Conditions for the participation in trading on the Internet Platforms of the GKS Handelssysteme GmbH

Section 1 General, Definitions

  1. Under the domains "RESTPOSTEN.de" and "grosshandel.eu" GKS Handelssysteme GmbH - hereinafter referred to as "GKS" - among other things operates virtual marketplaces on the Internet for the business to business commerce, hereinafter referred to as "Platforms". The Platforms are visible to any visitor, but only registered members can participate in trading activities.
  2. "Visitor" means any person who retrieves contents from the Platforms. "Member" means any Visitor who signs an agreement with GKS for the use of the Platforms. The term "User" includes Visitors as well as Members.
  3. These Terms and Conditions, as amended from time to time, shall apply for all business relationships between a Member and GKS, including future business relationships. Any contrary, conflicting or additional General Terms and Conditions of any Member (including but not limited to Terms and Conditions for placing of orders and purchasing conditions) shall only become part of the Agreement if explicitly agreed upon in writing at the time the Agreement is concluded. Any standardized reference to the General Terms and Conditions of any Member is hereby expressly disclaimed.
  4. Any transfer of rights and obligations of Members based on the User Agreements shall require our written approval.
Section 2 Conclusion of the Agreement
  1. The use of the Platforms is only permitted within the scope of a User Agreement. Only entrepreneurs, legal persons governed by public law or special funds under public law can enter into an Agreement for the use of the Platforms.
  2. By completing and submitting the "Registration for Membership" form, the Visitor formally declares his or her intent to conclude an Agreement with GKS for the use of the Platforms. Prior to submitting the form, the Visitor has an opportunity to verify his or her personal or company details and, if necessary, correct them by modifying the relevant fields. Moreover, he or she can verify the services he or she has selected and modify them by pressing the relevant selection boxes. By pressing the "Register now!" button, the Visitor submits a binding offer to conclude a User Agreement. GKS accepts this offer by sending an order confirmation also containing details on how to access the Platform.
    For conclusion of the Agreement, both German and English language versions are available, depending upon the Platform used.
    The body of the Agreement is stored by GKS, yet is not accessible by the Customer.
  3. Upon concluding the User Agreement, the entire User fees are generally due immediately. To the extent that GKS has enabled the Member the option of paying the User fees in recurring installments, initially only each invoiced installment is due. Members have no right of retention, even if the Member account has not yet been activated. This applies especially in cases when the relevant User account cannot be activated for use due to incomplete and/or incorrect documentation by Members themselves, for example. GKS has the right to refuse the conclusion of an Agreement without stating reasons and/or to only offer Members a User Agreement with limited functions.
  4. Members must provide correct personal and company data during registration and keep the details concerning their person or company up to date at all times. At his or her own expense, all Members are obliged to furnish GKS with suitable proof drawn up in the German or English language of his or her capacity as an entrepreneur and any powers of attorney. Furthermore, GKS is entitled to check the particulars of all Members regarding creditworthiness.
  5. The use of the platforms is subject to a fee. The fee is based on the price list available under: http://www.restposten.de/preisliste.pdf and/or under: http://www.grosshandel.eu/preisliste.pdf or http://www.wholesale.eu/pricelist.pdf. All prices are deemed to be plus statutory value-added tax. For payments made from abroad GKS may charge an additional lump sum amount in accordance with the price list.
    All payments are due in advance upon invoicing and can be made using the payment methods offered. In paying the recurring installments, if the member negligently falls into arrears for more than two installments or a full amount equaling more than two installments, the full balance until the next possible end of contract is due immediately.
    GKS has assigned the collection of receivables to a qualified payment provider who also stores the payment details. Depending on the scope of the services, the payment methods can also be used for the settlement of recurring payments (subscriptions) and payables with changing amounts.
    Insofar as GKS offers payment by credit card, the debit of the credit card occurs immediately after conclusion of the respective purchasing process via the entered credit card data; recurring payments and payables with changing amounts are debited at maturity via the credit card direct debit system.
    Insofar as GKS offers payment via PayPal, the PayPal account is debited immediately after conclusion of the respective purchasing process via the entered PayPal account; recurring payments and payables with changing amounts are debited at maturity via the PayPal direct debit system.
