of the contractor Tisca Textil GmbH & Co KG, hereinafter referred to as Tisca.
SCOPE OF APPLICATION
Contractual basis. Tisca shall conclude contracts and provide works and services exclusively on the basis of written offers prepared by Tisca and of the valid version of any specifications included in the offer (such as individual documents or general folders), price lists and these General Terms and Conditions.
Unless they are merely project-specific (e.g. individual documents), the specifications, price lists and General Terms and Conditions shall apply to all legal relations between Tisca and the Customer and shall therefore automatically from the first conclusion of contract form the basis of all further conclusions of contract between Tisca and the relevant Customer in the most recent version, even if no express reference is made again to these price lists, product descriptions and General Terms and Conditions.
Future changes. Changes to Tisca’s specifications, price lists and General Terms and Conditions shall be given in writing to the Customer and shall be deemed agreed, unless consumers object within four weeks and/or entrepreneurs object within two weeks.
As soon as the new agreement is valid, the changes to the General Terms and Conditions shall also apply to all other contracts that are still in effect.
Additional agreements. All additional agreements in whatever form made prior to the conclusion of contract and during the contractual term must be set out in writing to be effective. In dealings with entrepreneurs, this shall also apply to the waiver of the written form requirement.
Customer’s contract components. Any stipulations made by the Customer regarding the deliverables, even if Tisca is aware of them, shall only become integral part of the contract if they are included in the offer by Tisca or otherwise expressly accepted by Tisca, e.g. by reference to such stipulations.
Any legally operative elements originating from the Customer, such as General Terms and Conditions and contract clauses, even if Tisca is aware of them, shall only become effective if they are accepted by Tisca by means of an additional note that expressly includes such legal texts (such as “General Terms and Conditions accepted”). Otherwise, Tisca shall expressly object to the inclusion of any legally operative elements such as General Terms and Conditions or contract clauses of the Customer.
The mere acceptance by Tisca of the Customer’s stipulations regarding the deliverables shall thus not constitute any acceptance of the Customer’s legal texts, even if such stipulations include legally operative elements (such as “Our General Terms and Conditions shall apply”).
Procedure in case of discrepancies. If there are any discrepancies between the offer, any specifications (project-specific documents, general documents), any price lists and the General Terms and Conditions of Tisca, they shall apply in the aforementioned order. The more individual components shall therefore automatically modify the more general components of the contract.
If there are any discrepancies between contractual components of Tisca and contractual components of the Customer, all contractual components of Tisca shall have priority.
CONCLUSION OF CONTRACT
Tisca’s offer. All of Tisca’s offers submitted to the Customer, e.g. in the form of an individual offer to the Customer or a non-individualised offer such as an order form, a catalogue or a web shop shall be non-binding and subject to confirmation.
Customer’s offer. If the Customer places an order based on an offer or spontaneously, i.e. without any prior offer submitted by Tisca, such as additional orders in ongoing business relations, the Customer shall be bound to such order for two weeks from receipt by Tisca if it is an entrepreneur and/or one week from receipt by Tisca if it is a consumer.
Acceptance by Tisca. The contract shall only be concluded after the order is accepted by Tisca.
Acceptance shall generally be made in writing, e.g. by order confirmation, unless Tisca indicates, e.g. by starting to execute the order in a manner that it evident to the Customer, that Tisca accepts the order.
The mere confirmation that the order has been received shall not constitute acceptance of the order.
SCOPE OF WORKS AND SERVICES, ORDER PROCESSING AND CUSTOMER’S DUTIES TO COOPERATE
Place of performance in dealings with entrepreneurs. Place of performance shall be Tisca’s registered office.
Scope of works and services. The scope of the works and services to be carried out shall be stated in Tisca’s written specifications that result from all components of the contract. Information from other sources (e.g. presentation documents, websites or catalogues) that are not included in the offer shall not be part of the specifications.
The Customer shall be obliged to check the specifications for the fulfilment of its requirements and for completeness. After the order has been placed, the specifications may only be modified by mutual agreement; such modifications may particularly result in changed prices, dates and deadlines.
Professional works and services. Unless the written specifications provide otherwise, Tisca shall owe a professional execution in accordance with the time the offer was submitted. Within the context of the written specifications, Tisca shall have creative freedom when executing the works and services if several professional options for execution are available.
Exchangeable works and services. If in compliance with the objectives of the order, Tisca shall be entitled to deviate from the specifications and replace works and services with other equivalent works and services.
Third-party services. Tisca shall be entitled to execute the works and services itself or employ professional third parties in the execution of the works and services (third-party services).
