of the contractor Sport Kessler GmbH, hereinafter referred to in the short form as Sport Kessler.

Scope

Contractual base. Sport Kessler concludes contracts and provides services exclusively based on the written offers prepared by Sport Kessler, as well as the respectively valid version of any descriptions of services included in the offer (e.g. individual documents or general folders), price lists and these General Terms and Conditions.

Unless they are merely project-specific (e.g. individual documents), the descriptions of services, price lists and general terms and conditions shall apply to all legal relationships between Sport Kessler and the customer and shall therefore automatically form the basis of all further contracts concluded between Sport Kessler and the respective customer in the most current version from the first conclusion of the contract, even if no further explicit reference is made to these price lists, product descriptions and general terms and conditions.

Future changes. In the event of changes to the descriptions of services, price lists and the General Terms and Conditions of Sport Kessler, the customer shall be notified in writing and shall be deemed to have been agreed upon if consumers do not object within four weeks or businesses do not object within two weeks.

Once the new agreement comes into force, the changes to the General Terms and Conditions shall also apply to all other current contracts.

Additional agreements. All forms of additional agreements, both prior to the conclusion of the contract and during the term of the contract, must be in writing in order to be valid. For businesses, this also applies to any deviation from the written form requirement.

Contract components on the part of the client. Even if Sport Kessler is aware of the customer's specifications regarding the content of the service, these shall only become part of the contract if Sport Kessler integrates them into the offer or Sport Kessler otherwise expressly accepts them, for example by referring to these specifications. Legal elements originating from the customer, such as general terms and conditions or contractual clauses, shall only become effective, even if Sport Kessler is aware of them, if they are expressly accepted by Sport Kessler with an additional note including these legal texts (e.g. ‘GTC accepted’). Otherwise, Sport Kessler expressly objects to the inclusion of legally formative elements, such as general terms and conditions or contractual clauses, of the customer.

The mere acceptance by Sport Kessler of specifications regarding the content of the customer's service therefore does not constitute acceptance of the customer's legal texts, even if these specifications contain legally formative elements (e.g. ‘Our General Terms and Conditions apply’).

Procedure in the event of discrepancies. In the event of discrepancies between the offer, any descriptions of services (project-specific documents, general documents), any price lists and Sport Kessler's General Terms and Conditions, these shall apply in the order stated. The more modified components therefore automatically amend the more general components of the contract.

In the event of contradictions between contractual elements of Sport Kessler and contractual elements of the customer, all contractual elements of Sport Kessler shall take precedence

Conclusion of contract

Offers by Sport Kessler. Offers from Sport Kessler to the customer, e.g. in the form of an individual offer to the customer or a non-modified offer such as an order form, catalogue or web shop, are without exception subject to change and non-binding.

Offer by the client. If the client places an order on the basis of an offer or unsolicited, i.e. without a prior offer from Sport Kessler, e.g. in the case of additional orders in ongoing business relationships, the client shall be bound to this order as a contractor for a fortnight or as a consumer for one week from its receipt by Sport Kessler.

Acceptance by Sport Kessler The contract is therefore only ever concluded when Sport Kessler accepts the order.

Acceptance must always be made in writing, e.g. by order confirmation, unless Sport Kessler indicates that it accepts the order, e.g. by taking action on the basis of the order that is visible to the customer. A mere confirmation of receipt of the order does not constitute acceptance of the order.

Scope of services, order processing and the client's duty to co-operate

Place of fulfilment for businesses. The place of fulfilment is the registered office of Sport Kessler.

Scope of services. The scope of the services to be provided is set out in Sport Kessler's written service description, which is derived from all parts of the contract. Information from other sources not included in the offer (e.g. presentation documents, websites or catalogues) are not part of the service description. The client is obliged to check the service description for compliance with his requirements and for completeness. After the order has been placed, changes to the service description are only possible by mutual agreement and may in particular lead to changes in prices, deadlines and dates.