    Insofar as the parties agree on the direct debit payment method, the Member authorizes GKS to debit the respective amount, for recurring payments and payables with changing amounts the member can opt for a SEPA basic mandate / SEPA company mandate. The deadline for a pre-announcement (pre-notification) is, where permissible, reduced to one day. The member guarantees and assures that there is sufficient coverage on the given account.
    In the protected member area GKS makes a module available to all members at: "Contract > Invoices" named "My payment and account settings", in which members can at any time check and/or modify their chosen payment method or deactivate a stored direct debit authorization, insofar as the selected product allows this. Changes in the payment method take immediate effect.
    Costs incurred due to non-transfer or back transfer of a payment order shall be borne by the members as long as the non-transfer or back transfer was not caused by GKS.
  6. The functional scope of the Platforms, namely, in particular, the technical functionality and type and extent of the service offered is dependent on the tariff chosen at the time of registration. The respective functional scope of a given tariff arises from the service description.
    In addition, GKS reserves the right to offer additional services that extend beyond the scope of the tariff chosen. The cost and the extent of the respective additional service are also evident from the service description and from the currently valid price list.
    If a User makes use of additional options and if these overlap with the scope of already chosen options, already paid fees or remaining periods of time will be taken into account.
    GKS is entitled to link specific extra services to the term of respective basic memberships for individual Platforms and to charge ordering or tariff change fees for the remaining term of the ongoing settlement period on a daily or flat-rate basis.
    Members may select additional services offered optionally for their Agreement by GKS by activating the "Select" button via the main GKS Admin Tool under Agreement > Tariff change and approving the extension of the User Agreement by means of the "Place firm order" button. GKS accepts the Agreement offer by sending an order confirmation.
  7. Invoices are issued by GKS in electronic form. They are sent out via e-mail. In addition, GKS may grant Members the possibility to download invoices in file format from the Members' area. Should a Member wish to also receive invoices by post, GKS is entitled to charge a lump sum amount as stated in the price list.
  8. The use of the Platforms is dependent on the activation of the Member's account by GKS. GKS will principally only activate the account after submission and verification of the documentation according to Section 2, Clause 3 as well as following the payment of the Member's fees. GKS reserves the right to active a Member's account, if necessary, in a limited scope even in cases without observance of the preceding requirements. In this case, a Member's account will be publicly identified as "under review". If the respective Member should then fail to meet his or her obligations within 5 working days or if verification by GKS shows that the requirements for the participation are not present, GKS shall be entitled to deactivate the account again.
  9. Within the scope of special promotional campaigns, GKS may also offer free trial memberships. These trial memberships are limited in functionality and duration. For the conclusion of the Agreement, the foregoing provisions, in particular Clause two, shall apply mutatis mutandis. Unless otherwise specified upon registration, if the Free trial membership is not terminated at least 1 day before the end of the contractual term by giving written notice to GKS, at the end of the free trial period the Service will automatically be converted into a 12-month membership subject to the usual fee.
  10. Within the scope of special promotional campaigns, GKS may also offer fixed-term or limited Platform access possibilities for Visitors in the form of a guest access. This guest access allows only for the submission of offers, it does not allow for any uploading of own contents onto the Platforms. The maximum number of offers may also be limited. Within the scope of a guest access, the visitor bindingly declares that he or she fulfils the Platform access criteria. The visitor is obliged to prove such criteria to his or her contractual partner on the Platforms and, on request, also to GKS. The visitor is expressly identified to his or her contractual partner as a guest.
Section 3 Provision of the Platforms
  1. GKS provides the Platforms for the initiation and processing of sales contracts for services and goods of all kinds. Any contract concluded via the specific Platform is exclusively and directly entered into between the respective Members. GKS is neither a representative nor a messenger of one of the parties and GKS does not become a party to the contract.
  2. GKS assumes no guarantee for the content correctness of the contents provided by Members on the Platforms. Besides, GKS has no possibility to verify the contents of the Members. GKS does not adopt this content as its own.
  3. Before publishing Members' offers and tenders on the Platform, GKS carries out extensive technical processes for the preparation of contents, for search engines, to optimize the internal product search, and to synchronize data sets. Generally, data entered is made public without further delay. However, depending on technical conditions, the process of batch processing may sometimes take several hours.
