1. OBJECT OF REGULATION
1.1 The following General Terms and Conditions (“GTC”) govern the provision and use of the Internet access service of TSE Plazotta GmbH (“TSEP”), Hopfenstraße 30, 85283 Wolnzach, Ingolstadt Registry Court HRB 10 090; VAT ID No.: DE342402307. The offer is aimed at users of the company in which TSEP Internet access services are available.
1.2 The provision of the Internet access service by TSEP is based exclusively on these GTC, which may be supplemented by further (special) contractual or business terms and conditions of TSEP (see also Section 4.2). The validity of deviating terms and conditions is excluded, even if TSEP does not expressly object to them.
2. FREE INTERNET ACCESS SERVICES / CONCLUSION OF CONTRACT / TERM OF CONTRACT
2.1 TSEP provides users with access to the Internet at the respective hot spot locations for wireless surfing in accordance with these GTC. WLAN technology is used to transmit data wirelessly between the hot spot and the user’s WLAN-enabled end device.
2.2 The provision of the aforementioned services is carried out in compliance with and in accordance with the applicable laws, regulations and requirements, in particular the TKG, the DSGVO, the BDSG and in compliance with official and/or court orders. No registration or login with username/password is required to use the free internet access service(s). Use is only permitted to persons of legal age or minors with the consent of a parent or guardian.
2.3 In order to use the Internet access services, an operational end device (e.g. laptop, smartphone, e-book reader, etc.) with a WLAN-capable interface in accordance with IEEE 802.11a, n, ac or ax, IEEE 802.11g is required. Furthermore, a suitable operating system, web browser, the latest driver software for the WLAN hardware and an appropriate IP network protocol must be installed. The user is responsible for creating the conditions for use. TSEP accepts no liability for the compatibility of any hardware and software provided to the user by third parties. The use of the software is subject to the license conditions of the respective software provider.
2.4 The contract for the use of free Internet access services is concluded by accessing the registration page, accepting the GTC (“registration”) and subsequent use (“conclusion of contract”). The contractual relationship between TSEP and the user shall commence on the date of conclusion of the contract and shall end when the use of the service is terminated without the need for termination; the contractual relationship shall be re-established upon renewed use.
2.5 The provision of the service depends on the respective technical and operational possibilities (in the case of WLAN on the train, for example, on the mobile phone connections used for data transmission from the train to the land interface, which are provided by mobile phone companies). Against this background, it is not possible to guarantee uninterrupted, trouble-free provision at all times. The service may be impaired by geographical, atmospheric or other conditions or circumstances. The transmission speed during use depends, among other things, on the network utilization of the Internet backbone, the transmission speed of the selected servers of the respective content provider and/or the number of users at the respective hot spot and/or the mobile phone connectivity. There is therefore no obligation to provide Internet access at the respective location, to provide the service at certain locations and/or at other hot spots.
2.6 Unforeseeable events such as force majeure, judicial, official or regulatory measures, war, civil unrest, strike and lockout, which TSEP could not avert even with reasonable care under the circumstances, shall release TSEP from its obligation to perform for their duration and the user from any obligation to pay usage-independent fees.
3. SIMPLIFIED RE-LOGIN
As part of its free Internet access services, TSEP provides its users with a simplified RE-LOGIN service. The user commissions this service upon conclusion of the contract for the use of Internet access services in accordance with Section 2.4. The simplified RE-LOGIN is based on the MAC address of the terminal device and is available for a period of up to 7 days. During this period, the user can use the Internet access service within range of a hotspot without having to log in again; each new use constitutes a new contractual relationship in accordance with Section 2.4 (further information on the data processed for this purpose can be found in the data protection information, see Section 7.4). After expiry of the aforementioned period and/or in other cases of re-establishment, a new registration in accordance with Section 2.4 is required.
4. OTHER SERVICES / OFFERS
If further services and/or offers are made available via Internet access services, further General or Special Terms and Conditions may apply, depending on the respective offer.
5. GENERAL DUTIES AND OBLIGATIONS OF THE USER
5.1 The user is obligated when using Internet access services,
not to make the service available or pass it on to third parties in return for payment or other benefits; nor may connections be established for third parties (in particular in return for payment);
to observe the general laws, in particular criminal laws, competition regulations (UWG) etc., including court or official orders based thereon, when using the website and to protect the rights of third parties, in particular copyrights, license rights, rights of use etc.. In particular, the user is obliged (i) to ensure that the content posted, retrieved or otherwise made available or used by him or via his access to the Internet does not infringe the rights of third parties and is not criminal, immoral or otherwise unlawful; this includes, for example, information that is inciting hatred within the meaning of Sections 130, 130a and 131 of the German Criminal Code (StGB), incites / calls for criminal offenses or glorifies or trivialize violence, are sexually offensive or pornographic within the meaning of § 184 StGB or are likely to seriously endanger the morals of children or young people; (ii) to observe the provisions of the Interstate Treaty on the Protection of Minors in the Media and the Youth Protection Act; (iii) not to offer, retrieve or otherwise exploit works protected by copyright in file-sharing networks without permission;
5.2 The user is responsible for this,
to ensure that all equipment used by the user to access the service is suitable for this service and is adequately protected against threats and data access by third parties, such as viruses, worms and Trojan horses, by virus scanners, firewalls, etc. (“malware protection” in accordance with the recognized state of the art);
to ensure encrypted transmission of the data transmitted by him or to him using the service, e.g. by using SSL or TLS encryption (e.g. https), VPN;
equipment and end devices in accordance with the operating instructions of the respective manufacturer.