Professional service. Unless otherwise stipulated in the written service description, Sport Kessler shall be responsible for professional execution in accordance with the time of submission of the offer. Within the framework of the written service description, Sport Kessler shall have freedom of design in the execution of the services, insofar as several professional options for execution exist

Interchangeable services. Insofar as this is consistent with the objectives of the order, Sport Kessler is authorised to deviate from the service description and to replace services with other equivalent services.

Third-party services. Sport Kessler is authorised to carry out the services itself or to make use of expert third parties in the provision of the services (external service).

Agreed third-party services. In the event that the provision of a service is agreed with the client as an external service (agreed third-party services. ), the contractual obligation consists exclusively in the provision of a third party. Sport Kessler is therefore only obliged, in the case of agreed third-party services, to select someone else to provide the service on the basis of its own contract with the client.  Sport Kessler is entitled to commission the third-party service at its own discretion, either in its own name or in the name of the client or for its own account or for the account of the client. If Sport Kessler concludes the contract in its own name and / or for its own account, this is done exclusively in the interest of the customer for the purpose of simplified contract and payment processing. The third party is therefore not active in the pursuit of Sport Kessler's interests and is therefore not included in Sport Kessler's pursuit of interests programs and therefore not included in Sport Kessler's area of risk. Sport Kessler is therefore not obliged to provide the specific service in the case of agreed third-party services.
As Sport Kessler's service consists exclusively of the provision of a third party, the client is obliged, at Sport Kessler's request at any time, to enter into the contract concluded by Sport Kessler with the third party for agreed third-party services and to indemnify and hold Sport Kessler harmless from this contractual relationship.

Divisible services. In the case of divisible services, Sport Kessler shall be entitled to make partial deliveries.

Expiry. The client must collect all services commissioned from Sport Kessler or handed over to Sport Kessler for processing in good time. In the event that they are not collected on time, Sport Kessler shall be entitled to dispose of the services at the customer's expense after three months in the case of businesses or six months in the case of consumers.

Dates and deadlines. Dates or deadlines specified by Sport Kessler are non-binding unless they are expressly labelled as binding.

Contract term. Contracts for an indefinite period may be cancelled at any time.

Unforeseeable or unavoidable events. Unforeseeable or unavoidable events - in particular default by the customer in the fulfilment of his obligations as well as unforeseeable and unavoidable delays at Sport Kessler or Sport Kessler's contractors - shall extend deadlines or postpone dates by the duration of the unforeseeable and unavoidable event plus the duration of the organisational measures necessary in such a case. Sport Kessler shall inform the customer of this in writing.

Obligations of the client to co-operate. The customer shall provide Sport Kessler with all information in writing without delay, without being requested to do so and in a form that can be further processed and shall provide all services required for the provision of the services by Sport Kessler.  This includes in particular the provision of a contact person for contract processing, the provision of documents, materials and equipment, the coordination of order details and the acceptance (approval) of partial services and services. If the need for the provision of information or services by the client only becomes known during the provision of the services by Sport Kessler, the client must provide this immediately. The client must check the information and services provided by him for their suitability, correctness and legality.
The client shall be liable for all damages caused by defective, delayed or omitted co-operation on the part of the client, and in particular for the additional expenses incurred by Sport Kessler as a result. If Sport Kessler is unable to perform the services as agreed due to defective, delayed or omitted cooperation on the part of the client, Sport Kessler shall also be entitled, without prejudice to other rights, to interrupt the performance of the service, to postpone other services for other clients and to continue the performance of the services for the client only after completion of these services, provided that the client has fulfilled his obligations to cooperate by then, whereby all dates and deadlines shall be postponed.  If claims are made against Sport Kessler by third parties due to an infringement of rights in connection with information or services provided by the client, the client shall also indemnify and hold Sport Kessler harmless and support Sport Kessler in the defence against any third-party claims.

