General terms and conditions
Sports Management Program GmbH (FN212321m), with its registered office in 4820 Bad Ischl, Traunkai 12, offers both consumers and companies via the online shop www.toalson.at. Tennis products for review and purchase. Consumers are natural persons who conclude a legal transaction that cannot be attributed to their commercial or independent professional activity. Companies are legal or natural persons as well as partnerships and corporations (KG, GmbH,.) who conclude a legal transaction and act in the sense of their commercial or self-employed activity. Consumers and companies are generally referred to as customers. The sports equipment can be ordered online by customers individually and obtained by delivery of SMP GmbH. A purchase contract is concluded with SMP GmbH. Detailed information on the company Sports Management Program GmbH can be found in the imprint.
The deliveries, services and offers of SMP GmbH are made exclusively on the basis of these terms and conditions; we do not recognise any terms and conditions of the customer that conflict with or deviate from our terms and conditions, unless we have expressly agreed to their validity. Contractual performance on our part shall in this respect not be deemed to be consent to contractual terms and conditions deviating from our terms and conditions. These terms and conditions shall also apply as a framework agreement to all further legal transactions between the contracting parties. The version of these terms and conditions current at the time of the conclusion of the contract shall be authoritative.
b) Conclusion of contract
A contract offer by a customer requires an order confirmation. The dispatch of the goods ordered by the customer shall also effect the conclusion of the contract. The viewing of the products does not constitute a legal and binding offer. Only by registering, entering your data in full, placing your items in the shopping basket, checking, selecting the desired method of payment and finally clicking on the button "Order now subject to payment" do you place a binding order. This is followed by the confirmation of receipt, which you will receive immediately after the binding order by means of an automated email. With this confirmation of receipt by email, the purchase contract is concluded, taking into account the credit card charge when selecting the payment method "credit card" or the amount received on our account when selecting the payment method "cash in advance".
Should agreements be made between the customer and SMP GmbH after the order has been placed, for example for the proper execution of the order, these shall only be binding in written form.
Unless expressly stated otherwise, all prices quoted by us are inclusive of value added tax. Should the wage costs change due to internal company accounts or should other cost centres relevant for the calculation or costs necessary for the provision of services such as those for materials, energy, transport, external work, etc. change, we shall be entitled to increase or reduce the prices accordingly. In the case of consumer transactions, the price adjustment clause of this point shall not apply. Additional costs will be incurred for subsequent order changes, which will be agreed in writing. They thus become binding and will be invoiced to the customer.
The invoice will be sent to the customer by e-mail or by post together with the delivery of the ordered goods.
On www.toalson.at customers can choose their tennis accessories according to type and colour.
e) Terms of payment, interest on arrears
Payments by the customer shall only be deemed to have been made at the time of receipt on our business account. In the event of default of payment by the customer, we shall be entitled to demand, at our discretion, compensation for the damage actually incurred or default interest at the statutory rate. In the event of default of payment by the customer, our company shall also be entitled to demand compound interest from the date of handover of the goods.
e.1) Payment, means of payment
The following means of payment are currently available to the customer. These may be extended or changed by SMP GmbH at any time. Credit cards: The customer's credit card will be charged upon completion of the order. Bank transfer: The account details will be sent to the customer automatically by email after the binding order. As soon as the payment has been received on the account of SMP GmbH, the order is processed. For the customer group "companies" (e.g. traders), an additional form of payment, payment on collection in the shop, is available if agreed.
