General Terms and Conditions of Use for the nexmart Portal

(As at: 06 August 2015)

Definitions:

nexmart means nexMart GmbH & Co KG.

nexmart portal means the business-to-business platform operated by nexmart for re-tailers within the tools, fittings, ironware, timber, gardening tools and technical supplies sectors, other similar sectors or sectors with construction-related products.

Supplier manufactures products which can be ordered via the nexmart portal. The Supplier shall also be referred to as the ‘Manufacturer’ and/or ‘Provider’.

Retailer orders products from the Supplier as a specialist retailer or wholesaler. The Retailer shall also be referred to as the ‘Orderer’ and/or ‘System-integrated customer’.

Users are both retailers who order the products offered on the nexmart portal by Sup-pliers and Suppliers who order the products offered by other Suppliers on the nexmart portal.

Operators are natural people, e.g. a Retailer’s or Supplier’s employees.

These Terms and Conditions of Use in the version valid upon contract conclusion apply to the use of the nexmart portal by Users and Operators.

Even if nexmart is aware of these, deviating, contradictory or supplementary General Terms and Conditions of the User shall not form part of the contract unless their validity has been explicitly agreed in writing.

 

Section 1

Services and availability

  1. The nexmart portal is an electronic information and ordering system, which enables Users to electronically exchange orders for goods offered by the Suppliers in the nexmart portal from the tools, fittings, ironware, timber, gardening tools and technical supplies sectors or other similar sectors with construction-related products. To this end, nexmart provides the product catalogues supplied by the Suppliers together with all detailed information, prices and delivery periods (‘product information’) as well as the necessary ordering functions (‘services’), where applicable including additional reply messages, in the nexmart portal.
  2. On ordering products from the Supplier via the nexmart portal, the User makes the Supplier a purchase offer. Upon confirmation of the order or delivery of the ordered products, the User and Supplier enter into a purchase agreement. In providing the nexmart portal, nexmart solely provides an electronic platform via which the User can send orders to the relevant Suppliers. nexmart does not provide the User with broker services on behalf of or in relation to Suppliers and is not involved in any contractual relations between a User and a Supplier as the representative of a party and/or as a party. All contractual relations between a Supplier and a User are initiated, entered into and fulfilled without any involvement of nexmart. As such, nexmart shall under no circumstances be a contractual partner of the User in relation to an order.
  3. All product information provided in the nexmart portal, in particular prices, discounts or other special conditions, is specified by Suppliers. nexmart does not assume any liability for the completeness and/or accuracy of the product information provided by Suppliers. Further information can be found in Section 9.
  4. To use the nexmart portal, Users must register and be approved for the relevant product catalogues by the desired Suppliers. The registration and approval processes are regulated in Section 2.
  5. Use of the portal shall include both the manual creation of an order in the portal system’s interface using an internet browser or mobile client and the fully automated transfer of an order message to nexmart, e.g. from an enterprise resource planning system (‘silent commerce’).
  6. The registration and use of the nexmart portal are free of charge for the User. However, nexmart reserves the right to supplement and/or restrict the services provided in the nexmart portal as well as to only offer certain services in exchange for a fee. nexmart shall notify the User about the introduction of any chargeable services in due time.
  7. nexmart endeavours to provide the nexmart portal with as few interruptions as possible. However, the User is not entitled to uninterrupted use. No guarantee is provided that the access to or use of the nexmart portal shall not be interrupted or impaired as a result of maintenance work, developments or other interferences such as power cuts, hardware and software problems, technical problems in data cables and the like, for which nexmart is not responsible and which may also lead to data losses.

 

Section 2

Registration and approval

  1. To register for the nexmart portal, the User must be a Retailer or ordering Supplier from the tools, fittings, ironware, timber, gardening tools and/or technical supplies sectors, other similar sectors or sectors with construction-related products. Users can only register once.
  2. When registering, the User is initially instructed to enter his/her company data. In addition, the User must also create an initial Operator. To do this, the User must provide the first and last name, telephone number and e-mail address of a responsible contact person as binding information. The User can also enter further information.
  3. The User can also create additional Operators.
  4. During the registration process, the User must select the Suppliers for which he/she wishes to be approved in the nexmart portal.
  5. On submitting the registration data, the User offers to enter into a user relationship with nexmart on the basis of these Terms and Conditions of Use. nexmart shall decide whether or not to accept this offer at its own discretion. If nexmart does not send a registration confirmation e-mail to the specified e-mail address within a reasonable period, the User shall no longer be bound by the offer.
  6. The relevant Suppliers shall approve the use of the individual Supplier catalogues via the portal. Within the scope of this approval, the Supplier shall check whether a supply relationship already exists between the User and the Supplier. If this is the case, the Supplier shall decide whether to approve the User. If no business relationship yet exists between the User and the Supplier for whose catalogue the User has requested approval, the Supplier also decides whether approval should take place.
  7. Once the e-mail confirmation has been received and approval has been granted by at least one of the requested Suppliers, a contractual user relationship is established and nexmart shall send the User a customer number and access details. Upon provision of the access details, the User is entitled to use the nexmart portal within the scope of these Terms and Conditions of Use.