6. TERMINATION / RIGHT TO REFUSE PERFORMANCE / SUSPENSION
6.1 In the case of free Internet access services, the termination provision in Section 2.4 applies. In the case of paid Internet access services and/or other paid services, special provisions for termination, cancellation, refusal of service or blocking may also apply, which are based on the applicable (special) contractual or business terms and conditions for these services.
6.2 TSEP reserves the right to block Internet access services without notice and/or a waiting period if
the user has given cause for termination for good cause, or
the user breaches the duties and obligations specified in Section 5 and, if a warning is necessary in individual cases, the user does not immediately cease or reverse the behavior in breach of contract despite a warning (this applies, for example, in the event of suspected disproportionate uploads or downloads and/or illegal use), or
there is a risk of endangering other users of the Internet access service and/or the equipment of TSEP, in particular the network, due to repercussions from terminal equipment or a risk to public safety, or
the user misuses the services to interfere with TSEP’s or third parties’ security equipment, or
the volume of charges increases to a very high degree and facts justify the assumption that the user will not pay charges for services provided in the meantime, or will not pay them in full or on time if the blocking is carried out at a later date, and that securities provided have been used up and the blocking is not disproportionate.
Blocking is carried out using the respective MAC address and/or the user’s registration data within the scope of legitimate interests in accordance with Art. 6 para. 1 lit. f GDPR.
6.3 Please note that access to certain Internet offers and/or Internet websites may be restricted due to court and/or official orders in individual cases (see e.g. Section 7 (3) TMG) or that these offers may not be available due to court and/or official orders (e.g. in the case of illegal “gambling websites” in Switzerland). Both the circumvention and the attempt to circumvent judicial or official restrictions constitute a breach of these GTC.
7. DATA SECURITY AND DATA PROTECTION
7.1 Wireless data transmission between the hot spot and the user’s WLAN-enabled terminal device takes place without security encryption (e.g. WPA2). The user acknowledges that, due to the nature of the service, TSEP cannot guarantee that the service is protected against unlawful access or use and that TSEP therefore cannot rule out the possibility of third parties gaining access to the data transmitted between the user and the hot spot. The use of appropriate security software (e.g. VPN software) is recommended for sensitive data; this applies in particular to the transmission of data that is subject to statutory confidentiality or secrecy obligations (e.g. doctors, lawyers, tax consultants, auditors).
7.2 TSEP accepts no liability for information and data transmitted by the User via the Service and/or the Internet being viewed, intercepted or altered by third parties during transmission, originating from the alleged sender or reaching the intended recipient.
7.3 The User is aware that TSEP cannot guarantee protection against illegal access to the User’s end devices and the data stored on them within the scope of the services it offers. It is the sole responsibility of the User to protect the end devices and data used by the User against unauthorized access by third parties (see Section 5.2).
7.4 TSEP shall provide its services in accordance with the applicable data protection and/or telecommunications regulations. Further notes and information on data protection can be found on the TSEP website under Privacy Policy – Technical Software Engineering Plazotta GmbH
8. PERSONAL RESPONSIBILITY OF THE USER, EXEMPTION
8.1 The user bears sole responsibility for all content that he/she transmits via internet access service(s) or distributes in any other way (e.g. also via email, messenger, social media and/or chat services). This also applies to content that is transmitted or distributed by third parties whose access the user is responsible for. The content is not subject to review by TSEP.
8.2 The user shall indemnify TSEP against all third-party claims based on a breach of the user’s obligations under the section “Duties and obligations of the user”, an unlawful use of Internet access services and the associated services by the user or by corresponding actions of third parties for whose access the user is responsible. This applies in particular to claims arising from data protection, copyright or other legal disputes associated with the use of the Internet access services. If the user recognizes or must recognize that such a violation is imminent, there is an obligation to inform TSEP immediately.
9. LIMITATION OF LIABILITY
9.1 TSEP shall be liable for damages caused by TSEP, its legal representatives, employees or vicarious agents intentionally or through gross negligence.
9.2 In the event of a simple or slightly negligent breach of material contractual obligations (“cardinal obligations”), TSEP’s liability shall be limited to the amount of typically foreseeable damage. A material contractual obligation shall be deemed to exist in the case of obligations whose fulfillment is essential for the proper execution of the contract or on whose compliance the contractual partner has relied or may rely. Liability for the simple or slightly negligent breach of other obligations is excluded.
