1. Scope and conclusion of the contract
- The website which is accessible over the internet at www.nuucon.io (hereinafter referred to as the “Platform”) is operated by nuucon GmbH Jarrestraße 42, 22303 Hamburg, Germany hereinafter referred to as “nuucon”
- The Platform is a marketplace, where the Seller is enabled to list products and fulfil orders coming from professional Buyers through the nuucon Platform.
- Contract conclusion and the fulfilment of contracts concluded between Sellers and Buyers (together referred to as “Members”), using the Platform, are solely the responsibility of these parties. For this purpose, nuucon provides the necessary infrastructure; however, nuucon shall not act as a representative of any Member and shall not become a contract party in an agreement concluded between Seller and Buyer.
- After conclusion of the Contract the wording of these Terms will be accessible online and printable in the current version for the duration of the Contract.
- Object of these Terms is the access to the Platform as a registered Seller. The conclusion of a contract forms a Framework Agreement (hereinafter “Contract”) between the Seller and nuucon for a definite or an indefinite period of time until terminated by one of the Parties within the scope of these Terms.
2. Registration as Seller
- The set up of a Seller’s account on the Platform (hereinafter “Account”) is necessary to use all functions provided on the Platform. Seller has to apply for an Account by using the registration form on the platform.
- nuucon may, in its sole discretion, decide whether a Seller will be provided with an Account and gets access to the Platform or not. nuucon is not obliged to state a reason for refusing a Seller.
- Only an accepted Seller will receive access to his Account. Seller will replace the provided password by a sufficiently secure personal password immediately. Seller’s Email-address forms his user Name which is, together with his Password, hereinafter referred to as his “Log-in Data”).
- The Seller may freely choose a user name as long as the choosing of the user name does not infringe the law or the right of any third person and does not consist of the name of the country or the category of service, unless this is part of the Seller’s formal name. There is no right to the assignment of a specific user name.
- Only legal entities and natural persons undertaking business are permitted to use the Platform. Any person or legal entity may register as a Seller, however only with one Account. The opening of more than one Account is prohibited. The Platform is for business purposes only. All Sellers agree that when concluding the Contract, they are acting in their commercial or professional capacity.
- Sellers must register for themselves and provide all data demanded by nuucon. The Seller warrants and represents that all of the data provided for registration is accurate. No Seller that has been excluded from using the Platform or whose contract has been terminated by nuucon for good cause in the past may – without the explicit consent of nuucon – re-register.
- The use of the Platform is only possible if current and valid data is provided for registration according to para 4. The e-mail address serves the communication with nuucon and will be used for all correspondence related to the Contract and any correspondence with other Sellers as the case may be. nuucon will send information regarding the Platform and invoices to this e-mail address.
3. General Use of the Platform
- Sellers may use the Platform in accordance with these Terms, applicable laws and its functions at any given time. Sellers may use the different services of nuucon (like Insights) such as available and provided by nuucon from time to time.
- Each Seller may influence his Platform Profile within the limits of the Platform specified by nuucon. The Profile may be viewed and edited any time on the Platform.
- nuucon reserves the right to modify the services offered on the Platform and/or to offer services that differ from those offered at the time of the Seller's registration at any time. However nuucon will take the Seller’s interests into account and refrain from changes that are unreasonable to the Seller.
- If in the context of communication between Members contractual relationships arise only the Members involved will become parties of the contract. nuucon is neither messenger nor representative of the Member and will not become contractual party except if otherwise explicitly regulated. The Sellers alone are responsible for the execution and/or fulfilment of any contracts that they may enter with Buyers or third parties. nuucon cannot be held liable if Buyers are unable or unwilling to fulfil contracts concluded or can for whatever reason not be contacted over the Platform.
4. Uploading content on the Platform
- The Seller may within the Seller’s Profile or elsewhere on the Platform upload photographs, videos links, texts or any other information (hereinafter altogether: “Content”). Without giving reasons, Content may be rejected, removed, edited or placed in different areas of the Platform. The Seller may be informed about the aforementioned changes; however nuucon is not obliged to do so.
- The Seller will take utmost care that all information used by him on the Platform is correct. When placing hyperlinks the Seller must make sure that the links actually work. In addition, the same obligations as for Content apply for the content of the linked website.
- nuucon may at its own discretion substantiate these rules for using the Platform at the designated area on the Platform. The Seller accepts to abide to any such rules forming an integral part of these Terms.