 

Section 3

Responsibility for the access details

  1. The User must not disclose the access details, including the password, and must prevent any access to them by unauthorised third parties.
  2. The User must ensure that the nexmart portal is solely accessed and used by the User or people authorised to do so by the User (other Operators). The User shall immediately notify nexmart if there is any reason to suspect that the access details have been or shall be disclosed to unauthorised third parties. The User is fully responsible for all use of the nexmart portal through his/her access details.

 

Section 4

Blocking access

  1. nexmart shall be entitled, at its own discretion, to temporarily or permanently block the User’s access to the whole of the nexmart portal or individual areas if there is specific reason to suspect that the User is or has been in breach of these Terms and Conditions of Use and/or applicable laws, or if the block is in relation to another legitimate interest of nexmart. In deciding to block access, the legitimate interests of the User shall be considered. If the User repeatedly breaches these Terms and Conditions of Use, nexmart reserves the right to permanently block access to the nexmart portal.
  2. In the event of a temporary or permanent block, the access authorisation shall be blocked and the User shall be notified by e-mail.
  3. In the event of a temporary block, the access authorisation shall be reactivated upon expiration of a block period or once the reason for the block has been fully eliminated and the User shall be notified of this situation by e-mail. Permanently blocked access authorisations cannot be restored and the permanently blocked User shall no longer be able to use the nexmart portal. Re-registration is, however, possible.
  4. In the event that the User defaults on payment to the Supplier, the supply relationship is terminated or of other reasons not attributable to nexmart, the Supplier shall be entitled to instruct nexmart to temporarily or permanently block the approval for its product catalogue, or to do this itself. The User shall be notified about the block and the reason for it by the Supplier or nexmart. Approval can only be re-granted following consultation with the Supplier. The block on access to individual Suppliers shall not otherwise affect the user relationship between nexmart and the User. In the event of a permanent block of the only and/or last product catalogue, nexmart shall be entitled to terminate the user relationship in accordance with Section 5.

 

 

Section 5

Termination of usage

  1. The User is entitled to terminate his/her access to the nexmart portal at any time in writing or by e-mail. This shall not affect the right to extraordinary termination.
  2. When the termination comes into effect, the user relationship shall end and the User shall no longer be entitled to access the nexmart portal. Access to the nexmart portal and the approved Supplier catalogues shall be blocked at the time of termination.
  3. nexmart is entitled, 30 days from the date on which termination became effective and upon expiry of any legal retention periods, to irrevocably delete all data stored within the scope of the user relationship. The data protection regulations, which may specify a shorter period prior to deletion, shall take precedence with regard to personal data.

 

Section 6

Scope of permitted use

  1. The User’s user rights shall be restricted to access to the nexmart portal and the use of the services and content available in the nexmart portal within the scope of the provisions established in these Terms and Conditions of Use.
  2. The User is responsible for establishing the necessary technical conditions required for contractually-compliant usage that fall within his/her area of responsibility (in particular, hardware, web browser, internet access or connection of the nexmart portal to the User’s enterprise resource planning system).
  3. Please note that user activities may be monitored to the legally permissible extent specified by the Telekommunikationsgesetz (Telecommunications Act), Telemediengesetz (Telemedia Act) and Bundesdatenschutzgesetz (Federal Data Protection Act) or nexmart may be under legal obligation to do so. Monitoring activities may also include logging IP connection data and evaluating this in the event of a specific suspected breach of these Terms and Conditions of Use and/or specific suspicion of other illegal or criminal activity.

