Heroes & Heroines GmbH
Terms & Conditions
Date: July 2013
1. Scope of application
1.1 These Terms and Conditions shall apply to all declarations of intent, contracts and legal or quasi-legal acts of Heroes & Heroines GmbH, Kandlgasse 15/7, A-1070 Vienna (hereinafter referred to as "Heroes & Heroines GmbH") with its clients (hereinafter referred to as "CL").
1.2 The General Terms and Conditions of the client are hereby rejected. These shall not become part of any agreements unless the terms and conditions are expressly confirmed in writing by Heroes & Heroines GmbH.
2. Offers and Contractual Content
2.1 The scope and content of the services owed by Heroes & Heroines GmbH are defined in each individual contract. The contract concluded in writing between Heroes & Heroines GmbH and CL and, in the absence of such a contract, the offer submitted by Heroes & Heroines GmbH is authoritative for this purpose, provided it has not been contradicted.
2.2 The services owed by Heroes & Heroines GmbH pursuant to 2.1 are hereinafter uniformly referred to as the "subject matter of performance". Unless expressly agreed, Heroes & Heroines GmbH is not liable for the achievement of a specific economic success as a result of its services.
3. Subject matter of performance
3.1 The subject matter of the services owed by Heroes & Heroines GmbH is, unless otherwise expressly agreed in individual contracts, the agreed service. Performance successes, on the other hand, are neither agreed upon nor owed. For example, Heroes & Heroines GmbH does not guarantee the publication of an article or its content when arranging media contacts. Heroes & Heroines GmbH, on the other hand, is responsible for the content of contributions that were provided or created by Heroes & Heroines GmbH itself.
3.2 Insofar as Heroes & Heroines GmbH has agreed upon a monthly flat fee with the CL, Heroes & Heroines GmbH is basically obligated to employ suitable employees for the agreed upon hours per month. However, Heroes & Heroines GmbH is entitled to carry forward hours not worked or additional hours worked to a reasonable extent to later months.
3.3 At the request of the client Heroes & Heroines GmbH shall provide information on the status of the services at any time. The preparation of comprehensive written reports, in particular also for submission to third parties, shall be agreed upon in each individual case.
3.4 Heroes & Heroines GmbH is entitled to use subcontractors for the performance of its services. Heroes & Heroines GmbH is responsible for the selection of the employees entrusted with the performance of its services. This includes the right to replace individual employees or an entire team in the course of a project, taking into account the legitimate concerns of the client.
3.5 Insofar as the agreed subject matter of performance is the provision of a part of the showroom of Heroes & Heroines GmbH, Heroes & Heroines GmbH owes the exhibition of the exhibits requested by CL on the rod meters rented by CL.
3.6 Each party shall name a project manager to the other party who is authorized to give and receive information and declarations of intent and who assumes full responsibility for the scheduled performance of the contractual services.
4. Prices / Price Changes
4.1 The prices stated in the contract or in the uncontested offer shall be deemed agreed between the contracting parties. All prices are subject to the value added tax rate applicable at the time of performance.
4.2 Heroes & Heroines GmbH regularly agrees on monthly lump-sum fees with CLs. These consist of a basic fee and a lump sum for office expenses. The monthly basic fee is calculated by multiplying the current hourly rate of the assigned employees by the expected number of hours required. Heroes & Heroines GmbH and CL undertake to adjust the flat fee after a reasonable period of time, if necessary, insofar as the calculated number of hours proves to be inaccurate. The office costs will initially be determined in total by Heroes & Heroines GmbH and estimated on the basis of the expected employee hours.
4.3 In the case of project-related services without continuous commissioning from Heroes & Heroines GmbH, the anticipated hours with corresponding hourly rates will be submitted to the client by Heroes & Heroines GmbH in an offer. If the estimated hours do not correspond to the hours actually required for the performance of the project, both parties agree to adjust the fee accordingly.
4.4 Within the scope of projects, HEROES & HEROINES shall charge a flat rate of 15% on third-party costs coordinated and invoiced by the agency, unless otherwise agreed in the contract.
4.5 The price for the use of the showroom shall be based on the rod meters used and the price set and agreed upon by Heroes & Heroines GmbH for this purpose.
