General Terms and Conditions (T&C) for Business Customers
Preamble
NOCA mobility GmbH, Soorstraße 79, 14050 Berlin (hereinafter referred to as “NOCA” or “provider”) offers software for the digitalisation of procurement processes in the micromobility industry via the website https://www.noca-mobility.com/ and in particular with the NOCA Portal, https://portal-noca.com/. Integrated into the portal is an online platform for components and services in the field of micromobility. NOCA thus opens up the possibility for commercial manufacturers of components (hereinafter referred to as “suppliers”), commercial manufacturers of vehicles, so-called original equipment manufacturers (hereinafter referred to as “OEM”), dealers/retailers as well as assemblers to sell and purchase a comprehensive range of the most diverse products.
The following T&Cs regulate the conditions for the use of the online platform for suppliers/sellers.
Relevant provisions
These Terms and Conditions apply to contractual relationships relating to the software service in the form of the NOCA Mobility Online Platform (hereinafter referred to as “Software” or “Platform”) between the “users” (suppliers, OEMs, dealers, assemblers) and the “providers” NOCA. The Terms and Conditions shall apply even if they are not mentioned in subsequent contracts.
The term “service” covers the contractual relationship irrespective of the corresponding type of contract. The software is operated as a web-based cloud solution. The user is enabled to use the software stored and running on the servers of the provider or a service provider commissioned by the provider via an internet connection for his own purposes during the term of this contract and to store and process his data with its help.
These terms and conditions shall also apply in the event of deviating terms and conditions of the user, unless these are accepted in writing by the provider.
Individual agreements as well as ancillary agreements and supplements take precedence over the terms and conditions of business, insofar as they have been recorded in writing.
Registration/ Use of the platform / Sales process
Users – regardless of their legal form – who offer or wish to purchase products according to the provider’s product criteria are entitled to register. The use of the platform’s services requires registration with contact and address data as well as the complete company name, commercial register number and district court (if available), business activity, contact person with name and VAT identification number of the user. The data requested by the provider must be provided completely and correctly (no P.O. Box or similar).
Registration is free of charge and takes place exclusively via the registration form on the platform. Registration shall only take place if the user has previously accepted these General Terms and Conditions in a binding manner. There is no entitlement to registration. The provider is entitled to verify the user before registration. The user is obliged to actively cooperate in any verification measures that may be carried out. After registration, the user is verified by the provider with regard to the internal guidelines; use of the platform is only possible after confirmation by the provider. With the confirmation of the registration, a contractual user relationship arises between the user and the provider.
The user enters their e-mail address and chooses a password when registering. They may not pass on the access data to third parties and must ensure that third parties do not gain unauthorised access to theri user account by using insecure passwords (less than 8 characters and without numbers and special characters) or by storing or otherwise securing them. They are responsible for all activities related to their user account. Upon registration, the user receives administration rights for their company. The access password can be changed by the user at any time and must be kept secret in any case.
After registration, the user registered as a supplier receives their own supplier dashboard (hereinafter: “user account”), in which they can post the products they offers, upload sales data, manage and track orders, manage customers and analyse sales data. The user themself is responsible for ensuring that the services offered by them via the platform as well as the offer itself do not violate legal provisions, these GTC or the guidelines of the provider. In the event of violations of the aforementioned provisions by the user, the provider reserves the right to restrict the user’s buying and selling activities and to temporarily or permanently block the user’s account.
The user registered as an OEM, dealer or assembler can order these offered products via the platform, upload purchasing data, manage and track purchasing orders, manage bills of materials and assign orders to bills of materials, as well as manage suppliers and analyse purchasing data.
All registered users can analyse and visually display purchasing data, company data and external data.
All registered users can communicate and exchange documents with other registered users via the platform.
The user account is not transferable to other persons. It may also not be used by persons other than the account holder, e.g. by passing on the password.
