General Terms and Conditions

General Terms and Conditions of Losch Wandsysteme GmbH

1. Scope of Application

These General Terms and Conditions apply to the entire business relationship between Losch Wandsysteme GmbH (hereinafter referred to as “Losch”) and the purchaser, even if they are not mentioned in subsequent contracts. They apply accordingly to services. In the case of services, acceptance is replaced by the receipt of the service.
Conflicting, additional or deviating terms and conditions of the purchaser shall not become part of the contract unless Losch has agreed to their application in writing. These General Terms and Conditions shall also apply if Losch performs a service for the purchaser without reservation in the knowledge of the purchaser’s conflicting, additional or deviating terms and conditions.
Conflicting, additional or deviating agreements to these General Terms and Conditions which are made between Losch and the purchaser for the performance of a contract shall be set down in writing in the contract. This also applies to the waiver of this written form requirement.
In addition to these General Terms and Conditions, the General Conditions of Contract for the Execution of Construction Work Part B (VOB/B) in the version of 2012 shall apply.
Rights to which Losch is entitled under statutory provisions or other agreements beyond these General Terms and Conditions shall remain unaffected.

2. Conclusion of Contract

Offers made by Losch are subject to change and non-binding.
Illustrations, drawings, weight, dimension, performance and consumption data as well as other descriptions of the products contained in the documents belonging to the offer are only approximately authoritative, unless they are expressly designated as binding. They do not constitute an agreement or guarantee of a corresponding quality or durability of the products, unless such has been expressly agreed in writing. The same applies to expectations of the purchaser with regard to the products or their use.
Losch reserves all title, copyright and other proprietary rights to all offer documents. Such documents may not be made accessible to third parties. At Losch’s request, the purchaser shall immediately return all offer documents to Losch if they are no longer required in the ordinary course of business. The same applies in particular to all other documents, drafts, samples and models.
An order shall only become binding when it has been confirmed by Losch by means of a written order confirmation within two weeks or when Losch executes the order, in particular when Losch complies with the order by performing the service. An order confirmation generated by means of automatic devices, in which signature and name reproduction are missing, shall be deemed to be in writing. Insofar as the order confirmation contains obvious errors in writing or calculation, it shall not be binding on Losch.
If the order confirmation contains amendments or additions in comparison with the order or if the order confirmation itself constitutes a legally binding offer to conclude a contract, the order confirmation shall be deemed accepted if the purchaser does not object to it in writing within two weeks.
Silence on the part of Losch regarding offers, orders, requests or other declarations of the purchaser shall only be deemed to constitute consent if this has previously been agreed in writing.
If the financial circumstances of the purchaser deteriorate significantly or if a justified application for the opening of insolvency or similar proceedings against the assets of the purchaser is rejected for lack of assets, Losch shall be entitled to withdraw from the contract in whole or in part.

3. Scope of Performance

The scope of performance shall be determined by the written order confirmation of Losch. Changes to the scope of performance by the purchaser require the written confirmation of Losch in order to be effective.
Losch reserves the right to make design and shape changes to the products, insofar as these are customary in the industry or insofar as the deviations are within DIN tolerances or insofar as the changes are not significant and are reasonable for the purchaser. The same applies to the choice of material, the specification and the design.

4. Time of Performance

The agreement of performance periods and dates requires written form. Performance periods and dates are non-binding unless they have previously been designated as binding in writing by Losch.
The performance period shall commence upon conclusion of the contract, but not before the complete provision of the documents, approvals and releases to be procured by the purchaser, the clarification of all technical issues as well as the receipt of an agreed advance payment or, in the case of a foreign transaction, after receipt of the full payment. In the case of a performance date, the performance date shall be postponed in a reasonable manner if the purchaser does not provide the documents and approvals to be procured by him in due time, does not grant releases in due time, not all technical issues are fully clarified in due time or the agreed advance payment or, in the case of a foreign transaction, the entire payment is not received in full by Losch. Compliance with the time of performance presupposes the timely and proper fulfilment of the other obligations of the purchaser.
The time of performance shall be deemed complied with if Losch commences performance of the services before its expiry. Compliance with the time of performance is subject to correct, in particular timely, self-supply of Losch, unless Losch is responsible for the reason for the incorrect self-supply. In the event of incorrect self-supply, Losch shall be entitled to withdraw from the contract. Losch shall inform the purchaser without delay if Losch makes use of its right of withdrawal and shall refund any advance payments made by the purchaser.
In the event of default of performance, the purchaser shall be entitled to withdraw from the contract after fruitless expiry of a reasonable grace period which it has granted to Losch after default of performance has occurred.