Intervention by the client. If the client interferes with Sport Kessler's services in an unauthorised manner and makes changes, he shall be liable for any additional expenses incurred by Sport Kessler as a result, e.g. for inspection, documentation, identification of defects, classification of defects, rectification of defects.

Inspection obligations of Sport Kessler. Sport Kessler shall only be liable for ensuring that the services provided by Sport Kessler are not in themselves unlawful (e.g. use of a copyright-protected work without the author's consent).  However, Sport Kessler is under no obligation to legally examine the services provided by Sport Kessler for any infringement of third-party rights or for any legal infringements arising from the type of use planned by the client (e.g. the use of a graphic as a logo). The client must carry out these legal checks himself or have them carried out by an appropriately trained legal expert, in particular with regard to administrative, criminal, competition, trademark, labelling, design protection, copyright, personality and data protection law. Insofar as Sport Kessler points out the necessity of an additional legal examination of services with regard to other rights or other risks before the order is placed or during the order after new order details become known, the liability for carrying out this legal examination with regard to other rights or for taking these risks shall be transferred to the client in the event that Sport Kessler has a duty to inform or examine. Sport Kessler's service shall thus be deemed to have been rendered properly and in accordance with the agreement.

Special types of services

Rental. Insofar as Sport Kessler's services include the hire of goods (in particular skis, winter sports equipment, mountain bikes, e-bikes, via ferrata sets), Sport Kessler is entitled to charge the customer a one-off nominal fee in addition to the regular hire fee, which is charged for the entire hire period without exception. The nominal fee is charged per item loaned and is automatically calculated and shown separately when the booking is made. The amount of the fee depends on the type of item rented and the duration of the rental.

Issue, use and return of rented mountain bikes, e-bikes and via ferrata sets. The hirer must ensure that his hire bike is in perfect condition before setting off and must report any defects immediately. Riding in bike parks is prohibited with Sport Kessler hire bikes, and riding under the influence of alcohol or drugs is not permitted. Sport Kessler does not offer a collection service in the event of a puncture. Puncture repair kits are available for hire for a deposit fee. Mountain bikes, e-bikes and via ferrata sets must be returned to Sport Kessler no later than half an hour before closing time on the last day of hire. An overdue fee of € 20.00 per hour or part thereof and rental item will be charged for late return. If items are returned the next day (first day after the end of the rental period), Sport Kessler is entitled to charge an additional rental fee for the entire day.

Return of other rental items. Other rental items must be returned to Sport Kessler by 10.30 a.m. at the latest on the day following the last day of the rental period during Sport Kessler's shop opening hours. If items are returned late, Sport Kessler is entitled to charge the customer an additional hire fee for that day. An overdue fee of € 20.00 per hour or part thereof and rental item will be charged for late return. In the event of a return on the next day (first day after the end of the hire period), Sport Kessler is entitled to charge an additional hire fee for the entire day.

Damage to mountain bikes, e-bikes and via ferrata sets. All rental items must be handled with care and attention. The protection fee specified under "Rental" is included. The renter is liable for a maximum personal contribution of €150 for damage that goes beyond normal wear and tear. Excluded from this are frame breakage and damage that does not generally occur during the intended use of the bike (e.g. when riding in a ‘bike park’ or when riding under the influence of alcohol or drugs). In such cases, the costs incurred will be charged in full. If the bike suffers damage that can in principle be repaired, the client and Sport Kessler will clarify how the bike was used and how the damage occurred. The necessary repair steps will be discussed in detail between Sport Kessler and the customer and the customer will be informed of the expected costs in good time.

If the shock absorber of a rented via ferrata set is triggered, Sport Kessler is entitled to charge the customer a one-off lump sum of € 75.00 in addition to the protection fee described in the ‘Rental’ section.

Any further claims for damages by Sport Kessler remain unaffected by this.

