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Terms of Use makethings.ch

[/vc_custom_heading][vc_empty_space][vc_row_inner row_inner_height_percent=“0″ overlay_alpha=“50″ gutter_size=“4″ shift_y=“0″ z_index=“0″ limit_content=““][vc_column_inner width=“1/3″][vc_column_text uncode_shortcode_id=“363977″]Fassung vom [31. August 2020][/vc_column_text][/vc_column_inner][vc_column_inner column_width_percent=“100″ align_horizontal=“align_center“ gutter_size=“3″ style=“dark“ overlay_alpha=“50″ shift_x=“0″ shift_y=“0″ shift_y_down=“0″ z_index=“0″ medium_visibility=“yes“ medium_width=“0″ mobile_visibility=“yes“ mobile_width=“0″ width=“1/3″ uncode_shortcode_id=“167505″][/vc_column_inner][vc_column_inner width=“1/3″][vc_custom_heading text_color=“color-wvjs“ heading_semantic=“h3″ text_size=“h3″ text_weight=“400″ uncode_shortcode_id=“362081″ text_color_type=“uncode-palette“][/vc_custom_heading][/vc_column_inner][/vc_row_inner][/vc_column][/vc_row][vc_row][vc_column width=“1/1″][vc_column_text uncode_shortcode_id=“353305″]

1. General

1.1

The Workben.ch society based in St. Gallen (the „makethings.ch„) provides services for users (the „User„) under the website makethings.ch (the „Platform„). Users have the possibility to conclude contracts via the platform regarding resources such as rooms, machines, and know-how.

1.2

These Terms of Use (the „Terms of Use„) together with the privacy policy of makethings.ch (the „Privacy Policy„), the descriptions on the Platform referred to in these Terms of Use (the „Platform Descriptions„), and the Code of Conduct of makethings.ch if any, constitute the „Contractual Relationship„.

1.3

In the event of contradictions between the aforementioned documents of the contractual relationship, the first-mentioned documents shall take precedence over the documents mentioned thereafter. However, notwithstanding the foregoing sentence, Platform Descriptions shall take precedence over all other documents, but in no event shall the liability and warranty provisions of these Terms of Use be altered.

1.4

If a user of the platform offers rental objects, products, or services (the „Provider„) and another user (the „Customer„) seek to conclude contracts with the Provider via the platform (the „User Contract„), makethings.ch itself shall not party to these contracts. However, the content of the user contracts must comply with these Terms of Use.

1.5

Unless the context requires otherwise, the following shall apply within the framework of the contractual relationship: (i) headings are inserted for convenience of reference only and shall not affect the interpretation of the contractual relationship; (ii) references to one gender shall include all genders; and (iii) words in the singular shall include the plural and vice versa.

1.6

The user can access, download, save and print these Terms of Use at any time.

 

2. Establishment of the contractual relationship with makethings.ch

2.1. By clicking the „I agree to the Terms of Use and privacy policy“ box, the user agrees to these Terms of Use.

2.2. With the receipt of the registration confirmation from makethings.ch via e-mail to the e-mail address given by the user, the contractual relationship between makethings.ch and the user comes into effect. The user has no claim to the conclusion of a contractual relationship.

2.3. All information provided by makethings.ch outside of the contractual relationship, namely on the platform, are non-binding and subject to change without notice and are to be understood as a mere invitation to make an offer unless this is expressly stated otherwise by makethings.ch.

 

3. Registration of the user

3.1

The User must register before making full use of the services of the Platform. The registration is regulated on the platform. The relevant regulations are an integral part of these Terms of Use.

3.2

Registration is only permitted for natural and legal persons who are legally capable. The registration of a legal entity may only be carried out by an expressly named person authorized to represent the entity.

3.3

When registering, only single persons may be specified as the owner of the user account (i.e. no married couples or families).

3.4

The user assures that all data provided by him during registration are true and complete. He may not use pseudonyms or pen names.

3.5

The user is obliged to make changes to the data concerning the user independently and without delay, but at the latest before making a new booking via the platform.

3.6

During registration, the user chooses a password. He is obliged to keep his password secret, to adequately protect the devices he uses to access the platform from being spied out by malware, and to makethings.ch to report immediately any suspicion of disclosure of the password.

3.7

The user may only register once. He agrees that all activities carried out with his access data on the platform will be attributed to him as if they were his own.

3.8.

If the user’s access data is misused by third parties, the user is liable for his own actions. All emails or other messages originating from his email address or account shall be deemed to be his own.