4.6 Travel expenses for employees deployed by Heroes & Heroines GmbH shall be reimbursed by CL. Travel expenses include in particular the costs for means of transportation (airplane, cab, rental car or train) and for accommodation.
5. Due date of performance and consideration
5.1 The due date of Heroes & Heroines GmbH's performance shall be determined by the mutual agreements between Heroes & Heroines GmbH and CL, which shall, if possible, establish a joint schedule and adjust it if necessary.
5.2 In the event of delays in performance for which Heroes & Heroines GmbH is responsible, the duration of the grace period to be set by CL shall be set at four weeks, beginning with the receipt of the grace period.
5.4 Heroes & Heroines GmbH's claim to remuneration is due at the end of each month, but not before the expiration of two weeks after invoicing, unless otherwise stipulated in individual contracts.
6. Duties to cooperate
6.1 CL is obligated to provide Heroes & Heroines GmbH with the information necessary for the performance of the services. Should delays occur for which CL is responsible, Heroes & Heroines GmbH is entitled to extend the continuous services or the scope of services by the fee hours incurred.
6.2 The information provided by the CL serves as the essential basis for the consulting and planning services of Heroes & Heroines GmbH. The provision of incorrect or incomplete information shall be at CL's expense.
6.3 Upon acceptance of concepts, texts or other services, the information shall be deemed to have been provided completely and correctly. If a concept or other service has to be modified due to the correction of information already provided or as a result of the submission of additional information, this shall always be deemed to be an extension of the scope of services. 6.4.
6.4 If CL does not fulfill its duty to provide information, Heroes & Heroines GmbH shall request it in writing to do so within a reasonable period of time. If CL does not comply with its duty to inform despite the setting of a deadline, Heroes & Heroines GmbH is entitled to render its performance on the basis of the information already available or to withdraw from the contract. Heroes & Heroines GmbH may also demand compensation for all expenses incurred by Heroes & Heroines GmbH within the framework of the contractual relationship which were in vain or had to be additionally rendered as a result of CL's breach of duty.
7. freedom from third party rights
7.1 Heroes & Heroines GmbH does not vouch for the fact that the subject matter of the performance is free of third party intellectual property rights. This applies in particular in the event that Heroes & Heroines GmbH creates or distributes designations, texts, images, names, or the like in the course of creating the subject matter of performance.
7.2 If CL provides Heroes & Heroines GmbH with materials for the performance of the contract, CL is responsible for ensuring that these materials are free of intellectual property rights or other rights of third parties that restrict or preclude their use in accordance with the contract. CL shall indemnify Heroes & Heroines GmbH against all claims of third parties which these third parties assert against Heroes & Heroines GmbH due to existing rights to the materials provided. In particular, CL assumes all obligations towards copyright management companies.
7.3 The parties shall notify each other immediately in writing if claims are asserted against them for infringement of property rights.
8. Cancellation of Contracts
8.1 If a contract is terminated by CL prior to the commencement of its execution, effectively contested, or if CL withdraws from the contract for reasons for which Heroes & Heroines GmbH is not responsible, Heroes & Heroines GmbH will charge a flat rate of 25% of the order amount for expenses incurred, unless CL proves that no damages or only substantially lower damages were incurred.
8.2 If a contract is terminated or effectively challenged by CL after its execution has begun or if CL withdraws from the contract for reasons for which Heroes & Heroines GmbH is not responsible, Heroes & Heroines GmbH is entitled to demand the agreed remuneration.
8.3 Heroes & Heroines GmbH reserves the right to assert further claims for damages or remuneration.
9. Warranty
Should a performance be agreed and owed on the basis of individual contractual regulations, the following regulations shall apply:
9.1 CL shall immediately notify Heroes & Heroines GmbH in writing of any defects in performance. Insofar as rectification is possible and feasible at reasonable expense, Heroes & Heroines GmbH shall have the right to rectify any defects for which it is responsible.
9.2 In the event of refusal, impossibility, failure or unreasonable delay of the rectification, CL may, at its option, demand rescission of the contract or reduction of the remuneration.
9.3 Warranty claims of the CL shall become statute-barred within a period of six months after completion of the respective services.