 

Section 7

Prohibited activities

  1. The use of the nexmart portal is only intended for Users in their capacity as a Retailer or ordering Supplier or similar of the products and articles listed on the nexmart portal. Any other commercial or private use is prohibited. The following shall be deemed unauthorised use in particular:
    1. Any electronic or other collation of catalogue and/or product data outside the intended use
    2. The use of the services available on the nexmart portal, including the content offered in relation to these (e.g. catalogue and/or product data) in return for payment.
  2. The User is prohibited from conducting any activities on or in relation to the nexmart portal that breach current laws or third-party rights. Irrespective of any legal breaches during the use of the nexmart portal, the following activities by the User are also prohibited:
    1. The distribution of viruses, Trojans and other damaging files
    2. The sending of junk or spam messages
    3. Any actions which may impair the smooth operation of the nexmart portal, in particular by putting an excessive load on the nexmart IT systems.

 

Section 8

Data protection

  1. nexmart’s quality commitments include responsibly handling the User’s personal data. The personal data arising from the registration process and the use of the nexmart portal shall solely be collated, stored and processed by nexmart to the extent that this is necessary to provide the contractual services and permitted by legal regulations. nexmart shall handle the personal data confidentially and in line with the provisions of the current Data Protection Act, and not disclose it to third parties.
  2. Furthermore, the User’s personal data shall only be used with the User’s explicit consent. Any consent provided by the User can be withdrawn again at any time.
  3. Further details about the collation, processing and use of personal data can be found in the data protection provisions that are publicly available at https://www.nexmart.com/en/web/nexmart/data-privacy-statement?country=DEU

 

Section 9

Responsibility and liability

  1. nexmart’s responsibility is restricted to the receipt and transfer of the User’s orders. The relevant Suppliers are responsible for the content of the product information and catalogue data stored in the nexmart portal. nexmart does not check the product information to ensure that it is complete, accurate and legitimate and therefore does not accept any responsibility or liability for the product information being complete, accurate, legitimate or up to date. This also applies with regard to the quality of the product contents and their suitability for an intended purpose.
  2. Within the scope of this agreement, nexmart is liable according to the following provisions:
    1. nexmart is liable without limitation for damage caused through wilful intent or gross negligence.
    2. For damage caused through the non-compliance with any written guarantees within the scope of the User’s financial interest covered by the purpose of the guarantee and identifiable to nexmart upon its submission.
    3. For product liability claims pursuant to the Produkthaftungsgesetz (Product Liability Act).
    4. nexmart is not liable for any simple negligent breaches of contractual obligations. In all other cases, nexmart’s liability for damage resulting from simple negligence shall be restricted to the damage that can be typically expected to arise within the scope of the contractual relationship (contractually typical foreseeable damage).
    5. The Parties agree that the maximum contractually typical foreseeable damage resulting from breaches of obligations in relation to this agreement shall be 1,000.00 euros.
    6. The liability limitation outlined above shall not apply in the event of fraudulent intent, physical or personal injury, breaches of guarantees or product liability claims. Legally stipulated limitations on liability (e.g. pursuant to Section 44a of the German Telecommunications Act (TKG)) which deviate from the above liability provisions to the benefit of nexmart are unaffected.
    7. nexmart shall have no further liability. For services provided by nexmart in relation to a rental contract, the strict liability for defects that exist upon contract conclusion is excluded in particular.
  3. If nexmart’s liability is excluded or limited under these provisions, this shall also apply to the liability of nexmart’s bodies and vicarious agents, in particular its employees.

 

Section 10

Changes to these Terms and Conditions of Use

  1. nexmart reserves the right to modify these Terms and Conditions of Use at any time, including with effectiveness within the existing contractual conditions. The User shall be notified of any changes at least 30 days before the planned date on which these will enter into force. If the User does not object within 30 days of receiving the notification and continues to use the nexmart portal after the end of the objection period, the changes from the end of the period shall be deemed to have been effectively agreed.
  2. In the event of an objection, the user relationship shall be continued under the previous conditions. nexmart also reserves the right to terminate the user relationship pursuant to Section 5. The change notification shall provide the User with information about the right to object and the consequences of this.

 

Section 11

Final provisions

Full information about nexmart as the Operator of the nexmart portal can be found at https://www.nexmart.com/legal-notice

  1. If a provision of these Terms and Conditions of Use is or becomes invalid, this shall not affect the validity of the remaining provisions. In such a case, the Parties undertake to cooperate to create replacement provisions that come as close as possible to achieving the economic outcome of the invalid provision. The above analogously applies to the closure of any loopholes found in the contract.
  2. German law shall apply under exclusion of international private law and the UN Convention on Contracts for the International Sales of Goods.
  3. The sole place of jurisdiction is the location of the nexmart head office. However, nexmart is also entitled to optionally file claims at the place of jurisdiction responsible for the User’s registered office.

