General Terms of use of the Markant Platform

Scope

Markant Handels- und Industriewaren-Vermittlungs AG (hereinafter «Markant») is a company with its registered office in Switzerland. Markant offers various services and IT solutions (hereinafter the «Services») via its online platform (the «Markant Platform»), which is currently accessible via the website «https://m.markant.com».

These General Terms of use of the Markant Platform (hereinafter the «Terms of use») govern the rights and obligations between Markant and you (hereinafter we also refer to you as the «User»; User and Markant are collectively the «Parties») regarding the use of the Markant Platform. By clicking on the corresponding box during registration, the User agrees to the validity of these Terms of use.

General terms and conditions or general contractual conditions of the User shall not apply and are hereby expressly rejected.

If the User agrees to these Terms of use on behalf of a company or orders services from Markant or its contractual partners via the Markant Platform on behalf of a company, the User declares that he/she is authorised to do so.

Registration

The use of the Markant Platform requires the registration of an account (hereinafter the «User Account»).

The User must be of legal age at the time of registration; he/she must accept the Terms of use, create a password and provide the following information, among others: Name of natural person and company, address of company, e-mail address. The information must be complete and correct. The User must ensure that this information (as well as any additional information requested by Markant) is complete and up-to-date. The User has the option to update the information via his User Account or to have it updated by notifying Markant accordingly.

Markant decides in its sole discretion whether to accept a registration.

The Markant Platform offers the possibility for Users with certain defined user roles (e.g. so-called «Admin») to add other Users to their own User Account by assigning certain access rights in relation to this User Account. This User authorisation can be restricted or revoked by the authorised User at any time.

Insofar as the User grants third parties access to the Markant Platform via his User Account, he is responsible to Markant for all actions that the third party takes on the Markant Platform, in particular for the use of services subject to remuneration. This applies regardless of whether the User is aware of the specific actions of the third party or not.

Insofar as no services are obtained from Markant via the User Account, Markant has the right to classify the User Account as «inactive» if the User has not logged in to the Markant Platform via his User Account for at least 12 months. Once the User Account is classified as «inactive», Markant has the right to permanently delete the User Account and all data stored therein. Markant will inform the User by text form of the inactivity and the consequences of the inactivity at least 30 days and again 14 days before the User Account is classified as «inactive» and explain which steps can be taken to avoid this classification. After deletion of the User Account, the User can register a new User Account on the Markant Platform. However, data uploaded to or stored in the original User Account cannot be restored in the new User Account.

Use of the Markant Platform

The Markant Platform can be used by the User as follows: 

- Various types of reports / information can be accessed via the Markant Platform and services provided by Markant can be obtained.
- The User can order and purchase the services offered by Markant with the scope of services listed in each case on behalf of his company via the Markant Platform. The following applies here:
- Insofar as this option is provided on the Markant Platform for a service, the User can order this service directly via the Markant Platform. In this case, the order by the User with acceptance of the service-specific GTCs is considered a binding offer to conclude a contract with Markant. This contract is concluded upon receipt of the order confirmation in text form from Markant.
- Furthermore, services offered on the Markant Platform (in particular so-called non-standard packages) cannot be ordered by the User directly via the Markant Platform. If the User is interested in such a service, the User can contact Markant. In this case, a contract is only concluded by signing a corresponding contract.

It is the User's responsibility to ensure that all applicable laws and regulations are complied with when providing information. The User assures Markant that he/she is authorised to disclose to Markant the data and information submitted by him/her via the Markant Platform. The User is obligated to indemnify Markant against claims by third parties due to unauthorised processing and/or use of such data, to the extent that the User is responsible for such claims. When using the comment, messaging or chat functions available on the Markant Platform, the User is obliged to behave respectfully towards other users and not to infringe the rights of other users or Markant.

Payments

The use of the Markant Platform itself shall not be remunerated separately by the User.

Markant invoices the services provided via the Markant Platform in accordance with the respective contract with the Client.

Updates

Markant will provide updates to the Markant Platform from time to time. In addition, Markant may change the scope and technical design of the Markant Platform from time to time as reasonably necessary for the following reasons:

a) to improve, enhance, update and/or further develop the Markant Platform, e.g. to add new features or functionalities or to optimise the user experience;
b) to adapt the Markant Platform to a new technical environment, in particular when migrating to another Markant Platform, another hosting provider, another server, another web address, another domain or to change a service provider;
c) to implement other important operational reasons (e.g. expiry of a licence required for the provision of a service); or
d) to adapt to changes in or to comply with applicable laws and regulations or at the request of a competent court or authority.

Any modification shall take into account the legitimate interests of the User and the purpose of the contract. The purpose and the essential technical specifications of a service which are necessary for the proper use of a service must remain unaffected by the change or must be replaced in a functionally equivalent manner.

Restrictions

The Markant Platform may only be used in accordance with these Terms of use and applicable law, in particular applicable data protection law.