5. Seller’s duties
- The Seller undertakes to ensure that any Content placed on the Platform does not violate any applicable law or morality by its content, matter or form. The same applies to external hyperlinks placed by the Seller and the content of the websites linked. It is explicitly forbidden to publish Content that constitutes, relates to or contains
- glorification or overexposure of violence and extremism of any kind
- encouragements or incitements for crimes or violation of law, threats against limb, life or property
- agitation against individuals or companies
- statements violating personality rights, libels, defamations of nuucon, other Members or third parties and violation of Unfair Competition Law
- copyright infringements or other infringements of intellectual property law
- foul language
- sexual harassment of Members or third persons
- offensive, sexist, obscene, crude, repulsive or nauseating materials, manners or mode of expression
- religious proselytising
- The Sellers must refrain from any activities capable of affecting or excessively straining the operation of the Platform or its technical infrastructure. This especially refers to
- applying software, scripts and data bases in connection with the use of the Platform
- automatic readout, blocking, overwriting, modification, copying of data and/or other content unless necessary for the use of the Platform
- automated placement of Content unless expressly permitted by nuucon
- dissemination and/or communication to the public of any content of the Platform without permission of nuucon
- When using the Platform the Seller must not
- try to manipulate any other Member’s profile
- try to get knowledge of other Member’s Log-in Data no matter by which means
- send unsolicited advertising messages over the Platform to any other Member unless this specific Member has consented to receiving this message prior to the sending
- If any problems occur when using the Platform or its features the Seller will inform nuucon immediately. Sellers will also inform nuucon in any case they gain knowledge of Content published by others that is obviously violating applicable law or rights of third-parties or infringing this Section of these Terms.
- The Seller is obliged to handle the Log-in Data carefully and to prevent abuse by third parties. The account is strictly personal and bound to the Seller. The Seller must not
- transfer the account to a third party
- provide access to the Platform by making his Log-in Data available
- without express permission of nuucon. nuucon will treat any action undertaken by using the Log-In Data of the Seller as to have been carried out by this Seller.
- In case the Seller suspects his Log-in Data has been or may be obtained or used by any unauthorized person or entity, he must notify nuucon immediately.
- The Seller is obliged to keep all data in his Seller’s account correct at all times. Any changes must be adapted in his Seller’s account without undue delay. This especially relates to his e-mail address, physical address and any account information as the case may be.
6. Circumvention Prohibition, Exclusivity
- Any conscious circumvention of the Platform by the Seller is strictly prohibited and can result in the immediate termination of the Seller's account. The Seller will not try to induce Buyers who contacted him through the Platform to transact outside of it. Additionally, whenever the Seller is contacted by a Buyer and informed that the discovery of his products happened through nuucon, the Seller will redirect the Buyer to the Platform for any transaction arising from their conversation.
- Should a Seller request that a contract shall be concluded in breach of the aforesaid regulation, this circumvention request must be declined. Sellers should immediately inform nuucon about any circumvention requests by other Members.
- The Seller will not offer an identical or a substantially similar product through any online B2B Platform that is a direct competitor of nuucon during the time period this contract is valid. Every online B2B wholesale market platform is deemed to be a direct competitor of nuucon.
- The Seller agrees to list its products on the Platform at his most favoured prices in comparison with his regular on- and offline wholesale and /or discount prices
7. Rights of Use
- The Seller grants nuucon a royalty-free, transferrable and not terminable right of use of the published Content without any restrictions on content, location and time. At all times nuucon is entitled to use, edit and to make use of the Content in view of promoting the nuucon-Websites and its services. In particular this includes the right of reproduction (in print and online), the right of distribution and the right to communicate to the public, especially the right to make it available to the public. nuucon will indicate the originator whenever this is feasible. The Seller’s right to grant rights to third parties as part of a licence-agreement remains unaffected. For the avoidance of any doubt it is maintained that the license granted to nuucon is unaffected by the termination of this Contract and the Seller deleting Content from his Seller Profile.
- The Seller warrants and represents that all Content uploaded is free of any opposing intellectual property of third parties and guarantees that the license granted at sect. (1) above can legally be granted to nuucon. Para 14 applies in case of any breach of this provision.
- All rights concerning the Platform (especially trademarks and copyrights) are with nuucon. The Seller will take this into account and will refrain from making private or commercial use of any Content beyond the purpose of and the possibilities within the Platform. Reproduction, distribution and or publication of Content uploaded by nuucon, other Sellers or third parties are prohibited. For the avoidance of any doubt it is maintained that nuucon does merely grant a right to the mere use of the Platform over the Internet as such.
8. Commission, Invoicing and Payment Conditions
- The Registration as a Seller is free of charge.
