CLICKIT APPLICATION TERMS AND CONDITIONS

Effective Date: 2021-05-27

  1. INTRODUCTION

    1.1. Holcim Technology Ltd, Grafenauweg 10, 6300 Zug, Switzerland ( "LH") provides to customers the use of the application CLICKIT (the "Application"), a platform on which customers can place orders to buy all types of construction materials and products, including components and spare parts relating to construction materials, as well as services relating to or in connection with such products or existing installations, directly from LH or other third party suppliers (together "Product(s) or Service(s)").

    1.2. The Application allows selected third party suppliers, including suppliers being affiliates of LH (the "Supplier(s)") to offer Products or Services under their own name and sell them to customers via Application.

    1.3. These terms and conditions together with all the documents mentioned therein (the "Terms & Conditions" or "T&Cs") govern the use and access to the Application and apply to all legal transactions made through the Application including the ones with Suppliers. Each Supplier will apply its own terms and conditions to the contractual relationship with the Customer, available upon request.

    1.4. In these T&Cs "you", "your" or "Customer" means the individual, company or entity that has accepted these T&Cs and "we", "us", "our" means LH.

    1.5. You acknowledge that you have read and understand these T&Cs.

    1.6. By using this Application and/or placing an order on the Application, you accept these T&Cs and agree to be legally bound by its terms.

    1.7. LH reserves the right to change the T&Cs at any time and will give you notice of such amendments via an in-Application notification. Your continued access or use of the Application constitutes your acceptance of the amended T&Cs. We may also ask you to acknowledge your acceptance of the T&Cs through an electronic click-through. The latest version of the T&Cs applies at any time you are using the Application. These T&Cs may not otherwise be amended except through mutual agreement by you and LH. Adverse or conflicting terms of the Customer will not be recognised.

  2. USE AND CHANGE OF THE APPLICATION

By using and/or placing any order on the Application, you agree and undertake to the following obligations: 

    2.1. You represent that you are 18 years of age or older and that you have the legal capacity to enter into a binding contract, and, if you are an employee or contractor of a Customer, that you have the authority to accept these T&Cs on behalf of the Customer.

    2.2. You are responsible for all use of the Application by any person who has accessed the Application with your login credentials. LH may deactivate any login credentials for any suspected unauthorized use or any misuse of the Application.

    2.3. You acknowledge and agree that LH is not obliged to provide any support for the Application.

    2.4. For each order, you will provide an email address, a telephone number, the delivery address and the business address or your residence so that the Supplier can correctly issue the sales invoices. You represent that all the information and data you are providing is real, correct and up to date. 

    2.5. You agree that Suppliers can use this information to contact you when necessary. You agree that if you do not provide Suppliers with all the contact information required, your order may not be complete and accept that the Supplier may not be in a position to deliver your order.

    2.6. LH reserves the right, without prior notice, to add, delete or change the features or functionality of the Application, as we generally make such additions, deletions or changes available to our other customers and/or to remove or modify any content of the Application.

  3. USE OF THE MY STORE SECTION (ERP)

    3.1. If the "My Store" section of the Application is made available to you by LH, you are free to access and use the "My Store" section on a voluntary basis. The use of this section is not mandatory for you. The use (or non-use) of the "My Store" section will not affect your ability to place orders or make use of other functionalities of the Application, the acceptance of the order, payment terms or any other terms agreed between LH and you. 

    3.2. Any information you upload in the "My Store" section of the Application will not be utilized for any other purpose than the limited purpose of providing the "My Store" service to you. LH will not share this information with other Customers that compete or may potentially compete with you.

    3.3. LH will not use the information you upload in the "My Store" section of the Application to impose any minimum or fixed resale price. When purchases done over the Application are intended for resale, you are always free to determine your own prices in line with applicable laws.

  4. UNACCEPTABLE USE

    4.1. Any use of the Application which is in breach of applicable laws and regulations, or which is otherwise inappropriate or may be damaging to LH (including the Holcim Technology Ltd Group) or any third party, including LH's customers, business partners or third party suppliers, is unacceptable and not permitted.

