Article: General Terms and Conditions Internet Access Service of DB Systel (free)
(Last modified April 2023, Version 12)
1. SUBJECT MATTER
1.1. The following General Terms and Conditions ("GTCs") regulate the provision and use of the internet access service of DB Systel GmbH ("DB SYSTEL"), Jürgen-Ponto-Platz 1, 60329 Frankfurt am Main, Germany, Registry Court of Frankfurt am Main Reg. No. 78 707; VAT ID number: DE252204770. The product is aimed at users on board trains, in stations, on public transport and/or other areas where the internet access services of DB SYSTEL are available.
1.2. The provision of the internet access services of DB SYSTEL takes place exclusively on the basis of these GTCs, which may be supplemented by additional (special) contractual or business conditions of DB SYSTEL (see also Clause 4.2). Diverging terms and conditions shall not apply even if DB SYSTEL does not expressly exclude them.
1.3. Please note that the English version is merely a non-binding read-only translation of the German version of our General Terms and Conditions.
2. FREE INTERNET ACCESS SERVICES / CONCLUSION OF CONTRACT / CONTRACT PERIOD
2.1. DB SYSTEL provides users with access to the internet at the relevant hotspot locations for the purpose of wireless surfing in accordance with these GTCs. Using WiFi technology, data will be transferred between the hot-spot and the user's WiFi-enabled mobile device.
2.2. Provision of the aforesaid services takes place subject to and in accordance with the applicable laws, provisions and requirements, particularly the German Telecommunications Act (TKG), GDPR, German Federal Data Protection Act (BDSG) and subject to any official and/or judicial orders. No registration and no login with a user name/password are required to use the free internet access service(s). Use is restricted to adults and to minors who have the permission of a parent or guardian.
2.3. In order to use the internet access services, an operational mobile device (e.g. laptop, smart phone, e-reader etc.) with a WiFi-enabled interface conforming to IEEE 802.11a, n, ac oder ax, IEEE 802.11g is required. A suitable operating system, web browser, the latest drivers for WiFi hardware and an appropriate IP network protocol must also be installed. The user is responsible for creating the appropriate conditions for use. DB SYSTEL accepts no liability for the compatibility of any hardware or software which the user obtains from third parties. Use of the software is subject to the licence conditions of the relevant software provider.
2.4. The contract concerning the use of free internet access services shall be concluded ("conclusion of the contract") through the act of calling up the logon site, accepting the GTCs ("logon") and subsequent usage. The contractual relationship between DB SYSTEL and the user commences on the date of conclusion of the contract and ends when use of the service ceases without the need for any notice to terminate; a new contractual relationship is established each time the user uses the service.
2.5. Provision of the service depends on the available technical and operational facilities (e.g. for WiFi on board trains it is based on the mobile communications connections provided by mobile communications companies for train-to-land data transfer). On this basis, it is not possible to guarantee continuous uninterrupted availability at all times. The service may be detrimentally affected inter alia by geographical, atmospheric or other conditions or circumstances. Transmission speed while using the service is dependent inter alia on network utilisation of the internet backbone, on the transmission speed of the server used by the relevant content provider and/or on the number of users at the relevant hotspot and/or on mobile communications connectivity. There is therefore no obligation to grant internet access at the relevant location or provide the service at any specific locations and/or at additional hotspots.
2.6. Unforeseeable occurrences such as force majeure, judicial, official or regulatory measures, war, internal unrest, strike or lockouts which DB SYSTEL could not have avoided, even by exercising a level of care reasonable in the circumstances, shall release DB SYSTEL from the duty to effect performance, and the user from any obligation to pay fees for use, for the duration of the occurrence.
3. SIMPLIFIED RE-LOGIN
As part of its free internet access services, DB SYSTEL provides users with a simplified RE-LOGIN service. The user contracts this service by concluding a contract for the use of Internet access services according to Clause 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 may use the Internet access service within the range of a hot spot without having to register again; each new use shall result in a new contractual relationship in accordance with Clause 2.4 (for further information on the data processed for this purpose, please refer to the data protection notice, see Clause 7.4). After the expiry of the aforementioned period and/or in other cases of refoundation, a new logon pursuant to Clause 2.4 shall be required.