  4. Where applicable, GKS makes available translated versions of the contents that have been placed on the Platform by Members in other languages. These time-controlled, automatic translations are recognizable as such. The content of contracts exclusively applies in the original language version valid at the time of conclusion of the Agreement which can be accessed directly from the translation via a hyperlink or which is provided as information on the individual offer.
  5. Although GKS checks Members' data upon conclusion of the contract according to Section 2 of these GTC, it does not assume any warranty that the specific Member still exists during or after conclusion of these contracts.
  6. GKS does not accept any warranty for the availability and accessibility of the Platform in individual cases.
  7. At any time and without prior notification, GKS is entitled to extend, technically adjust or restrict the range of functional features of the Platforms as well as to change menu navigation or layouts, as long as they are reasonably acceptable by the Members.
  8. Apart from the Platforms, GKS provides a central administration tool for controlling a number of processes, the storage of centrally managed supplier master data, for the Member inboxes, for the overall management and/or the placement of product offers on the Platforms. Furthermore, Members active as suppliers on the Platforms optionally administer optionally-reserved Marketplace shops via the central Administration Tool and store their own legal documents here (General Terms & Conditions, Privacy Policy, Legal Notice) that are displayed on the Platforms.
    The central Administration Tool can be accessed at http://www.gks-admin.eu.
Section 4 Rights and obligations of Members
  1. For the use of the Platforms, all Members receive individual access data from GKS. Members are obliged to keep access data secret and to immediately notify GKS in the case of loss or unauthorized use of access data by third parties. Members are not allowed to make access data available to third parties or to their own access data to obtain via the Platforms information on offers, suppliers, contact addresses, sources of supply etc. for third parties. GKS is entitled to block access data if there is any suspicion of unauthorized use or data abuse.
  2. E-mail is the main communication medium on the Platforms. When using the systematically provided inquiry, order, and communication features, Members will either exchange his or her registered e-mail addresses or have them transferred by the system. Furthermore, messages from the customer service, legal and security departments of GKS will be sent by e-mail to the Members. Members are therefore obliged to keep their registered e-mail addresses up to date and to ensure that the e-mails of the sender with the e-mail address
    "@restposten.de","@grosshandel.eu","@wholesale.eu","@gks-admin.eu", "@clearance.eu", and "@gksgmbh.de" are not blocked by a spam filter, that the e-mail inbox is permanently in ready-to-receive mode and accessible as well as that incoming messages and emails are checked regularly. All Members expressly agree to e-mail communication between GKS and the Member.
  3. Apart from e-mail communication, the closed Members' area "GKS Admin Tool" at http://www.gks-admin.eu is another important functional component and central communication medium for Members. In certain cases orders, inquiries or other information for the negotiation of contracts between Members will be provided in the form of electronic data records in the "GKS Admin Tool" for processing or confirmation purposes. Members may time limit their transmitted orders, inquiries or other information for the negotiation of contracts. Members are obliged to ensure that the internal Members’ area of the GKS Admin Tools will be regularly checked for new information.
  4. All Members warrant to GKS that any and all information provided on the Platforms by the Member is factually correct and legally permitted. In particular the Member is obligated not to advertise in a manner that would be considered unfair competition or that violates the rights of third parties. The Member guarantees to hold all required rights, in particular the industrial property rights and/or copyrights. GKS is entitled to demand suitable proof in this regard, to be furnished to GKS within two working days at the Member's expense.
  5. The Members warrant to GKS that the content placed on the Platforms by the Member does not contain any harmful source code or any other harmful programming instructions. All Members warrant to GKS that their contents do not infringe against Section 202a), 202b), 202c), as well as Section 303a), 303b German Penal Code [StGB] (computer-related offences).
  6. Regarding the information listed by Members on the Platforms, Members transfer to GKS any and all rights that are necessary for keeping such information available on the Internet. Regarding the provision of information on the Platforms, GKS shall be authorized to prepare copies of their specific content, to publish it, to make it accessible to the public and to translate it into other languages. Moreover, GKS shall be granted any and all rights necessary to integrate such information into other Platforms such as GKS social media channels and to make this information available for indexing in search engines.
