General terms and conditions

1.1 Subject matter

These terms and conditions govern the contractual relationship between Losys GmbH (hereinafter “Losys”, registered in the commercial register of the Canton of Zurich, UID CHE-115.367.208, formerly company number CH-020.4.041.776-0) and its customers regarding the use of the paid and free services of Losys as well as the acquisition of image usage rights (clause 12).

Losys provides these services via its portal for construction references. The portal is operated under the following domains, which are language versions of the same platform with identical content (hereinafter the “portal”):

• bau-referenzen.ch — German
• references-construction.ch — French
• construction-references.ch — English
• referenze-edilizie.ch — Italian

1.2 Replacement of the previous platforms

The portal replaces the previous platform referenz-objekte.ch. Contracts referring to the previous platform shall, from the entry into force of this version, be deemed contracts concerning the portal; the scope of services and prices remain unaffected.

The acquisition of image usage rights via the portal (clause 12) replaces the previous offering under titelbild.ch. For orders placed from the entry into force of this version, these terms and conditions apply exclusively; image usage rights already acquired continue to be governed by the terms applicable at the time of their acquisition.

1.3 Addressees

The services of Losys and the acquisition of image usage rights are addressed exclusively to companies, persons acting in a commercial or professional capacity and public contracting authorities. No contract is concluded with consumers. By registering or placing an order, the customer confirms that they are acting within the scope of their commercial or professional activity.

Before using paid services, customers are informed that these are subject to charge and which fees apply.

1.4 Definitions

A “customer” is any party concluding a contract with Losys regarding the use of the services. An “orderer” is any party ordering image usage rights under clause 12; no user account is required for this. Where these terms and conditions refer only to the customer, they apply to orderers by analogy.

1.5 Mere use of the portal

The mere use of the publicly accessible portal without a contractual relationship with Losys is not governed by these terms and conditions, but by the terms of use published in the legal notice.

3.1 Registration

Registration takes place via the portal. By submitting the registration, the customer accepts these terms and conditions and makes an offer to conclude a contract. Losys reviews the registration and decides on admission; there is no entitlement to admission. The contract comes into existence upon activation by Losys or upon a corresponding confirmation in text form.

3.2 Paid services

Paid services come into existence through an express order by the customer and its confirmation by Losys; text form is sufficient. Before any paid order, the scope of services and the remuneration are stated.

3.3 Ordering image usage rights

For the acquisition of image usage rights, clause 12.2 applies by way of derogation.

4.1 Free services

The free company profile is maintained for an indefinite period. Both parties may terminate it at any time without stating reasons in text form.

4.2 Paid services

Paid services are concluded for the agreed term, in the absence of any other agreement for twelve months from activation. The contract is extended by twelve months in each case unless terminated in text form no later than six months before the end of the respective term.

4.3 Consequences of termination

If the customer terminates before the end of the term, the payment obligation for the agreed term remains in place; there is no entitlement to a pro rata refund of payments already made. If Losys terminates without fault on the part of the customer, the remuneration for the remaining term is refunded or waived on a pro rata basis.

The fate of the posted content after the end of the contract is governed by clause 6.7.

4.4 Acquisition of image usage rights

The acquisition of image usage rights under clause 12 does not establish a continuing obligation; this clause 4 does not apply to it. The usage rights granted are not affected by the termination of other contracts.

5.1 Scope of services

The scope and content of the services follow from the description of services and price list of Losys as applicable from time to time as well as from any individual agreement. Losys offers free and paid company profiles which differ in their range of functions; the description of services states which functions are included in the respective profile.

5.2 Obligations of the customer

The customer

• reports changes to their master and contact data to Losys promptly in text form; an independent change of the master data is not possible;
• protects the access data provided to them against access by third parties and reports any loss without delay;
• does not use the services in a manner that impairs their availability or security, and does not carry out automated bulk queries;
• does not use contact details made accessible via the portal for unsolicited advertising;
• uses the images and content provided by Losys within the scope of the contract concluded with them and within the services intended for this purpose (presentation in the portal, embedding via ProjektBoxen, the project PDF); any use outside these services — in particular downloading for use in their own media — requires the rights acquired under clause 12.

6.1 Posted content

The customer posts the content of their reference projects and of their company profile themselves — in particular project descriptions, details of participating companies and persons, images, company logos, documents and presentation texts (hereinafter the “content”). Responsibility for this content lies with the customer.

