zafaco GmbH (hereinafter referred to as the "Provider") shall make available a web application and an App (hereinafter referred to as the „Offer“ or "Broadbandtest"), which end customers (hereinafter referred to as the "User(s)") may use to determine the connection speed of fixed and mobile Internet connections.
Any inappropriate use or exploitation or modification of zafaco's Offer shall be prohibited. In particular, copying or exporting content, offers, indexes, databases etc. shall be prohibited and shall be prosecuted by the Provider in accordance with applicable legislation, exhausting all available legal remedies.
The Provider shall strive to present the information in the Broadbandtest completely and correctly. Nevertheless, it shall give no warranties as to the availability of the Broadbandtest or as to the accuracy and completeness of the content and information.
§ 1 Scope
The general terms and conditions of Users, customers and partners shall not apply to direct business relationships with zafaco even if zafaco does not expressly object to them and/or provides its services without objection. This shall also apply in the event that the User, customer or partner has laid down a particular format for such an objection.
If an objection is excluded, the statutory provisions shall replace any conflicting terms. zafaco shall recognize divergent terms and conditions of business only if it has confirmed their applicability in writing.
zafaco reserves the right to amend these Terms at any time without giving reasons.
§ 2 Contract Formation, Scope of Services
Users who have full legal capacity or act with the consent of their legally authorized representatives shall be entitled to use the Offer.
The User shall be offered a free Broadbandtest. This Offer shall be provided by the Provider itself or made available via third parties.
Users may use the Broadbandtest to determine the locally available up- and download bandwidth within a few seconds.
The individual User, who initiates the measurement, shall have the results of the measurement of the User's Internet access service presented in a comprehensible format. In addition, the individual User shall be able to store the measurement results locally if desired, with a view, say, to creating a personalized series of measurements for the Internet access service.
In order to be able to use this Offer, the User shall be required to provide certain information via the Broadbandtest. This shall include, but not be limited to, information about the address, the contractually agreed maximum data transfer rate for download, the used service provider as well as the type of connection. The User shall be obliged to give correct and complete information in this respect. The User may then use the functions of the Offer and shall receive detailed measurement results.
The measurement results and additional information collected using the Broadbandtest are used as a base to determine the status quo of the actual available bandwidth. With this, the federal, state and/or local government will be supported during the audit of the broadband development.
The software developed in Germany and the national reference systems ensure that testing is performed to the highest quality standards in Germany.
zafaco reserves the right to make any use of the Offer contingent upon fulfilment of other requirements. Furthermore, the Provider alone reserves the right to create evaluations of the measurements in relation to multiple Users (according to town/city, region, postcode etc.).
The User shall be aware that zafaco's Offer may vary. The User shall have no legal entitlement to constant availability of the Broadbandtest or downloadability of individual content. zafaco shall also be entitled to suspend or discontinue the Offer without giving reasons. Furthermore, zafaco shall be entitled to carry out technical modifications to meet market requirements.
§ 3 Warranty and Liability
The information provided in the Broadbandtest shall make no claim of either correctness or completeness. Any use of the Broadbandtest shall be at the User's own risk. The Provider shall, in particular, give no warranties as to the correctness, completeness or quality of the measurement results and information provided.
The User shall ensure that the Broadbandtest as offered is used solely for lawful purposes. The User shall also undertake to refrain from any activities that impair, or might impair, the Offer's functionality.
Claims for damages arising from positive violation of contractual duty, from fault during contract formation or tort shall be excluded in relation to both zafaco and its performing or vicarious agents, unless the damages were caused intentionally or through gross negligence.
In other respects, zafaco shall, in principle, be liable solely for intent and gross negligence as well as culpable breach of a material contractual obligation. Liability shall be limited to foreseeable damages that typically occur. This shall not apply if zafaco has fraudulently concealed a defect or warranted the existence of a property. The same shall apply to zafaco's performing agents.
This shall not affect liability on account of culpable injury to life, limb or health or in accordance with the Produkthaftungsgesetz (German Product Liability Act). Further claims by the User, including, but not limited to, claims for damages on account of lost profit or other financial loss, shall be excluded.
zafaco shall accept no responsibility for links to other websites and services and shall, unless separately indicated, dissociate itself from any content downloadable via said links.
§ 4 Copyright, Confidentiality
The User shall be aware that zafaco and third parties (rights holders) hold copyrights to the content and offerings provided in the Web App. The copyright and any and all rights to use and exploit the content and offerings provided shall rest with zafaco. Any further use (external links) or reproduction of the content – particularly for evaluation purposes – shall be prohibited.
In the event of violation of the aforementioned obligations, zafaco shall be entitled to claim in full for any loss or damage incurred.
§ 5 Data Protection
All personal data shall be treated in confidence in accordance with data protection regulations.
§ 6 General duties to furnish information in regards to the alternative resolution of disputes pursuant to Article 14 Subsection 1 ODR-VO (EU Regulation on Online Dispute Resolution) and § 36 VSBG (German Law on the Resolution of Disputes involving Consumers):
The European Commission is making available a platform for the online resolution of disputes (OS), which is retrievable at: http://ec.europa.eu/consumers/odr/.
We are not under obligation and not willing to participate in a dispute resolution procedure conducted before a consumer arbitration committee.
§ 7 Final Provisions
The law of the Federal Republic of Germany shall apply exclusively without giving effect to the United Nations Convention on Contracts for the International Sale of Goods or to references to foreign law.
Ancillary agreements have not been entered into and shall require the written form in order to be valid.
If the User is a merchant, a legal entity under public law or a public-law special fund or if the User is not domiciled in Germany, the sole legal venue shall be the domicile of zafaco GmbH. zafaco may also bring an action before the court having jurisdiction at the domicile of the User, customer or partner.