Use of the platform, commission business, conclusion of contract
The platform constitutes an online shop that enables suppliers to offer their goods on the platform and enables other users to purchase them. The provider purchases the products offered on the platform from the suppliers for the account of the users and sells them to the users for the account of the suppliers. The commercial processing takes place entirely via the provider.
A commission contract is concluded between the supplier and the provider when the supplier releases his products for purchase via the platform and has received a confirmation from the provider by e-mail. The supplier sells the goods offered by the supplier to the purchasing user in its own name for the account of the supplier. The supplier authorises the provider to sell the goods offered by the supplier on the platform and, if necessary, hands over the goods to the provider. The supplier shall determine the selling price for the goods to the provider. The provider shall pay the statutory value-added tax on the proceeds of the sale.
The supplier is obliged to share the component data of their goods. The user is obliged to conclude a confidentiality agreement regarding the component data. The rights of the suppliers to the component data remain unaffected.
The provider usually does not have its own stock. The products are sent directly from the supplier to the purchasing user. In individual cases, the provider may also keep stock of selected products in small quantities. The supplier must collect the goods at the end of the commission contract without being asked to do so. After expiry of the commission contract, the provider remains entitled to sell the goods. If the goods are not sold, the provider shall store the goods free of charge for 28 days after the end of the commission contract. Upon expiry of the this period, the goods shall become the property of the provider.
Subject to deviating provisions, the provider is authorised to collect the receivables arising from the transaction in the ordinary course of business.
The supplier shall be entitled to the gross sales proceeds less a commission for the provider, unless otherwise agreed. The amount of the commission shall be agreed between the supplier and the provider on an individual basis. The value added tax shall be shown separately in the invoice. The time of payment to the supplier is independent of the sale of the goods to the purchasing user.
The presentation of the goods and the granting of the possibility to place an order does not constitute a binding offer on the part of the provider vis-à-vis the users on account of the supplier.
A binding purchase contract is only concluded on the platform by transmission of a concrete acceptance by the provider to the user. To place an order (acceptance of the offer) with the provider, a user can place goods in his shopping cart and select the payment method, then check the entries on the overview page and, by confirming the order in the final step of the ordering process, transmit a binding order for the goods contained in the shopping cart to the provider. The user receives an order confirmation by e-mail to the e-mail address provided by him. This order confirmation represents the acceptance of the offer by the provider. Payment is processed via the payment provider integrated by the provider or via bank transfer.
The contract concluded between the user and the provider is exclusively subject to the law of the country in which the provider has its registered office, expressly excluding the UN Convention on Contracts for the International Sale of Goods. The mandatory provisions of the country in which the user has his main residence remain unaffected. The statutory warranty rights for defects shall apply. The contract language is German and English. The text of the contract is not stored after conclusion of the contract. The user receives the order details by means of the order confirmation with all details to the e-mail address provided by him.
After the conclusion of the purchase contract, the provider shall provide the supplier with the information it has about a buyer as the buyer has provided it to the provider. If the provider provides this information, liability pursuant to Section 384 (3) HGB is excluded. The provider shall not be liable for payment by the buyer.
The supplier shall dispatch the goods directly to the purchasing user within seven days of the supplier’s notification of the conclusion of the purchase contract, unless otherwise agreed.
Violations of the above provisions entitle the provider to terminate the contractual relationship without notice and to immediately delete the user’s account from the Platform.
For the term of the contract, the provider grants the User the non-exclusive, non-transferable right, limited in time to the term of the contract, to load the user interface of the software for display on the screen into the main memory of the end devices used for this purpose in accordance with the contract and to make the resulting reproductions of the user interface. Due to the design of the software as cloud software, the user shall not be granted any further rights of use to the software under copyright law.
Nature of the goods on commission, retention of title
The platform sees itself as a digital infrastructure for the digitalisation of purchasing processes for companies in the micro-mobility industry. The infrastructure includes an online shop as well as software for the optimisation and digitalisation of purchasing processes. Products other than those from the field of micro-mobility may not be offered or traded on the platform.
Users may only offer products if they comply with applicable laws and regulations.