    4.2. The following is a list of non-exhaustive examples of activities which are unacceptable use and not permitted:

      4.2.1. Revealing your account data to other third parties or allowing use of your account by others. This includes family members, other household members or any other third parties.

      4.2.2. Accessing any other user account, including other customers or third party suppliers, or any other data or information within the Application which you are not authorized to access.

      4.2.3. Any use which violates LH's or any third party's Intellectual Property Rights or any law relating to Intellectual Property.

      4.2.4. Any use which violates anti-trust or competition law, anti-bribery and corruption laws.

      4.2.5. Procuring or transmitting material that violates or is likely to constitute harassment or bullying, material that is hostile or abusive to another, or which may be defamatory, discriminatory, or intended to offend, material which is misleading, or which is of a pornographic nature or illegal.

      4.2.6. Using your Application account to conduct any unauthorized commercial activity, or making any misleading statements in relation to LH, its staff, customers, business partners, products and services or any third party, or in any other way which affects the legitimate interests of LH or Suppliers.

      4.2.7. Forwarding, copying, printing or otherwise exporting any documents, data, screenshots or other information from the Application without LH's prior written consent.

  5. PLACEMENT AND ASSIGNMENT OF ORDERS; CONCLUSION OF CONTRACT

The content of these T&Cs and the information contained in the Application is not an offer to sell, but an invitation for you to place your order with the Suppliers. 

    5.1. Once you have selected the Products or Services you want to purchase, you would need to complete the order placing process on the Application. The Customer submits a binding offer by completing the order placing process from which the Customer can no longer withdraw after receipt by the Supplier.

    5.2. Once you have confirmed the order, a pop up will appear on your screen confirming that the order has been placed. Such message does not represent the acceptance of the order by the Supplier. Each order is subject to the acceptance by the Supplier. The status of the order can then be consulted on the "Order Details" section. The contract between the Customer and the Supplier will be concluded once the Supplier has accepted your order (the "Acceptance"). 

    5.3. When you place an order on the Application, you automatically accept the terms and conditions of the Supplier. Such terms and conditions are available upon request to the Supplier.

    5.4. You may not transfer or assign, in any way, any order placed in the Application or any of your rights or obligations to any third party without the Supplier's prior written consent. 

    5.5. Suppliers have the right, at any time during the execution of an order, to transfer, assign, or subcontract the order and its delivery or any of their rights or obligations arising out of these T&Cs to their affiliates, subcontractors or any other third party. 

  6. AVAILABILITY OF PRODUCTS AND SERVICES; REJECTION ORDERS

    6.1. Products or Services are available for as long as they can be found through the search engine in the Application and/or while stocks last.

    6.2. LH and Suppliers reserve the right to remove any Product or Service from the Application at any time.

    6.3. You agree not to claim damages from LH or Suppliers for losses you may incur as a result of removal or modification of the Application`s content, Products or Services, or any failure to process your order.

  7. PRICES

    7.1. LH and Suppliers reserve the right to change prices of Products or Services at any time. The price of each Product or Service will be the one displayed on the Application at the time you place your order. 

    7.2. Although LH tries to ensure that all prices displayed on the Application are correct, errors may occur. If LH or the Supplier discover a price error for any Product or Service, LH or the Supplier will inform you and give you the opportunity to reconfirm the order at the correct price or cancel it. If LH or the Supplier cannot contact you, the order will be considered cancelled. 

    7.3. The prices displayed on the Application are net, inclusive of value added tax (VAT), in accordance with the applicable laws and regulations. 

  8. WARRANTY DISCLAIMER; LIMITATION OF LIABILITY

    8.1. LH does not make any express or implied representation or warranty to the Customer regarding the Products and Services.

    8.2. The Customer agrees that it is making use of the Application at its own risk and that the Application is being provided to the Customer on an "as is" and "as available" basis. Accordingly, to the maximum extent permitted by applicable law, LH excludes all express or implied warranties, terms and conditions including, but not limited to, implied warranties of accuracy, operability, merchantability, fitness for a particular purpose, and non-infringement of the Application.

