is obliged to protect this information from unauthorized access by third parties.
2.5 The customer assumes the sole and full responsibility for the use of the password or his or her customer area provided online at Trakken, including use by third parties.
2.6 If he or she loses his or her password, the customer is obliged to inform Trakken immediately.
2.7 The customer gives his or her consent to employees of Trakken and affiliated companies of Trakken logging in using the customer’s password in order to maintain or improve the service.
2.8 The rights of the customer from this agreement are non-transferable
3. Signing of contract
3.1 A contract concluded with Trakken regarding the usage of the software or the tool is established by an Agreement between Trakken and the Customer.
3.2 The registration of the customer represents a binding offer to Trakken to conclude the service contract with regard to the opportunity of using TrakkBoard pursuant to Clause 5 of this agreement.
3.3 After registration, the customer shall receive an e-mail from Trakken that confirms the receipt of the order and lists the details thereof (confirmation of receipt). This confirmation of receipt is not intended as an acceptance of the offer; it merely informs the customer about the receipt of the order. This confirmation of receipt includes a link for activation. Via this link, the customer can activate his or her customer area provided online. A service agreement regarding the services of Trakken is only included if and to the extent that Trakken activates the customer area so that this is accessible for the customer.
3.4 Irrespective of Clauses 3.2 and 3.3, Trakken may execute the registration on behalf of the Customer in the scope of individualized support, insofar as this is approved by and coordinated with the Customer. In such cases, by activating his designated online customer area, the Customer shall accept these General Terms and Conditions and make a binding offer to Trakken for the conclusion of a Service Contract pertaining to the use of TrakkBoard as per Clause 5 of this Agreement. A Service Contract for the services performed by Trakken shall be deemed concluded when and only if Trakken makes the customer area available and accessible to the Customer.
3.5 Irrespective of Clauses 3.2, 3.3 and 3.4, any of Trakken’s contractual partners (resale partners), who have been authorized by Trakken to individually conclude contracts against payment with the Customer for the use of TrakkBoard, may execute the registration on behalf of the Customer, insofar as this is approved by and coordinated with the Customer. In such cases, by activating his designated online customer area, the Customer shall accept the present General Terms and Conditions and make a binding offer to Trakken for the conclusion of a Service Contract pertaining to the use of TrakkBoard as per Clause 5 of this Agreement. A Service Contract for services provided by Trakken between the Customer and Trakken shall, in this case, first be established when and only if Trakken makes the customer area available and accessible to the Customer. Regardless of the contractual relationship between the Customer and the Resale Partner, the content of this Agreement shall always be deemed authoritative for the usage of the software or the tool by the Customer and for the relationship between Trakken and the Customer.
3.6 Further services beyond those specified in Clause 5 of this Agreement shall be considered free offers made by Trakken to the Customer. The subject matter of the contract for these services by Trakken shall be the services that are offered in the respective performance description at the time of the submission of an offer by the Customer as per Clause 3.7 of this Agreement.
3.7 In addition to contracting services provided by Trakken as per Clause 5 of this Agreement, the Customer has the opportunity to conclude an agreement with Trakken for obtaining additional services in conjunction with Clause 3.6 of this Agreement in connection with the usage of TrakkBoard. When the Customer makes an offer for the conclusion of such a contract electronically – more specifically within the framework of using his online customer area made available by Trakken – the Customer shall receive an e-mail from Trakken after having sent in his respective order. This e-mail confirms the receipt of the order and lists its details (receipt confirmation). This receipt confirmation shall not constitute acceptance of the offer, but rather serves to solely inform the Customer that the electronic order has been received. A service contract for the continuing Trakken services in connection with the usage of TrakkBoard shall first be concluded when and inasmuch as Trakken confirms the acceptance of the order with a further e-mail (confirmation).
3.8 The customer also has the option of applying to Trakken for an offer for a contract to be concluded for further services pursuant to Clause 3.6 of this agreement in writing, by fax or verbally. A contract for these services from Trakken is not, however, concluded until and to the extent that Trakken accepts the offer in writing or in text form.
4. Saving of the contractual text
The text of the contract is not saved for the implementation of the contract after conclusion of the contract and cannot therefore be accessed again by the customer on the website using his or her member data. Via the print function of the browser, however, the relevant website can be printed out during the order process. In any event, customers will be sent further information after conclusion of the contract during the implementation of the contract.
5. Service from Trakken within the framework off the use of TrakkBoard by the customer
5.1 The service provided by Trakken consists of Trakken providing the customer with the possibility of using the tool “TrakkBoard”. The customer can log in to the customer area of TrakkBoard, where he or she has the opportunity to link various tools of third parties with TrakkBoard.
