Heroes & Heroines GmbH
Terms & Conditions
Version: 1 January 2025
1. Scope of Application
1.1 These General Terms and Conditions apply to all business relationships, contracts and services of Heroes & Heroines GmbH, Kandlgasse 15/7, 1070 Vienna, Austria (hereinafter the “Agency”) with its clients (hereinafter the “Client”).
1.2 These General Terms and Conditions apply exclusively to entrepreneurs within the meaning of the Austrian Commercial Code (Unternehmensgesetzbuch). Consumers within the meaning of the Austrian Consumer Protection Act (Konsumentenschutzgesetz) are excluded from the scope of these General Terms and Conditions.
1.3 The Agency is entitled to render services also through its non-independent branch office in Berlin. The Client’s contractual partner shall exclusively be Heroes & Heroines GmbH, having its registered seat in Vienna.
1.4 The Client’s general terms and conditions are hereby expressly rejected. They shall only become part of the contract if the Agency expressly agrees to their application in text form (e.g. email).
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2. Offers and Contractual Content
2.1 The scope and content of the services owed by the Agency shall be determined on a case-by-case basis by the individual contract. The governing document shall be the contract concluded between the Agency and the Client, or, in the absence of such contract, the offer submitted by the Agency and accepted by the Client.
2.2 The services owed pursuant to Clause 2.1 are hereinafter collectively referred to as the “Subject Matter of Services.”
2.3 Unless expressly agreed otherwise, the Agency does not owe any specific economic, media-related or other result. In particular, the Agency does not warrant that media coverage will be obtained, that content will be published, or that any specific reach, interaction or conversion rate will be achieved.
2.4 Any amendments or additions to the Subject Matter of Services shall require coordination in text form. Any additional services not covered by the originally agreed scope of services shall be remunerated separately.
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3. Subject Matter of Services and Performance
3.1 The Agency shall provide the services agreed in the respective contract. Unless expressly agreed otherwise, the Agency does not assume any obligation to achieve a specific result.
3.2 In the case of PR, communications, social media, influencer, event or production services, the Agency shall in particular not be responsible for editorial decisions by third parties, publications, distribution by platform algorithms, attendee numbers, reach, conversion targets, sales developments or any other economic outcomes.
3.3 The Agency shall be entitled to engage employees, freelancers, affiliated companies and subcontractors in order to perform its services. The selection and replacement of the persons engaged in the performance of the services shall be at the Agency’s discretion, provided that the Client’s legitimate interests are not thereby adversely affected.
3.4 Upon request, the Agency shall designate a central contact person for the Client. The Client shall likewise designate an authorised contact person empowered to make decisions.
3.5 To the extent that deliverables subject to acceptance are owed, such deliverables shall be deemed to have been rendered in conformity with the contract unless the Client notifies the Agency in text form of any material defects within three (3) business days of delivery. Minor deviations which do not impair the intended use shall not entitle the Client to refuse acceptance. In the event of a justified notice of defects, the Agency shall be entitled to remedy the defect within a reasonable period.
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4. Remuneration, Prices and Price Adjustments
4.1 The remuneration agreed in the respective contract, offer or scope of services shall apply. All prices are exclusive of the applicable statutory value added tax.
4.2 Where an ongoing monthly flat fee (retainer) has been agreed, such retainer shall cover only the expressly agreed scope of services. Any services outside that scope shall be remunerated separately.
4.3 In the case of project-based services, remuneration shall be based on the individually agreed lump-sum fee or, where agreed, on time spent based on the hourly rate stated in the offer or in the Agency’s rate card.
4.4 For all third-party costs incurred in the Client’s interest, the Agency shall charge a handling fee of 20% of the respective net costs, unless otherwise contractually agreed. This shall also apply to third-party services, productions, event costs, external services and comparable expenses arranged or coordinated by the Agency.
4.5 Travel expenses and travel time shall be charged separately unless expressly agreed otherwise. Travel time shall be charged at the hourly rate agreed in the offer or contract; unless otherwise agreed, such rate shall be EUR 100.00 per hour. Travel expenses shall be charged at cost against proof.
4.6 Statutory or other client-specific third-party expenses and charges, in particular customs duties, foreign VAT, fees, levies payable to collecting societies or similar statutory charges, shall be invoiced separately to the Client.
4.7 If, in the course of a project, material changes arise in the scope of services, in the circumstances, or in the information provided by the Client, the Agency shall be entitled to submit an amended offer. The Agency shall only be obliged to render any resulting additional services once the Client has approved them in text form.
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5. Due Date and Invoicing
5.1 The Agency shall be entitled to invoice the agreed fee as well as estimated third-party costs prior to the commencement of services. Invoices are due immediately upon receipt and payable without deduction.