  7. The storage of information and data on GKS computer systems takes place at the risk of the respective Member. The stored information may become lost or pass into hands of third parties following a cyber-attack. GKS gives assurance that its system and the stored data are safe and secure according to the latest state of technology. However, all Members are obliged to make data backups at regular intervals. For this purpose, appropriate tools are made available to all Members by GKS. In case of a data loss through no fault of GKS, GKS cannot be made liable for such data loss. Apart from this, using reasonable efforts and expense, GKS shall only liable up to the amount of the expenditure actually incurred to restore the data duly backed up by the respective Member.
  8. All Members commit themselves to neither use the Platforms for advertising offers rivaling GKS nor to gather data from other Members and use it for advertising purposes. All Members are obliged to treat other Members' data as strictly confidential. Members are in particular not allowed to disclose, to publish and / or to disseminate to third parties information on offers, suppliers, contact addresses, sources of supply etc. received on the Platforms.
  9. All Members shall hold GKS harmless against any third-party claims for damages and expenses based on the respective Member's infringements of these General Terms and Conditions. In particular, this applies to costs for legal proceedings.
  10. In case of an infringement against these General Terms and Conditions, Members commit themselves towards GKS to pay a contractual penalty for each case of culpable offence, the amount of which shall be determined by GKS at its reasonable discretion and which shall, in case of dispute, be subject to review by the competent court. This applies without prejudice to any further claims.
Section 5 Presentation of goods on the Platforms, conduct of suppliers
  1. On the Platforms, Members can upload contents for the purpose of the preparation of purchase contracts, service agreements or work contracts. This may include, for example, presentations of goods or respective requests. The Member, insofar as GKS provides such functionality, shall also be entitled to restrict the circle of Members having access to the respective contents and to make content available only for specific Members.
  2. The Member must not integrate any data into his or her contents that would allow conclusion and execution of the contracts with and/or for non-members. On the Platforms, however, GKS also provides the additional possibility to present contents pursuant to Section 5 to Visitors and/or Members with only a guest account. Depending on the Platform and the coverage of the current membership, this option must be purchased separately by the respective Member, insofar it is not covered by the existing membership. GKS is entitled to offer these functions only to select Members.
  3. The Member is obliged to assign a given mode of payment to each offer on the Platform. Upon registration of the Member, "Bank transfer" is the standard, pre-selected method of payment. The method of payment can be modified at any time in the GKS Admin Tool. At least one method of payment must be selected at all times, however. GKS is authorized at all times to expand or restrict the methods of payment available to the Member.
  4. The Member is solely responsible for the content of his or her offers.
  5. With regard to the integration of contents, the Member is obliged to adhere to specific principles of trade on the Platforms. These trade principles are available at http://support.gks-admin.eu/Handelsgrundsaetze.php and/or at http://www.wholesale.eu/business-principles.php.
    In addition, the following trading principles shall apply on the Platforms:
  6. GKS shall be entitled, for the purposes of the observance of a high safety standard, to implement restrictions concerning the presentation possibilities and the conduct obligations in particular cases. These restrictions can concern, for example, the number of articles that can be offered at the same time, the selected category or the methods of payment and kinds of delivery offered. GKS will communicate such restrictions to the respective Members in due time before they become effective. GKS is entitled to verify the observance of these restrictions and to deactivate any offers that do not observe the restrictions up to the time of correction by the Member.
  7. If a Member fails to meet the preceding obligations, this constitutes a serious violation of the terms of use. In this case, GKS shall be entitled to make use of the sanction possibility pursuant to Section 9, Clause 1 of these GTC, namely to block individual offers temporarily, in particular, or to remove them permanently and/or to block individual Member accounts and to exclude them permanently from the use of the Platforms without this action requiring a preceding warning letter.
Section 6 Initiation of contracts via the Platforms
  1. GKS offers the possibility on the Platforms to initiate contracts between Members via the specific Platform. This occurs by providing a function by means of which a Member can collect certain articles in a virtual shopping cart and then transmit them to the supplier. This function, as GKS has entitled the Member to do so, may be restricted to specific circles of members, so that this function may not be available to every Member in connection with every offer.
  2. Members may individually specify whether they wish to submit a non-binding inquiry or a firm offer. In doing so, they have the option of limiting the term of their offer. A conclusion of a contract, even with a firm offer, shall be deemed to have been entered into only once said offer has been accepted by the supplier.