f) Withdrawal from the contract
In the event of default of acceptance (e.g. withdrawal of the bank transfer) or other important reasons (e.g. cash on delivery payment was agreed), such as in particular insolvency of the customer or rejection of bankruptcy for lack of assets, as well as in the event of default of payment by the customer, we are entitled to withdraw from the contract, insofar as it has not yet been completely fulfilled by both parties. In the event of withdrawal, we shall be entitled, if the customer is at fault, to choose between claiming a lump-sum compensation of 15% of the gross invoice amount or compensation for the actual damage incurred. In the event of default of payment by the customer, we shall be released from all further performance and delivery obligations and shall be entitled to withhold outstanding deliveries or services and to demand advance payments or securities or to withdraw from the contract after setting a reasonable grace period. If the customer - without being entitled to do so - withdraws from the contract or requests its cancellation, we have the choice of insisting on the fulfilment of the contract or agreeing to the cancellation of the contract; in the latter case, the customer is obliged to pay, at our discretion, liquidated damages amounting to 15% of the gross invoice amount or the actual damage incurred. In the case of distance contracts (§§ 5a ff Consumer Protection Act), the consumer may withdraw from the contract within 7 working days, whereby Saturdays do not count as working days. The period begins with the day of receipt of the goods by the consumer or, in the case of services, with the day of conclusion of the contract. It is sufficient to send the declaration of withdrawal within this period. In deviation from the applicable provisions of §§ 5a ff Consumer Protection Act, you can withdraw from your contract with toalson.at within 7 days!
g) Reminder and collection charges
In the event of default, the contractual partner (customer) undertakes to reimburse the dunning and collection expenses incurred by the creditor, insofar as they are necessary for the appropriate prosecution, whereby the contractual partner undertakes in particular to reimburse at most the fees of the collection agency involved, which result from the BMwA regulation on the maximum rates of fees payable to collection agencies. If the creditor carries out the dunning process himself, the debtor undertakes to pay an amount of EUR 10.90 per reminder and an amount of EUR 3.63 per half-year for keeping records of the debt relationship in the dunning process.
h) Delivery, transport, default of acceptance
Our sales prices do not include any costs for delivery. Upon request, however, we will provide or organise these services against separate payment. In this case, the actual costs incurred for transport or delivery, including a reasonable overhead surcharge, but at least the freight and carriage charges for the selected type of transport applicable or customary on the day of delivery, shall be invoiced. In the case of any non-contractually agreed method of payment cash on delivery or payment on delivery, the following shall apply: If the customer has not taken delivery of the goods as agreed (default in acceptance), we shall be entitled, after setting a grace period to no avail, either to store the goods on our premises, for which we shall charge a storage fee of 0.1% of the gross invoice amount per calendar day or part thereof, or to store them at the customer's expense and risk with an authorised tradesman. At the same time, we are entitled either to insist on fulfilment of the contract or, after setting a reasonable period of grace of at least 2 weeks, to withdraw from the contract and to dispose of the goods elsewhere.
h.1) Shipping costs
Shipping costs for the respective articles and delivery locations can be viewed at any time in the online shop and also in the order process.
Austria: € 5.99 incl. VAT
EU: € 9,99 incl. VAT
For deliveries to non-EU countries, import duties may be charged separately by authorities or delivery companies. These are not taken into account in the shipping costs and must be paid additionally to the relevant customs duty issuers.
Collection by customers (self-collection) is possible in principle. If agreed, the company may be granted the additional payment option "payment on collection". This option does not apply to consumers.
h.3) Damage due to transport:
Obvious transport damage must be claimed immediately from the deliverer and SMP GmbH must be notified. If the customer fails to contact or complain to the delivery agent in due time, the customer shall not lose any legal claims (e.g. warranty) arising therefrom.
i) Delivery period
We are only obliged to carry out the service as soon as the customer has fulfilled all his obligations which are necessary for the execution, in particular all technical and contractual details, preparatory work and preparatory measures. The delivery time is on average 2-10 days from confirmation of the order by SMP GmbH. We are entitled to exceed the agreed dates and delivery periods. (In particular in the case of agreements according to orders for the proper execution of the order, subsequent changes, force majeure) Only after the expiry of this period may the customer withdraw from the contract after setting a reasonable period of grace.
j) Place of performance
The place of performance is the registered office of Sports Management Program GmbH.
k) Minor changes in performance
If the transaction is not a consumer transaction, minor or other changes to our performance or delivery obligations that are reasonable for our customers shall be deemed approved in advance.
l) Compensation, Complaints
All claims for damages are excluded in cases of slight negligence. This does not apply to personal injury or, in the case of consumer transactions, to damage to items accepted for processing. The existence of slight or gross negligence must be proven by the injured party, unless it is a consumer transaction. If the transaction is not a consumer transaction, the limitation period for claims for damages shall be 6 months from the transfer of risk. The provisions on damages contained in these terms and conditions or otherwise agreed shall also apply if the claim for damages is asserted in addition to or instead of a warranty claim. Claims for damages as well as claims arising from complaints are subject to a limitation period of 6 months from the order date for consumers and 6 months from the order date for companies.