4. OTHER SERVICES / PRODUCTS
Where additional services and/or products are to be provided relating to internet access services, additional General or Special Terms and Conditions may apply depending on the product.
5. GENERAL DUTIES AND OBLIGATIONS OF THE USER
5.1. When using internet access services, the user is obliged
a. to refrain from making the service available to or sharing it with third parties in return for payment or other advantages; nor is the user permitted to set up connections for third parties (particularly in return for payment);
b. to comply with general laws, particularly criminal law, competition provisions (German Unfair Competition Act, UWG) etc., including any court orders or official orders based on them, when using the services, and to respect third-party rights, especially copyright, licences, usage rights etc. In particular, the user is obliged (i) to ensure that the content posted, accessed or otherwise made available or used by him or via his internet access does not infringe third-party rights and is not criminal, immoral or otherwise unlawful; this includes e.g. information that is an incitement to racial hatred within the meaning of Sections 130, 130a and 131 German Criminal Code (StGB), that leads to or incites criminal offences or which glorifies or trivialises violence, is sexually offensive or pornographic within the meaning of Section 184 StGB or which constitutes a serious risk of moral harm to children and adolescents; (ii) to comply with the provisions of the State Treaty for the Protection of Minors in the Media (Jugendmedienstaatsvertrag) and the Protection of Young Persons Act (Jugendschutzgesetz); (iii) to refrain from offering, accessing or otherwise exploiting copyright-protected works on trading sites without authorisation;
5.2. The user himself is responsible
a. for ensuring, by way of virus scanners, firewall etc. ("malware protection" in accordance with the recognised state of the art), that all of the devices which he uses to access the service are suitable for the service and are adequately protected against threats and the accessing of data by third parties, such as viruses, worms and Trojan horses;
b. for ensuring the encrypted transfer of data to or from the user when using the service, e.g. by way of SSL or TLS encryption (incl. https) and VPN;
c. For using equipment and devices in accordance with the manufacturer's instructions.
6. TERMINATION / RIGHT TO WITHHOLD PERFORMANCE / BLOCKING
6.1. Free internet access services are subject to the termination provision in Clause 2.4. Paid internet access services and/or other paid services may be subject to additional special rules on termination, notice to terminate, the right to withhold performance or the blocking of services which depend on the (special) contractual provisions or general terms and conditions applicable to these services.
6.2. DB SYSTEL reserves the right to block internet access services without notification and/or complying with any waiting period if
a. the user's conduct justifies termination for good cause, or
b. the user breaches the duties and obligations specified in Clause 5 and, insofar as a warning is required in the individual case, the user fails to cease or remedy the breach of contract without delay despite a warning (this applies where there is reason to suspect excessive downloads/uploads and/or unlawful use, for instance), or
c. there is a threat to other users of the internet access service and/or DB SYSTEL equipment, in particular the network, caused by the user's devices, or a threat to public safety, or
d. the user misuses the services to gain access to the security systems of DB SYSTEL or of third parties, or
e. substantial charges have accrued, and there is reason to believe that, if the blocking of services is delayed, the user will fail to pay the charges for some or all of the services provided in the meantime or will fail to pay them on time; securities have been used up, and the blocking of services is not unreasonable. Blocking of services takes place by way of the relevant MAC address and/or the user's registration data in line with legitimate interests pursuant to Art. 6 (1) (f) GDPR.
6.3. Please note that access to certain internet offers and/or internet web pages may be restricted due to court and/or official orders in individual cases (see Section 7 (3) Telemedia Act [TMG], for example) or that these offers may not be available due to court and/or official orders (e.g. in the case of illegal "money gambling websites" in Switzerland). Both the circumvention and the attempt to circumvent any court or official restrictions shall constitute a violation of these GTCs.