5.2 The Agency shall be entitled to commence performance only after receipt of payment or, if services have already begun, to suspend performance if due payments remain outstanding despite reminder.
5.3 Third-party costs may be invoiced in advance in full or in part. Upon completion of the respective project or service period, a final statement shall be issued, where necessary, for the actual third-party costs, travel time and any other services to be charged on a time-spent basis.
5.4 The Agency shall be entitled to request reasonable advance payments or instalment payments on fees and third-party costs.
5.5 The Client may only exercise a right of retention or set-off in respect of claims that have been finally adjudicated or expressly acknowledged by the Agency.
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6. Client’s Duties to Cooperate
6.1 The Client shall provide the Agency in due time with all information, documents, approvals and decisions necessary for the performance of the services, and such information, documents, approvals and decisions shall be complete and accurate.
6.2 Delays, additional work or damages resulting from inaccurate, delayed or incomplete information provided by the Client shall not be to the Agency’s detriment. Any resulting additional work shall be remunerated separately by the Client.
6.3 To the extent that the Client owes approvals, any content, concepts, texts, plans or productions submitted shall be deemed approved if the Client does not object or request changes within a reasonable period and, in any event, within the deadline set in the individual case.
6.4 If the Client fails to comply with its duties to cooperate despite being requested to do so, the Agency shall be entitled to perform on the basis of the information available up to that point, to extend deadlines accordingly, or to withdraw from the contract for good cause. Any further claims of the Agency shall remain unaffected.
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7. Third-Party Rights / Client Materials
7.1 The Agency does not warrant that the Subject Matter of Services is free from third-party intellectual property rights to the extent that, in creating it, the Agency has not used exclusively its own material that is free of third-party rights.
7.2 The Client warrants that all content, trademarks, names, materials, data or other documents provided by it are free from third-party rights or that the Client holds the rights necessary for their contractual use.
7.3 The Client shall indemnify and hold the Agency harmless from and against any and all third-party claims asserted as a result of the use of the content or materials provided by the Client, and shall reimburse the Agency for all costs incurred in this connection, including reasonable legal defence costs.
7.4 The parties shall notify each other without undue delay in text form if claims are asserted by third parties alleging infringement of rights.
8. Withdrawal, Cancellation and Termination
8.1 If a contract is terminated, cancelled or otherwise ended by the Client before performance has commenced, for reasons for which the Agency is not responsible, the Agency shall be entitled to charge a lump-sum amount of 25% of the contract sum as compensation for internal expenses already incurred, unless the Client proves that no damage or only substantially lower damage has been incurred.
8.2 If a contract is terminated, cancelled or otherwise ended by the Client after performance has commenced, for reasons for which the Agency is not responsible, the Agency shall be entitled to claim the agreed remuneration for the services rendered up to the date of termination, as well as all third-party costs incurred up to that date or no longer capable of being cancelled.
8.3 The right to assert further damages shall remain unaffected.
9. Warranty
9.1 In the exceptional event that a specific result is owed in an individual case, the Client shall notify the Agency in writing of any defects without undue delay after becoming aware of them.
9.2 The Agency shall be entitled to remedy any defects for which it is responsible within a reasonable period.
9.3 If remedy fails or is impossible, the Client may, to the extent permitted by law, demand a reduction of the price or withdraw from the contract with respect to the affected part of the services.
9.4 To the extent permitted by law, the Client’s warranty claims shall become time-barred within six (6) months from the date of performance of the respective service.
10. Liability
10.1 The Agency shall be liable in accordance with statutory provisions for wilful misconduct and gross negligence, as well as for culpably caused injury to life, body or health. Liability under the Austrian Product Liability Act remains unaffected.
10.2 To the extent permitted by law, the Agency’s liability for slight negligence shall be excluded.
10.3 To the extent permitted by law, the Agency shall in particular not be liable for indirect damages, consequential damages, loss of profit, unrealised savings, reputational damage, data loss, production downtime or claims of third parties, unless such claims are based on a wilful or grossly negligent breach of duty by the Agency.
10.4 To the extent that the Agency remains liable notwithstanding the foregoing provisions, such liability shall, to the extent permitted by law and irrespective of the legal basis, be limited in amount to 30% of the total net fee volume, capped at a maximum of EUR 150,000.
10.5 The foregoing limitations of liability shall also apply to claims in connection with confidentiality, data protection, rights of use, third-party rights, the Client’s duties to cooperate, as well as to breaches of duty by the Agency’s employees, representatives, freelancers, subcontractors, affiliated companies and other vicarious agents.
10.6 To the extent permitted by law, the Client’s contractual and non-contractual claims for damages against the Agency shall become time-barred within two (2) years from the event giving rise to liability.