5.2 The customer is solely responsible for ensuring that the linking of TrakkBoard with tools from third parties is done in a professional manner and that the functionality and transmission of data work properly. Outside of the liability pursuant to Clause 13 of this agreement, Trakken assumes no liability and responsibility for the data of erroneously linked tools of third parties and the function of the interfaces to these tools.
5.3 Certain information about the use of the TrakkBoard tool can be displayed to the customer. The scope of the information displayed during use of the TrakkBoard tool by the customer is defined by the information available on a website of TrakkBoard when the offer is submitted by the customer pursuant to Clause 3 of this agreement. The customer has no entitlement to expect that Trakken saves this information for a particular period of time. On the contrary, Trakken is entitled to delete this information at any time.
5.4 The entitlement to the service is only in the context of the current state of the art. Trakken reserves the right to restrict the service from time to time if this is necessary with regard to capacity limits or the integrity of the servers or to carry out technical measures and this helps to provide the serves in an orderly or improved manner (maintenance tasks). In the process, Trakken will take into account the justified interests of all customers. In particular for technical reasons, it may not be possible from time to time or only to a limited extent to use TrakkBoard (unforeseen system failures).
(1) the presentation of the information during use of TrakkBoard by the customer or other information provided in this context (including the reports) is possible in a correct, exact, timely or other reliable manner and/or
(2) the use of TrakkBoard and/or the underlying software corresponds to the customer’s requirements or is possible without interruption, securely and without errors and/or
(3) errors are corrected and/or
(4) TrakkBoard and/or the underlying software is free of viruses or other harmful components and/or
(5) the customer area is available at any time and/or
(6) data is lost or deleted and/or
5.6 Further agreements, guarantees or other conditions, including any tacit conditions with regard to a satisfactory quality and suitability for certain purposes with particular descriptions do not apply for the software and/or the tool unless otherwise explicitly defined in this agreement.
6. Obligations of the customer
Without restriction to the aforementioned or further agreement, the customer has, among others, the following obligations:
6.1 The customer is solely responsible for the use of the tool and the compliance with the laws to be adhered to in this context.
6.2 If the customer uses the services in the name of or on behalf of a third party, the customer gives assurance that he or she is fully authorized to trade in the name of or on behalf of the third party and binds the third party effectively to this agreement and that in the relationship between the customer and this third party the third party has all the relevant rights for this agreement. This does not affect Clause 2.7 of this agreement.
6.3 The customer must ensure that every third party complies with the conditions of this agreement as if he or she himself/herself was a contracting party. This does not affect Clause 2.7 of this agreement.
7. Rights and right of use
7.1 Trakken remains the owner of all rights and legal positions, including, but not restricted to all industrial property rights and copyrights to the tool TrakkBoard and/or the underlying software. This also applies for all editing, modification or enhancement thereof.
7.2 Trakken retains the rights to and in connection with the tool TrakkBoard and/or the underlying software that are not explicitly granted to the customer in this agreement. These rights are hereby explicitly reserved for Trakken. With this agreement, Trakken grants the customer the restricted, revocable, non-exclusive, non-sub-licensable and non-transferable right of use only to use TrakkBoard in the scope required to use TrakkBoard.
7.3 Without restriction to the aforementioned or further agreement, the customer is not permitted himself or herself or by a commissioned third
(1) to remove, suppress or change in any way any notice of content protected by copyright, brands or other reference to intellectual property rights that appear in connection with the service in or on any object; and/or
(2) to remove copyright designations or other designations of rights or other descriptions in or on TrakkBoard or the underlying software or in connection with the service; and/or
(3) without the prior explicit written consent of Trakken to use brands, firm or company names, logos, domain names or other clearly distinguishing marks or content protected by copyright or other intellectual property rights of Trakken, or to try to register these or support a third party during registration, and/or
(4) to sell, hire or lease TrakkBoard or assign licensing rights or other rights to it; and/or
(5) to copy, change, adapt, translate TrakkBoard or the underlying software or transform it; and/or
(6) to reverse-engineer, disassemble, or decompile the underlying software of TrakkBoard or the software provided, or to try in another way to uncover the source code of the software; this excludes measures which are permitted pursuant to Sections 69d and 69e of the Copyright Act (UrhG); and/or
(7) to carry out any measure or to use, save, transfer or introduce measures that intervene or attempt to intervene in the functional process of TrakkBoard or the underlying software; and/or
(8) to impair the rights of Trakken in any other way.