7. DATA PROTECTION AND DATA SECURITY
7.1. Wireless data transfer between the hotspot and the user's WiFi-enabled device takes place without security encryption (e.g. WPA2). The user acknowledges that, due to the type of service, DB SYSTEL cannot guarantee its protection against unlawful access or use and that DB SYSTEL therefore cannot exclude the possibility that third parties will obtain access to the data transferred between the user and the hotspot. In the case of sensitive data, the use of appropriate security software (e.g. VPN software) is recommended; this applies in particular to the transfer of data that is subject to statutory duties of confidentiality or non-disclosure (e.g. doctors, lawyers, accountants, auditors).
7.2. DB SYSTEL does not accept any liability for the fact that information and data transferred by the user via the service and/or internet may be viewed, intercepted or modified by third parties; for ensuring that it originates from the alleged sender or that it reaches the intended recipient.
7.3. The user is aware that, in relation to the services which it offers, DB SYSTEL cannot give any guarantee that they are secure against unlawful access to the user's devices or the data stored thereon. The user bears sole responsibility for protecting his devices and data against unauthorised access by third parties (see Clause 5.2).
7.4. DB SYSTEL provides its services in compliance with the applicable provisions under data protection and/or telecommunications law. Additional advice and information on data protection is available on the DB SYSTEL web page at https://www.dbsystel.de/InternetService/Datenschutzhinweis
8. RESPONSIBILITY OF THE USER, INDEMNITY
8.1. The user bears sole responsibility for all content that he transmits via the internet access service(s) or that he otherwise distributes (e.g. also by e-mail, Messenger, social media and/or chat services). This also applies to content transmitted or distributed by third parties where the user is responsible for their access. The content is not subject to any examination by DB SYSTEL.
8.2. The user indemnifies DB SYSTEL against any third-party claims arising from a breach by the user of his duties as set out in the section headed "Duties and obligations of the user", any unlawful use by the user of the internet access services and associated products or from equivalent conduct by third parties where the user is responsible for their access. This applies in particular to claims arising from disputes involving the use of the internet access services based on data protection, copyright or other laws. Where the user becomes aware, or should have become aware, that there is the risk of such a breach, he is under a duty to notify DB SYSTEL without delay.
9. LIMITATION OF LIABILITY
9.1. DB SYSTEL is liable for damages caused by the intent or gross negligence of DB SYSTEL, its statutory representatives, employees or vicarious agents.
9.2. In the event of the breach of material contractual obligations due to simple or minor negligence, DB SYSTEL’s liability is limited to typically foreseeable damages. A material contractual obligation refers to an obligation whose fulfilment is essential for the proper implementation of the contract, or whose fulfilment the other contracting party has relied upon or is likely to rely upon. Liability for breaches of other obligations due to simple or minor negligence is excluded.
9.3. When providing public telecommunications services, DB SYSTEL's liability for unintentional pecuniary loss to the user is also limited pursuant to Section 70 German Telecommunications Act (TKG). The statutory limit currently amounts to EUR 12,500.00 per user; liability with respect to the total number of claimants per loss-causing event is limited to EUR 30 million. Where the compensation payable as a result of the same occurrence exceeds the maximum limit of EUR 30 million, damages will be cut according to the ratio of all compensation claims to the maximum limit. The limit on liability ceases to apply where damage is caused intentionally or through gross negligence. The limit on liability under sentences 1 to 4 does not apply to claims for damages arising from a delay in the payment of damages.
9.4. With regard to the loss of data, DB SYSTEL is liable in the case of simple and minor negligence, according to the requirements and scope of Clause 9.1 and Clause 9.3, only for the usual costs of recovery insofar as the user has secured his data in a suitable form and at reasonable intervals for the application involved.
9.5. Mandatory statutory rules such as unlimited liability for personal injury, liability under the German Product Liability Act, liability for fraudulently concealing defects and liability under guarantee, remain unaffected by the foregoing provisions.
