General Terms and Conditions
for Software Development and IT Services (B2B)
of HERTON Digital GmbH, Vorlaufstraße 5/1, 1010 Vienna, Austria, FN 191435y (Vienna Commercial Court)
Version: September 2026
1. Scope of Application
1.1 These General Terms and Conditions (“GTC”) apply to all contracts between HERTON Digital GmbH (the “Contractor”) and entrepreneurs within the meaning of § 1 UGB (Austrian Commercial Code) (the “Client”) regarding the development, adaptation, maintenance and delivery of software, as well as related consulting and other IT services. They do not apply to consumers within the meaning of the Austrian Consumer Protection Act (KSchG).
1.2 Any deviating, conflicting or supplementary purchasing or other terms and conditions of the Client are hereby excluded and shall not become part of the contract even if the Contractor does not separately object to them.
1.3 Offers made by the Contractor are non-binding; a contract is formed only upon written order confirmation by the Contractor (which may also be given by e-mail) or upon actual commencement of performance.
1.4 Individual agreements made in writing take precedence over these GTC.
2. Subject Matter and Scope of Services
2.1 The subject matter of an order may in particular include: the creation of custom software; the adaptation and maintenance of existing software; consulting and analysis services; migration support; and the granting of usage rights to standard software/library programs.
2.2 Only the functions, interfaces and features expressly described in the relevant offer, specifications document or statement of work (the “Service Description”) are binding.
2.3 The Contractor owes the creation of a functional work in accordance with the state of the art recognized at the time of completion, but does not owe any particular economic success for the Client.
2.4 Changes to the scope of services (change requests) require written form as well as a separate agreement on additional effort and any resulting extension of deadlines.
3. Client’s Duties to Cooperate and Responsibilities
3.1 The Client shall provide the Contractor, in good time, in full and at its own expense, with all necessary information, access, decisions, and practical test data and testing facilities.
3.2 Unless expressly agreed otherwise, the Client is solely responsible for: the operation, configuration and security of the target environment (servers, cloud services, network); the assignment and management of access rights and credentials; the installation of security updates and patches after handover; data backups; and compliance with industry- or product-specific regulatory requirements, including data-protection-related organizational measures (GDPR), NIS2, PCI-DSS, and – insofar as health data is processed – the requirements applicable to special categories of personal data (Art. 9 GDPR).
3.3 If performance is delayed due to the Client’s breach of its duties to cooperate, agreed deadlines shall be extended accordingly, and additional effort shall be remunerated separately. Resulting delivery delays are not attributable to the Contractor and do not constitute default.
4. Testing and Acceptance
4.1 Individually created software or program adaptations require acceptance of the relevant program package no later than four weeks after provision. Acceptance must be confirmed in writing.
4.2 If the Client allows this period to lapse without declaring acceptance or without raising sufficiently documented, material defects, the service is deemed accepted. Use of the software in live operation shall in any case be deemed acceptance. Upon acceptance, risk for the accepted parts passes to the Client.
4.3 The Client is not entitled to refuse acceptance on the grounds of immaterial defects.
5. Fees, Prices and Payment Terms
5.1 The fee agreed in the offer (fixed fee or time-and-materials fee) applies, plus value added tax at the statutory rate.
5.2 Unless otherwise agreed, invoices are due within 14 days of the invoice date, without deduction and free of charges. For orders comprising several partial services, the Contractor is entitled to issue partial invoices after delivery of each unit.
5.3 Compliance with payment deadlines constitutes a material condition of performance. In the event of default in payment, the Contractor is entitled to suspend ongoing work, withhold performance until outstanding amounts are settled, and/or withdraw from the contract; this is without prejudice to default interest under § 456 UGB, reminder fees, and compensation for further damages caused by the default. Where installment payments have been agreed, default on two installments shall cause all outstanding amounts to become due immediately.
5.4 The Client is not entitled to withhold payments or set them off against alleged defects or warranty or guarantee claims, unless the counterclaim has been judicially established or acknowledged in writing by the Contractor.
5.5 If tangible items (e.g., storage media, hardware) are to be transferred into the Client’s ownership under the order, such items shall remain the property of the Contractor until full payment of all claims arising from the business relationship.