The goods must be clean, functional and undamaged. Obvious or known defects must be reported at the time of handover. The provider does not assume any obligation to inspect the ownership and functionality of the goods. If defects only become apparent after conclusion of the commission contract or if the provider only recognises the defects later, it shall be entitled to exclude the defective goods from the commission contract or to terminate the contract without notice.
The goods remain the property of the supplier until they are sold. The provider is only liable for the care it takes in its own affairs. The goods on commission are not insured, so that the risk of loss or damage is borne by the supplier.
The provider may refuse to activate a product for sale if the requirements within the meaning of paragraph 5.1 are not met. There is no entitlement to activation for sale even if the criteria are met.
The provider may remove a product from the portfolio if facts subsequently become known which indicate that the requirements set out in paragraph 5.1 have not been met.
Term/ Termination
The contractual relationship is concluded for an indefinite period. The parties may terminate the contractual relationship with a notice period of 4 weeks.
Upon termination of the user contract, the provider is entitled and obliged to irrevocably delete the user’s membership account. Personal data which are in the provider’s own interest remain unaffected by this in order to be accountable to third parties, in particular authorities.
The provider reserves the right to terminate and block the user account with immediate effect in the event of good cause, in particular in the event of violations of these T&Cs and other contractual obligations or in the event of disruptions, misuse or damage to the reputation of this platform. Whether or not a new registration takes place is at the discretion of the provider and depends on the duration and severity of the misconduct in the past. There is no legal claim to registration.
Special obligations of the user
The user must set a password to access thier user account. The user account may only be used by him/her personally. They may not pass on the access data to third parties and must ensure that third parties do not gain unauthorised access to their user account by using insecure passwords (less than 8 characters and without numbers and special characters) or by storing or otherwise securing them. They are responsible for all activities related to their user account. The user is also responsible for updating their contractual data in their user account insofar as these change in the course of the contractual relationship.
The user is obliged to register and verify with the payment provider integrated on the platform. When using the payment providers offered, their general terms and conditions and data protection provisions shall apply in addition. The provider is neither responsible for the conclusion of such a contract between the user and the payment provider nor for its content and processing in any way, unless the provider itself acts as a payment provider. It is pointed out that additional fees may be charged within the framework of the contractual relationship between the user and the payment provider. A sale via the platform is only possible after successful registration with the payment provider.
It is prohibited to use mechanisms, software or other scripts in connection with the use of the platform that impair the functionality or accessibility of the platform or to modify, delete or overwrite content created and managed by the provider.
If goods or services are offered that are subject to the protection of minors, the user is obliged to take suitable measures to verify the identity and age of the buyer. The goods or services may only be handed over if the identity and age of majority of the buyer can be proven.
The user is responsible for the content they publish on the platform. In particular, it is prohibited to publish false, untruthful, misleading, anti-competitive or illegal content as well as content to which the user has no rights. The user is obliged to keep the data and information they publish up to date and to update it immediately if there are any changes.
The user is obliged to inform the provider of any unusual activities, in the event of third-party access or suspicion of third-party access, and to immediately change the password used.
The user is not entitled to place links to external websites in any form. This does not apply to links to other platform-internal offers.
Within the framework of his shop, the user may only showcase the articles offered and information on these articles. The user is not entitled to engage in any form of advertising beyond this.
Special rights of the provider
The provider may make the use of the platform or individual functions subject to certain conditions, e.g. verification of registration data, duration of use, payment behaviour or the presentation of certain proofs (e.g. proof of identity, purchase, payment or ownership). In particular, the provider may block a user’s activities (e.g. posting of offers) under certain conditions (e.g. complaints from users or repeated inaccessibility of the user) and make them dependent on further conditions such as prior verification or examination of complaints.
In the event of misuse of services of the provider or other users by the user and after a reminder by the provider to the user to cease such behaviour, the provider reserves the right to deactivate the respective user account after giving notice or to delete it after ordinary or extraordinary termination.