Damage to other returnable items. All hire items must be treated with care and attention. If the item is damaged beyond repair on return (e.g. broken edge, bent edge, bent or broken ski), Sport Kessler is entitled to charge the customer an additional 20% of the current value of the rented item. The actual current value is determined automatically by the Sport Kessler hire system. Any further claims for damages by Sport Kessler remain unaffected by this.

Theft of the rental item. If the rental item is stolen, the customer is obliged to make a police report and provide Sport Kessler with a corresponding confirmation. Sport Kessler is entitled to charge the customer for the current value of the item. The actual current value is determined automatically by Sport Kessler's hire system. Any further claims for damages by Sport Kessler remain unaffected by this.

Loss of the rental item. If the rental item is lost, Sport Kessler is entitled to charge the customer the current value of the item. The actual current value is determined automatically by Sport Kessler's hire system. Any further claims for damages by Sport Kessler remain unaffected by this.

Cancellation. The customer has the option of cancelling up to 8 days before the start of the rental period by paying a processing fee of € 5.00. From the 7th day onwards, Sport Kessler is entitled to charge a cancellation fee of 25% of the total order value in addition to the processing fee of € 5.00. If the cancellation is made on the day on which the rental period begins, Sport Kessler is entitled to charge the entire order value.

Non-use of the rental item / force majeure. If the client refrains from using the hire item for a reason for which Sport Kessler is not responsible or if use is not possible for a reason for which Sport Kessler is not responsible (e.g. force majeure), Sport Kessler is not obliged to refund the hire fee to the client for this period of non-use.  

Confidentiality & non-solicitation

Confindentiality. The client must keep secret all confidential information about Sport Kessler, its projects and its other clients and may not utilise such information for itself or for third parties. This agreement shall survive any termination of the contract. In the event of a breach of this obligation, a contractual penalty in the amount of EUR 50,000.00 per breach shall be payable.

Non-solicitation clause. The client may not entice away any other clients or employees of Sport Kessler. This agreement shall remain in force for three years after the end of the contract. In the event of a breach of this obligation, a contractual penalty of EUR 50,000.00 per breach shall be payable

Remuneration

Price. All prices are quoted ex Sport Kessler's registered office or place of business in euros plus VAT in the case of contracts with businesses and including VAT at the statutory rate in the case of contracts with consumers.

Additional services. All services provided by Sport Kessler that are not expressly covered by the agreed fee, in particular additional services agreed at a later date, shall be remunerated separately.

Advanced payment. Sport Kessler is authorised to demand advance payments to cover its own expenses.

Partial services. Sport Kessler is authorised to charge for partial services.

Unjustified cancellation. In the event that the client cancels the order in whole or in part without gross negligence or wilful misconduct on the part of Sport Kessler, Sport Kessler shall nevertheless be entitled to the agreed fee. In this case, Sport Kessler shall only have to take into account savings from purchases not yet made. The same shall apply if Sport Kessler cancels the contract for an important reason within the sphere of the client.

Price adjustments. In the case of contracts for an indefinite period and contracts with automatic extension of the contract term, Sport Kessler is entitled to make an appropriate annual price adjustment, taking into account factors such as inflation, consumer and producer price index, collective agreements, currency fluctuations and similar external factors beyond Sport Kessler's control.  Sport Kessler is also otherwise entitled to make an appropriate price adjustment for individual services after conclusion of the contract if the costs of these services increase by more than 5% without Sport Kessler being able to influence this. Consumers are also entitled to a reduction in the fee if the reverse conditions are met.

Payment

Due date. Sport Kessler's invoices are due without any deductions from the date of invoice. In principle, services shall only be provided after full payment has been received.

Payment Options. Sport Kessler invoices must be paid within 7 days of receipt of the invoice.

Payment options for online transactions. For online transactions, Sport Kessler's invoices are to be paid when the order is placed.