 

4. The platform

4.1

Makethings.ch provides a platform on which users can communicate with each other and conclude contracts. Makethings.ch does not offer any rental objects, products, or services of its own, but only mediates contract conclusions between users and provides some related services according to the contractual relationship.

4.2

The services of makethings.ch are described on the platform. This information is an integral part of these Terms of Use.

4.3

The user hereby grants makethings.ch a free, non-revocable, materially, geographically, and temporally unlimited and sublicensable right of use to the content posted by the User on the Platform and, in particular, to all User Data (as defined in item 9.4 below). makethings.ch may use the contents and user data in particular for marketing or promotional purposes. The right of use shall continue to exist beyond the termination of the contractual relationship for an indefinite period of time.

4.4.

Any use of the contents contained on the platform by the user requires the prior written consent of makethings.ch unless the contractual relationship between makethings.ch and the user does not provide for this use.

4.5

Makethings.ch is entitled to change or discontinue the described services at any time in compliance with the following item 13.

4.6

The user is solely responsible for all content that he posts on the platform. When using the platform as well as in all other actions or omissions related to the platform (in particular concerning the user contracts), the user shall 

• comply with the applicable laws, in particular also the public law regulations (e.g. concerning tax obligations);
• comply with the provisions of the contractual relationship between makethings.ch and the user;
• omit to provide any information on the platform and omit to use the platform or parts of it in a way that could violate the rights of makethings.ch or of third parties (in particular other users) or effectively violate these rights;
• describe the rental objects, products, or services offered by him correctly and completely, whereby he has to provide information at least to the mandatory fields specified by makethings.ch mandatory fields (*) provided by makethings.ch;
• to keep the rental objects, products, or services offered by him as well as other information he posts on the platform up to date at all times;
• to mark successfully booked rental properties, products, or services offered by him accordingly;
• omit any action that is likely to damage the reputation of makethings.ch;
• refrain from any harassing actions such as the dissemination of indecent content;
• omit to use the platform commercially;
• use addresses, contact details, and e-mail addresses obtained through the use of the platform only for purposes covered by these Terms of Use and the contractual relationship existing between makethings.ch and the contractual relationship existing between the user.

4.7

Except as otherwise expressly provided in this agreement, the following actions by users are not permitted:

• download, store, reproduce, transmit, display, distribute or take screenshots of any part of the platform, except for the purpose of preserving evidence in the event of a dispute;
• use or attempt to use deep links, scrapers, robots, spiders (web crawlers), data mining, computer code, or any other device, tool, or program to access the Platform.

4.8

If makethings.ch has issued a code of conduct, this is part of the contractual relationship and binding for the user.

4.9

Each user is responsible for information that can be viewed on the platform and is stored by  makethings.ch which he needs for purposes of preservation of evidence, bookkeeping, or for other purposes, on a storage medium independent of makethings.ch independent storage medium.

4.10

The user may not provide other users with address data via the platform. The address data will, if necessary, be provided to the users solely by makethings.ch left to the users.

4.11

Further duties of the user result from the contractual relationship existing between makethings.ch and the user existing contractual relationship.

 

 5. Contracts between users

5.1

The Provider may conclude user contracts with Customers via the Platform for rental objects, products, and services (the „Contract Object„). Makethings.ch is not involved in the user contracts, but only mediates contract conclusions between the users and provides some related services according to the contractual relationship.

5.2.

Makethings.ch can reject contract objects at any time without justification and delete corresponding entries of the providers at any time.

5.3

The rights and obligations arising from the user contracts are exclusively between the providers and customers concerned. The providers and customers are exclusively responsible for the fulfillment of the obligations arising from the user contracts. All responsibility and liability of makethings.ch in this context are excluded.

5.4

By placing the Contractual Object on the Platform, the Vendor makes an invitation to submit an offer. Based on this, customers can submit an offer to conclude a user contract. The user contract is concluded if the provider accepts the offer within 48 hours in the manner provided by Workben.ch manner provided for. As long as the provider has not accepted the offer, it can be changed or withdrawn by the customer at any time. A change of the offer has the consequence that the period of 48 hours starts again.

5.5

The users are obliged to adhere to the following provisions for user contracts and acknowledge them as part of the concluded user contracts. However, you may also enter into your own agreements that take precedence over the following provisions, unless explicitly provided otherwise in these Terms of Use.