9.4 Heroes & Heroines GmbH shall be liable for consequential harm caused by a defect only in accordance with No. 10 below. However, this exemption from liability shall not apply if a warranty of quality was given which covers the consequential harm caused by a defect and if the harm caused by the defect is due to the lack of such quality.
10. Liability
10.1 Unless otherwise stipulated in the remaining provisions, Heroes & Heroines GmbH shall be liable for damages for breach of contractual or non-contractual obligations in the event of intent and gross negligence on the part of its legal representatives, its executive employees and its vicarious agents.
10.2 In cases of slight negligence Heroes & Heroines GmbH is liable for breach of essential contractual obligations.
10.3 Any liability existing hereunder in cases of intent or gross negligence on the part of vicarious agents as well as in all cases of slight negligence shall be limited in amount to the foreseeable damage typical for the contract. In addition, liability for each individual case of damage shall be limited to a total of 30% of the total net fee volume, up to a maximum of EUR 150,000.
10.4 Contractual claims for damages of CL against Heroes & Heroines GmbH shall become statute-barred within a period of two years after they have arisen.
11. Rights to Work Results
11.1 CL may use the results of Heroes & Heroines GmbH's services only for the contractually agreed purposes and may not publish them without Heroes & Heroines GmbH's express prior consent. Publication must always be made with the full name of Heroes & Heroines GmbH; any change from the original documents of Heroes & Heroines GmbH requires the express prior written consent. The transfer of the results of the services to third parties also requires the express prior written consent.
11.2 Insofar as the results of the services of Heroes & Heroines GmbH are copyrightable, Heroes & Heroines GmbH is entitled to the copyright.
12. Force Majeure
Force majeure or other unforeseeable events for which Heroes & Heroines GmbH is not responsible and which make it substantially more difficult or temporarily impossible to render the contractual services, including strikes, lockouts, and official orders, entitle Heroes & Heroines GmbH to postpone the performance of its services for the duration of the impediment plus a reasonable start-up time. Heroes & Heroines GmbH will inform CL immediately about the occurrence of such impediments to performance. If the delays resulting from an event pursuant to sentence 1 above exceed the period of six weeks, both contracting parties shall be entitled to withdraw from the contract with respect to the affected scope of performance. Claims for damages shall be excluded in such a case.
13. Duration of Contract, Termination
13.1 The duration of the contract, the notice period, and the schedule for performance by Heroes & Heroines GmbH are set forth in the respective individual contract or the offer submitted by Heroes & Heroines GmbH, unless contradicted.
13.2 If neither the respective individual contract nor the offer submitted by Heroes & Heroines GmbH specify a contract period or notice period, the contract is deemed concluded for an indefinite period of time. In this case, the contract may be terminated by either party to the last day of the month with a notice period of three months. The termination must be made in writing.
13.3 In the case of contracts with a definite contract term, the following remuneration regulation shall apply in the event of premature termination of the contract by the CL pursuant to the above paragraph 2, which is not due to a circumstance for which Heroes & Heroines GmbH is responsible: The full agreed remuneration shall be paid for the services rendered up to the termination of the contract. For the services no longer to be rendered as a result of the termination, the remuneration is waived to the extent that Heroes & Heroines GmbH has saved expenses and/or has generated income through other use of capacities thus freed up or has maliciously refrained from generating income.
14. Applicable Law
14.1 The contractual relationship between Heroes & Heroines GmbH and CL is exclusively subject to the laws of the Republic of Austria.
14.2 If CL is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction for all claims arising from the contract is the registered office of Heroes & Heroines GmbH. The right of Heroes & Heroines GmbH to sue CL at his general place of jurisdiction remains unaffected.
15. Final Provisions
15.1 Amendments and supplements to the contract including this written form clause must be made in writing.
15.2 If individual provisions of the contract or these terms and conditions are invalid or if the contract contains loopholes, this shall not affect the validity of the remaining provisions. Instead of the ineffective provision, the effective provision shall be agreed upon which corresponds to the sense and purpose of the ineffective provision. In the event of gaps, the provision to be agreed upon shall be that which corresponds to what would have been reasonably agreed upon according to the sense and purpose of this contract had the matter been considered from the outset.