9.3 In the provision of telecommunications services to the public, TSEP’s liability for non-intentionally caused financial losses of users is also limited in accordance with Section 70 TKG. The statutory limit is currently EUR 12,500.00 per user; liability towards all injured parties of the same damage-causing event is limited to EUR 30 million. If the compensation to be paid due to the same event exceeds the maximum limit of EUR 30 million, the compensation shall be reduced in proportion to the ratio of the sum of all claims for compensation to the maximum limit. The limitation of liability shall not apply if the damage was caused intentionally or through gross negligence. The limitation of liability according to sentences 1 to 4 does not apply to claims for compensation for damages caused by the delay in payment of damages.
9.4 TSEP shall only be liable for the loss of data in the event of simple or slight negligence under the conditions and to the extent of Section 9.1 and Section 9.3 for the usual restoration costs, provided that the user has backed up his data in a suitable form at appropriate intervals with regard to the respective application.
9.5 Mandatory statutory provisions, such as unlimited liability for personal injury, liability under the Product Liability Act, for fraudulently concealed defects or within the scope of an assumed guarantee shall remain unaffected by the above provisions.
9.6 The user is obliged to take reasonable measures to avert and minimize damage.
10. RESERVATION OF THE RIGHT TO CHANGE SERVICES FREE OF CHARGE
If the use of an Internet access service is made possible free of charge, TSEP reserves the right to discontinue, restrict or change the service at any time; no justification is required for this.
11. DISPUTE RESOLUTION
11.1 In order to settle disputes between TSEP and the User as to whether TSEP has fulfilled its obligations to the User under the TKG, the User may submit an application to the Federal Network Agency for Electricity, Gas, Telecommunications, Post and Railway, Telecommunications Arbitration Board (Department 230), P.O. Box 80 01 53105 Bonn, Germany, to conduct an arbitration procedure in accordance with Section 68 TKG. Participation is voluntary for TSEP; TSEP will therefore check on a case-by-case basis whether it will take part in a conciliation procedure. Further details can be found on the homepage of the Federal Network Agency www.bundesnetzagentur.de under “Consumer portal”.
11.2 In accordance with Article 14 (1) of the EU Regulation on Online Dispute Resolution in Consumer Matters (ODRVO), the EU Commission also provides a platform for online dispute resolution (OS platform) for consumer disputes arising from online sales contracts and online service contracts. This platform is available on the Internet at http://ec.europa.eu/consumers/odr/.
12. TRAFFIC MANAGEMENT
12.1 TSEP continuously carries out measurements to ensure optimal capacity utilization of the network connection and to prevent overloads. TSEP uses suitable measurement and control elements for this purpose (so-called “traffic management”). The aim of TSEP’s traffic management is to contribute to the efficient use of network resources and to the optimization of the overall transmission quality in accordance with the objectively varying technical quality requirements. This is done on the basis of appropriate measures and/or adjustments designed to ensure equal access for users.
12.2 Applicable legal and regulatory requirements for net neutrality are observed. This concerns in particular the requirements of Regulation (EU) 2015/2120 (Net Neutrality Regulation), in particular Article 3(3)(2) of Regulation (EU) 2015/2120. Traffic management measures must be transparent, non-discriminatory and proportionate and must not be based on commercial considerations, but on objectively different technical requirements for the quality of service of certain categories of data traffic. The measures shall not monitor the actual content and shall not be maintained for longer than necessary. According to the third subparagraph of Article 3(3) of Regulation (EU) 2015/2120, further traffic management measures may be taken in the following cases, insofar and as long as they are necessary, in particular to
ensure the integrity and security of the network,
to prevent / mitigate an imminent, exceptional or temporary grid overload.
12.3 Depending on the network load, data traffic may be prioritized in individual cases as part of appropriate traffic management measures. This prioritization is based on various objective technical parameters (so-called Quality of Service (QoS) requirements) in relation to service categories (e.g. real-time services (Voice over IP)). Data traffic is grouped into a specific service category if the data traffic can be described by similar QoS requirements. These applicable QoS requirements include latency, jitter, packet loss and data throughput. Such traffic management measures may change the performance (such as upload and download speed or latency) of data traffic by service category.
12.4 TSEP points out that applied traffic management measures do not affect the privacy of users, in particular traffic management measures do not monitor the specific content and do not affect the protection of personal data.
13. FINAL PROVISIONS
13.1 Should any provision of these GTC be or become invalid or unenforceable in whole or in part, this shall not affect the validity of the remaining provisions. In this case, the invalid or unenforceable provision shall be replaced by a new provision that comes as close as possible to the regulatory content of the old provision. The same shall apply if these General Terms and Conditions contain any loopholes that require regulation.
13.2 The User may only transfer rights and obligations arising from a contract or a contractual relationship as a whole to third parties with the prior written consent of TSEP.
13.3 The contractual relationship between TSEP and the user shall be governed by German law, to the exclusion of the UN Convention on Contracts for the International Sale of Goods. For merchants, the place of jurisdiction for all disputes arising from and in connection with the contractual relationship shall be Wolnzach. For non-merchants, the statutory places of jurisdiction shall apply.
13.4 The current data transfer rate can be tested using the tool provided by the Federal Network Agency at https://breitbandmessung.de/.