5.6

The following provisions are mandatory for user contracts between the provider and the customer and must not deviate in individual cases:

• The provider may only offer certain contract objects described on the platform. The relevant information of the platform is an integral part of these Terms of Use.
• The total amount to be paid according to item 6 below shall be paid by the customer to makethings.ch according to the information of the platform before the transfer of the contractual object. If the total amount is not received by makethings.ch in due time, the corresponding user contract is invalid and the provider is not allowed to hand over the contract object to the customer.
• The duration of the transfer of any contractual objects may only be changed via the platform. The provider and the customer may therefore not extend the duration of a user contract outside the platform.
• Usage beyond the booking period may result in additional costs for the user.
• The subletting of any contractual object by the customer is not permitted.

5.7

In particular, the following items of the contract may be agreed upon by the Provider and the Customer in a manner different from that set out below or on the Platform, provided that this is permissible on the basis of mandatory applicable statutory law:

• When and how the handover of the contractual object by the Provider shall take place is listed on the platform, which in this respect is an integral part of these Terms of Use.
• Upon handover of the contractual object, the customer shall inspect it and immediately notify the supplier of any defects. If there are no notices of defects when the contractual object is handed over, the contractual object shall be deemed to have been received in perfect condition.
• If the provider does not hand over the contractual object at the agreed time or with defects that exclude or significantly impair its suitability for the intended use, the customer is not obliged to accept the contractual object and may withdraw from the corresponding user contract. In this case, no payments are owed by the customer, and makethings.ch will transfer the corresponding amounts to the entitled person according to the indications on the platform. All further claims of the customer against the provider, in particular claims for damages or substitute performance, are excluded.
• In all other respects, the provisions of the Swiss Code of Obligations shall apply.

5.8

If the user contract qualifies as a rental contract, the following provisions shall apply in addition to item  5.7 above, but may, in turn, be agreed upon differently by the Provider and the Customer:

• The customer must use any rental object with care.
• The provider and the customer can agree on a deposit for the transfer of any rental object. The conditions in this regard (in particular the amount, payment, and repayment of the deposit) are the subject of the corresponding user contract. Makethings.ch is neither responsible for the management of deposits nor for any claims made by the provider.
• The customer must return or hand over the rental object to the provider in good time. The time and place of the rental object’s return to the provider are listed on the platform, which in this respect is an integral part of these Terms of Use. The rental agreement is concluded for a fixed period. There are no ordinary termination options.
• The customer must return any rental object in the condition appropriate after contractual use. However, he is not liable for normal wear and tear.
• Upon return, the provider must check the condition of the rental object and report any defects for which the customer is responsible to the customer immediately upon return of the rental object. If the supplier fails to do so, he shall forfeit his claims, unless these are defects that could not be detected during a normal inspection. If the supplier discovers such defects later, he must report them to the customer within three days.

5.9

Makehtings.ch does not guarantee the fulfillment or capability to perform the contractual obligations owed or the completeness and correctness of the provided information, including the identity, and shall not be liable for failures or defects in this regard. Those risks shall be borne by the customer.

5.10

Occurring cases of failures in performing user contracts or defects have to be settled by the customers directly with the providers. In the event of a dispute of any kind between the Provider and the Customer, both parties are obliged to take all reasonable steps to reach an amicable settlement. You can inform makethings.ch about the dispute, but  makethings.ch  is not obliged to settle the dispute or to act in any other way.

5.11

Should makethings.ch  be involved in a legal dispute (including pre-litigation) in connection with a user contract, the customer and the provider shall be jointly and severally liable for the costs incurred by makethings.ch in this context.

 

6. Payment, payment procedure, and invoicing

6.1

The user contract is always concluded for the total amount listed on the platform. This provision cannot be modified by the parties to the user contract. The total amount shall be composed of (i) the rent or the price of the product or service, and (ii) the handling fee. The handling fee is due to makethings.ch for the provision of its services in accordance with the contractual relationship.

6.2

The total amount to be paid as well as the payment options and payment modalities are regulated on the platform. The corresponding provisions of the platform are insofar integral parts of these Terms of Use.

6.3

The total amount is always inclusive of VAT, provided that this is owed and nothing else is specified on the platform.

6.4

The customer is obliged to ensure that the credit card with which he makes any payments in accordance with the corresponding user contract is valid and has the necessary cover.

6.5

The customer must pay the total amount in the manner shown on the platform. Makethings.ch manages the amount paid by the customer for the rental object (rent), the product, or the service on behalf of the provider and holds this amount for the provider in a non-interest-bearing trust account.

6.6

The customer shall be liable for all costs makethings.ch incurred because the customer fails to pay the total amount owed on time, the customer shall fully indemnify  makethings.ch and compensate the occurring damages.