    8.3. In addition, to the maximum extent permitted by applicable law, LH (including Holcim Technology Ltd Group's affiliates, and its officers, directors, agents and employees) are not liable to the Customer or any third party, and the Customer agrees not to hold LH (including Holcim Technology Ltd Group's affiliates, and its officers, directors, agents and employees) responsible, for any direct, indirect, consequential losses, damages, liabilities, claims and costs (including legal and professional adviser's fees) whether in warranty, tort, negligence, strict liability or otherwise arising directly or indirectly out of or in connection with these T&Cs, including but not limited to, loss of actual or anticipated income, profits, savings or revenues, loss of use, delay or non-delivery by LH or the Supplier of the Products or Services or from:

  a) the content the Customer provides (directly or indirectly) using the Application;

  b) the Customer's use of or inability to use the Application;

  c) delays or disruptions in the services of the Application;

  d) viruses or other malicious software obtained by accessing or linking to the Application;

  e) glitches, bugs, errors, or inaccuracies of any kind of the Application;

  f) damage to the Customer's hardware device from the use of the Application;

  g) the content, actions, or inactions of third parties;

  h) a suspension or other action taken with respect to the Customer's account because of a breach under these T&Cs; or

  i) the Customer's loss of doing business as a result of the usage of the Application.

    8.4. To the maximum extent permitted by applicable law, LH's liability in respect of to any and all claims arising out of or in connection with these T&Cs is strictly limited to CHF ten thousand (10.000) Swiss francs.

    8.5. LH's liability shall terminate upon the expiration of the warranty period according to these T&Cs, if any.

    8.6. If the Customer has a dispute with one or more users, it releases LH (including Holcim Technology Ltd Group's affiliates, and its officers, directors, agents and employees) from claims, demands and direct or indirect damages of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release the Customer expressly waives, to the maximum extent permitted by applicable law, any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release.

  9. INDEMNITY

To the greatest extent permitted by applicable law, you agree to indemnify and hold harmless LH and the Supplier and their affiliates, and their officers, directors, agents and employees against and from all direct or indirect losses, damages, liabilities, claims and costs (including legal and professional adviser's fees) including without limitation losses, damages, liabilities and costs resulting from (i) your use or misuse of the Application, including but not limited to the content you submit or make available through the Application; (ii) claims arising out of or in connection with the sale or purchase of Products or Services over the Application; (iii) third party claims based on alleged infringements of Intellectual Property Rights; or (iv) any breach of these T&Cs by the Customer or its affiliates, and its and their officers, directors, agents, employees or subcontractors.

  10. CONTENT; DATA; DATA PROTECTION & PRIVACY; PERSONAL DATA PROCESSING 

    10.1. For all content or data received by LH, or which Customers deliver into the Application or otherwise provides to LH or Suppliers (the "Customer Content") the Customer grants LH, a worldwide, non-exclusive, perpetual, irrevocable, sublicensable, royalty-free license to access, use, host, reproduce, distribute, display, modify and prepare derivative works of all Customer Content for purposes of (i) providing the Application to customers, (ii) to improve the Application and our services, which license extends to any third party assisting LH and (iii) provide Customer Content to Suppliers.

    10.2. The Customer represents and warrants that, for all Customer Content it provides, it owns or otherwise controls all necessary rights to do so and to meet its obligations under these T&Cs. It represents and warrants that the usage of any such content by LH or Suppliers in compliance with these T&Cs does not and will not infringe any Intellectual Property Rights of any third party. LH takes no responsibility and assumes no liability for any Customer Content provided by the Customer.

    10.3. All content, software functionality or data made available to you through access or use of the Application or otherwise provided by LH or Suppliers (the "LH Content"), is and will remain the exclusive property of LH or Suppliers and their licensors. You may only use the LH Content for your own internal use in connection with your use of the Application.

    10.4. If LH provides the Customer with information about another user (including Suppliers), the Customer agrees that it will use the information only for the purposes of these T&Cs. The Customer shall not disclose, sell, rent, or distribute a user's information to a third party for purposes unrelated to its use of the Application. Additionally, the Customer shall not use user information for marketing purposes unless the Customer obtains the consent of the specific user owning this information to do so.