11. Rights in Work Results / Background IPR
11.1 The Client shall be entitled to use the work results created by the Agency and paid for by the Client within the contractually agreed scope. Any use beyond that scope shall require a separate agreement in text form and shall be remunerated separately.
11.2 To the extent that work results are capable of copyright protection, copyright shall remain with the Agency or the respective author(s), to the extent permitted by law.
11.3 All rights and materials existing prior to the assignment or developed independently of the specific assignment shall remain unaffected, in particular contact and press distribution lists, KOL/influencer databases, CRM entries, templates, tools, methods, concepts and know-how (Background IPR). No rights thereto are transferred. Personal contact data or distribution data shall not be disclosed unless pursuant to a separate written agreement and in compliance with applicable data protection law.
11.4 Rights of use in third-party work results shall, where possible and where contractually envisaged, only be transferred to the extent that such rights have been granted to the Agency itself. All associated costs shall be borne by the Client.
12. Contractual Penalties and Liquidated Damages
The Agency does not accept any contractual penalties, liquidated damages provisions or other sanction mechanisms independent of fault, unless expressly agreed by both parties in text form in the individual contract.
13. Force Majeure
13.1 Events of force majeure or other unforeseeable circumstances beyond the Agency’s control that materially impede or temporarily prevent performance, including in particular strikes, lockouts, governmental measures, failure of service providers, pandemics, natural events or similar circumstances, shall entitle the Agency to suspend performance for the duration of the impediment plus a reasonable restart period.
13.2 The Agency shall inform the Client without undue delay of the occurrence and expected duration of such event.
13.3 If the impediment lasts for more than six weeks, either party shall be entitled to withdraw from the contract with respect to the affected scope of services. Any claims for damages shall be excluded in such case.
14. Contract Term and Termination
14.1 The contract term, notice periods and project timelines shall primarily be governed by the respective individual contract or offer.
14.2 Unless otherwise provided in the individual contract or offer, contracts for ongoing services shall be deemed concluded for an indefinite period and may be terminated by either party by giving three months’ notice to the end of a month in text form.
14.3 In the case of contracts with a fixed term, if the Client terminates the contract prematurely for reasons not attributable to the Agency, the following shall apply: the full agreed remuneration shall be payable for services rendered up to termination. Remuneration for future services not yet rendered shall fall away only to the extent that the Agency saves expenses or actually and reasonably obtains alternative income from redeploying capacity that has become available.
15. Confidentiality, Data Protection and Agency Self-Promotion
15.1 The parties undertake to treat as confidential for an unlimited period all information expressly designated in writing as confidential by the other party, or which by its nature is recognisable as a business or trade secret, and—unless required for performance of the contract—not to record, disclose or exploit such information.
15.2 Personal data provided by the Client shall be processed to the extent necessary for the performance of the contractual obligations and may for this purpose also be passed on to external service providers (processors). Processing is carried out on the basis of Article 6(1)(b), (c) and (f) GDPR. Data subjects have rights under Articles 12 to 21 GDPR. Further information on data protection is available at: https://www.heroes-heroines.com/dsgvo
15.3 Where the Client transfers third-party data to the Agency, the Client shall ensure that it is authorised to do so and that all data protection requirements have been complied with.
15.4 The Agency shall be entitled, for its own promotional purposes, in particular in presentations, case studies, awards, on its website, in pitches and in other reference materials, to use the Client’s name, trademark and logo as well as a non-confidential description of the services rendered, provided that no confidentiality interests of the Client are thereby infringed. This right shall continue after termination of the contract.
16. Non-Solicitation
16.1 During the term of the contract and for a period of twelve (12) months thereafter, the Client undertakes not to solicit or employ, directly or indirectly, any employees, freelancers or key project staff of the Agency without the Agency’s prior consent.
16.2 For each culpable breach of this provision, the Client shall be obliged to pay an appropriate contractual penalty, the amount of which shall be subject to judicial review in the event of dispute. The right to claim further damages shall remain unaffected.
17. Final Provisions
17.1 Any amendments or supplements to the contract and to these General Terms and Conditions shall require text form. This shall also apply to any waiver of this text-form requirement.
17.2 Should any provision of these General Terms and Conditions or of the underlying contract be or become invalid, unenforceable or incomplete, the validity of the remaining provisions shall remain unaffected. In place of the invalid or unenforceable provision, a provision shall apply that comes closest to the economic purpose of the invalid or unenforceable provision. The same shall apply in the event of a gap.
17.3 Austrian law shall apply exclusively, excluding its conflict-of-laws rules and the UN Convention on Contracts for the International Sale of Goods.
17.4 To the extent permitted by law, the exclusive place of jurisdiction for all disputes arising out of or in connection with contracts between the Agency and the Client shall be Vienna, Austria. In addition, the Agency shall also be entitled to sue the Client at its general place of jurisdiction.