If the customer takes over a project presentation created by Losys into their own portfolio, its content counts, from the point of takeover, as posted content within the meaning of this clause 6; responsibility for it passes to them upon takeover. The version maintained by Losys remains in place and cannot be modified by the customer. If the taken-over presentation contains images from Losys, their use is governed by clause 5.2.

6.2 Usage rights

The customer grants Losys the territorially unlimited, temporally limited to the duration of publication, free of charge and non-exclusive right to use this content for the purpose of operating the portal. This includes in particular:

• publication on all language versions and domains of the portal;
• editing to the extent necessary for presentation — in particular scaling, cropping, compression and format conversion;
• inclusion in overview, topic and search result pages of the portal as well as in documents generated from them (such as the project PDF);
• provision via building blocks for embedding in third-party websites (ProjektBoxen) and via interfaces, to the extent that the customer uses these services;
• making available to search engines including display in their results with preview images.

Losys is entitled to engage third parties for the provision of the services and to transfer to them the rights necessary for that provision (in particular hosting and delivery service providers).

Losys is entitled to use the content in its own advertising. The customer may object to this use at any time in text form.

6.3 Images offered for the acquisition of usage rights

For the acquisition of usage rights under clause 12, only images are offered in respect of which Losys itself holds the necessary rights.

Images posted by the customer are only offered if the customer has expressly released them for this purpose. By releasing them, the customer grants Losys the right to grant third parties usage rights in them to the extent of clause 12.4, for consideration and in the name of Losys, and warrants that they hold the rights required for this, including the rights of the authors. The release may be revoked at any time in text form with effect for future orders; usage rights already acquired by third parties remain in place. Any share in the proceeds is governed by any individual agreement.

6.4 Warranties of the customer

The customer warrants that they hold all rights required for granting the usage rights under clause 6.2. In particular, the customer warrants:

• that they hold the copyright and usage rights in all posted images, plans, documents and texts, including the rights of photographers, architects and other authors, to the extent of clause 6.2;
• that naming the persons and companies involved in the project is permissible and that no contractual confidentiality or reference clauses conflict with it — in particular that the client of the building project has consented to the publication of the project and to being named, to the extent required;
• that the publication does not infringe any personality rights, in particular in respect of recognisably depicted persons;
• that no trade secrets of third parties are disclosed, in particular no prices, calculations or technical details whose publication is prohibited;
• that the details of the project and of their own involvement in it are accurate and not misleading;
• that the content is free of malware.

If content contains personal data of third parties, the customer warrants that they are entitled to publish it and have informed the data subjects to the extent required.

6.5 Indemnification

If third parties assert claims against Losys on account of content posted by the customer, the customer shall indemnify Losys against these claims and reimburse the necessary costs of legal defence. Losys shall inform the customer of the claim without delay, give them the opportunity to comment and shall not make any acknowledgement or settlement without prior consultation, to the extent this is reasonable.

6.6 Review and removal of content

Losys does not systematically review posted content in advance. Losys is entitled not to publish, to amend or to remove content in whole or in part where there are concrete indications that it

• breaches these terms and conditions or the law,
• infringes the rights of third parties,
• is manifestly incorrect or misleading, or
• impairs the operation or security of the portal.

Losys informs the customer of the measure and states its reasons. Where circumstances permit, Losys will give the customer an opportunity to make corrections beforehand. In the event of serious or repeated breaches, Losys may block access to the services and terminate the contract extraordinarily.

6.7 After the end of the contract

The usage right under clause 6.2 ends upon termination of the contractual relationship. Losys removes the customer’s content from the portal within 30 days of the end of the contract and deletes it within 90 days of the end of the contract, unless statutory retention obligations conflict with this. Usage rights acquired by third parties under clause 12 in released images remain unaffected.

The customer may back up their content themselves until the end of the contract. Once the deletion period has expired, Losys can no longer hand over the content.

There is no influence over whether content remains retrievable beyond that point in third-party caches — such as search engine caches or web archives.

7.1 Prices and value added tax

All prices are in Swiss francs and exclusive of value added tax.

For customers domiciled in Switzerland or Liechtenstein, Swiss value added tax is added at the applicable rate.

For customers domiciled abroad who act as companies, invoicing takes place without Swiss value added tax; the tax liability passes to the customer under the provisions of the recipient country (acquisition tax or reverse charge). The customer is obliged to state their VAT identification number or company number and to notify any changes without delay. If taxes are subsequently charged as a result of incorrect or missing details, the customer bears these costs.