5.6 Cancellation of a placed order by the Client is possible only with the Contractor’s written consent. If the Contractor consents, it shall be entitled, in addition to the services already rendered and costs already incurred, to a cancellation fee of 30% of the as-yet-uninvoiced order value of the overall project.
6. Copyright and Usage Rights
6.1 Subject to any deviating agreement in the offer and subject to full payment of the agreed fee, the Contractor grants the Client a non-exclusive, non-transferable, non-sublicensable right to use the individually developed software, limited in time and place to the contractual purpose. All further-reaching rights remain with the Contractor.
6.2 Where an exclusive right of use is expressly agreed, this does not apply to program components created by independent third parties and integrated by the Contractor (e.g., open-source components, third-party libraries, frameworks); the respective license terms of the rights holders apply to those components.
6.3 The Client’s involvement in the creation of the software does not give rise to any rights beyond the contractually agreed use; no co-authorship on the part of the Client arises.
6.4 The source code and program documentation will be handed over only upon separate express agreement and against separate remuneration; in any case, handover requires full payment of all outstanding amounts.
6.5 Any system passwords for individually created services will be disclosed to the Client only if (a) there is no current maintenance or support agreement in place for the affected component, (b) all of the Client’s payment obligations have been fulfilled, and (c) the Client provides a corresponding waiver of warranty for independent use.
7. Warranty
7.1 The Contractor warrants that, at the time of acceptance, the software substantially corresponds to the agreed Service Description and performs the functions described therein, provided it is operated in the contractually agreed environment.
7.2 Remedy of defects is conditional on the Client reporting the defect, in a sufficiently documented and identifiable manner, within the period set out in § 377 UGB (applied by analogy), providing all documents and cooperation required for investigation, and provided that neither the Client nor any third party attributable to it has made changes to the software without the Contractor’s consent.
7.3 The warranty period is six months from acceptance. Rectification always takes priority over price reduction or rescission of the contract; the latter remedies are available only after a reasonable additional period set for rectification has expired without success. The statutory presumption of defectiveness (§ 924 ABGB) and the defense against payment claims under § 933 (3) ABGB are excluded to the extent legally permissible.
7.4 Warranty does not apply to programs subsequently modified by the Client itself, its employees, or third parties not engaged by the Contractor; the same applies to defects attributable to an operating environment, third-party software, or improper use for which the Client is responsible.
7.5 An obligation to update the software (§ 7 VGG in conjunction with § 1 para. 3 VGG) exists only insofar as this is separately and expressly agreed; otherwise, this obligation is excluded to the extent legally permissible.
8. Liability
8.1 The Contractor is liable for damages demonstrably caused by its own fault only in cases of gross negligence or intent. The Contractor is liable without limitation for damages resulting from injury to life, body or health, and for damages under the Austrian Product Liability Act (PHG), to the extent it is mandatorily applicable.
8.2 Direct damages are compensated. Indirect damages – in particular loss of profit, lost savings, business interruption, other consequential damages, and third-party claims – are excluded from the duty to compensate to the extent legally permissible. Point 8.3 applies to the loss of data.
8.3 For loss of data, the Contractor – to the extent it is liable at all – is liable only for the expense that would have been required to restore the data had the Client carried out proper, regular data backups in accordance with the state of the art. If data backup is expressly agreed as a separate contractual service of the Contractor, the Contractor’s liability for data loss is instead capped at a maximum of 10% of the order amount per claim and a maximum total of EUR 15,000.
8.4 Claims for damages by the Client against the Contractor lapse, to the extent legally permissible, within one year of becoming aware of the damage and the party liable, but no later than three years from the event causing the damage. This does not affect claims arising from intentional or grossly negligent conduct, claims for injury to life, body or health, or claims under mandatory statutory liability provisions.
8.5 The Contractor is entitled to engage third parties and subcontractors to provide its services; this does not affect the Contractor’s responsibility to the Client for the proper performance of its contractual obligations. Should warranty or liability claims arise against such third parties, the Contractor shall assign these claims to the Client, who shall in such case pursue these third parties in the first instance. This does not affect any statutory or contractual recourse claims of the Contractor against the third parties engaged.
9. IT Security and Allocation of Responsibility
9.1 The Contractor develops and provides its services, within the agreed scope, applying the industry practices recognized at the time of performance and taking into account the security measures expressly promised in the offer. Absolute security of the software or of the systems operated by the Client against vulnerabilities, cyberattacks, unauthorized access, data loss or other security incidents cannot be guaranteed and is not owed.