5. Cross-Border Performance of Services

If the services are rendered in whole or in part abroad, the purchaser shall make in due time to the competent authorities all declarations and take all actions necessary for export from Germany and import into the country of destination, in particular procure the documents required for customs clearance and comply with the requirements of any export controls or other restrictions on marketability.
The performance of services is subject to the proviso that there are no obstacles to performance due to national or international regulations, in particular export control provisions as well as embargoes or other sanctions.
Delays due to export controls suspend performance periods.

6. Prices and Payment

In the absence of any special agreement, prices shall apply ex works and do not include installation, shipping, packaging costs, insurance, statutory taxes, customs duties or other charges. The costs incurred in this respect, in particular the costs for the installation as well as the packaging and transport of the products, shall be invoiced separately. The statutory value added tax shall be shown separately in the invoice at the statutory rate applicable on the date of invoicing.
If production-related or other price increases occur up to the first day of performance, Losch shall be entitled, irrespective of the offer and order confirmation, to adjust the price accordingly.
In the absence of any special written agreement, the price shall be paid net within 14 days from the invoice date. The date of payment shall be the date on which Losch can dispose of the price. In the event of default in payment, the purchaser shall pay default interest at a rate of 8 percentage points above the respective base interest rate p.a. Further claims of Losch shall remain unaffected.
In the case of foreign transactions, payment shall, in deviation from paragraph 3, be made before the commencement of performance, unless otherwise agreed in writing beforehand.
The acceptance of bills of exchange and cheques shall be on account of performance only. Performance shall only be deemed to have been effected when the respective amount has been irrevocably credited to Losch. The purchaser shall bear the costs incurred as a result of payment by bill of exchange or cheque, in particular bill of exchange and cheque charges.

7. Delivery and Transfer of Risk

The risk of accidental loss and accidental deterioration of the products shall pass to the purchaser upon delivery of the products to the purchaser. If the purchaser is in default of acceptance at an earlier point in time, the risk of accidental loss and accidental deterioration shall pass to the purchaser at the time at which the purchaser is in default of acceptance.
If the purchaser is in default of acceptance, Losch may demand compensation for the damage incurred, including any additional expenses. In particular, Losch shall be entitled to store the products at the purchaser’s expense during the default of acceptance. The costs for the storage of the products shall be standardised at 0.5% of the net invoice value per commenced calendar week. Further claims of Losch shall remain unaffected. The purchaser shall be entitled to prove that Losch has incurred no or lower costs. The same shall apply if the purchaser breaches other duties to cooperate, unless the purchaser is not responsible for the breach of other duties to cooperate. After fruitless expiry of a reasonable period set by Losch, Losch shall be entitled to dispose of the products otherwise and to deliver to the purchaser within a reasonably extended period.
The parties shall draw up a delivery protocol, which shall be signed by the purchaser.

8. Installation, Protective Devices, Partial and Final Acceptance

The products are usually installed in the shell construction stage. Losch shall prepare a construction protocol on the installation in the shell construction stage. The purchaser is obliged to formally accept the services rendered by Losch up to that point (hereinafter referred to as “partial acceptance”). For this purpose, the purchaser shall sign the construction protocol. Any statutory inspection and complaint obligations pursuant to section 377 HGB shall remain unaffected thereby.
After completion of the installation and partial acceptance, Losch shall cover the products with cardboard to protect them from heavy impacts. Further protective devices are required; these shall be installed by the purchaser at its own expense and under its own responsibility.
After completion of the overall work, formal final acceptance (hereinafter referred to as “final acceptance”) shall take place. The parties shall draw up an acceptance protocol, which shall be signed by the purchaser.[1]
Each party shall be entitled to request further formal partial acceptances.
The purchaser may not refuse partial or final acceptance due to insignificant defects.
Insofar as the purchaser wishes to reserve rights at the time of partial or final acceptance, it shall record the corresponding reservation in the respective protocol.
Formal partial acceptance shall be deemed equivalent if the purchaser does not accept the services within a reasonable period set by Losch, although it is obliged to do so. Formal acceptance shall in particular also be deemed equivalent if the purchaser uses the services, in particular the installed products, or pays invoices in whole or in part. The same shall apply to formal final acceptance.
Upon partial acceptance, Losch’s liability for obvious defects shall cease if the purchaser has not expressly reserved the right to assert such defects in writing at the time of partial acceptance. The same shall apply to final acceptance.
Insofar as the products are already installed in a completed building, partial and final acceptance shall coincide. The above provisions on partial and final acceptance shall apply accordingly.