 

Data privacy statement

 

The protection of personal data is important to us. Therefore, the processing of personal data by nexMart complies with the provisions of the EU General Data Protection Regulation (GDPR) and other legal provisions. Until the GDPR becomes enforceable on 25 May 2018, references to the GDPR are to be understood as references to the relevant provisions of the German Federal Data Protection Act. By including the details below in our Data Privacy Statement, we hope to provide you with all of the information you may need in relation to our handling of your personal data and your rights in this context.

Processing of personal data
We only collect personal data, such as names, addresses or e-mail addresses, in order to provide a service - for example, in the context of your registration on our website, submission of an online application or the use of the contact form by Customer Service. We only use data freely provided in this context for the specific purpose for which it was communicated to us. We only process personal data in accordance with the provisions of Article 5 of the GDPR.

Processing of usage data when you access nexMart web pages
When you visit nexMart web pages and call up the content provided on those pages, nexMart's web servers store each access in a log file for statistical and system-specific purposes. The logs generated contain the following information:

This data is saved for security reasons, e.g. to prevent attempted attacks on nexMart servers. The stored IP addresses are only analysed in the event of an attack on nexMart systems (see Art. 6, Par. 1, Point f GDPR). A natural person will not be assigned to the usage data that is stored. The logged data is stored for a period of six months. After this period, it is deleted by the system.

Registration with nexMart
It is necessary to register on the nexMart website in order to use the nexMart online Market. To register, you need to provide nexMart with details about your company (name, address, country, e-mail) and the name of a natural person who will act as a contact person. The personal data processed by nexMart as part of the registration process is used to fulfil contracts agreed with you (see Art. 6, Par 1, Point b, alternative 1 GDPR). This data is stored electronically and in machine-readable format.

Subscription to the newsletter
nexMart offers you the option of subscribing to our newsletter. If you subscribe to the nexMart newsletter, the details you provide are used exclusively for this purpose (see Art. 6, Par. 1, Point a GDPR). nexMart does not process any additional data for this purpose. nexMart uses the e-mail address you provided during the registration process for your subscription. nexMart uses the double opt-in method to verify that you are in fact the owner of the e-mail address you provided. For this purpose, nexMart logs the following:

The consent you grant us to process your personal data and use it for the distribution of our newsletter can be withdrawn at any time. To do so, you can use the "Unsubscribe" link provided in the newsletter or contact the contact person specified in the Data Privacy Statement.

Use of the contact form (Customer Service)
If you have any questions, e.g. about nexMart products, you can use the contact form provided on the nexMart website or send an e-mail to nexMart. If you use the contact form, nexMart will process the details you provide (required entries on the contact form: first name, last name, e-mail address, company, your issue) in order to handle your request and any potential follow-up enquiries (see Art. 6, Par. 1, Point b, alternative 2 GDPR). Your personal data will be processed directly for the purpose of processing customer enquiries and in the business interests of nexMart.

Online application
nexMart offers applicants the option of applying online for jobs we advertise. If you use the application form, nexMart will process the details you provide (required entries on the application form: first name, last name, e-mail address, phone, application documents) as part of the application process (Section 26 Par. 1 of the new German Federal Data Protection Act). nexMart provides a separate Data Privacy Statement that applies to use of the online application process.

Cookies
The nexMart website uses cookies. Cookies are small text files that are stored by your browser on your computer. We use cookies to make our offering more user friendly, effective and secure (see Art. 6, Par. 1, Point f GDPR). If you do not want the nexMart website to store cookies on your computer, you can always refuse cookies by adjusting your browser settings.