  3. The conclusion and execution of the contract occurs directly between the contracting parties, who are subject to complete freedom of contract. GKS is not liable for any contract to be concluded to specific terms and conditions. It is herewith being pointed out to the Parties additionally that the prices indicated on the Platforms concern net prices and that the tax handling, in particular the VAT tax handling of a contract is the sole responsibility of the contracting Parties involved.
  4. Members are individually responsible for storing any offers, contract conditions or General Terms and Conditions of their contracting partner. GKS only archives inquiries and offers in the GKS Admin Tool for a period of 90 days from the time of submission by the respective Member.
  5. GKS also makes the function of the virtual shopping cart available upon request to Members operating "public showrooms" and/or "open shops" according to Section 5, Clause 2, who, depending on the GKS platform being used. The access is thus also available to non-members. The above provisions apply mutatis mutandis. By means of guest access, access may also be made available to Visitors and/or members with guest status. The respective Member is then himself obliged to verify the identity of the Visitor and/or the member with guest status and in particular his position as entrepreneur, legal person governed by public law or special fund under public law and to ensure by means of suitable measures that no contracts are concluded with consumers.
  6. In addition to the above, GKS provides the "save for later" function for offers. It is pointed out to Members that saving an offer on a corresponding list does not constitute a legally binding declaration. Thus after saving an offer its conditions may change. If an offer is no longer available or if it has been deleted by the supplier in the meantime, this will also be shown in the list of saved items.
Section 7 Awards of Members
  1. GKS offers its Members of specific Platforms the possibility to apply for trust marks or quality marks. The awarding of these qualifications takes place according to specific criteria defined by GKS such as trading volumes, solvency and attainment of certain quality standards for which the specific Member has to warrant compliance. The qualifications awarded by GKS may influence the placement and/or presentation of the offers on the specific Platform, i.e. by special highlighting.
  2. Members are entitled to display such qualifications on their own websites after release by GKS to the specific Member for this purpose. However, the Member shall oblige to use the qualifications within the editorial, graphical, textual and technical scope prescribed by GKS. Deviations from this provision are not permitted.
  3. Use of the qualifications outside of the Member's own website, and especially in offline media, is only allowed with the prior written authorization of GKS.
  4. There is no entitlement to receive a qualification. The qualifications are awarded by GKS on a time-limited basis and depend on ongoing compliance with the award criteria. At all times, GKS is entitled to withdraw the qualification with effect for the future. Upon withdrawal of the qualification, the specific Member is no longer entitled to make use of the qualification.
Section 8 Advertisement on the Platforms
  1. On specific Platforms GKS provides Members and other companies with the option of promoting his or her offers by means of additional paid advertising opportunities, such as priority placements, translations, or other preferential treatment within the specific Platform.
  2. For any advertising services, the "General Terms and Conditions for the Ordering, Delivery and Publication of Advertising Services" (Geschäftsbedingungen für die Beauftragung, Auslieferung and Publikation von Werbeleistungen) of GKS Handelssysteme GmbH as amended shall additionally apply. The advertising services of the GKS Handelssysteme GmbH are subject to a fee. Costs for advertising services are based on the pricelists accessible at: http://www.restposten.de/werbepreisliste.pdf and/or http://www.wholesale.eu /adpricelist.pdf or http://support.gks-admin.eu/adpricelist.pdf which are an integral part of the User Agreement.
Section 9 Termination of Agreement, Blocking
  1. If there are any indications that a Member has violated the rules of these General Terms and Conditions, the principles of trade on the Platforms, or has infringed applicable law, GKS shall be entitled, even without previous warning letter, to implement measures to prevent these violations. For this purpose, GKS shall be entitled to either block individual contents temporarily or to remove permanently and/or to block individual accounts and to exclude them permanently from the use of the Platforms. GKS will consider, on this occasion, the legitimate interests of the Member concerned. There is no entitlement to restoration of a blocked content or account.
    If an infringement of these General Terms and Conditions has occurred or if GKS has a legitimate right to examine Members' contents or accounts, GKS is allowed to activate new offers of such Members only following an individual examination.
  2. In case of reasonable suspicion that an infringement of the applicable law has occurred, such as infringements of industrial property rights of third parties, of security, approval or labelling requirements, GKS is entitled to block these contents of offers/purchase requests and entire User accounts of Members and to permanently exclude them from using the Platforms as well as to grant individual Members access with only a limited scope of functions. In these cases, GKS shall not be liable for any damages including, but not limited to the loss of profits.