The User is not permitted to:

- decompile, reverse engineer, disassemble or otherwise attempt to obtain, reverse engineer or determine any source code, object code or underlying structural idea(s), know-how or algorithm(s) or other functional mechanism(s) of the Markant Platform or the services offered through the Markant Platform – except as permitted by mandatory law;
- attack Markant's IT systems, penetrate them without authorisation or distribute, transmit or upload viruses or other malware via the Markant Platform;
- prevent third parties from lawfully using the Markant Platform and/or take any other action that is likely to interfere with the smooth or proper operation of the Markant Platform;
- use the Markant Platform for fraudulent purposes or in connection with a criminal offence; and/or
- access the Markant Platform or its services using web crawlers, bots or other automation software.

Markant may monitor the User's use of the Markant Platform at any time to ensure compliance with these Terms of use and applicable law.

Should the User violate the aforementioned regulations, Markant reserves the right to block the User's access to the Markant platform for the duration of the use in breach of contract or to terminate the User's access in accordance with the regulations under section «Termination of the User Account and Blocking of Access».

Account Security

The User is responsible for taking state-of-the-art IT security measures. These include, but are not limited to, the installation and regular updating of common anti-virus software on laptops, computers or other mobile end devices via which the User logs onto the platform, ensuring the assignment and regular updating of secure passwords in accordance with the BSI IT Grundschutz or other equivalent, recognised security standards for these laptops, computers or other mobile end devices as well as the use of corresponding mechanisms such as 2-factor authentication, automatic inactivity blocking, firewall, etc.

The User is further obliged to regularly update the password for his/her User Account and to ensure the secrecy and protection of his/her password and other User Account data as well as any identification and authentication data assigned to him/her, which are necessary for accessing the platform and using the services. This includes, for example, the prohibition of passing on passwords and the prohibition of using the User Account as a so-called «shared account». If there is a suspicion that a third party is accessing the User Account of the User without authorisation, Markant may block the User Account immediately; Markant will notify the User of such blocking without delay and lift it again as soon as it is established that the suspicion is unfounded.

The User must inform Markant immediately if there is any suspicion that the access data may have become known to unauthorised persons (e.g. in the event of a cyberattack or loss of the access data) or that his/her access data or the User Account has been used without authorisation; the same applies to other security breaches or security gaps.

In addition, the User must ensure the security of the Internet connection used, i.e., in particular the use of company-owned rather than public internet access as well as ensuring the use of VPN connections in public networks.

Markant is not liable for any loss or damage resulting from the unauthorised use of the access data or the User Account. If the User does not comply with his reporting obligations under this item «Account Security», this constitutes a material breach of these Terms of use.

Third Party Content

The Markant Platform may contain third party content (e.g., content from other Users) or links to third party websites. Markant is not responsible to the User for verifying the content or accuracy of any third-party material or websites. User agrees to use such third party services at User's own risk and Markant shall have no liability for such third party content, websites and services.

Intellectual Property

Markant remains the owner of all rights to content on the Markant Platform.

The User is granted the use of content and the underlying intellectual property rights only to the extent necessary for the use of the Markant Platform and/or the services provided through the Markant Platform in accordance with the respective agreement between the User and Markant. The User is obligated to retain unchanged all proprietary notices contained on the Markant Platform, such as copyright notices and other legal notices. Use of the content for other purposes is expressly prohibited and may have civil and criminal consequences.

Changes to these Terms of use

Any planned changes or amendments to the Markant Terms of use will be sent to the User in text form at least 30 days before they come into force. During these 30 days, the User is free to accept or reject the proposed changes or amendments. They shall be deemed accepted by the User if the User has not objected to them in text form within these 30 days.

Termination of the User Account and Blocking of Access

The User may terminate his User Account on the Markant Platform at any time. This will then also lead to the removal remove the possibility of using Markant services via the Markant Platform.

Markant may temporarily block access to the Markant Platform or to certain services offered via the Markant Platform with immediate effect or terminate the User Account if the User violates these Terms of use of Markant despite receiving a reminder.

In the event of serious violations of these Terms of use that make it unreasonable for Markant to expect the User to continue using the Markant Platform, Markant may block access to the Markant Platform or to certain functions or services with immediate effect or terminate the User's Account, even without prior warning.

Markant may also terminate the User Account with a notice period of three (3) months if Markant discontinues the operation of the Markant Platform altogether. Otherwise, the right to extraordinary termination for good cause remains unaffected.

With the entry into force of a termination, all rights granted to the User in accordance with the Terms of use shall end with immediate effect. Subject to the following sentence, any payments owed by the User for services obtained via the Markant platform remain unaffected by the termination of the User Account or the blocking of access. This does not apply if Markant has terminated the User Account due to the discontinuation of the operation of the Markant Platform, unless otherwise stated in the respective contract for the service concerned.

No assurances

The User uses the Markant Platform and all related services at its own risk. 