Third-party fees, in particular payment and bank charges, are borne by the customer.

7.2 Invoices

The payment terms agreed in the contract must be observed. Objections to an invoice must be notified in text form within 10 days of the invoice date. If no objection is raised, the invoice is deemed accepted. The assertion of obvious inaccuracies as well as statutory claims remain unaffected.

7.3 Payment default

If the customer is in default of payment, Losys is entitled to block the agreed services immediately, without the customer being released from their contractual obligations as a result.

The first reminder is issued without reminder fees. For each further reminder, reminder fees of CHF 20 are charged. For reactivation, for example after payment default, a processing fee of CHF 50 is charged. In addition, default interest of 6 % per annum is charged, but at least in the amount of the default interest owed by law at the customer’s domicile.

The customer reserves the right to prove that no damage or loss in value has arisen at all or that it is substantially lower than the above flat rates.

7.4 Image orders

For orders under clause 12, the entire invoice amount is due for payment without deduction within 10 days of the invoice date. Losys is entitled to obtain a credit report before delivery and to require payment in advance. The usage rights only come into existence upon payment in full (clause 12.4).

8.1 Price and service changes

Losys is entitled to change its services as well as the prices set out in the price list at any time. The customer is informed of such changes. The changes take effect automatically at the time of the next contract renewal or contract extension, unless the affected service is terminated.

8.2 Amendment of these terms and conditions

Losys may amend these terms and conditions to the extent that this is necessary to adapt them to a changed legal situation, to new services or to technical developments and the amendment does not unreasonably disadvantage the customer.

Losys notifies changes in text form at least 30 days before they take effect and, in doing so, points out the change, the date on which it takes effect and the right of termination. If the customer does not object before the changes take effect, the amended terms are deemed accepted. If the customer objects, either party may terminate the contract as of the date on which the changes take effect.

Material changes affecting the core of the service or the remuneration require the express consent of the customer.

8.3 Prices for image usage rights

Losys may change the prices for image usage rights at any time. The prices displayed in the ordering process at the time of the order are decisive; changes apply only to subsequent orders.

9.1 Confidentiality

The customer as well as Losys mutually undertake, as do their employees, subcontractors or auxiliary persons engaged, to maintain the confidentiality of all documents and information not generally known which relate to the business sphere of the other contracting party and to which they gain access in the preparation and performance of this contract. This obligation exists even before conclusion of the contract and continues, as long as there is a legitimate interest in it, also after the end of the contractual relationship. Statutory disclosure obligations remain reserved.

9.2 Data protection

The processing of personal data in connection with the portal is governed by our privacy policy. It provides information in particular on which data we process, for what purpose, on what basis and which rights the customer has.

9.3 Processing on behalf

To the extent that Losys processes personal data on behalf of the customer in providing the services, the parties conclude a data processing agreement. It governs in particular the subject matter and duration of the processing, the obligation to follow instructions, the technical and organisational measures, the engagement of further processors, support with requests from data subjects as well as the deletion and return of the data.

The customer remains responsible for the lawfulness of the processing, in particular for being permitted to transfer the data.

9.4 Enquiries from interested parties

If the customer receives an enquiry via the portal, they become responsible for the personal data contained in it. The customer undertakes to use this data exclusively to answer the enquiry and to initiate the business enquired about, to comply with the applicable data protection provisions and not to use it for unsolicited advertising or to pass it on to third parties.

9.5 Own advertising

Losys may use the contact details of customers and orderers to provide information about its own similar services. The recipient may object to this use at any time; the right to object is pointed out at the time of collection and in every communication. No transfer to third parties for their advertising purposes takes place.

10.1 Warranty

Both contracting parties will not infringe any industrial property rights or other rights of third parties in performing their services.

10.2 Availability

Losys endeavours to ensure high availability of the portal but does not owe any particular availability. Maintenance and development work may lead to interruptions; it is announced in advance where possible.

11.1 Liability

Losys is liable without limitation for damage arising from intentional or grossly negligent conduct, for personal injury and for damage arising from the breach of an expressly warranted characteristic.

In the case of slight negligence, Losys is liable only for the breach of a material contractual obligation — that is, an obligation whose fulfilment makes the performance of the contract possible in the first place and on which the customer may rely — and only for foreseeable damage typical of the contract. Otherwise, liability for slight negligence is excluded.