Reservation of ownership. Until full payment has been made by the customer, a reservation of ownership in favour of Sport Kessler shall be deemed agreed for the goods delivered by Sport Kessler until full payment of the purchase price and all associated interest and costs. In the event of default, Sport Kessler shall be entitled to assert rights arising from the retention of ownership. In this case, the customer agrees to Sport Kessler collecting the goods. The assertion of the retention of ownership by Sport Kessler shall not constitute a cancellation of the contract, unless Sport Kessler expressly declares its cancellation of the contract. In the event of resale of the goods by the customer, the customer shall assign his claim against the buyer to Sport Kessler for the purpose of security. Sport Kessler shall be entitled to inform the buyer of this assignment.

Prohibition of offsetting and retention. Customers who are businesses are not entitled to set off their own claims against Sport Kessler's claims, even in the case of con-nex claims, unless the customer's claim has been recognised in writing by Sport Kessler or has been established by a court. A right of retention in favour of customers who are businesses is excluded.

Default of payment. In the event of late payment, the statutory interest applicable between entrepreneurs, but at least 9% per annum, shall be payable in the case of contracts with businesses, and interest in the amount of 9% per annum in the case of contracts with consumers. The client shall bear all costs and expenses associated with the collection of the claim, such as in particular collection charges or other costs necessary for appropriate legal action.

Continued delay in payment. Following an unsuccessful reminder from the client setting a grace period of at least 7 days, Sport Kessler may demand immediate payment of all services and partial services already provided, including those provided within the framework of other contracts concluded with the client, and temporarily suspend the provision of services not yet paid for until all outstanding fees have been paid in full.
After a further week has elapsed without payment, Sport Kessler shall be entitled to withdraw from all contracts and to demand compensation for loss of profit in addition to payment for services already rendered. Sport Kessler is thus also entitled not to carry out or to discontinue services that have already been paid for, insofar as savings result from the discontinuation of the service and the savings are offset against the outstanding claims. Irrespective of these options, Sport Kessler may of course also file an action in court immediately after expiry of the due date.

Payment by instalment. Insofar as Sport Kessler and the client conclude an instalment payment agreement, the loss of a deadline shall be deemed to have been agreed in the event that even one instalment is not paid on time.

Liability

Transfer of risk for businesses. When goods are dispatched, the risk shall always pass to the customer as soon as Sport Kessler has handed over the goods to the transport company. The dispatch of goods is generally not insured, unless the customer has commissioned Sport Kessler to insure the goods at his own expense.

Inspection of goods, receiving goods. On delivery, the goods must be checked carefully for completeness and transport damage before acceptance. Any damage must be noted in writing on the scanner and delivery note.

Obligation to give notice of defects for businesses. After requesting an interim acceptance by Sport Kessler, the client must accept (‘release’) the services handed over or to be accepted in writing within 8 days at the latest after handover and after commencement of live operation, or report any defects or damage in writing. In the event of interim acceptance, Sport Kessler may only continue work after interim acceptance / ‘release’ has been carried out. If acceptance or notification of defects is not made in good time, the services shall automatically be deemed to have been accepted by the client.

Hidden defects or damage that only occur after the expiry of 8 days, but within open guarantee, warranty or compensation periods, must also be reported by the client within 8 days of being recognised. The obligation to give notice of defects shall apply to all defects or damage which the client should have recognised with the due care of a prudent contractor in the course of an appropriate inspection.Due to the particular importance of interim acceptances for the avoidance of defects, which then affect all further performance steps, the inspection must correspond to a final, detailed and particularly careful inspection. At handover, the inspection must be an initial, but nonetheless precise inspection. At the start of live operation, the inspection must again correspond to a final, detailed and particularly careful inspection due to the particular importance of the start of live operation to prevent damage during operation.
The client's complaint must describe the defect or damage in detail and in a comprehensible manner. In the case of defects or damage that do not occur continuously, the exact times and conditions under which the defects or damage occurred must be stated. The client shall enable Sport Kessler to take all measures necessary to investigate and rectify the defects or damage. If the customer fails to give notice of defects in due time, the assertion of guarantee, warranty and damage compensation claims as well as claims based on other liability regulations, in particular recourse claims, by the customer shall be excluded.