7.4 The customer undertakes to use TrakkBoard solely for the customer's own internal purposes and not to make TrakkBoard accessible to others, in particular not for purposes of time sharing, application service providing or as part of a service company.
7.5 The customer gives assurance that all applicable laws and other regulations regarding the use and access to TrakkBoard or the underlying software and all laws and other regulations applicable within the framework of the services from Trakken are complied with by the customer and by third parties who are granted access to the TrakkBoard tool or the underlying software.
7.6 The customer entitles Trakken to name brands, firm or company names, logos, domain names of the customer as a reference towards third parties. This applies in particular also for publicly accessible advertising from and by Trakken.
8. Remuneration / Other services in return for payment
8.1 The prices for the services used by the customer can be found in the respective offers and the respectively valid price lists as they can be accessed via the website www.trakkboard.com. Trakken accepts the payment methods that can be viewed on the order page and is entitled to reject certain payment methods in individual cases if Trakken has a justified interest in doing so.
8.2 Trakken is entitled to change the fees and payment conditions for the service, including but not restricted to the depiction of information other than that described in Clause 5.3 of this agreement. Trakken will notify the customer of changes in the fees or payment conditions via the customer area provided online or via e-mail. If the customer continues to use the service of Trakken after this notification, this is deemed to be a declaration of the acceptance of the changes if the customer has not given an explicit statement regarding the changes within a reasonable period set by Trakken and if Trakken specifically points out to the customer the envisaged meaning of continued use.
8.3 As for other Trakken services according to Clause 3.5 of this Agreement, paid contracts may be concluded as per Clause 3 of this Agreement. The fees for services contractually ordered by the Customer result from the respective offer descriptions or order forms as well as from the respectively applicable fee lists for the services from Trakken. These can be viewed in the customer area made available online or on a TrakkBoard website. Trakken accepts the payment methods listed in the offers.
8.4 Unless otherwise agreed with the customer, the invoicing of the customer is done in electronic form. The invoice will be provided to the customer for downloading directly after payment.
8.5 Unless otherwise agreed with the customer, the on-going charges are to be paid in advance in full for the respective period of performance. Invoice amounts are due on invoice and payable within 30 days. The customer must comply with his or her payment obligations, irrespective of whether he or she uses the services provided by Trakken or not.
8.6 If the customer is in arrears, Trakken is entitled to retain all services and from the due date to charge arrears interest amounting to eight percentage points (8%) over the basic rate of interest. This does not affect further claims and rights of Trakken.
8.7 Irrespective of Clauses 8.1 to 8.6, a fee for the usage of TrakkBoard may be agreed upon between the Customer and one of Trakken’s contractual partners who has been authorized by Trakken to individually conclude paid contracts with the Customer for the usage of TrakkBoard (a so-called Resale Partner), but must be done so with Trakken’s approval. The approval from Trakken shall be made available to the Resale Partner in writing and is only valid in this form. In this case, the fee shall be made payable to the Resale Partner by the Customer. With regard to the payment conditions, the relation of the Resale Partner to the Customer shall be decisive.
8.8 Should the customer be in default to a Trakken Resale Partner in terms of his payment obligation as per Clause 8.7 of this Agreement, Trakken is authorized, upon request or with the approval of the Resale Partner, to withhold all services. Any possible further claims and rights by/of Trakken and/or the Resale Partner remain unaffected.
8.9 Should the contract between the Resale Partner and Trakken end before the respective performance period between the Customer and Trakken ends, as defined in Clause 14 of this Agreement, Trakken may demand the Resale Partner to relinquish the respective claims to payment towards the Customer as per Clause 8.7 of this Agreement. These claims to payment relate to the period of time after the termination of the contract between the Resale Partner and Trakken.
9.1 “Confidential information“ is all information and documents of the other party in each case that is marked as confidential or is to be seen as confidential from the circumstances, in particular information about company processes, business relationships and know-how as well as work results.