9.2 Unless expressly provided for and remunerated in the offer, a Service Description, a Service Level Agreement, or another separate agreement, the following services in particular are not part of the contract: penetration tests and red-team tests; security audits or certifications; ongoing vulnerability and threat monitoring, including of third-party components; hardening, operation and security of the Client’s infrastructure; Managed Detection and Response (MDR) or comparable security services; and ongoing security updates and the remediation of security vulnerabilities after handover, unless maintenance, update or support services have been expressly agreed for this purpose.
9.3 For damages arising from security incidents (e.g., security vulnerabilities, cyberattacks, unauthorized access), the Contractor is liable in accordance with point 8, and only to the extent the damage results from a grossly negligent or intentional breach, attributable to the Contractor, of agreed security requirements. This in particular requires that the damage does not result from the following circumstances, which are attributable to the Client’s or third parties’ sphere: systems, infrastructure or configurations within the Client’s sphere under point 3.2; or modifications to the software or systems by the Client or by third parties engaged by the Client.
9.4 The Client is obliged to implement security updates, patches or other security-related measures provided or communicated by the Contractor within a reasonable and acceptable period. If the Client fails to do so, the Contractor’s liability for any resulting damages is excluded to the extent the damage results from such omitted or delayed implementation.
9.5 Unless the Contractor has been expressly engaged to operate, maintain, monitor or secure the Client’s IT systems, data backups, backup management, access and permission management, the updating of the systems used, and the security of the infrastructure remain the sole responsibility of the Client under point 3.2.
10. Confidentiality and Data Protection
10.1 Both parties undertake to keep confidential all confidential information of the other party that becomes known in the course of the cooperation and to use it only for the performance of the contract; subcontractors affiliated with the Contractor are not deemed third parties, provided they are subject to a substantively equivalent confidentiality obligation.
10.2 Insofar as the Contractor processes personal data on behalf of the Client – in particular in digital health projects involving health data under Art. 9 GDPR – the parties shall, before processing begins, enter into a separate data processing agreement under Art. 28 GDPR.
11. Loyalty / Non-Solicitation
11.1 The Client undertakes, during the term of the contract and for 12 months thereafter, neither to solicit nor to employ – including via third parties – employees of the Contractor who were involved in carrying out the orders. In the event of a breach, the Client shall pay the Contractor liquidated damages equal to one employee’s annual gross salary.
12. Contract Term and Termination
12.1 Contracts for work end upon acceptance of the agreed service. Continuing obligations (e.g., maintenance, further development) run for an indefinite period and may be terminated in writing by the Client on 12 months’ notice and by the Contractor on three months’ notice, effective at the end of a calendar month.
12.2 The right to extraordinary termination for good cause remains unaffected.
13. Accessibility
13.1 An accessible design of the service, in particular within the meaning of the Austrian Accessibility Act (BaFG), the BGStG or the WZG, is not part of the contract unless separately and expressly commissioned. In that case, verifying the service’s compliance with the relevant statutory provisions is the Client’s responsibility; likewise, the Client must review any content it provides for its legal admissibility.
14. Final Provisions
14.1 Austrian law applies, excluding its conflict-of-laws rules and the UN Convention on Contracts for the International Sale of Goods (CISG).
14.2 To the extent legally permissible, the courts having subject-matter jurisdiction at the Contractor’s registered seat in Vienna are agreed as the venue for all disputes arising out of or in connection with this contract.
14.3 In the event of disputes that cannot be resolved amicably, the parties may, by mutual agreement, engage a registered commercial mediator (under the Austrian Mediation Act, ZivMediatG) from the list maintained by the Federal Ministry of Justice, before initiating legal proceedings.
14.4 Should any provision of these GTC be or become invalid, the validity of the remaining provisions shall not be affected; the parties undertake to replace the invalid provision with a valid one that comes as close as possible to the economic purpose of the invalid provision.
This English translation is provided for convenience and information purposes only and does not constitute a legally binding version of these General Terms and Conditions. Only the original German-language version is legally binding. In the event of any discrepancy or inconsistency between this English translation and the German original, the German original shall prevail.