Divisible works and services. If works and services can be divided, Tisca shall be entitled to make partial deliveries.
Forfeiture. The Customer shall collect all work and service orders placed with Tisca or work and services given to Tisca for processing in due time. If the Customer fails to collect in due time, Tisca shall be entitled to dispose of the works and services at the Customer’s cost after three months in dealings with entrepreneurs and/or after six months in dealings with consumers.
Dates and deadlines. Dates and deadlines indicated by Tisca shall not be binding, unless they are expressly stated as being binding.
Unforeseeable or unavoidable events. Unforeseeable or unavoidable events – particularly delay on part of the Customer in the fulfilment of its obligations as well as delays on part of Tisca or Tisca’s contractors that could not have been foreseen or avoided by Tisca – shall extend dates and/or deadlines by the duration of the unforeseeable and unavoidable event plus the duration for the organisational measures that need to be taken in such cases. Tisca shall inform the Customer about this in writing.
Customer’s duties to cooperate. The Customer shall provide Tisca immediately, without being asked, in writing and in a further processable form with all information and with all services that is/are required so that Tisca can carry out the works and services.
This shall particularly include the provision of a contact for contract execution, the provision of documents, materials and facilities, the coordination of order details and the acceptance (approval) of partially and fully completed works and services.
If it only becomes known during the performance of the works and services by Tisca that information or services need to be provided by the Customer, the Customer shall provide such information or services immediately and without delay.
The Customer shall check the information and services provided by it for suitability, correctness and lawfulness itself.
The Customer shall be liable for all losses caused by the insufficient, late or failed cooperation of the Customer, particularly also for any extra expenses incurred by Tisca as a result. If Tisca is unable to execute the works and services as agreed due to insufficient, late or failed cooperation of the Customer, Tisca shall be entitled, without prejudice to other rights, to interrupt the execution of the works and services, to carry out other works and services for other customers in the meantime and to resume the execution of the works and services for the Customer only after such works and services for other customers are completed if the Customer has met its duties to cooperate until then, which results in the postponement of all dates and deadlines.
If third parties assert claims against Tisca due to a legal violation in connection with information or services provided by the Customer, the Customer shall indemnify Tisca and hold it harmless from and against any such claims and support it in the defence against any claims asserted by third parties.
Customer’s interventions. If the Customer interferes with Tisca’s works and services and modifies them without being authorised to do so and in a manner not agreed, it shall be liable for any extra expenses thus incurred by Tisca, e.g. for review, documentation, identification of defects, allocation of defects, removal of defects.
Tisca’s obligations to inspect. Tisca shall only be liable to make sure that the works and services provided by Tisca are not unlawful (e.g. use of copyrighted works without the creator’s consent).
However, Tisca shall not be obliged to carry out any legal review of the works and services carried out by Tisca for any violation of rights of third parties or for any legal violations resulting from the type of use intended by the Customer (e.g. use of a graphic as a logo). The Customer shall carry out such legal reviews, particularly as regards administrative, criminal, competition, trademark, labelling, design protection, copyright, privacy and data protection law itself or have them carried out by professionally trained legal experts.
If Tisca points out the necessity of an additional legal review of works and services also with regard to other rights or points out other risks before the order is placed or during the execution of the order after new order details become known, the liability for the performance of such legal review with regard to other rights or for the taking of such risks shall be transferred to the Customer in case duties to inform or review applied to Tisca. Tisca’s works and services shall thus be deemed carried out duly and as agreed.
Rights to the works and services. As a basic principle, all rights to the agreed works and services shall be with Tisca and/or Tisca’s licensors. The Customer shall be entitled to use the works and services to the extent agreed with Tisca and/or pre-defined by the licensors after the full payment of the agreed remuneration.
If such extent has not been agreed, it shall include the non-exclusive use not including any right to sub-licence or pass on to third parties (and/or affiliated companies) for internal use in the Customer’s company; the right to process shall be limited to the essential minimum provided by law.
The Customer is aware that Tisca’s works and services are often based on works or services of third parties with varied licencing conditions. The Customer shall meet such licencing conditions of works or services of third parties that are part of the works and services of Tisca.
Reference. Tisca shall be entitled to refer to Tisca on all works and services carried out for the Customer and, where relevant, to another creator, and to use, subject to written revocation at any time, data such as the name and logo of the Customer, project descriptions, project illustrations and the like as a reference and/or as information on the relation with the Customer in Tisca’s own advertising materials without the Customer being entitled to any remuneration.