9. Claims for Defects

In the event of defective performance, Losch shall be entitled, at its discretion, to subsequent performance by remedying the defect or by providing a new performance free of defects. In the event of subsequent performance, Losch shall be obliged to bear all expenses necessary for the purpose of subsequent performance, in particular transport, travel, labour and material costs. Personnel and material costs claimed by the purchaser in this context shall be calculated on a cost-price basis. Replaced parts shall become the property of Losch and shall be returned to Losch.
If Losch is not willing or not in a position to carry out subsequent performance, the purchaser may, without prejudice to any claims for damages or reimbursement of expenses, withdraw from the contract or reduce the purchase price, at its discretion. The same applies if subsequent performance fails, is unreasonable for the purchaser or is delayed beyond reasonable periods for reasons for which Losch is responsible.
The purchaser’s right of withdrawal is excluded if it is unable to return the performance received and this is not due to the fact that return is impossible by reason of the nature of the performance received or is the responsibility of Losch. The right of withdrawal is further excluded if Losch is not responsible for the defect and if the purchaser has to compensate the value instead of returning the performance received.
No claims for defects shall arise for defects due to natural wear and tear, in particular in the case of wear parts, improper handling, use or improper modifications or repairs to the products by the purchaser or third parties. The same shall apply to defects attributable to the purchaser or due to a technical cause other than the original defect.
Claims of the purchaser for reimbursement of expenses instead of damages in lieu of performance are excluded insofar as the expenses would not also have been incurred by a reasonable third party.
Losch does not assume any guarantees, in particular no guarantees of quality or durability, unless otherwise agreed in writing in the individual case.
The limitation period for the purchaser’s claims for defects shall be one year. If the defective products have been used for a building in accordance with their customary use and have caused its defectiveness, the limitation period shall be five years. The same shall apply if the defect concerns a building. The same shall also apply in the case of a service whose success consists in the provision of planning or monitoring services for a building. The shortening of the limitation period shall also apply to claims in tort based on a defective performance. The limitation period shall commence upon acceptance of the performance. The shortening of the limitation period shall not apply to Losch’s unlimited liability for damages arising from the breach of a guarantee or from injury to life, limb or health, for intent and gross negligence and for product defects or insofar as Losch has assumed a procurement risk. A statement by Losch in response to a claim for defects asserted by the purchaser shall not be deemed to be entry into negotiations on the claim or on the circumstances giving rise to the claim, provided that the claim for defects is rejected in full by Losch.

10. Liability of Losch

Losch shall be liable without limitation for damages arising from the breach of a guarantee or from injury to life, limb or health. The same shall apply to intent and gross negligence or insofar as Losch has assumed a procurement risk. In the case of slight negligence, Losch shall only be liable if essential obligations are breached which arise from the nature of the contract and which are of particular importance for achieving the purpose of the contract. In the event of a breach of such obligations, default and impossibility, Losch’s liability shall be limited to such damages as may typically be expected to arise in the context of this contract. Mandatory statutory liability for product defects shall remain unaffected.
Insofar as liability on the part of Losch is excluded or limited, this shall also apply to the personal liability of Losch’s employees, workers, staff, representatives and vicarious agents.

11. Product Liability

The purchaser shall not modify the products, in particular it shall not modify or remove existing warnings of dangers in the event of improper use of the products. In the event of a breach of this obligation, the purchaser shall indemnify Losch internally against product liability claims by third parties, unless the purchaser is not responsible for the error giving rise to the liability.
If Losch is prompted to carry out a product recall or product warning as a result of a product defect in the products, the purchaser shall cooperate to the best of its ability in the measures which Losch considers necessary and appropriate and shall support Losch in this respect, in particular in determining the necessary customer data. The purchaser shall bear the costs of the product recall or product warning, unless it is not responsible for the product defect and the damage incurred under the principles of product liability law. Further claims of Losch shall remain unaffected.
The purchaser shall inform Losch in writing without delay of any risks of which it becomes aware in connection with the use of the products and of any possible product defects.