- nuucon shall receive a remuneration in the form of a procurement commission, as agreed on in the Contract, for all purchase contracts concluded and performed by the Seller with a Buyer on or via the Platform (hereinafter referred to as “nuucon Commission)
- nuucon Commission is due for all successful orders concluded on the Platform or via the Platform if the product was offered on the Platform to the Seller but sold under circumvention of the Platform.
- The basis for nuucon commission’s calculation is the products selling price , net of taxes and shipping prices.
- If nothing else is agreed, the nuucon Commission related to eligible transactions is going to be invoiced to the Seller on a weekly basis. The Seller agrees to pay the invoiced amount to nuucon within 14 days unless otherwise agreed upon within the contract.
- nuucon is to be considered a sales Agent for any new business contact (Buyer) generated through the Platform. As such, any current and future transaction between the Seller and the Buyer is eligible for a nuucon commission to be applied.
- Payments may be made using one of the following payment methods which will be announces by nuucon :
- Credit cards (VISA, Mastercard AmEx)
- Bank transfer
- Debit entry
- If nuucon is unable to collect any fees from an account designated by the Seller due to lack of funds or if any other payment shows to be invalid the Seller shall bear all costs arising there from. This especially includes any bank charges.
- nuucon will send invoices in English language to the designated e-mail address and store them within the Seller Account. Payment reminders will be delivered electronically to the designated e-mail address in the Account.
- In case of overdue payments, nuucon reserves the right to claim interest for late payment for the overdue period in the amount of 8% per year.
- All fees are excluding VAT if at all applicable.
- nuucon invoices, pays and transfers any applicable fee in EURO and therefore nuucon is not responsible for currency fluctuations that occur when billing or crediting a credit or debit card denominated in a currency other than EURO, nor is nuucon responsible for currency fluctuations that occur when receiving or sending payment via wire transfer, check or automated clearinghouse to and from your bank account, credit card account or PayPal account.
9. Payments among Members
- Seller and Buyers are responsible for arranging and executing payments for orders generated via the Platform, and to update nuucon on the status of such payments, via the interface provided on the Platform, as soon as they are carried out and received.
- nuucon guarantees the Seller and the Buyer the possibility of accessing and updating payment information through the Platform at any time a payment is due or to be received.
10. Invoicing tool
- As an additional service, nuucon may offer the Seller the possibility of issuing drafts of invoices for orders generated through the platform.
- The Seller is responsible for checking the invoices for correctness before sending them to his contractual partner. He acknowledges that nuucon is acting on his behalf and that he is solely responsible for the correctness of hi invoices.
- Seller will report any inaccuracy that may occur due to a male function of the invoice tool to nuucon.
11. Geographies of Sale
- nuucon is a global Marketplace. Limitations to the geographies in which the Seller’s products are sold will be applied by nuucon only if the Seller informs nuucon via email about limitations to the geographies of Sales.
- The Seller must promptly notify nuucon via email in case information about enabled countries of sale should be changed for any reason.
- The parties agree that all information disclosed between the parties in connection with performing the Contract and these obligations shall be treated confidentially.
13. Duration of the contract, termination, blocking
- If not explicitly agreed in writing otherwise, the contract shall generally be concluded for an indefinite period of time.
- Besides and beyond that the Parties’ rights to extraordinarily terminate the contract for good cause remain unaffected. A termination for good cause on behalf of nuucon is justified in any case of a serious breach of the Framework Agreement, inter alia when
- the Seller violates his obligations as in Para 2 of these Terms, especially if the Seller fails to register under his own name, chooses a prohibited user name or re-registers after a Framework Agreement has been terminated by nuucon for good cause in the past
- the Seller violates his obligation according to Para 6 of these Tems by carrying out sales goods that were offered on the Platform by circumventing the Platform
- the Seller severely violates the Seller’s duties set forth in Para 8 of these Terms in a manner that makes it unbearable for nuucon to hold on to the contract with this Seller. This is especially the case when
- the Seller publishes Content that severely contradicts the prohibitions as in Para 8
- the Seller tries to manipulate any Seller’s profile or tries to get knowledge of other Seller’s Log-in Data
- the Seller transfers his Profile to a third Party without permission of nuucon
- the Seller violates the Seller’s duties set forth in Para 5 or 12 of these Terms and fails to stop the violation within reasonable time after being asked by nuucon to do so. This is especially the case when
- publishing Content that contradicts the prohibitions as in Para 5
- automatically collecting information about Content or Sellers by means not explicitly provided for on the Platform
- automatically placing Content unless expressly permitted by nuucon
- sending unsolicited advertising messages over the Platform to any other Seller unless this specific Seller has consented to receiving this message prior to the sending
- the Seller provides access to third parties by giving his Log-in Data available to a third party
- the Seller discloses confidential information to third parties
- the Seller is in default with payments and fails to pay due fees within the deadline set forth in a warning letter to be sent to the e-mail address provided within the Account
- the Seller in connection with the use of the Platform undertakes any illegal actions, especially
- against nuucon or any other Seller
- any involvement in money laundering, whereby a reasonable suspicion suffices
- nuucon is notified by regulatory bodies or any competent court worldwide of any illegal action of a Seller in connection with the Platform.