CONFIDENTIALITY & NON-SOLICITATION
Confidentiality. The Customer shall keep confidential all information of Tisca, its projects and its other customers that is known to it and worthy of protection and shall not exploit such information for itself or for third parties. This agreement shall continue to apply after any contract has ended. If this obligation is violated, a contractual penalty in the amount of EUR 50,000.00 per violation shall be due.
Non-solicitation. The Customer shall not be permitted to solicit any other customers or employees of Tisca. This agreement shall continue to apply for three years after any contract has ended. If this obligation is violated, a contractual penalty in the amount of EUR 50,000.00 per violation shall be due.
Prices. All prices shall apply ex registered office and/or branch of Tisca, for contracts with entrepreneurs in euros plus value added tax, and for contracts with consumers including value added tax in the statutory amount.
Additional works and services. All works and services carried out by Tisca that are not expressly compensated by the agreed remuneration, such as additional works and services agreed later, shall be remunerated separately.
Advance on costs. Tisca shall be entitled to demand advances on costs in order to cover its own expenses.
Partial performances. Tisca shall be entitled to invoice partial performances.
Unjustified cancellation. If the Customer cancels its order in whole or in part without any severe grossly negligent or intentional fault of Tisca, Tisca shall still be entitled to receive the full remuneration. In such case, Tisca shall allow the deduction of savings achieved from procurements it has not yet made. The same shall apply if Tisca withdraws from the contract for a compelling reason attributed to the Customer.
Price adjustment. If contracts are concluded for an indefinite period of time and if the term of a contract is automatically extended, Tisca shall be entitled to make an annual reasonable price adjustment in consideration of factors such as inflation, consumer and producer price index, conclusions of collective agreements, currency fluctuations and similar external factors beyond Tisca’s control.
Tisca shall also be entitled to reasonably adjust the prices of individual works and services after the contract has been concluded if the costs of such works and services increase by more than 5% and Tisca is not able to do anything about it. If the conditions are reversed, consumers shall also be entitled to a reduction of the payment.
Maturity Tisca’s invoices shall be due for payment without deduction as from the invoice date. The works and services shall generally only be started after payment was made in full.
Payability. Tisca’s invoices shall be paid within 7 days as from receipt of the invoice.
No set-off or retention. Customers who are entrepreneurs shall not be entitled to set off their own receivables against Tisca’s receivables, not even if the receivables are connected, unless the Customer’s receivable was acknowledged by Tisca in writing or declared final and absolute by a court of law. Any right of retention in favour of customers who are entrepreneurs shall be excluded.
Delay in payment. If payment is delayed, the statutory interest applicable between entrepreneurs, but at least 9% per anno shall be paid for contracts with entrepreneurs; for contracts with consumers, interest in the amount of 9% per anno shall be paid. The Customer shall pay all costs and expenses related to the recovery of the receivable, such as collection charges or other costs accrued for adequate prosecution.
Continued delay in payment. After an unsuccessful written reminder sent to the Customer by setting an at least 7-day grace period, Tisca may demand immediate payment of all works and services already executed in whole or in part, including within the context of other contracts concluded with the Customer, and temporarily suspend the execution of unpaid works and services until all outstanding claims for remuneration are paid in full.
After the fruitless expiry of another week, Tisca shall be entitled to withdraw from all contracts and claim compensation for lost profit in addition to the payment of the works and services already carried out. Tisca shall thus also be entitled not to carry out and/or suspend any works and services already paid if such suspension results in savings, and to set off such savings against the outstanding receivables.
Regardless of these options, Tisca may of course also bring an action in a court immediately after the due date has expired.
Payment by instalments. If Tisca and the Customer agree on payment by instalments, the delayed payment of one instalment shall immediately cause default of payment.
Transfer of risk in dealings with entrepreneurs. When goods are dispatched, the risk shall always be transferred to the Customer as soon as Tisca has handed the goods over to the shipping company Goods shall generally be dispatched uninsured, unless the Customer has ordered Tisca to take out insurance for the goods at the Customer’s cost.
Entrepreneurs’ obligation to notify defects. After the request of interim acceptance by Tisca, after the handover and after the start of live operations, the Customer shall accept (“approve”) in writing the works and services handed over and/or to be accepted in all cases within 8 days at the latest or notify any defects and/or damage in writing.
If interim acceptance has been agreed, Tisca shall only continue the works and services after the interim acceptance / “approval” has taken place. If the works and services are not accepted and/or objected to in due time, they shall automatically be deemed accepted by the Customer.