9.6. The user is obliged to take reasonable measures to avoid and minimise loss.
10. RIGHT TO MODIFICATION OF FREE SERVICES
Insofar as the use of an internet access service is provided free of charge, DB SYSTEL reserves the right to cease, restrict or modify the service at any time; no reason is required for this.
11. DISPUTE RESOLUTION
11.1. In order to resolve disputes between DB SYSTEL and the user as to whether DB SYSTEL has complied with its obligations towards the user under the German Telecommunications Act (TKG), the user can apply to the Federal Network Agency for Electricity, Gas, Telecommunications, Post and Railways, Arbitration Board Telecommunication (Dept. 230), Postfach 80 01 53105 Bonn, for conciliation procedure pursuant to Section 68 TKG. Participation by DB SYSTEL is voluntary; DB SYSTEL will therefore decide whether to take part in conciliation procedure on a case-by-case basis. Additional details are available on the homepage of the Federal Network Agency www.bundesnetzagentur.de under Consumer Services” (Verbraucherportal).
11.2. Under Article 14 Para. 1 of the EU Regulation on online dispute resolution for consumer disputes (ODR Reg.), the EU Commission also provides a platform for online dispute resolution (ODR Platform) in consumer disputes arising from online contracts for goods and/or services. This platform is available on the internet at http://ec.europa.eu/consumers/odr/.
12. TRAFFIC MANAGEMENT
12.1. DB SYSTEL carries out ongoing measurements to ensure optimum capacity utilisation of the network connection and to prevent congestion. For this purpose, DB SYSTEL uses suitable measurement and control elements ("traffic management"). The aim of DB SYSTEL's traffic management is to contribute to an efficient use of network resources and to an optimisation of overall transmission quality responding to the objectively different technical quality requirements. Traffic management takes place on the basis of reasonable measures and/or adjustments designed to ensure users receive equal access.
12.2. Applicable legal and regulatory requirements for network neutrality are observed. In particular, this concerns the requirements of Regulation (EU) 2015/2120 (Net Neutrality Regulation), especially Article 3 (3) subpara. 2 of Regulation (EU) 2015/2120. Traffic management measures should be transparent, non-discriminatory and proportionate and should not be based on commercial considerations but on objectively different technical quality of service requirements of specific categories of data traffic. The measures should not monitor the specific content and should not be maintained for longer than necessary. Under Article 3 (3) subpara. 3 of Regulation (EU) 2015/2120, further traffic management measures may be taken particularly if and for as long as they are necessary in order to
a. ensure the integrity and security of the network,
b. prevent/mitigate impending exceptional or temporary network congestion.
12.3. Depending on network utilisation, data traffic may be prioritised on a case-by-case basis as part of reasonable traffic management measures. This prioritisation is based on various objective technical parameters (known as quality of service (QoS) requirements) in relation to categories of service (e.g. real-time services (voice over IP)). Data traffic is only 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 mean that performance (e.g. upload and download speeds or latency) of data traffic varies by service category.
12.4. DB SYSTEL points out that traffic management measures applied do not affect the privacy of users; in particular, traffic management measures do not monitor the specific content and do not impair the protection of personal data.
13. FINAL PROVISIONS
13.1. If a provision of these GTCs is or becomes invalid or impracticable in whole or part, this shall not affect the validity of the other provisions. In this case, the invalid or impracticable provision will be replaced by a new provision which comes as close as possible to the regulatory content of the old provision. The same applies where these GTCs prove to contain omissions that need to be remedied.
13.2. The rights and duties under a contract, or a contractual relationship as a whole, can be transferred to a third party by the user only with the prior written consent of DB SYSTEL.
13.3. Contractual relations between DB SYSTEL and the user are subject to German law, with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods. In the case of traders, the place of jurisdiction for all disputes arising out of and in connection with this contractual relationship shall be Frankfurt am Main, Germany. In the case of non-traders, the statutory rules on 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/.
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