    10.5. Any other messages, information or materials you transmit through the Application, such as questions, recommendations, suggestions, complaints or other messages (the "Feedback") will be considered as non-confidential and not protected by certain Intellectual Property Rights. LH may, and you hereby grant LH a license to, freely use, disclose, reproduce, license, distribute and otherwise commercially exploit such Feedback in connection with any software, technology, service, specification or other documentation.

    10.6. LH's automated systems scan and analyse the contents of every message sent through the Application, including messages between the Customers and Suppliers, to detect and prevent fraudulent activity or violations of these T&Cs. This scanning and analysis may occur before, during, or after the message is sent, or while in storage, and may result in the Customers message being delayed or withheld. LH may store message contents, including conducting this scanning and analysis.

    10.7. The Customer represents and warrants to be compliant with Swiss Federal Data Protection Act and/or any other local Data Privacy Law, as the case may be, is a condition to the business relationship between LH or the Supplier and the Customer.

    10.8. By accessing the Application and/or by accepting these T&Cs you are expressly consenting that LH or Suppliers, as the case may be, may use and process the Personal Data as defined at section 10.9 ("Personal Data"), for the following purposes ("Permitted Purposes"):

  1. Providing the Application to you, sharing the Personal Data by and between LH, Suppliers, and third parties assisting LH in managing the Application. 

  2. Planning, performing, managing and administering your (or a third party's to whom you are related, e.g., your employer) contractual business relationship with LH or Suppliers, e.g. by performing transactions and orders of Products or Services, processing payments, performing accounting, auditing, billing and collection activities, arranging shipments and deliveries, facilitating repairs and providing support services or providing you or a third party's to whom you are related with other services or things you may have requested;

  3. Maintaining and protecting the security of LH`s, Suppliers' products, services and websites or other systems, preventing and detecting security threats, fraud or other criminal or malicious activities;

  4. Ensuring compliance with legal obligations (such as record keeping obligations), compliance screening or recording obligations (e.g. under antitrust laws, export laws, trade sanction and embargo laws, anti-bribery or corruption laws and internal rules or to prevent white-collar or money laundering crimes), which may include automated checks of your contact data or other information you provide about your identity against applicable sanctioned-party lists and contacting you to confirm your identity in case of a potential match or recording interaction with you which may be relevant for antitrust purposes;

  5. Sharing your Personal Data with courts, law enforcement authorities, regulators or attorneys if legally permitted and necessary to comply with a legal obligation or for the establishment, exercise or defense of legal claims;

  6. Solving disputes, enforcing our contractual agreements and to establish, exercise or defend legal claims; Instructing service providers (so called data processors) within or outside of the Holcim Technology Ltd Group, domestically or abroad, e.g. shared service centers, to process Personal Data for the Permitted Purposes on our behalf. We will retain control over your Personal Data and will use appropriate safeguards as required by applicable law to ensure the integrity and security of your Personal Data when engaging such service providers;

  7. Communicating with you through the channels made available to us to keep you up to date on the latest announcements, special offers and other information about LH and Suppliers' products and services (including marketing-related newsletters) as well as events and projects;

  8. Administrating and performing events including customer events, customer surveys, marketing campaigns, market analysis, sweepstakes, contests or other promotional activities or events; 

  9. Collecting information about you and your preferences to create a user profile to personalize and foster the quality of our communication and interaction with you (for example, by way of newsletter tracking or website analytics); and

  10. Using your Personal Data by LH, Suppliers and third parties outside the purpose of the Application. In this context, the use of your Personal Data means that LH or Supplier have the right to use such data as broadly as possible, to the extent permitted by law, which may include using the data for internal purposes, marketing purposes, new business opportunities, making the data available to third parties free of charge or otherwise subject to a fee.   