11.2 Maximum liability

Liability for slight negligence (clause 11.1 paragraph 2) is limited to the remuneration that the customer has paid for the affected service in the twelve months preceding the damaging event. For orders under clause 12, liability is limited to the remuneration paid for the affected order. The unlimited liability under clause 11.1 paragraph 1 remains reserved.

11.3 Loss of data

For the loss of data, Losys is liable within the scope of the above provisions and only up to the amount of the effort that would have been required to restore the data had the customer performed proper data backup. The customer remains responsible for backing up the content they have posted.

11.4 Third-party content and operational disruptions

Losys is not liable for content posted by customers or third parties, nor for damage arising from operational failures and disruptions caused by third parties over which Losys has no influence (in particular access, hosting and network providers).

11.5 Third-party rights in depicted objects

Losys does not warrant that no third-party rights exist in the names, trade marks, signs, protected designs, buildings or persons recognisable in an image. Clause 12.6 remains reserved.

11.6 Statutory limits

Mandatory statutory liability provisions remain unaffected in all cases.

12.1 Subject matter and application

This clause governs the acquisition for consideration of usage rights in images marked as purchasable in the portal. It forms part of every such order and takes precedence over the other clauses of these terms and conditions.

No user account is required for the order. Only companies, persons acting in a commercial or professional capacity and public contracting authorities may place orders (clause 1.3); by placing the order, the orderer confirms that they are acting in this capacity and states the company name and the invoicing address.

The subject matter of the order is the granting of usage rights, not the transfer of copyright.

12.2 Order and conclusion of contract

By submitting the order form (“Order subject to payment”), the orderer makes a binding offer and accepts these terms and conditions. Losys sends a summary of the order with a confirmation link to the e-mail address provided; the offer only becomes effective upon activation of that link. If the link is not activated within 14 days, the order lapses.

The contract is concluded upon the order confirmation of Losys in text form. Losys may reject an order without stating reasons; the rejection is made by e-mail within 5 working days.

The orderer receives the contract text including these terms and conditions in the version applicable at the time of the order by e-mail.

12.3 Prices and payment

The prices displayed in the ordering process are decisive (clause 8.3). The price scale applies per project and is not cumulative across several projects. All prices are exclusive of value added tax; value added tax is shown in accordance with clause 7.1. Clause 7.4 applies to the payment period, credit report and advance payment; clause 7.3 applies to the consequences of default.

Losys may require payment in advance without stating reasons; this applies in particular to orderers domiciled outside Switzerland.

12.4 Scope of the usage rights

Losys grants the orderer a simple, non-exclusive, territorially and temporally unlimited, non-transferable right in the ordered images to use the images for their own purposes within their own company in online and print media. Repeated use within their own company is permitted. Editing required for the use (cropping, scaling, colour adjustment) is permitted, provided that no personality rights are infringed and the message of the image is not distorted.

Not included are:

• use by subsidiaries, sister companies or partner companies as well as by other legally independent entities;
• the transfer, sub-licensing, resale or making available to the public of the image file as such, for consideration or free of charge;
• inclusion in image, media or template databases as well as in offerings from which third parties can obtain the images;
• use for training or evaluating artificial intelligence systems.

If an advertising, communications or graphic design agency acquires the usage rights, it may use the images exclusively for one named client. If media companies or publishers acquire the usage rights, the authorisation applies to one named publication or one named project.

The usage rights only come into existence upon payment in full of the invoice amount. Until then, any use is impermissible.

12.5 Restrictions on use

The images may not be used

• for unlawful purposes or in an unlawful context;
• in a manner that is degrading, demeaning or damaging to the reputation of depicted persons, objects or buildings, their owners, those involved in the building or the author of the image;
• in a context that creates the incorrect impression that the depicted persons or companies endorse a product, a service or an opinion;
• in a pornographic, violence-glorifying, discriminatory or politically campaigning context.

12.6 Further third-party rights

The rights granted concern exclusively the usage rights in the image. If further rights exist in the depicted persons, buildings, trade marks, signs or protected designs, the orderer must obtain the necessary consents at their own expense before use. If such consent is evidently required and is not available, the use is impermissible.

12.7 Author credit

The images are protected by copyright. Naming the author is desired, but required in the case of editorial use. If an author credit is communicated on delivery or supplied in the metadata of the image file, it must be displayed in the case of editorial use and may not be removed.

