Terms of Conditions
|These terms and conditions ("TC-WS") govern the supply of deliverables, licenses and services (WS-Offer) of LS telcom Software through the LS telcom Web Store, and by using our Web Store you ("you"/"Customer") accept and agree that exclusively these TC-WS are applicable to any such order through the Web Store. The WS-Offer through our Web Store is exclusively offered to business customers. In case you are a private person / consumer, interested in purchasing WS-Offer, please contact the LS telcom sales department.|
- Software Lease including documentation, training material and optional mapping data
The TC-WS, together with your online order form confirmed by LS telcom via email, form the legal agreement ("Software Lease-Agreement") between you ("Customer") and us, LS telcom AG, address Im Gewerbegebiet 31 – 33, D - 77839 Lichtenau ("LS telcom"), concerning the lease of an OEM standard software product ("LS telcom Software/Software") developed by us. The software product, kind, number of licenses, included additional elements such as mapping data, their leasing term and leasing fees are set forth in your online order form ("Order") confirmed by LS telcom via email. Carefully read the TC-WS prior to ordering, downloading, installing or using the LS telcom Software. The Software Lease Agreement shall not be effective before LS telcom confirms your Order via e-mail and provides you the link under which you can download the Software. The Software Lease Agreement supersedes all prior written or oral communications between you and LS telcom with respect to the subject matter hereof. It does not operate as an acceptance of any conflicting terms and conditions and shall prevail over any conflicting provisions of any purchase order of Customer or any other instruments.
1.1. Delivery/Installation: The LS telcom Software and associated documentation are made available to you via a link to a secure website containing download links for ordered Software and mapping data, installation instructions and user manuals as soft copies.
1.2. Software Leasing Term: The software leasing term is specified in the Order. Upon termination of the software lease, you must not use the LS telcom Software, mapping data and associated documentation subject to this Software Leasing Agreement any longer. You must destroy any data carrier with copies of LS telcom Software, mapping data and associated documentation, delete any copies and confirm to LS telcom via e-mail that these obligations have been fulfilled.
1.3. Scope of License: All Intellectual Property Rights in the leased LS telcom Software, mapping data and associated documentation shall remain with LS telcom, and the Customer shall be granted a license to use the software under the following terms and conditions, except if expressly agreed otherwise: Each purchased license is (a) non-exclusive; non-transferable and non-sub-licensable i.e. the Customer is not entitled to re-sale or hire out the software; (b) time limited to the leasing term; (c) limited to be used on one single desktop computer, laptop computer or computer workstation simultaneously per purchased license (concurrent licenses per specific workplace) irrespective of whether the licensed software is installed on a computer workstation with terminal server connection or on a client computer connected to an application server, on a local network, at a third party host or any other kind of operating solution, (d) limited to be used in the country of the Customer’s place of business / residence.
The Software is in object code; the source code will not be revealed. The Software, mapping data and associated documentation must neither be used beyond the granted license, nor be copied, reverse engineered, decompiled or disassembled wholly or partly by the Customer.
1.4. Uniform license conditions and software versions: In case the Customer leases additional user licenses of the same software product a later time, in case this has not already been done, any previously licensed software versions must be updated to the same version as the additional user licenses, to avoid different software versions for one and the same user. The same applies to the TC-lease: In case the Customer leases additional user licenses of the same software product a later time, the then current TC-lease shall apply to all - even the previous - licenses leased by the Customer, in order to avoid different versions of license terms within one and the same software product.
1.5. Digital Mapping data: LS telcom offers in the Web Store different sets of off-the-shelf digital mapping data to be used with the LS telcom Software. This mapping data must only be used together with the LS telcom Software and - unless explicitly mentioned in the product description - the same license conditions as for the software shall apply also to the mapping data.
1.6. Third Party Software Elements: Certain LS telcom Software may contain, or be combined with, third party software elements, including open source software, for which different license conditions may apply. In that case, the third parties license conditions will be specified in the product description or software documentation and LS telcom can only forward the license, warranty, liability and indemnity conditions of the licensor of such software elements, which may include that the Customer will have to accept specific license terms directly with the licensor. The same applies for third party services such as software hosting and/or cloud services. Internet-, cloud- and hosting-server-access can be limited or interrupted by times; such incidents are not under LS telcom's control and LS telcom expressly excludes any warranty or liability for them. In case it is crucial for the Customer that access to the LS telcom Software is independent from such potential external incidents, it is advised to have the LS telcom Software installed on Customer-internal computer network infrastructure.
1.7. Software Modifications and Software Access: LS telcom is entitled to make software modifications serving technical progress without further notice, and to perform the delivery by any subsidiary in our company group.