6.7

Makethings.ch will transfer the amount managed by it for the Provider to the Provider within 10 working days after payment of the corresponding amount by the Client unless the Client raises an objection in writing (including e-mail) within 24 hours after the non-acceptance or the return of the corresponding rental object, product or service with makethings.ch.

6.8

If an objection as mentioned above is made in due time and form,  makethings.ch shall be entitled to continue to hold the disputed amount in trust until the customer’s consent to the transfer of the amount has been obtained,  a legally binding decision has been handed down by the competent authority to makethings.ch, or makethings.ch concludes in good faith that the customer’s request was not justified.

6.9

All possible claims for damages of the customer against makethings.ch which are based on the fact that makethings.ch was not entitled to transfer the disputed amount to the provider despite the customer’s objection are excluded.

6.10

All payments made by customers to makethings.ch will not accrue interest, not even during a period of delay in the payment of the relevant amounts to the provider or customer.

6.11

The Provider and the Customer are prohibited from circumventing the aforementioned provisions of this section 6, in particular the processing fees.

 

 7. Rating system

7.1

If the platform has a rating system, the provisions of this section 7 shall apply.

7.2

Each user may rate other users of the platform.

7.3

The user is obliged to make truthful statements when evaluating other users. Impertinent, defamatory, or otherwise inappropriate comments are prohibited.

7.4

Any use of the rating system contrary to its purpose is prohibited. This includes, in particular, entries made by interconnected persons or non-existent persons, or evaluations of oneself.

7.5

Makethings.ch does not verify the ratings. Makethings.ch does not guarantee the accuracy or appropriateness of the ratings. Makethings.ch reserves the right to delete ratings or comments without giving reasons.

7.6

In addition, the information on the platform on the rating system of makethings.ch which are insofar integrated parts of these Terms of Use.

 

 8. Sanctions

8.1

If there are indications that the user violates legal regulations, rights of third parties (including rights of other users), or provisions of the contractual relationship between makethings.ch and the user or that a user has received multiple negative ratings in the rating system,  makethings.ch may take the following measures at its own free discretion:

• Warning of the user;
• Deletion of individual entries;
• Temporary blocking of the user or a user contract;
• Dissolution of a contractual relationship between users; this right of makethings.ch is mandatory and cannot be agreed otherwise by the provider and the customer;
• Final blocking of the user or deletion of his registration and termination of the contractual relationship with the user without notice.

8.2 The assertion of claims for compensation or other legal claims by makethings.ch remains reserved.

 

9. Reservation of rights and data protection

9.1

The user acknowledges and agrees that makethings.ch in the internal relationship between the user and makethings.ch is the sole and exclusive owner of all property and other rights and claims to the platform and the services as well as to all data developed or collected by it in connection with the provision of its services (with the exception of the user data defined in item 9.4 below), in particular all industrial property rights.

9.2

Makethings.ch reserves all rights not expressly granted to the user in these Terms of Use.

9.3

Makethings.ch hereby grants the user a non-transferable and non-exclusive right to access the platform provided by him and services rendered in accordance with the contractual relationship as well as the use thereof in each case, subject to the conditions arising from the contractual relationship.

9.4

In the internal relationship between the user and makethings.ch the user owns all data, information, or material which he transmits, collects or provides when registering and using the platform or the services, in particular all comments, discussions, suggestions, improvement requests, feedback, or recommendations (the „user data„).

9.5

The user alone is responsible for the accuracy, quality, content, and legality of the user data and for the means used to acquire the user data. In particular, the user represents and warrants that the use of the user data on the platform and in connection with the services does not violate the rights of third parties.

9.6

The parties shall comply with the Swiss Data Protection Act. Details on the use of personal data of the users by makethings.ch are regulated in the privacy policy of makethings.ch which is available on the platform and is part of the contractual relationship.

 

 10. Limitation of liability and exclusion of warranty

10.1

Makethings.ch is liable to the user in connection with the contractual relationship or the platform only for damages caused intentionally and by gross negligence.  Makethings.ch shall not be held liable for auxiliary persons and vicarious agents. Any further liability for damages directly or indirectly related to the contractual relationship is excluded, irrespective of the legal grounds on which the damages are claimed.

10.2

Makethings.ch gives no warranties to the user in connection with the platform and the contractual relationship and excludes the possibly existing legal warranties. The scope of this comprehensive exclusion of warranty is not limited by the following specific provisions. The same applies to the exclusion of liability contained in item 10.1 above.

10.3

Makethings.ch assumes no responsibility for the accuracy, completeness, and timeliness of the content of the platform. Also, no warranty is given that the platform runs error-free and free of harmful components (such as viruses).