Hidden defects and/or damage only appearing after the expiry of 8 days, but within still ongoing guarantee, warranty or compensation periods, shall also be notified by the Customer within 8 days after detectability.
The obligation to notify defects shall cover all defects or damage the Customer should identify by exercising all due and reasonable care and control. Due to the particular importance of interim acceptances to avoid defects which would otherwise continue through all further performance steps, the control shall be a final, detailed and particularly thorough control. During the handover, the control shall be a first, but still thorough control. When live operations are started, due to the particular importance of the start of live operations to avoid damage during operations, the control shall be a final, detailed and particularly thorough control.
The Customer shall provide a detailed and comprehensible description of the defect and/or damage in its notification of defects. If defects or damage do/does not appear all the time, the exact times and framework conditions during the appearance of the defect or damage shall be stated. The Customer shall enable Tisca to take all measures required to inspect and remove the defect and/or damage. If the Customer fails to notify defects in due time, the assertion of guarantee claims, warranty claims and claims for damages as well as claims based on other liability regulations, particularly recourse claims, by the Customer shall be excluded.
Guarantee. If performance elements of the Customer have a guarantee granted by a third party, such guarantee shall be claimed directly from the third party (e.g. manufacturer’s guarantee).
If Tisca promises a guarantee, the time period for the assertion of the guarantee claim shall start with the handover. The guarantee claim shall become statute-barred six months as from the Customer’s knowledge about the occurrence of the guarantee event, but upon the expiry of the guarantee period at the latest. If the content of the guarantee is not stated in the guarantee promise, Tisca shall be liable for the characteristics normally required.
Warranty. The statutory provisions of the warranty legislation shall apply to consumers. Furthermore, in dealings with consumers, any guarantees or after-sales services granted in the product description shall apply.
The right to warranty and the right to warranty recourse shall be limited to six months from handover. With used goods, the right to warranty shall be entirely ruled out.
The Customer shall be entitled to the right to improvement or replacement and/or, with insignificant defects, also to price reduction or, with significant defects, also to rescission at Tisca’s option. The removal of the defect shall not cause the extension of the warranty period or the restart of the warranty period for the part of the work or service that is affected by the removal of defects.
Error, laesio enormis in dealings with entrepreneurs. The right to contest due to error and due to laesio enormis shall be excluded.
Damages and other claims. Claims for damages and claims based on other liability regulations, particularly recourse claims, of the Customer shall be excluded, unless they are based on severe gross negligence or intention of Tisca in contracts with entrepreneurs and/or on gross negligence or intention of Tisca in contracts with consumers.
Such claims of entrepreneurs shall lapse after six months as from the point in time of acquiring knowledge of the damage and of the person causing the damage, but in each case after three years from the infringing act.
This exclusion of liability shall not apply to claims based on personal injuries and based on other non-dispositive liability provisions.
Protective effect for third parties. It shall be expressly agreed that this contract does not have any protective effect for third parties.
Entrepreneurs’ burden of proof. Any reversal of the burden of proof at Tisca’s expense shall be excluded. Particularly the existence of the defect at the time of handover, the time the defect was identified, the timeliness of the notification of the defect as well as the existence and degree of fault shall be proven by the Customer.
Grace period in dealings with entrepreneurs. If the contract has not been executed as agreed, the Customer shall only be entitled to assert claims after it has granted Tisca in writing a reasonable grace period of at least fourteen days. This shall also apply to the cancellation of the contract for a compelling reason.
Entrepreneurs’ withdrawal from contract. The Contractor’s withdrawal from the contract shall be declared in writing by registered letter.
ONLINE DISPUTE SETTLEMENT
Online Dispute Settlement platform for consumers. To settle disputes with consumers, the EU has established an “Online Dispute Resolution” platform (ec.europa.eu/odr). Tisca shall decide on the participation in dispute resolution proceedings on a case-by-case basis. If you have any questions on dispute resolution, please contact Tisca at firstname.lastname@example.org.
Applicable law. All legal relations and matters between the Customer and Tisca shall exclusively be subject to Austrian law excluding its conflict of law rules.
Mandatory consumer legislation. If Tisca in contracts with consumers has placed the focus of its professional and commercial activities on the consumer’s home country, mandatory consumer-protecting provisions of the consumer’s home country shall also be applied.
CISG. The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply to contracts with entrepreneurs.
Place of jurisdiction for dealings with entrepreneurs. Place of jurisdiction for all disputes arising between Tisca and entrepreneurs shall be the competent Austrian court for Thüringen. However, Tisca shall also be entitled to sue at the general place of jurisdiction of Tisca and of the entrepreneur.