- Any payment due remains unaffected by a termination.
- Termination notices can be given in text form (including e-mail). Any termination notice by nuucon can in addition be displayed upon next login by the Seller.
- Instead of declaring the termination of the contract for good cause (Para 15(2) above) nuucon may block the Seller’s access to the Platform for an indefinite period on his sole discretion. nuucon shall instead of terminating the contract exercise the right to only block the Seller’s access to the Platform in cases of reasonable suspicions of illegal action. In addition nuucon may block the Seller’s profile in the event the authenticity of the Seller’s profile is in question or the e-mail address given in the Seller’s profile is not available.
- In case of the termination of the Contract the Seller can no longer access his Account and any information attached thereto. nuucon may inform other Sellers of the termination of the Contract and delete any Content provided by the Seller.
14. Warranty and Liability
- nuucon endeavours to offer a steady service free of interferences. However, this applies to services nuucon can influence. The Seller recognises a full and complete availability of the Platform at all times is technically impossible. nuucon may limit the accessibility of the Platform partially, temporarily or permanently for reasons as maintenance work, capacity issues or because of other issues outside his sphere of his influence. The Seller can neither claim maintenance of single functions of the Platform nor the general availability and use of any existing functions as may be of the Platform.
- nuucon cannot be held responsible for the content of invoices provided according to Para 10 (1) of these Terms.
- Content uploaded to the Platform will not be pre-checked by nuucon. Therefore nuucon cannot be held responsible for the validity, legitimacy, accuracy, reliability, actuality, adequacy and/or completeness of the Content and/or any other information available through the Platform.
- nuucon is not liable for slightly negligent breaches of duty. nuucon’s liability for malice, gross negligence, injuries to persons and liability according to mandatory legal provisions remains unaffected by the aforementioned limitations of liability.
- The limitation of liability applies to damages caused by authorised auxiliary persons as well. nuucon is not liable for acts of Sellers or third parties. These persons do not act as vicarious agents of nuucon. Liability for indirect or consequential damages is excluded to the extent permitted by law.
15. Right of indemnity
- The Seller will keep nuucon and his employees or agents indemnified against all claims of third parties regarding alleged or actual violations of rights and liberties and/or violation of third-party rights by acts of the Seller in connection with the use of the Platform and/or Content published by the Seller.
- The Seller will compensate nuucon for all costs incurred by claims of third parties against nuucon. Eligible costs include costs for appropriate legal actions and defence that arise for fighting claims of third parties. In this case nuucon will inform the Seller about required legal measures immediately.
16. Final provisions
- nuucon reserves the right to amend these Terms at any time without stating reasons. The new Terms will be displayed in the course of the login procedure or may be sent to the Sellers by e-mail. By continuing to use the Platform the Seller agrees to the changes. The same applies if – in case of the new Terms being sent via e-mail – the Seller fails to disapprove of the application of the new Terms within two weeks after receipt of the e-mail. In case of disapproval by the Seller nuucon may terminate the Contract with three month notice.
- Side agreements to the Contract and these Terms have not been entered into. Modifications and amendments have to be made in writing in order to be legally valid. If any provision or clause of these Terms shall be held invalid, this invalidity shall not affect any other provisions. The invalid provision shall be deemed to be replaced with a legally effective provision coming as close as possible to the commercial sense and purpose of the invalid provision. The same shall apply to any gap in these Terms.
- nuucon is entitled to transfer this contract with all its rights and duties to any third party.
- The agreement between the Seller and nuucon including these Terms shall be governed exclusively by German law, excluding UN commercial law (CISG).
- The Ordinary Courts at the domicile of nuucon shall have exclusive jurisdiction with regard to any dispute arising from or in connection with the Contract or any other relationship between the Seller and nuucon irrespective of the legal basis. nuucon shall be entitled to submit lawsuits against Sellers to other courts according to applicable law. This is subject to the application of other mandatory jurisdiction.