General terms & conditions for cloud services

§ 1 General – Scope

  1. The following terms and conditions apply to all business relationships between the customer and Testbirds GmbH (“us”) with regard to our cloud based services (the "Testbirds Device Cloud"). 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. Depending on the selected product package, the Testbirds Device Cloud can be provided to the customer by use of one or more of the following technologies:

    • Public Cloud Services: Provision of Virtual Devices for conducting software testing over the internet (see §4), optionally extended Real Devices powered by the Global Real Device Network (see §7).

    • Private Cloud Services: Provision of Virtual Devices for conducting software testing over the internet in a separate instance incl. tailor-made hardware (see §5), optionally extended by Real Devices powered by the Global Real Device Network (see §7).

    • Hybrid Cloud Services: Provision of Public Cloud Services or Private Cloud Services as defined above supplemented by software testing on real devices provided by the customer (see §6), optionally extended by Real Devices powered by the Global Real Device Network (see §7).

    • Real Devices powered by the Global Real Device Network (GRDN): Provision of access to thousands of Real Devices worldwide for conducting software testing (see §7).

  2. The services included in the Testbirds Device Cloud are those valid at the time of the order based on the offer information, the order form and the applicable monthly special offers.

§4. Public Cloud Services

  1. Through our Public Cloud Services, Testbirds Device Cloud will be provided by us via the internet.

  2. The customer can conduct manual and automated GUI testing with the help of Virtual Devices (virtual machines, simulators, emulators), which are hosted by Testbirds.

  3. Optionally, the customer can access Real Devices (Android) powered by the Global Real Device Network (see §7).

  4. Hardware and devices are included. Travel expenses are excluded.

§5. Private Cloud Services

  1. Through our Private Cloud Services, Testbirds Device Cloud will be provided by us via the internet.

  2. The customer can conduct manual and automated GUI testing with the help of Virtual Devices (virtual machines, simulators, emulators), which are hosted by Testbirds.

  3. The customer will enjoy a higher degree of control, security and flexibility as a separate instance will be used and the hardware will be provided tailor-made to match the customer's requirements.

  4. Optionally, the customer can access Real Devices (Android) powered by the Global Real Device Network (see §7).

  5. Hardware and devices are included. Travel expenses are excluded.

§6. Hybrid Cloud Services

  1. By using our Hybrid Cloud Services, Testbirds Device Cloud will be provided to the customer either as Public Cloud Service (see §4) or as Private Cloud Service (see §5).

  2. In addition, the customer can integrate On Premises Real Devices (to the degree we offer this kind of functionality for a certain device), e.g. to include friendly user testing.

  3. Optionally, the customer can access Real Devices (Android) powered by the Global Real Device Network (see §7).

  4. Hardware and devices are excluded. Travel expenses are excluded.

§7. Real Devices powered by the Global Real Device Network (GRDN)

  1. Real Devices powered by the Global Real Device Network (GRDN) is an additional feature allowing the customer access to real mobile devices of thousands of testers worldwide ("GRDN DEVICES").

  2. The following rules and restrictions apply to the use of GRDN:

    • The customer may only connect to or attempt to connect to a GRDN DEVICE if and as long as it is marked available for testing in our testing platform.

    • The customer may only access a GRDN DEVICE as far as access has been allowed, e.g. if access to storage of the GRDN DEVICE has not been granted, the customer may not open or attempt to open the file browser.

    • The customer acknowledges that access to a GRDN DEVICE can be limited in time as determined by the GRDN DEVICE'S owner. The customer will make no attempts to bypass these time restrictions.

    • The customer will make best efforts not to cause any damages to a GRDN DEVICE, be it by transfer of any malicious content (e.g. as part of the software to be tested) or otherwise.

    • We will only authorize trustworthy customers to use the GRDN and access to GRDN can be revoked by us anytime if we have objective reasons to believe that the customer is not trustworthy. The customer is aware that for this purpose, we will keep logs of any activity by the customer on a GRDN DEVICE.

    • In the interest of confidentiality, we advice the customer to delete any content (including the software to be tested) transferred to a GRDN DEVICE and the bowser history (if applicable) at the end of a testing session as this will not occur automatically.

    • In the unforeseen situation the customer becomes aware of any personal data on a GRDN DEVICE that was not transferred and/or created by the customer, the customer shall not process such personal data in any way, including by way of copying, using, disclosing or erasing the personal data.

§8. Technical Support and Availability

  1. Unless otherwise specified in the order, technical support services shall be provided as described on our website: https://www.testbirds.com/prices/prices-device-cloud/.

  2. We warrant an annual average of 99% availability for the Testbirds Device Cloud. If security of the power supply network or maintenance of network integrity is in jeopardy, we can temporarily restrict access to the Testbirds Device Cloud as required.

§9. Data Integrity and Privacy

  1. The customer will receive an user ID and password to the Testbirds Device Cloud 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 his 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 General Data Protection Regulation (GDPR) and the Federal Data Protection Act (BDSG) as well as the German Teleservices Act (TMG).

  6. In the event we act as a data processor for the customer, the data processing agreement attached as Schedule 1 shall apply.

§10. Limitation of Liability
Our liability for all rights and claims arising out of or in connection with the conclusion and performance of this contract shall be limited as follows – irrespective of the matter of law or fact:

  1. We shall be liable according to the statutory provisions for claims under the Product Liability Act (Produkthaftungsgesetz) and for injury to life, limb or health. The following limitations of liability do not apply in this respect.

  2. We shall also be liable according to the statutory provisions in the event of intent, fraudulent intent and gross negligence. The following limitations of liability also do not apply in this respect.

  3. In the case of simple negligence (except in cases pursuant to §10.1), we shall only be liable to the extent that damages were caused by a breach of essential contractual obligations by us, whereby such liability shall be limited to the typical damage that was foreseeable for us at the time this contract was concluded. Essential contractual obligations are those obligations which enable the proper performance of the contract in the first place and on which the customer relied and could rely and whose culpable non-performance endangers achieving the purpose of the contract.

  4. In the case we are liable according to §10.3, such liability for the typical damage that was foreseeable for us at the time this contract was concluded is limited to a maximum of 500,000 EUR for material damage and to a maximum of 500,000 EUR for pure financial losses.

  5. We shall only be liable for a guarantee (strict liability) to the extent that rights, claims and liability arise from the express wording of the guarantee declaration. We are not subject to a strict liability according to sec. 536 par. 1 of the German Civil Code (BGB).

  6. Any contributory negligence on the part of the customer shall be taken into account in accordance with sec. 254 of the German Civil Code (BGB).

  7. We shall only be liable for a loss of data by the customer to the extent that the customer could not have avoided this loss of data by means of a proper data backup. Liability for damages exceeding the recovery expenses with proper data backup is excluded.

§11. Terms of Payment

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

  2. The offer and all prices are net plus statutory value added tax where applicable. Travel expenses are excluded.

  3. Invoices are payable within 14 days where applicable.

  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.

§12. 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 or using the Testbirds online functionality in the Nest platform.

  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.

§13. Applicable Law

  1. 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.

§14. Severability Clause

  1. 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: 01.03.2019