The provider is entitled to display advertising on all pages of the platform. The provider reserves the right to change the appearance, structure and functionality of the platform and its subpages at any time without the user’s consent or to enable the use of functions only under certain conditions, insofar as this does not reduce the contractually owed services.
The provider is free to decide how individual user offers are arranged on its site, unless this is contractually agreed otherwise. It is pointed out that the arrangement of the products does not allow any conclusions to be drawn about the quality of the products. The provider is also entitled to correct or adapt formulations for editorial or advertising reasons.
The user grants the provider the right to reproduce the data to be stored by the provider for the user for the purposes of implementing the contract, insofar as this is necessary to provide the services owed under this contract. The provider is also entitled to keep the data in a failover system or separate failover computer centre. In order to eliminate faults, the provider is also entitled to make changes to the structure of the data or the data format.
The provider regularly backs up the user’s data on the server for which the provider is responsible to an external backup server. The user may save this data at any time for backup purposes and is obliged to do so at regular customary intervals.
The provider shall not receive any further rights of use or exploitation and shall in particular not publish the contents uploaded by the users in the software and make them accessible to third parties, insofar as this is not necessary for the purpose of the contract.
After termination of the contract, the provider shall return to the user all documents provided by the user and still in the possession of the provider as well as data carriers related to the present contract and delete the data stored by the provider, unless there is a duty or right to retain such data.
The provider is entitled to temporarily or permanently block the use of or access to the software if there are concrete indications that the user is violating the contractual terms or applicable law. When deciding on a block, the legitimate interests of the user shall be taken into account appropriately.
The provider shall be entitled to unilaterally amend these T&Cs at any time, insofar as serious reasons – which cannot be influenced by the provider – which lead to an unforeseeable change in the contractual equivalent relationship and therefore require an amendment, taking into account the interests of the contractual partner, make this necessary. Changes are only possible insofar as they do not unreasonably disadvantage the user or violate good faith. The user shall be informed of an amendment 6 weeks in advance by e-mail, stating the content of the amended provisions. This e-mail shall contain the amended T&Cs as well as a reference to the right of objection, the objection period and its consequences in the event of failure to object. The amendment becomes part of the contract if the user does not object to its inclusion in the contractual relationship in writing or text form within 14 days of receipt of the notification of amendment. Upon expiry of this period, the T&Cs shall become valid for the user. T&Cs of the previous version lose their validity after expiry of the approval period.
Distribution channels and presentation of products
Various sales channels, such as ad bookings in search engines, affiliate programmes and cooperations, display ads and other digital advertising formats are used by the provider to market the products offered on the platform. Upon request, the provider will provide users with more detailed information on the specific channels used at the time within the framework of the legal requirements. The channels and measures specifically used by the provider change in part at short notice and can therefore not be reproduced within the framework of the General Terms and Conditions.
The ranking – i.e. the order in which the products are displayed in a search or in a category on the platform – takes various factors into account. Essentially, the ranking is based on interactions with the product in the past (clicks and orders) and the availability (inventory stored on the platform) of the relevant product variants. In addition, the provider puts these parameters in relation to each other. In the case of a search, the relevance of products for the search term is also included. In addition, the ranking can be influenced by booking marketing products. These marketing products allow the fixed placement of certain products within the platform.
Liability
The provider is liable exclusively for the provision of the platform within the framework described here. The provider shall only be liable for further claims and rights in the event of intent and gross negligence in accordance with statutory provisions. The provider does not guarantee any economic success, in particular it is not guaranteed that the supplier will actually acquire buyers via the platform.
The provider assumes no liability for the legality, correctness and completeness of the offers or information posted by the supplier.
Claims for damages in tort are excluded unless the damage was caused intentionally or by gross negligence.
In the event of slight negligence, the provider shall only be liable for breach of contractual obligation or in the event of delay or impossibility.
Liability from slight negligence, from tort as well as from reimbursement of futile expenses shall only exist for damages that are foreseeable and typical.