Markant endeavours to ensure that the Markant Platform is operated free of disruptions and errors. However, Markant does not owe a constant availability or a minimum availability of the Markant Platform or complete freedom from errors.

Markant makes no representations or warranties of any kind, express or implied, with respect to the operation of the Markant Platform and disclaims all express or implied representations or warranties, including: (a) any implied warranties of merchantability, suitability for a particular purpose, legal claim or non-infringement of rights; (b) any representations that the Markant Platform, related materials and other tasks will meet Users' requirements, will always be available, accessible, uninterrupted, timely, secure, error-free or contain special features or functions; or (c) any implied warranties arising from customs or commercial practices.

Limitations of Liability

Markant shall be liable to the User in each case in accordance with the statutory provisions in the following cases for reimbursement of expenses and damages (hereinafter referred to in Section VIII: Damages): In the event of liability under the Product Liability Act; in cases of intent or fraudulent misrepresentation; in cases of gross negligence; for injury to life, body or health; in the event of the assumption of a guarantee by Markant; in cases of §288(6) sentence 1 of the German Civil Code (BGB) as well as in all other cases of mandatory liability under the law.

Markant is also liable to the User for damages in the event of a culpable breach of so-called cardinal obligations in accordance with the statutory provisions. Cardinal obligations in this sense are all obligations whose breach endangers the achievement of the purpose of the contract as well as all obligations whose fulfilment makes the proper execution of the contract possible in the first place and on whose compliance the User may regularly rely. However, if the breach of a cardinal obligation was only slightly negligent and did not result in injury to life, body or health, the amount of the client's claims for damages shall be limited to the typical foreseeable damage. 

In all other respects, claims by the User for damages against Markant – for whatever legal reason, in particular breach of obligations arising from a contractual obligation or from a pre-contractual obligation (e.g., in the sense of § 311(2) BGB) by Markant, its legal representatives, employees or vicarious agents, from § 311a(2) BGB or from tort – are excluded.

Markant is not liable for the loss and theft of data insofar as the damage is due to the fact that the User has failed to carry out appropriate data backups and thereby ensure that lost data can be restored with reasonable effort. In the event of loss of data, Markant is only liable for the effort that would have been required to restore the data if the client had properly backed up the data. 

Insofar as the liability of Markant is limited or excluded according to the above regulations, this also applies to the personal liability of the legal representatives, employees and vicarious agents of Markant. 

Any statutory liability privileges in favour of Markant remain unaffected.

A change in the burden of proof to the disadvantage of the User is not associated with the above provisions.

An exclusion or limitation of the User's claims to interest on arrears is not associated with the above provisions.

The User's claims for damages shall become statute-barred within the statutory limitation periods from the start of the statutory period.

Miscellaneous

These Terms of use constitute the entire agreement between the User and Markant for the use of the Markant Platform. These Terms of use supersede all prior representations, understandings, agreements or communications between User and Markant in any form. Markant shall not be bound by any terms or conditions of User that are different from or in addition to the terms of these Terms of use, even if submitted, for example, by invoice, receipt, acknowledgement, correspondence or other document.

The User may not assign or transfer any right, title or obligation under these Terms of use, in whole or in part, without Markant's prior consent (which consent must be express and in writing in each case). 

If any provision of these Terms of use is or becomes invalid or unenforceable in whole or in part, this shall not affect the validity and enforceability of the remaining provisions of these Terms of use. The invalid or unenforceable provision shall be deemed to be replaced by a reasonable, valid and enforceable provision that comes as close as possible to what the Parties intended or would have intended, taking into account the meaning and purpose of these Terms of use, had they considered the point in the first place. This shall also apply if (i) these Terms of use should contain a loophole, in which case, in order to fill the loophole, a reasonable, valid and enforceable provision that comes as close as possible to what the Parties intended or would have intended, taking into account the spirit and purpose of these Terms of use, shall be deemed effective, if they had considered the point in the first place, or (ii) a provision of these Terms of use should be ineffective with regard to a term or performance, in which case the provision shall be deemed to be replaced by a legally permissible term or performance which comes as close as possible to what the Parties had intended or would have intended, taking into account the meaning and purpose of these Terms of use.

Markant's failure to enforce any provision of these Terms of use shall not constitute a waiver of such provision now or in the future, nor shall it limit Markant's right to enforce such provision at any time thereafter. All waivers by Markant must be in writing.

Notices: Any notices or questions by the User regarding these Terms of use or the use of the Markant Platform should be sent to the following email address: support@services.markant.com

 Applicable Law, Place of Jurisdiction

These Terms of use are governed by the laws of the Federal Republic of Germany, excluding the provisions of international private law and the UN Convention on Contracts for the International Sale of Goods (CISG).

The exclusive place of jurisdiction for all disputes arising out of or in connection with these Terms of use or regarding their validity is Frankfurt am Main, Germany.

Version 1.0

Status July 2023