9.2 The Parties hereby agree to maintain secrecy about such confidential information. Exempted from this obligation is confidential information that was already known to the recipient (and this can be proven) upon conclusion of the contract or that becomes known to a Third Party thereafter without a breach of any confidentiality agreements, government regulations or administrative orders, OR confidential information that is publicly known upon conclusion of the Agreement or which is then made known to the public without such disclosure being based on a violation of this Agreement, OR confidential information that must be made known due to legal obligations or at the order of a court or an authority. Inasmuch as it is possible and permissible, the recipient(s) who is/are required to disclose this information shall inform the other Party of this in advance in order to give the other Party an ample opportunity to challenge this disclosure. The Parties shall only grant consultants access to confidential information if those are subject to vows of professional secrecy or statements of confidentiality that are aligned with a prior confidentiality agreement in conjunction with this Agreement. Furthermore, the Parties to the Agreement shall only disclose the confidential information to employees who absolutely need to have access to it in order to execute this Agreement. These employees shall be required to maintain confidentiality and shall be bound to do so legally, even in the time after their employment, to the full extent permitted by law.
10. Data privacy related to the use of TrakkBoard
10.1 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.
10.2 The Customer hereby agrees that Trakken or its affiliated companies shall be entitled to store information about the usage of the tool or the software by the Customer as well as information that is made available to Trakken as part of the usage of the tool or the software or as part of the framework of this Agreement or when the tool or the software in question is downloaded or made available in some other form. Trakken agrees that it shall not make this information available to Third Parties unless this information is made available to Third Parties by Trakken under special circumstances in order to perform tasks on behalf of Trakken under strict protection of the information against use of the data in a manner other than the one instructed by Trakken. If this clause is applied, Trakken shall contractually bind the respective Third Parties to only make use of such information in accordance with this Agreement and while observing sufficiently reasonable privacy and security measures.
The customer undertakes to compensate Trakken, its vicarious agents, its representatives, affiliated companies, its managing directors, its senior managers, its employees and its shareholders for any loss, liability and/or all costs that arise because
(1) the Customer's violations of any applicable laws, rules or regulations in connection with the Customer's use of the service;
(2) any third party that the customer has granted access to the customer area made available online or other services of Trakken breaches the provisions of this agreement
(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.
The above is without prejudice to further claims and rights of Trakken.
12. Use of the tool and/or software by third parties
The conditions of this agreement apply for each case in which the customer grants a third party access to TrakkBoard or other services of Trakken, irrespective of whether the customer has been authorised to do so by Trakken or its affiliated companies under this agreement or in another form.
13. Limitation of Liability
13.1 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.
13.2 For those damages that are not recognized by paragraph 13.1 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.
13.3 In cases of slightly negligent infringements of duties under this Agreement not recognized either by paragraph 13.1 or paragraph 13.2 (insignificant contractual obligations), Trakken is liable towards customers, limited to contract-typical, foreseeable damages.
13.4 Any additional liability is hereby excluded.
14. Duration and termination
14.1 This agreement and the resulting rights and obligations enter into effect on the date on which Trakken accepts the contract in the manner described in Clause 3 of this agreement. On signing of this contract, the customer shall select the term of the contract (period of performance). The respective period of performance starts on the date of the acceptance of the contract by Trakken as described in Clause 3 of this agreement. If the customer changes the contractual term within the respective period of performance, the requested change applies with the end of the period of performance in which the change was made. With the exception of Clause 14.4 of this agreement, it is not possible to shorten a current period of performance.
14.2 Contrary to Clause 14.1, an alternative performance period may, with Trakken’s consent, also be agreed upon between the Customer and one of Trakken’s contractual partners who has been authorized by Trakken to individually conclude contracts against payment with the Customer for the usage of TrakkBoard (thus, with a so-called Resale Partner).
14.3 The contract can be terminated by Trakken and the customer with a period of notice of 6 weeks to the end of the respective period of performance. If the contract is not terminated, it will be extended by the duration selected in each case.
14.4 This does not affect the right of either party to terminate the agreement for an important reason, without giving a period of notice.
14.5 The notice termination must be issued in writing.
14.6 After each termination or other ending of this contractual relationship, Trakken is entitled to suspend the provision of the service pursuant to Clause 5 of this agreement. In particular, Trakken is entitled in these cases to block the customer’s access to the customer area made available online.
15. 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.
16. 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.
Right of revocation:
The Customer can revoke his contract by letter, fax or email, within 14 days 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 246 par. 2 in conjunction with section 1 par. 1 and 2 EGBG as well as the business obligations according to section 312g par. 1 clause 1 BGB in conjunction with section 246 par. 3 EGBG 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
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.
Your right of cancellation expires prematurely should, upon your specific request, the contract be fulfilled by both sides before you have exercised your right of cancellation.
17.1 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.
17.2 Customer terms and conditions are not applicable.
17.3 The Customer may only offset claims from Trakken with recognized or legally established claims.
17.4 German law shall be applicable to all disputes that may arise in connection with this contract.
17.5 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.
17.6 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.