12.8 Delivery

Delivery takes place by download. Losys sends the download instructions within 5 working days of conclusion of the contract to the e-mail address provided when ordering; any rejection is made within the same period. The download link is valid for 30 days and can be requested again within this period.

Losys owes the provision for download; the orderer is responsible for disruptions to transmission over the internet and for the reachability of the e-mail address provided. Losys may adapt the delivery channel to the extent that this is reasonable for the orderer.

The image data delivered must be checked without delay. Objections must be notified in text form within 5 working days of delivery of the download instructions; otherwise the delivery is deemed approved. Hidden defects must be notified without delay after their discovery.

The orderer backs up the image data delivered themselves; there is no entitlement to permanent retention by Losys.

12.9 Warranty

If the image data delivered is defective, Losys delivers flawless data within a reasonable period. If the subsequent delivery fails, the orderer may withdraw from the contract and receives back the remuneration paid; further claims are governed by clause 11.

No warranty is given for defects attributable to technical processing of the image data by the orderer. Images are delivered in the resolution and quality stated in the portal; no suitability for a particular purpose is warranted.

12.10 Unlawful use

If the orderer culpably uses an image outside the rights granted under clauses 12.4 to 12.7, a contractual penalty of CHF 3’500 falls due for each instance of infringement. Payment of the contractual penalty does not release the orderer from compliance with these terms and conditions; the removal of the state contrary to the contract remains owed.

Further damage remains reserved; the contractual penalty is set off against it. Claims under copyright law and unfair competition law remain unaffected.

12.11 Indemnification

The orderer warrants that they will use the images only within the scope of these terms and conditions. If claims are asserted against Losys, the author of the image or a person entitled in respect of the image on account of a use by the orderer, the orderer shall indemnify them against the claims and reimburse the necessary costs of legal defence. Clause 6.5, second sentence, applies by analogy.

12.12 Withdrawal and revocation

Orders are binding once the confirmation link has been activated. There is no right of revocation or return, since only companies, persons acting in a commercial or professional capacity and public contracting authorities may place orders (clause 1.3) and digital content is delivered.

Losys may withdraw from the contract until delivery if the ordered image may no longer be offered for legal reasons; in this case, remuneration already paid is refunded in full. No further claims exist.

13.1 Partial invalidity

Should individual provisions or parts of these contractual terms prove to be void or ineffective, the validity of the contract concluded between the parties on the basis of these contractual terms shall otherwise not be affected. In such a case, the contracting partners will adapt the contract in such a way that the purpose pursued by the void or ineffective part is achieved as far as possible.

13.2 Applicable law, place of performance, place of jurisdiction

The contract concluded between the parties on the basis of these terms and conditions is subject to Swiss law, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG) and excluding the conflict of law rules.

The place of performance and exclusive place of jurisdiction is at the registered office of Losys GmbH.

This choice of law and this jurisdiction agreement apply to customers and orderers acting as companies. Mandatory places of jurisdiction as well as mandatory law at the habitual residence of a person acting exceptionally as a consumer remain unaffected.

13.3 Assignment

Losys may transfer rights and obligations under this contract to a successor in the context of a business transfer or restructuring. The customer may only transfer the contract with the prior written consent of Losys.

13.4 Force majeure

Events which considerably impede or prevent the provision of services and for which the affected party is not responsible — in particular natural events, war, official measures, strikes, failures of communication networks and widespread disruptions at infrastructure providers — release the affected party from its performance obligations for the duration of the disruption. If the disruption lasts longer than 60 days, either party may terminate the affected part of the contract.

13.5 Order of precedence

In the event of contradictions, the following applies: individual written agreement, then any data processing agreement (clause 9.3), then clause 12 for the acquisition of image usage rights, then the remaining clauses of these terms and conditions, then the price list and further descriptions of services.

13.6 Text form and entirety

Communications under these terms and conditions require text form; e-mail is sufficient. These terms and conditions together with any individual agreement constitute the entire agreement of the parties on the subject matter of the contract.

13.7 Set-off

The customer may only set off undisputed or judicially established counterclaims.

13.8 Reference naming

Losys may name the customer as a reference with company name and logo. The customer may object to this naming at any time in text form.

13.9 Prevailing version

These terms and conditions are available in German, French, Italian and English. Only the German version prevails; the other versions are translations and serve for information. In the event of discrepancies, the German version applies.

This version replaces version 1.0 of 1 February 2010 as well as the terms and conditions for image orders under titelbild.ch.