Guarantee. Insofar as parts of the contractor's performance are covered by a guarantee granted by a third party, this guarantee must be claimed directly from the third party (e.g. manufacturer's guarantee).  In the event of a guarantee promise by Sport Kessler, the period for asserting the guarantee claim shall commence upon handover. The warranty claim shall expire six months after the customer becomes aware of the occurrence of the warranty claim, but at the latest on expiry of the warranty period. If the content of the guarantee is not clear from the guarantee promise, Sport Kessler shall be liable for the usually assumed characteristics.

Warranty. The statutory provisions of warranty law apply to consumers. In addition, any additional guarantees or customer services granted within the scope of the product description shall apply to consumers.  The right to warranty and the right to warranty recourse are limited to six months from delivery for businesses. In the case of used goods, the right to warranty is completely excluded for businesses.  As an entrepreneur, the customer has the right to repair or replacement or, in the case of minor defects, to a price reduction or, in the case of major defects, to cancellation of the contract at Sport Kessler's discretion. The rectification of the defect shall not extend the warranty period for businesses, nor shall it begin to run anew for the part of the service affected by the rectification of the defect.

Error, reduction by more than half for businesses. The right to rescission due to error and due to a reduction of more than half is excluded.

Compensation for damages and other claims. Claims for damages and claims based on other liability regulations, in particular recourse claims, of the client are excluded, unless they are based on gross negligence or intent in the case of contracts with businesses or gross negligence or intent on the part of Sport Kessler in the case of contracts with consumers. Such claims by businesses shall expire six months after knowledge of the damage and the damaging party; in any case, however, after three years from the act of infringement.
Excluded from this exclusion of liability are claims based on personal injury and other non-dispositive liability provisions.

Protective effect in favour of third parties. It is expressly agreed that this agreement does not have any protective effect in favour of third parties.

Liability for agreed third-party services. The respective third parties providing the agreed third-party services are not employees of Sport Kessler. Sport Kessler is therefore only liable for the fault of selection. If the third party is engaged at the suggestion of the client, Sport Kessler shall not be liable for the third party at all.

Burden of proof for businesses. A reversal of the burden of proof to the detriment of Sport Kessler is excluded. In particular, the existence of the defect at the time of handover, the time of discovery of the defect, the timeliness of the notice of defect and the existence and degree of fault must be proven by the customer.

Grace period for businesses. In the event of non-fulfilment of the contract in accordance with the agreement, the client shall only be entitled to assert claims if he has granted Sport Kessler a reasonable grace period of at least fourteen days in writing. This shall also apply to the cancellation of the contract for good cause.

Cancellation of contract for businesses. Cancellation of the contract by the client must be declared in writing by registered letter.

Online Dispute Resolution

Online Dispute Resolution Platform for Consumers. The EU has set up an ‘online dispute resolution platform’ (ec.europa.eu/odr) to settle disputes with consumers. Sport Kessler decides whether to participate in a dispute resolution procedure on a case-by-case basis. Sport Kessler is available at info(at)sport-kessler.com for questions regarding dispute resolution.

Final Provisions

Applicable law. Austrian law shall apply exclusively to all legal relationships and circumstances between the client and Sport Kessler.  The exception is International rule of law.

Mandatory consumer rights. If, in the case of contracts with consumers, Sport Kessler's professional or commercial activity is orientated towards the consumer's home country, the protection offered to the consumer by the mandatory legal provisions of the country of residence shall remain unaffected by the agreed applicable law.

UN Sales Convention. The provisions of the UN Convention on Contracts for the International Sale of Goods do not apply to contracts with businesses.

Place of jurisdiction for businesses. The place of jurisdiction for all disputes between Sport Kessler and businesses shall be the Austrian court responsible for Riezlern. However, Sport Kessler is also entitled to take legal action at the general place of jurisdiction of Sport Kessler and the business