1.8. Software Warranty: LS telcom warrants that during the lease term (a) the media on which the Software is furnished will be free of defects in materials and workmanship under normal use; and (b) the Software substantially conforms to the agreed upon specifications. Except for the foregoing, the Software is provided "as is". The Customer's sole and exclusive remedy and the entire liability of LS telcom under this limited warranty will be at LS telcom's option, repair or replacement of the Software, or, in case such are not provided during 30 days upon the Customer's notice via e-mail, the right to immediate termination of this Software Lease Agreement by the Customer. If LS telcom determines that it cannot repair or replace the LS telcom Software upon commercially reasonable terms, LS telcom may via e-mail terminate the Software Lease Agreement for the affected Software. Upon early termination by either party, and upon return of the Software or certification of its deletion by the Customer, LS telcom shall refund a pro-rata portion of leasing fees paid by Customer to LS telcom for such software for the unused remainder of the leasing term.
1.9. Special Remark: Radio wave propagation and interference analysis and prognoses achieved with some of LS telcom Software products are based upon computer aided simulation models and algorithms. The models implemented cannot be considered as generally valid for all different cases in reality. To avoid misuse and misinterpretation, the system has to be used by trained technical personnel. Any such simulation models and the results achieved by their use are highly dependent upon the quality and accuracy of the input data, e. g. the wave transmitting and receiving characteristics of the relevant antennas, the strength and characteristics of radio signals and interference signals and the accuracy of topographical data of the relevant terrestrial surface. Also, the propagation models and algorithms themselves can change over time in different software versions, due to general industry standard scientific and/or software specific further developments. LS telcom can therefore not warrant the accuracy of the results achieved with LS telcom Software with the actual conditions in reality, partly because it is impossible for LS telcom to verify the correctness and quality of all input data compared to the reality, partly because certain input information such as sources of interference radio signals, radio wave reflection and other relevant attributes of future construction development are future circumstances that can only be roughly estimated, and partly because simulation models typically cannot take all factors from reality into consideration and can underlie own further development. For that reason, LS telcom likes to point out that results achieved with LS telcom Software under certain circumstances can deviate substantially from the real-world scenario, and, before the realization of actual measures (including frequency licensing) and throughout their implementation, results of any technical assessment that are close to a decision threshold (e.g. license granted or denied) should undergo a careful manual technical assessment involving subject matters experts and potentially complementary field measurements to verify or adapt the analysis and prognosis results to the real-world conditions. LS telcom recommends that Customer correspondingly disclaims any warranty for complete real-world accuracy of the software results towards their own customers.
LS telcom disclaims and excludes any warranty or liability for damages resulting from deviation of the software-results from real-world scenarios, e.g. due to the lack of verification, misuse, misinterpretation or further development of models and results.
1.10. Price and Payment Terms: Price and payment terms are specified in the Web Store.
1.11. IPR/Copyright Infringement Indemnification: LS telcom shall defend, indemnify and hold harmless the Customer from and against any and all third party claims and liabilities (including, without limitation, reasonable attorneys' fees and costs), regardless of the form of action, arising out of or in connection with a claim that the LS telcom Software, mapping data or associated documentation, when used within the scope of the Software Lease Agreement, infringes, violates or misappropriates a valid third party patent, copyright or other proprietary right, provided that LS telcom is notified promptly in writing of the action, Customer has not reached any compromise or settlement of such action or made any admissions in respect of the same, and LS telcom is given the option, at its expense, to control the action and all requested reasonable assistance to defend the same. Furthermore, LS telcom shall, at its own discretion and at its own expense, either change or replace the licensed LS telcom Software, mapping data or associated documentation in such a way that they do not infringe the intellectual property right, or if LS telcom determines that this is not possible upon commercially reasonable terms, LS telcom may via e-mail terminate the Software Lease Agreement for the affected Software. Any further claims of the Customer based on an infringement of third-party intellectual property rights shall be excluded.
1.12. For the rest, the general terms at the end of these TC-WS shall apply.
- Web-Seminars and Online Training
2.1. LS telcom offers a variety of web-seminars and online training for groups and individuals, within a wide area in connection with radio management, spectrum use and switch-over, network planning, radio monitoring etc. More information is available in the LS telcom training calendar. The web-seminars and online training will be conducted via web-based video conference app in English unless stated otherwise.
2.2. Registration and Payment: For registration, Customers need to provide the following information: course and date, participants name(s), participants address(es), participants email address(es), participants company.
