General terms & conditions for cloud services

§ 1 General – Scope

  1. The following terms and conditions apply to all business relationships between the customer and the cloud based services of Testbirds, following named as “us”. The governing law is that which was valid when the contract was put into effect.

  2. Dissenting, conflicting or additional customer terms and conditions, even if acknowledged, are not part of the contract unless their validity is expressly agreed upon.

§2. Conclusion of the contract

  1. Upon ordering, the customer is bound to the tentative offer. We will confirm the receipt of the customer's order immediately. The confirmation is not contractually binding. The confirmation and acceptance of the contract may be incorporated together.

  2. We are entitled to accept the offer of a contract (the order) within a period of 5 working days after receipt. We are also entitled to reject the order after examining the reliability of the customer. If we do not explicitly accept or reject the order after 5 working days, the order is accepted.

§3. Scope of the services

  1. Scope of this contract is the provision of virtualized test environments for the conducting of software testing.

  2. The services offered are those valid at the time of the order based on the offer information, the order form and the applicable monthly special offers.

  3. We guarantee an annual average of 99% availability for the test infrastructure of our computer center. If the security of the power supply network or the maintenance of network integrity is in jeopardy, we can temporarily restrict access to the service as required.

  4. Technical support services are not included in the offers. If needed or desired the user will be charged separately.

§4. Data integrity and privacy

  1. The customer will receive an user ID and password for security purposes. This must be kept confidential. The customer will be held liable for any malpractice resulting from the unauthorized use of the password.

  2. Where data is transmitted to us, the customer is to back up their data regularly. The server will be backed up regularly by us when this is part of the offer. In the case of data loss, the customer must transfer the respective databases to us again free of charge.

  3. The customer has the right to information and a right to amend, to suspend or to delete his saved information. If deletion conflicts with a legal or contractual duty to save information, or other legal grounds, the information will be made inaccessible.

  4. Personal data of customers will only be collected and used, if they are required for the creation, content arrangement or modification of the contractual relationship. The customer is obligated to update these data in its online administrations area.

  5. Our data protection practise conforms to the Federal Data Protection Act (BDSG) as well as the German Teleservices Act (TMG).

§5. Liability

  1. For direct damages, secondary damages or lost profits due to technical problems and disturbances within the Internet that are not in our sphere of influence, we assume no liability. For indirect damages and loss of profits, we are liable only in cases of intentional or gross negligence. In this case we are liable only for the contract-typical predictable damage, a maximum of 100% of the annually fee.

  2. With regards to contractors, we are not liable for minor negligence of contractual obligations. This does not apply to all cases of personal injury and is in accordance with the product liability law.

§6. Terms of payment

  1. Depending on the contractual agreement, a quarterly or annual account will be issued.

  2. The offer and all prices are net plus statutory value added tax.

  3. Invoices are payable within 14 days.

  4. Invoices are sent by email as attachments, on request with qualified signature. To receive invoices by ordinary post we are entitled to charge a reasonable service fee. For retrospective changes to invoices, which come about due to no fault of ours, we are entitled to charge a reasonable service fee.

  5. In case of a default in payment, the annual default interest amounts to 5% of the respective invoice total.We are entitled, in case of default payments, to block the account of the customer and to block all other functions.

§7. Contract duration and termination

  1. Where not otherwise contractually agreed, the contract is in place for an indefinite period of time.

  2. The contract may be terminated without cause by both parties by the end of the current period by giving 30 days notice; however, the earliest termination date will be after the minimum period stated in the contract.

  3. A termination can be done in writing by letter or fax.

  4. We are also entitled to terminate the contractual relationship for good cause without notice. One important reason for termination would be in the case of two consecutive months that the customer did not pay a substantial part of the compensation owed.

§8. Applicable law

    The law of the Federal Republic of Germany applies with exclusion of the United Nations Convention on Contracts for the International Sale of Goods. The place of jurisdiction is Munich.

§9. Severability clause

    Should individual provisions of this contract be invalid, this shall not affect the validity of the remaining provisions. The parties to the contract will work together to replace invalid regulations with the corresponding valid regulations, as far as possible.

Date: 22.02.2016