    10.9. LH or Suppliers may collect and process in particular the following categories of your Personal Data:

  1. Contact information, such as full name, surname, work address, work telephone number, work mobile phone number, work fax number and work, email address;

  2. Payment data, such as data necessary for processing payments and fraud prevention, including credit/debit card numbers, security code numbers and other related billing information;

  3. Further business information necessarily processed in a project or contractual relationship with LH or Suppliers or voluntarily provided by you, such as orders placed, payments made, requests and projects;

  4. Information collected from publicly available resources, integrity data bases and credit agencies; and

  5. If legally required for compliance purposes: information about relevant and significant litigation or other legal proceedings against you or a third party related to you and interaction with you which may be relevant for antitrust purposes, anti-money laundering or anti-bribery and corruption; and

  6. Company information required for the execution of the contractual business relationship with LH or Suppliers.

    10.10. Your data protection rights:

  a) Subject to certain legal conditions, you may request access to, rectification, or restriction of processing of your Personal Data. If you make this request repeatedly, we may make an adequate charge for this. 

  b) For any of the above requests, please send a description of your Personal Data concerned stating your name, customer number (or other identification number) to the contact details mentioned at section 13.2. We may require additional proof of identity to protect your personal data against unauthorized access. We will carefully consider your request and may discuss with you how it can best be fulfilled.

  c) If you have any concerns about how your Personal Data is handled by us or wish to raise a complaint, you can contact us at the contact details below to have the matter investigated. If you are not satisfied with our response or believe we are processing your Personal Data not in accordance with the law you can complain to the competent data protection supervisory authority. 

  11. INTELLECTUAL PROPERTY

    11.1. All intellectual property rights (including but not limited to all intellectual property, including patents (and supplementary protection certificates), utility models, trade and service marks, logos, trade names, domain names, right in designs, copyrights, moral rights, topography rights, rights in databases, inventions, trade secrets and know-how) (the "Intellectual Property Rights") to the Application, including but not limited to the rights to: (i) continue to develop the Intellectual Property Rights and (ii) exploit the Intellectual Property Rights, and all other rights in the Application, including all methodologies and systems, embodied therein, are and remain the exclusive property of LH or its affiliates.

    11.2. Nothing in these T&Cs shall:

  a) operate to transfer or otherwise grant to the Customer any right or interest in Intellectual Property Rights of LH, Suppliers or their affiliates; or

  b) affect the ownership of Intellectual Property Rights of LH, Suppliers or their affiliates.

    11.3. The Customer acknowledges that they have no rights in, or to, the Application, including any Intellectual Property to it, other than the right to access it in accordance with the terms of these T&Cs.

    11.4. The name "Clickit" and other Holcim Technology Ltd Group marks, logos, designs, and phrases that LH uses in connection with the Application are Intellectual Property Rights of LH and/or the Holcim Technology Ltd Group. It may not be used without the express written prior permission of LH.

    11.5. The Customer shall not acquire, nor claim, any right, title or interest in or to any Intellectual Property Rights and other rights in the Application or the goodwill attaching to it by virtue of these T&Cs or its use of the Intellectual Property Rights and other rights in the Application, other than the rights specifically granted to it under these T&Cs;

    11.6. All goodwill arising from use of the Application by the Customer shall accrue and belong to LH or its affiliates, and the Customer shall, at LH's request, promptly execute all documents required by LH to confirm this.

    11.7. To the extent that any Intellectual Property Rights of LH or its affiliates vest in the Customer (including its affiliates, and its and their officers, directors, agents and employees) hereby transfers (including by present assignment of future rights), or procures that the relevant affiliates, and its and their officers, directors, agents and employees shall transfer, at no cost, those Intellectual Property Rights (free from all third party rights) to LH or, at LH's request, to another member of the Holcim Technology Ltd Group.

  12. LINKS FROM THE APPLICATION 

The Application may contain links to other applications or websites of third parties. These links are provided for informational purposes only and LH has no control over the content of these applications, websites or their respective materials. Accordingly, LH accepts no liability for any loss or damage that may result from the use of such links. 

  13. ACCOUNT DELETION, COMPLAINTS AND COMMUNICATION

    13.1. You may submit Feedback in relation to the Application or its content. By using the Application, you agree to communicate with LH or the Supplier primarily through electronic means. LH or the Supplier may therefore contact you by email or provide you with information by posting notifications on the Application itself. 