The registration and fees are per participant. Each registration must be approved by LS telcom. LS telcom reserves the right to change the course date or cancel the course if the number of participants is insufficient (regularly, a minimum of 5 participants is required). LS telcom further reserves the right to change or cancel any part of its published program due to unforeseen circumstances. In case of non-approval or cancellation by LS telcom, LS telcom will return the full registration fee to you.
2.3. It is prohibited to stream or do any kind of recording, e.g. pictures, audio- or video recordings, of web-seminars or training. Only the registered person is authorized to participate in the web-seminar or online training. Please note that the subject of the web-seminars or online training may include business secrets and other confidential information, which information you must not disclose to other persons who we have not approved as participant. You are responsible for ensuring that the environment in which you are following the web-seminars or online training do not allow third parties to participate in the information shared. If you want other people to attend the web-seminars or online training, they must register and be approved as participant.
2.4. Withdrawal Policy: Unless different withdrawal terms are specified for a specific online training, you may withdraw from your participation free of charge up to 4 weeks, and for a withdrawal fee of 50% of the fee up to 1 week, prior to the start of online training.
2.5. For the rest, the general terms at the end of these TC-WS shall apply.
- General Terms
3.1. Liability: LS telcom makes no warranty or representation relating to the software, hardware and services, the documentation or the agreement covered by these TC-WS with you. LS telcom disclaims and excludes any and all implied warranties of merchantability or fitness for a particular purpose or for certain requirements of the Customer, which are not expressly agreed upon between the parties. Except in cases of death or personal injury, damages caused by gross negligence or intent, IPR indemnification, damages to tangible property of the Customer, and other liability that cannot be excluded or limited under the law governing this agreement, LS telcom shall not be liable to the Customer out of and in connection with the agreement covered by these TC-WS for any indirect or consequential damages, e.g. loss of profit or additional costs, and the aggregate maximum liability out of and in connection with the agreement covered by these TC-WS shall be equal to its value, or- in case of an ongoing agreement, the annual fee.
LS telcom shall not be liable for special, incidental, consequential, indirect or punitive damages or covering purchase, even if LS telcom has been advised of the possibility of such damages. LS telcom is not responsible for any costs incurred as a result of the use of or the inability to use any of the WS-Offer or results thereof, including but not limited to, lost profits or revenue, loss of data, costs of recreating data, the cost of any substitute equipment or program, or claims by any third party. If due to legislation or jurisprudence liability cannot be limited in certain cases (e.g. mandatory product liability, mandatory liability for gross negligence, intent or personal injury), then these limitations shall apply in all other possible cases. These TC-WS define the sole and exclusive remedies for the Customer. The Customer is obliged to arrange his obligations to third parties in a way that LS telcom’s liability against such parties is limited in the same way.
3.2. Export Regulations: The Customer acknowledges that LS software, mapping data and documentation under the agreement covered by these TC-WS may be subject to applicable export control laws and regulations, including but not limited to national, EU and US export control laws and regulations, which, among others, restrict export or forwarding of certain products and software/technology including providing technical services (“goods and services”) to certain natural persons/companies to certain countries (“Export Regulations”). Any obligation of LS telcom to export, re-export or transfer LS telcom or third-party goods and services including training, licensing and maintenance, will be governed by such Export Regulations. If the business is subject to the granting of an export permit by certain governmental authorities (“authorities”) or otherwise restricted or prohibited due to Export Regulations, LS telcom is entitled to suspend its obligations until such permit is granted without incurring any liability for suspension towards the Customer. In case an order is placed by the Customer, any contract for the supply of goods or services shall become effective and binding only upon having obtained a license permit. Furthermore, LS telcom may terminate the relevant order without incurring any liability towards the Customer in case no permit for export of the goods and services can be obtained from the authorities. The Customer warrants that it will comply in all respects with the applicable Export Regulations. In particular, the Customer warrants to provide an an end-use certificate, if required by law or by LS telcom. The Customer accepts the responsibility to impose all export control restrictions pursuant to Export Regulations to any third party if the items are transferred or re-exported to third parties (“Customer’s customers”). The Customer shall take all actions that are necessary to ensure that none of Customer's customers contravenes the Export Regulations. The Customer shall indemnify LS telcom against any and all direct, indirect and punitive damages, loss, costs (including attorney's fees and costs) and other liability arising from claims resulting from his or Customer’s customers' breach or non-compliance with this provision and the Export Regulations. The Customer acknowledges that the obligations contained in this provision will survive the termination of any other agreement or other arrangement under which LS telcom supplied the products and services to the Customer.