12. Force Majeure

If Losch is prevented by force majeure from fulfilling its contractual obligations, in particular from delivering the products and providing other services, Losch shall be released from its obligations for the duration of the impediment and for a reasonable start-up period without being obliged to pay damages to the purchaser. The same shall apply if the fulfilment of its obligations by Losch is unreasonably impeded or temporarily rendered impossible by unforeseeable circumstances for which Losch is not responsible, in particular by industrial action, official measures, energy shortages, delivery problems at a supplier or substantial operational disruptions. This shall also apply if these circumstances arise at a subcontractor. This shall also apply if Losch is already in default. Insofar as Losch is released from its obligations, Losch shall refund any advance payments made by the purchaser.
Losch shall be entitled to withdraw from the contract after expiry of a reasonable period if such an impediment lasts for more than four months and Losch has no further interest in the performance of the contract as a result of the impediment. At the purchaser’s request, Losch shall declare after expiry of the period whether it will exercise its right of withdrawal or perform the services within a reasonable period.

13. Retention of Title

The products delivered shall remain the property of Losch until full payment of the price and all claims to which Losch is entitled against the purchaser under the business relationship. The purchaser shall be obliged to treat the products subject to retention of title with care for the duration of the retention of title. In particular, it shall be obliged to insure the products adequately at its own expense against fire, water and theft damage at their replacement value. At Losch’s request, the purchaser shall provide proof of the conclusion of the insurance. The purchaser hereby assigns to Losch all compensation claims arising from such insurance. Losch hereby accepts the assignment. If the assignment should not be permissible, the purchaser hereby instructs the insurer to make any payments only to Losch. Further claims of Losch shall remain unaffected.
In the event of conduct in breach of contract, in particular in the event of default in payment on the part of the purchaser, Losch shall be entitled, without prejudice to its other rights, to withdraw from the contract after expiry of a reasonable grace period set by Losch. The purchaser shall grant Losch or its agents immediate access to the products subject to retention of title and surrender them. After appropriate timely announcement, Losch may realise the products subject to retention of title elsewhere in order to satisfy its due claims against the purchaser.
In the case of deliveries to other legal systems in which this retention of title provision does not have the same security effect as in the Federal Republic of Germany, the purchaser hereby grants Losch a corresponding security right. Insofar as further measures are required for this purpose, the purchaser shall do everything necessary to grant Losch such a security right without delay. The purchaser shall cooperate in all measures necessary and conducive to the effectiveness and enforceability of such security rights.

14. Confidentiality

The parties shall be obliged to keep confidential for a period of five years from acceptance all information made accessible to them which is designated as confidential or is recognisable as business or trade secrets under other circumstances and, insofar as this is not necessary for the business relationship, not to record or disclose or exploit such information.
The obligation of confidentiality shall not apply insofar as the information was demonstrably already known to the receiving party before the start of the contractual relationship or was generally known or generally accessible before the start of the contractual relationship or becomes generally known or accessible without fault of the receiving party. The burden of proof shall be on the receiving party.
The parties shall ensure by means of suitable contractual agreements with the employees and agents working for them, in particular their freelancers and the contractors and service providers working for them, that these also refrain from any own exploitation, disclosure or unauthorised recording of such business and trade secrets for a period of five years from acceptance.

15. Final Provisions

The transfer of rights and obligations of the purchaser to third parties shall only be possible with the prior written consent of Losch.
Counterclaims of the purchaser shall only entitle it to offset if they have been legally established or are undisputed. The purchaser may only assert a right of retention if its counterclaim is based on the same contractual relationship.
The legal relations between the purchaser and Losch shall be governed by the law of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
The exclusive place of jurisdiction for all disputes arising from the business relationship between Losch and the purchaser shall be the registered office of Losch. Losch shall also be entitled to bring an action at the purchaser’s place of business and at any other permissible place of jurisdiction.
The place of performance for all services of the purchaser and of Losch shall be the registered office of Losch, unless otherwise agreed.
The language of the contract is German.
Should any provision of these General Terms and Conditions be or become wholly or partially invalid or unenforceable or should these General Terms and Conditions contain a gap, this shall not affect the validity of the remaining provisions. In place of the invalid or unenforceable provision, the valid and enforceable provision which comes closest to the purpose of the invalid or unenforceable provision shall be deemed agreed. In the event of a gap, the provision shall be deemed agreed which corresponds to what would have been agreed in accordance with the purpose of these General Terms and Conditions if the parties had considered the matter from the outset.