    13.2. You can ask LH any questions regarding the Application, its use and its content. Suggestions, complaints, notices and questions can be submitted at the contact details indicated below: 

• by email: leadretail-support-hts@lafargeholcim.com 

  14. CONFIDENTIALITY

    14.1. The Customer may have access to Confidential Information that relates to LH or Suppliers.

    14.2. The Customer agrees that it shall keep Confidential Information of LH or Suppliers strictly confidential and shall safeguard such Confidential Information from unauthorised disclosure, reproduction or use.

    14.3. The Customer undertakes to refrain from sharing any information on prices or any other Competitively Sensitive Information (as defined below) of LH or Suppliers which has been available to the Customer through the Application with third parties that are actual or potential competitors of LH, the respective Supplier and/or their affiliates.

    14.4. The Customer shall ensure that they or their affiliates and their officers, directors, agents, employees and subcontractors:

  a) are bound to LH or the Supplier by written agreements containing confidentiality obligations at least as stringent as those applicable to Supplier under the T&Cs; and

  b) promptly execute and provide to LH – upon LH's request –, any additional agreements containing confidentiality obligations as may be required.

"Confidential Information" means any non-public, commercially sensitive information or materials belonging to, concerning or in the possession or control of LH, the Supplier and/or their affiliates which is provided, disclosed or otherwise made available to the Customer, regardless whether directly or through entities or persons acting on the Customers behalf; and which (i) is either marked or identified in writing as confidential, proprietary or secret or with another designation sufficient to give notice of its sensitive nature (e.g. "for internal use only ", "confidential", "highly confidential"), (ii) is of a type that a reasonable person would recognize it to be a confidential nature, including but not limited to, pricing data or any data that would have a bearing on costs, operational data, business plans, forecasts, manufacturing and other technical data, business strategies, product development details and know-how, or financial information (also referred to as "Competitively Sensitive Information") or (iii) pertains to LH, the Supplier and/or their affiliates' beneficiaries, employees, contracting parties or any other person. Customer Content is not Confidential Information.

  15. TERMINATION

LH may suspend, disable or terminate the Application or any portion of the Application without notice to you, and without liability. In the event of a termination, the rights and obligations hereunder will terminate immediately, besides any provision hereof required to enforce the parties' rights and obligations hereunder or that by its terms continues after such termination, will survive and will continue in effect as described therein.

  16. APPLICABLE LAW AND DISPUTE RESOLUTION 

    16.1. These T&Cs shall be governed by and construed in accordance with the substantive laws of Switzerland excluding any conflict of law provisions (in particular but not limited to the Swiss Federal State on Private International Law (IPRG)) and the United Nations Convention on Contracts for the International Sale of Goods (CISG). Any disputes arising from or in connection with these T&Cs shall be exclusively determined by a court of competent jurisdiction in Zurich, Switzerland.

    16.2. If any provision of these T&Cs is held to be invalid, illegal, or unenforceable in any jurisdiction due to mandatory local law to protect consumers which cannot be waived or limited by contract, i) the validity, binding effect or enforceability of such provision shall not in any way be affected in respect of any other jurisdiction and the validity, binding effect and enforceability of the remaining provisions shall remain in full force and effect and ii) such provision shall be replaced by one or more valid and enforceable provisions according to mandatory local law approximating the original provision as closely as possible.

  17. MISCELLANEOUS

    17.1. Except as otherwise provided in these T&Cs, the Customer may not assign, transfer, subcontract, sublicense or otherwise dispose of the T&Cs or any of its rights or obligations under these T&Cs, without the prior written consent of LH or Suppliers.

    17.2. These T&Cs sets out the entire agreement between the Customer and LH in respect of the subject matter of these T&Cs and supersedes any previous draft, agreement, arrangement or understanding, whether in writing or not, relating to its subject matter.

    17.3. In the event that any provision of these T&Cs is determined to be partially or totally invalid or illegal or unenforceable, the remainder of these T&Cs shall survive and the validity, binding effect and enforceability of the remaining provisions of the T&Cs shall not be affected in any manner.

Nothing under these T&Cs will constitute, create, give effect to or otherwise recognize a joint venture, partnership or business entity of any kind, nor will anything hereunder constitute either party as the agent or representative of the other.