3.3. Data Protection: All processing by LS telcom of personal data subject to the agreement covered by these TC-WS shall be in accordance with the applicable laws, e.g. the German Data Protection Act (“BDSG”) and the European General Data Protection Regulation EU 2016/679 (“GDPR”). In case the Customer contracts LS telcom to work on or with personal data provided by the Customer, e.g. as part of a database that LS telcom shall modify, convert or integrate, the Customer is obliged to ensure that the personal data is and has been processed by the Customer in accordance with all applicable laws and that the requirements for the lawfulness of LS telcom's work with such data (e.g. according to Art. 6 para 1 and 4 GDPR) are met, before giving LS telcom access to the data. For the rest, please refer to our data protection declaration, link: https://www.lstelcom.com/en/imprint-legal-information/
3.4. Force Majeure: Neither party will be liable for any act, omission, or failure to fulfil its contractual obligations if such act, omission or failure arises from any cause reasonably beyond its control including acts of God, strikes, lockouts, riots, acts of war, epidemics, warlike situations, fire, communication line failures, power failures, shortage in raw material or labor, natural disaster, decisions by an authority, and if there is a risk for the safety of staff.
3.5. Waiver and Severability: No delay, neglect or forbearance by LS telcom in enforcing against the Customer any contractual obligation will be a waiver, or in any way prejudice any right, of LS telcom. If any provision of the agreement between LS telcom and the Customer, including these terms, is held to be invalid, illegal or unenforceable, such provision will be severed and the remainder of the agreement will remain in full force and effect. The Parties undertake to replace the provision that is or has become invalid in whole or in part by a valid provision, the economic result of which comes as close as possible to that of the invalid provision. In the event that the agreement does not deal with certain issues, the same procedure shall apply.
3.6. Assignment: The Customer must not assign or transfer its rights or obligations under the agreement with LS telcom without the prior written consent of LS telcom.
3.7. Subcontracting: LS telcom is on its sole discretion entitled to involve any other company within or outside of the LS telcom group, in and for the performance of any contractual obligation to the Customer.
3.8. Confidentiality: Both parties agree that, unless they have the prior written consent of the other, they will not use or disclose to any third party documents, data, prices and conditions of offers and other contractual material or any other information which is confidential to the other party. For clarification, any contractual document is also to be considered as confidential, especially, but not only, the technical specifications as well as documents and clauses with operational and commercial content. The confidentiality obligations shall continue to be valid after the end of the business. On request of one party, the parties will sign a separate Non-Disclosure-Agreement.
3.9. Each Party hereby undertakes that, at the date of the entering into force of any contract with each other (the “Contract”), itself, its directors, officers or employees have not offered, promised, given, authorized, solicited or accepted any undue pecuniary or other advantage of any kind (or implied that they will or might do any such thing at any time in the future) in any way connected with the Contract and that it has taken reasonable measures to prevent subcontractors, agents or any other third parties, subject to its control or determining influence, from doing so. The Parties agree that, at all times in connection with and throughout the course of the Contract and thereafter, they will comply with and that they will take reasonable measures to ensure that their subcontractors, agents or other third parties, subject to their control or determining influence, will comply with Part I of the ICC Rules on Combating Corruption 2011 or later version valid at that time, which are hereby incorporated by reference into the Contract, as if written out in the Contract in full. If a Party, as a result of the exercise of a contractually-provided audit right, if any, of the other Party’s accounting books and financial records, or otherwise, brings evidence that the latter Party has been engaging in material or several repeated breaches of the provisions of Part I of the ICC Rules on Combating Corruption 2011 or later version valid at that time, it will notify the latter Party accordingly and require such Party to take the necessary remedial action in a reasonable time and to inform it about such action. If the latter Party fails to take the necessary remedial action, or if such remedial action is not possible, it may invoke a defense by proving that by the time the evidence of breach(es) had arisen, it had put into place adequate anticorruption preventive measures, as described in Article 10 of the ICC Rules on Combating Corruption 2011 or later version valid at that time, adapted to its particular circumstances and capable of detecting corruption and of promoting a culture of integrity in its organization. If no remedial action is taken or, as the case may be, the defense is not effectively invoked, the first Party may, at its discretion, either suspend the Contract or terminate it, it being understood that all amounts contractually due at the time of suspension or termination of the Contract will remain payable, as far as permitted by applicable law. Any entity, whether an arbitral tribunal or other dispute resolution body, rendering a decision in accordance with the dispute resolution provisions of the Contract, shall have the authority to determine the contractual consequences of any alleged non-compliance with this ICC Anti-corruption Clause.
3.10. Unless expressly agreed otherwise, this agreement shall be governed by the laws of Germany. The UN Sales Convention shall not apply. Place of jurisdiction shall be Baden-Baden, Germany.