10.4

The platform can contain links to websites of third parties, on whose contents  makethings.ch has no influence. These external contents are not subject to any guarantee by  makethings.ch.

10.5

Makethings.ch cannot determine the identity of its users with certainty and therefore cannot guarantee that a user will disclose his or her true identity. Accordingly, each user must convince himself of the identity of another user.

10.6

Makethings.ch strives to keep the platform available as constantly as possible. However, the user acknowledges that 100% availability of the platform is not possible. The user has no claim to the availability of the platform.

10.7

Unless explicitly stated otherwise in writing otherwise by makethings.ch,   makethings.ch does not take part in the communication between the users. If the users conclude user contracts with each other on the basis of the platform,  makethings.ch is not involved and does not become a contracting party. In particular, the choice of the contractual partner, the conclusion of the contract, and the performance of the contract are the sole responsibility of the users.

 

 11. Indemnification

The user indemnifies makethings.ch from all claims, which third parties (including other users) assert against makethings.ch due to a violation of duties of the user against provisions of the contractual relationship. The user assumes all damages and costs arising from a violation of the user’s obligations against the provisions of the contractual relationship incurred by  makethings.ch, including the costs incurred for legal defense. Possible further rights as well as claims for damages of makethings.ch remain unaffected.

 

12. Termination of contract

12.1

The contractual relationship shall come into force in accordance with item 2.2 above and shall be concluded for an indefinite period.

12.2

The contractual relationship may be terminated immediately by either party. Notice of termination must be given in writing (including e-mail).

12.3

Termination or other dissolution of the contractual relationship shall have the following effects in particular:

• The user may no longer use the platform;
• The user is immediately in default with respect to all outstanding payments due to makethings.ch;
•  Makethings.ch may discontinue all services provided to the user immediately;
• User contracts already concluded between users will still be processed, in which case the provisions of the contractual relationship will apply in full;
• In case of disputes between the users,  makethings.ch  shall be entitled to proceed in accordance with the provisions of the contractual relationship;
• Payments already made by the user to makethings.ch will not be refunded to the user.

 

13. Modification of the contractual relationship, services, and fees

13.1

Changes in the terms of the contractual relationship, the services of makethings.ch, and of processing or other fees can be made by makethings.ch at any time and at its own discretion. They will be displayed to the user on the platform or otherwise before they come into force.

13.2

The user must confirm the changes. If he does not do this, he cannot use the services offered by makethings.ch.

 

14. Final provisions

14.1

Notwithstanding any deviating provisions of the contractual relationship,  makethings.ch is entitled at any time to discontinue the platform or the services of the platform with immediate effect. Notification of the user is not required in these cases. Item 12.3 above regarding the consequences of termination shall apply mutatis mutandis.

14.2

The user only has the right to withhold payments or to offset them against counterclaims if his counterclaims are undisputed or have been legally established.

14.3

It is the will of the parties to the contractual relationship to remain independent and the contractual relationship shall not lead to a simple partnership or any other partnership-like connection between makethings.ch and the user.

14.4

Additions, amendments, or the cancellation of the contractual relationship are only legally valid in writing and signed by both contracting parties. This also applies in particular to this written form clause. Item 13 above remains reserved.

14.5

An e-mail is sufficient for all deliveries made within the scope of this contractual relationship. Written form within the meaning of these Terms of Use or the contractual relationship shall also be deemed to exist in the case of communications via the platform or e-mails.

14.6

Rights and obligations arising from the contractual relationship may only be transferred to third parties with the consent of the other contracting party. The same applies with regard to the transfer of the entire contractual relationship to a third party or the entry of a third party into this contractual relationship.

14.7

Should one or more of the provisions of the contractual relationship be or become void or ineffective, the remaining part of the contractual relationship shall not be affected thereby. In the event of the invalidity or ineffectiveness of an item, it shall be replaced by an item that comes as close as possible to the economic purpose of the invalid provision.

14.8

Should a party fail to exercise rights to which it is entitled under the contractual relationship or fail to do so in a timely manner, this shall not result in a forfeiture or loss of such rights. The non-exercise or delayed exercise of a right shall in no case result in that right no longer be exercisable.

14.9

The contractual relationship shall be governed by Swiss substantive law, excluding the conflict of laws rules, and international agreements.

14.10

Any dispute, controversy or claim arising out of or in connection with the contractual relationship, including the validity, invalidity, breach or termination thereof, shall be settled exclusively by the ordinary courts having jurisdiction over the registered office of makethings.ch

Version as of [August 31, 2020]

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