The customer is obliged: To check the order confirmation immediately upon receipt and to report any complaints to SMP GmbH without delay. Otherwise, the order shall be deemed to have been accepted and shall be delivered in accordance with the order. To check the goods immediately for complaints. Consumers must report serious defects within 2 weeks in order to make a warranty claim. Companies must report serious defects within 2 weeks, otherwise the assertion of the warranty claim is excluded. SMP GmbH shall be responsible for determining the type of warranty either by rectification or replacement delivery. If there are justified complaints about individual products of the total order, the customer shall not be entitled to complain about the total order. Tolerances in quality, material, colours, tonal values do not constitute grounds for complaints on the part of consumers and companies if they are unavoidable.
m) Retention of title and its assertion
All goods shall be delivered by SMP GmbH subject to retention of title and shall remain our property until payment has been made in full. The assertion of the reservation of title shall only constitute a withdrawal from the contract if this is expressly declared. In the event of goods being taken back, SMP GmbH shall be entitled to charge transport and manipulation costs incurred. In the event of access by third parties to the goods subject to retention of title - in particular through seizure - the customer undertakes to draw attention to the ownership of SMP GmbH and to inform SMP GmbH immediately. If the customer is a consumer or not an entrepreneur whose ordinary business operations include trading in the goods purchased from SMP GmbH, he may not dispose of the goods subject to retention of title until the outstanding purchase price claim has been settled in full, in particular he may not sell, pledge, give away or lend them. The customer shall bear the full risk for the reserved goods, in particular for the risk of destruction, loss or deterioration.
n) Assignment of claims
In the case of delivery under reservation of title, the customer already now assigns his claims against third parties, insofar as these arise from the sale or processing of the goods of SMP GmbH, on account of payment until final payment of the claims. The customer shall name his buyers to SMP GmbH upon request and notify them of the assignment in due time. The assignment shall be entered in the business books, in particular in the open items list, and shall be made apparent to the customer on delivery notes, invoices, etc. The customer shall inform SMP GmbH of the assignment in good time. If the customer is in default with his payments, the sales proceeds received by him shall be segregated and the customer shall hold them only in the name of SMP GmbH. Any claims against an insurer are already now assigned to SMP GmbH within the limits of § 15 of the Insurance Contract Act. Claims against SMP GmbH may not be assigned without our express consent.
If the transaction is not a consumer transaction, the customer shall not be entitled to withhold the entire gross invoice amount, but only an appropriate part thereof, in the event of a justified complaint, except in cases of rescission.
p) Choice of law, place of jurisdiction
Austrian law shall apply. The applicability of the UN Convention on Contracts for the International Sale of Goods is expressly excluded. The language of the contract shall be German. The contracting parties agree on Austrian domestic jurisdiction. If it is not a consumer transaction, the court with subject-matter jurisdiction at the registered office of our company shall have exclusive local jurisdiction to decide on all disputes arising from this contract.
q) Data protection, change of address and copyright
The customer gives his consent that the personal data contained in the purchase contract may also be stored and processed by automated means in the performance of this contract. By placing an order, the customer agrees that his data may be used to inform him from time to time by post or e-mail about other products that may be of interest. In addition, SMP GmbH is entitled to pass on personal data for collection purposes and SMP GmbH reserves the right to notify protective organisations of the economy, courts and competent authorities. The customer may object to or revoke the further use of the data for advertising purposes at any time by written notification with effect for the future. The customer is obliged to notify SMP GmbH of any changes in his residential or business address as long as the contractual legal transaction has not been completely fulfilled by both parties. If the notification is omitted, declarations shall be deemed to have been received even if they are sent to the last address notified. Plans, sketches or other technical documents as well as samples, catalogues, brochures, illustrations and the like shall always remain the intellectual property of SMP GmbH; the customer shall not receive any rights of use or exploitation whatsoever.