Google Analytics
This website uses Google Analytics, a web analytics service offered by Google Inc. ("Google"). Google Analytics uses cookies, which are text files stored on your computer and which enable analysis of your use of our website. The information that cookies generate about your use of this website is normally transferred to a Google server in the USA and stored there. If IP anonymization is activated on this website, your IP address will, however, be shortened beforehand by Google within member states of the European Union or in other states that are party to the Agreement on the European Economic Area. The full IP address is sent to Google in the USA and shortened there in exceptional cases only. On behalf of the operator of this website, Google will use this information to analyse your use of the website, create reports on website activities and provide additional services to the website operator in connection with use of the website and Internet usage. The IP address that is transmitted by your browser as part of Google Analytics is not merged with other data held by Google. You can prevent these cookies from being stored by activating the relevant setting in your browser software. Please note, however, that you may be unable to use all functions available on this website in this case. In addition, you can prevent the information about your use of the website that is generated by the cookie (including your IP address) from being passed on to Google and from being processed by Google by downloading and installing the browser plug-in available at the following link:
Download plug-in

Please note that the code "gat._anonymizeIP()" has been added to Google Analytics and Google Remarketing on this website to ensure anonymous collection of IP addresses (so called "IP masking").

Disclosure of personal data (Art. 13 Par. 1 Point e GDPR)
Your personal data will only be passed on to third parties (e.g. service providers, business partners) if this is necessary for the processing of contracts or if you have given your prior approval. Examples of the disclosure of data to third parties for contract processing purposes include the transfer of purchase order data to suppliers or the passing on of order data to software subcontractors for the creation and licensing of software components. Personal data will only be passed on to state bodies or authorities if national regulations make this compulsory, or if it is necessary to do so in order to enable legal action or criminal prosecution in the event of an attack on our network infrastructure. Data is not passed on to third parties for any other purposes.

Security
nexMart implements security measures at a technical and organisational level in order to protect your personal data against accidental or deliberate manipulation, loss, destruction or unauthorised access. These security measures are being improved all the time as new technology is developed.

Right of objection (Art. 21 Par. 1 GDPR)
To the extent that the processing of your data is effected for the purpose of protecting legitimate interests, you have the right to object to this processing at any time using the contact details provided, if the particulars of your situation give rise to reasons for opposing this data processing. We will then stop processing this data, unless it serves overriding, legitimate interests on our part.

Rights of parties concerned (Art. 13, Par. 2 b GDPR)
As a party concerned, you have the right, at all times, to access, correct and delete your data and to restrict its processing. You also have the right to data portability.

To exercise your rights as a party concerned or if you require additional information about how the personal data you made available to us is used, please contact nexMart’s Data Protection Officer at the following address:

nexMart GmbH & Co. KG
Betrieblicher Datenschutz
E-mail: dsb-nexMart@ensecur.de
Address: Gropiusplatz 10, 70563 Stuttgart, Germany

Deletion of personal data
In accordance with the principles of data minimisation (Art. 5 Par. 1 Point c GDPR) and storage limitation (Art. 5 Par. 1 Point e GDPR), nexMart only stores personal data if it is required for the intended purposes outlined here. In accordance with legal provisions, your personal data will be deleted once the relevant purpose has been fulfilled.

Supervisory authority
As a party concerned, you can report a complaint at any time to the relevant supervisory authority. The following supervisory authority is responsible for nexMart:

Landesbeauftragte für den Datenschutz und die Informationsfreiheit Baden-Württemberg
Postfach 102932
70025 Stuttgart
Germany
Tel: +49 (0) 711/615541-0
E-mail: poststelle@lfdi.bwl.de

Links to other websites
Our website may contain links to the websites of other providers. Please note that this Data Privacy Statement applies only to the nexMart website and is not valid for the linked websites of other providers.

Copyright
All graphics, prints, illustrations, words, scripts, photos and other parts of this website used are protected by copyright. The use of this content requires the prior explicit approval of nexMart GmbH & Co. KG.

Website content
Where the website of nexMart GmbH & Co. KG links to an external website owned by a third party, this does not constitute a recommendation of the website, the company who operates it, or its products. In addition, the information provided on those external websites is not representative of the opinion of nexMart GmbH & Co. KG. nexMart GmbH & Co. KG does not in any way identify itself with this external website content.
If you detect a legal violation on our website or on a linked website, please notify us so that we can remove the content or link in question.

Updates of the Data Privacy Statement
Due to the continuing development of our website and the implementation of new technologies, it may become necessary to update this Data Privacy Statement. nexMart reserves the right to make changes to this Data Privacy Statement with effect for the future. We recommend that you check the Data Privacy Statement from time to time for updates.

Questions about data protection?
For any questions relating to the subject of data protection, please contact our Data Protection Officer.

ENSECUR GmbH
Rotebühlplatz 20A
70173 Stuttgart
Germany
E-mail: dsb-nexMart@ensecur.de

Last revised: 26/03/2018