  3. Agreements for the use of the Platforms have a term of 12 months.
  4. Agreements for the use of additional options also have a term of 12 months and require the existence of a regular User Agreement.
    By way of derogation from the above, Agreements for the use of additional options have a term of more than 12 months, in case at the time of the conclusion of the contract an existing regular User Agreement has been automatically prolonged. In this case, the term of the Agreement for the use of additional options consists of the remaining duration of the regular User Agreement and the term of 12 months.
    If a User Agreement ends before expiry of an agreement for the use of a additional option, the Agreement for the option shall end as well without requiring separate cancellation. In such cases any already paid fees shall not be refunded.
  5. If not terminated in writing vis-à-vis GKS at least 4 weeks before expiry, User Agreements and agreements for the use of additional options will be automatically prolonged by a further 12 months or by the agreed minimum duration.
  6. For free trial memberships the rule under Section 2, Clause 8 applies.
  7. GKS provides a function in the GKS Admin Tool which allows Members to notify their termination and which fulfils the formal requirements for termination.

    Members may also declare their termination in writing and send it to the address set forth in the legal notice, by fax to the fax number given there or by email to the email address vertrag[at]gksgmbh.de. In the case of termination by email it is pointed out to the Member that only emails sent from the email address indicated in their customer account can be automatically processed. In order to avoid misuse, terminations sent by email from deviating email addresses require a separate authentication by means of a copy of relevant proof of identity of the sender (i.e. excerpt from the commercial register, business registration, deletion from the register).

    Moreover, GKS points out that termination by a Member constitutes a unilateral declaration of intent the receipt of which has to be proved by the Member. GKS therefore recommends using the provided online functions to this end.
    Terminations via the Admin Tool are immediately confirmed by email. Terminations in writing, by fax or by email are confirmed by GKS within 5 working days. Should the Member not receive a confirmation of termination within this period, it is recommended to contact the customer service as it can be assumed that GKS has not received such termination.

    A termination on the part of GKS is not subject to formal requirements.
  8. The right to terminate the contract without notice for serious reasons or to block contents or Member accounts is excluded from the previously mentioned terms. In such cases any already paid fees shall not be refunded.
Section 10 Liability, responsibility
  1. Unless otherwise stated in these terms, including the provisions set out below, GKS is liable in case of any breach of contractual or non-contractual duties in compliance with the relevant legal provisions.
  2. GKS shall be liable for damages - irrespective of the legal grounds - in case of willful intent and gross negligence only. In case of simple negligence, GKS shall be liable only
  3. The limitations of liability stated in Comma 2 do not apply to the extent that GKS has fraudulently concealed a defect or has accepted a guarantee or within the scope of the Product Liability Act.
  4. The Member can only withdraw from the contract or cancel the contract due to a breach of duty which does not consist in a defect if GKS is responsible for the breach of duty. A free right of cancellation for the customer (in particular in accordance with Sections 651 and 649 of the German Civil Code) is excluded. In all other respects, the legal requirements and legal consequences apply.
Section 11 Amendments to these General Terms and Conditions, transfer of rights
  1. GKS is entitled to amend the provisions with regard to the service to be delivered as GKS may consider fair and just in consideration of technical requirements and market conditions as long as this is reasonable for the Members.
  2. Amendments to these General Terms and Conditions shall be published on the Platforms. Amendments of Terms and Conditions not governed by Section 11, Clause 1, shall be advised to any Member in written form. The specific amendments shall take effect, unless the specific Member objects to the respective amendments no later than 14 days after receipt. At the beginning of this 14-day period, the Member shall be particularly informed of the significance of such behavior.
  3. With a 4-week notice period, GKS is entitled to transfer the rights and obligations of the contractual relationship in whole or in part to a third party. In this case, Members shall be entitled to cancel the User Agreement.
Section 12 Final provisions
  1. This agreement is governed by German law. The UN Convention on International Sale of Goods (CISG) shall not apply.
  2. The place of jurisdiction for all disputes arising from this Agreement is the court of our business location if the user is a merchant, legal entity governed by public law or special fund. The same shall apply if neither the domicile nor the habitual place of residence of the user is known at the time the action is filed.
  3. All ancillary agreements require the written form.
Version as at: January 1, 2017
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