Alternative dispute resolution pursuant to Art. 14 (1) ODR Regulation and § 36 VSBG:
The European Commission provides a platform for online dispute resolution (ODR), which you can find at https://ec.europa.eu/consumers/odr. We are not obliged or willing to participate in a dispute resolution procedure before a consumer arbitration board.
1.Scope: These terms and conditions apply to all our offers, agreements, deliveries and services with the customer. Other terms and conditions shall only be binding for us if we have accepted them in writing.
General terms and conditions of the ordering party shall not become part of the contract, even if we do not expressly object to them.
2.Terms of delivery: Our quotations are subject to change. The contract is only concluded by our written order confirmation or by the execution of the delivery.
We reserve the right to make technical changes and model deviations insofar as they correspond to technical progress or fashion aspects and are reasonable for the customer.
3.Prices: The customer shall pay the price valid on the day of delivery. Our prices are quoted in European currency ex warehouse and do not include VAT, customs duty, freight, shipping, packaging, insurance, etc.. These costs shall be borne additionally by the customer even if they are not specifically stated in the invoice.
If there is a period of at least three months between conclusion of the contract and delivery, the prices and conditions valid on the day of delivery shall apply.
4.Packaging: The type of packaging shall be in accordance with our appropriate determination. The shipping packaging will be charged at cost price.
5. dispatch: Dispatch shall always be effected for the account and at the risk of the purchaser, unless otherwise agreed in writing. This also applies to the risk if we exceptionally assume the costs of the transport.
Each closed consignment with a net goods value of Euro 100.00 shall be dispatched at our discretion either by our in-house forwarding agent as a consolidated consignment free domicile or as a postal consignment/UPS carriage paid.
At the request of the purchaser, we will send express goods at the cost of the difference between freight and express goods.
The goods shall also travel at the risk of the customer in the case of carriage paid delivery, but shall be insured by us for transport.
Consignments with a value of goods of less than Euro 100.00 shall be subject to a minimum quantity surcharge of Euro 10.00).
The risk shall pass to the customer when we hand over the goods to the carrier.
6 Delivery time: Agreed delivery times are always only approximately binding, however, they are stated according to appropriate discretion. After the occurrence of a delay, the purchaser is obliged to set us a period of grace of at least 30 days. After expiry of the grace period, the customer may withdraw from the contract, unless the goods have been notified as ready for dispatch before expiry of the grace period. Claims for damages due to delayed delivery are excluded for slight negligence.
Strikes, lockouts, natural disasters, official measures or other unforeseen circumstances affecting us or our suppliers give us the right to withdraw from the contract or reduce the agreed delivery quantity without granting compensation and without any obligation to make a subsequent delivery.
The customer is obliged to inspect the goods for quantity and quality immediately upon receipt. Notices of defects and complaints due to recognisable defects or recognisably incomplete or incorrect delivery must be notified to us in writing without delay, at the latest within 7 days of receipt of the goods. Other defects must be notified to us in writing immediately after discovery. If complaints or notifications of defects are not made in good time, the delivery shall be deemed to have been approved. In the event of timely notification, the claims of the purchaser shall be governed by the provisions of the warranty. Returns may only be made in agreement with us.
Defects cannot be held against us as long as we are not given the opportunity to convince ourselves of the existence of a defect, in particular as long as the goods complained of or samples thereof are not made available to us upon request.
The delivery of clearance goods shall always be made to the exclusion of the right of exchange and complaint.
The disposal of transport packaging is part of our calculation and included in the respective dealer purchase prices.