Liability for loss of profit, for damages from third-party claims against the provider and for other consequential damages is excluded.
The aforementioned limitations of liability shall also apply in the case of actions by auxiliary persons and vicarious agents of the provider.
User data and indemnification from third party claims
Users are responsible for the content they upload to the platform. As a matter of principle, the provider does not take note of the content of its users and does not check the content used with the software.
The user undertakes vis-à-vis the provider only to post content to which they have the rights, and not to post any content and data that is punishable by law or otherwise illegal in absolute terms or in relation to individual third parties, and not to use any programmes/files containing viruses or other malware in connection with the software. In particular, they undertake not to use the software to offer illegal services or goods.
In this context, the user undertakes to indemnify the provider against any liability and any costs, including possible and actual costs of legal proceedings, if a claim is made against the provider by third parties, including employees of the user themself, as a result of alleged acts or omissions by the user. The provider shall notify the user of the claim and, to the extent legally possible, give the user the opportunity to defend the asserted claim. At the same time, the user shall immediately provide the provider with all information available to hthem regarding the facts that are the subject of the claim in full.
The user shall indemnify the provider against all claims asserted by other users or other third parties against the provider due to the infringement of their rights by services of the user or other transmitted content or information. This does not apply if the provider is responsible for the infringement.
Any further claims for damages on the part of the provider shall remain unaffected.
Availability
The provider makes the software available to the user via its website (cloud software). Therefore, the user requires an Internet-capable end device, a browser installed on it and an Internet connection to use the software. The current version of the software is made available for use at the router exit of the computer centre in which the server with the software is located (“transfer point”). The user is responsible for the stability of the internet connection. The display quality of the digital content may also vary from device to device and depend on the speed of the user’s internet connection and other factors. In this respect, the provider cannot be held liable for deviations.
For technical reasons, uninterrupted availability of the digital content cannot be guaranteed. Availability may be impaired, for example, by regularly necessary maintenance and security work, but also by unforeseen events beyond the control of the provider. Planned work that leads to an impairment of availability will be carried out by the provider, as far as possible, during low-frequency periods.
The provider guarantees an availability of 98.0% per year for its services offered via the Internet. Availability is given if the servers and services are essentially ready for operation. The following circumstances do not count as disruptions to operation:
Interruptions in accessibility due to disruptions in the area of third parties over which the provider has no influence (e.g. server maintenance work)
Interruptions due to force majeure
Short-term interruptions of operation that are necessary to prevent or avoid concrete threats due to possible misuse by third parties (so-called exploits) (e.g. through updates)
The user is obliged to notify the provider immediately and as precisely as possible of any functional failures, malfunctions or impairments of the software. If the user fails to do so, § 536c BGB shall apply accordingly.
If damage to the user results from the loss of data, the provider shall not be liable for this, insofar as the damage would have been avoided by the user making a regular and complete backup of all relevant data. The user will carry out a regular and complete data backup himself or have it carried out by a third party and is solely responsible for this.
Data access
By operating the platform, the provider has access to the following categories of data, both personal and non-personal data:
Account dataAddress/contact data
Ordering data
Inventory data
Product data
Payment data (limited access only)
Access data
Company data
Communication data
Suppliers are provided with the following categories of data generated in connection with the use of the Platform:
Account data (of the supplier)
Account data (of the OEMs, dealers, assemblers) – insofar as they are necessary for processing the order
Order data – insofar as they are required for the processing of the order or for the settlement of commissions
Inventory and product data (of the supplier)
The categories of data mentioned in paragraph 1 are partly made available by the provider to third parties who use these data for the further provision or further development and analysis of the platform:
Payment services
CRM and marketing software/service providers
Statistical and analysis software/service providers
Final provisions
The place of jurisdiction is the registered office of the provider.
German law shall apply exclusively. The contractual language is German and English.
All declarations made in connection with the user relationship between the provider and the user must be made in text form. Should any provision of these T&Ca be invalid, this shall not affect the other provisions.
Status: May 2023