7.Warranty: We provide a warranty for guaranteed properties and for freedom from defects in accordance with the respective state of the art. We reserve the right to make technical changes and model deviations within the scope of the properties guaranteed by the offer and these do not entitle the customer to make a complaint.
The assurance of properties requires our written declaration or confirmation in any case.
If the delivered item is defective, the purchaser can only demand rectification of the defect. Instead of rectification, we shall be entitled to make a replacement delivery. In the event of failure of rectification or replacement delivery, the customer may rescind the contract or demand a reduction of the order price.
Even in the event of a culpable breach of the obligation to rectify defects, a claim for damages, including damages caused by the late rectification of defects, such as slight negligence, is excluded. The customer is only entitled to demand the cancellation of the order or the reduction of the order price. The exclusion of claims for damages shall not apply if the delivered item lacks a warranted characteristic.
We do not accept any liability for damage caused by unsuitable or improper shipment.
The customer must give us the necessary time and opportunity to carry out the repairs or replacement deliveries, otherwise we are released from liability for defects. We may refuse to repair or replace the goods as long as the customer has not fulfilled all his obligations in connection with the defective part of the goods. Liability for consequential damages, i.e. for damages to other legal assets of the customer, from loss of profit, etc., is excluded, unless we are also liable for consequential damages due to the defect of a warranted quality of the goods.
8.Other claims: Claims for damages by the purchaser, irrespective of the legal grounds, in particular from tort, incorrect advice, debts on conclusion of the contract and impossibility are excluded for slight negligence. This exclusion of liability does not apply to liability independent of fault, in particular the absence of warranted characteristics and for product defects in accordance with the Product Liability Act.
9.Reservation of ownership: The goods delivered by us remain our property until full payment has been made.
The customer is entitled to sell the goods to which we have retained title to a third party in the ordinary course of business. However, upon conclusion of the purchase contract, the purchaser shall assign to us, with all rights, the claims against his customers arising from the resale until all our claims from the delivery of goods have been settled in full. At our request, the customer shall be obliged to notify the sub-customers of the assignment and to provide us with the information and documents required to assert our rights. If there are already claims against third parties arising from damage to or destruction of the goods which have not yet been paid for in full, the customer hereby assigns his claims for payment arising therefrom. The customer may not pledge the goods or assign them as security. We must be notified immediately of any seizure of the goods subject to retention of title, enclosing the seizure report (copy). If we become aware of circumstances which make the solvency of the customer appear questionable, we may demand the immediate surrender of the reserved goods without setting a deadline. With the reclaim of the goods delivered under retention of title, we do not withdraw from the contract at the same time without further ado; a separate declaration on our part is necessary for this.
10.Payments: Our invoices are payable net in advance within 7 days of the invoice date.
Bank, discount and collection charges shall be borne by the customer even without express agreement.
The customer may only set off claims that are undisputed or have been legally established. The customer may only exercise a right of retention if it is based on the same contractual relationship.
If the payment deadline is exceeded, we have the right to charge interest from this point in time, even without a reminder, at a rate of 2% p.a. above the respective discount rate of the European Central Bank, but at least 8% p.a..
We reserve the right to grant credit and may revoke it at any time - even partially.
for sports equipment: The sports equipment shall be delivered ex works (invoice and risk) of the recipient, uninsured, by the cheapest shipping method, unless the customer expressly specifies a different shipping method. Postage or freight costs and the statutory value-added tax payable on them shall be invoiced separately.
Complaints about equipment, balls and materials that have already been used must in all cases be sent in carriage paid. If material or processing defects can be detected, we shall provide replacement within six months of the date of sale.
The above provisions supplement the SMP terms and conditions. These apply in full to all articles.
12.Place of performance,
Place of jurisdiction,
Place of jurisdiction: Wels is agreed as the place of jurisdiction for deliveries, services and payments, as well as for all disputes arising from cheques. We reserve the right to take legal action at the place of business of the ordering party.
All relations between the customer and us shall be governed by Austrian law, including relations with foreign partners, to the exclusion of international sales law.