General terms & conditions for crowd services

§ 1 General – Scope

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

  2. The object of the TERMS is to establish the legal framework for conducting software testing ( “TESTING”) by various people (”TESTERS”) as agreed to in an ORDER (as defined below).

  3. The TERMS become binding between the costumer and us upon either of the following exchanges between us occurs:

    • the customer accepts the TERMS on our website and we explicitly confirm this acceptance, e.g. by way of an e-mail confirmation; or

    • we enter into an ORDER with the customer referring to the TERMS.

  4. The TERMS and/or the ORDER can be supplemented by commercial terms agreed between the customer and us, which may contain, amongst others, the purchased BIRDCOINS (as defined below), the expiry date for BIRDCOINS and the minimum period.

  5. Being tested are applications available over the internet (“APPLICATIONS”).

  6. The results of the TESTING are compiled by the TESTERS in the form of re­ports (“REPORTS”).

§ 2 Order

  1. "ORDER" is any individual agreement between us and the customer entered into under these TERMS, generally closed in one of these ways:

    • Online: The customer makes a binding service request that is accepted by us under the TERMS as follows: Upon making a service request, the customer is bound to the tentative offer. We will confirm the receipt of the customer's offer immediately. The confirmation is not contractually binding. The confirmation and acceptance of the offer may be incorporated together. We are entitled to accept the offer within a period of 5 working days after receipt. We are also entitled to reject the offer after examining the reliability of the customer. If we do not explicitly accept or reject the offer within 5 working days, the offer is accepted; or

    • Offline: The customer enters into a written service contract with us which shall become effective with both parties' signature.

  2. In the event of any conflicts between the TERMS and an ORDER, the ORDER shall prevail.

§ 3 Scope of the Service

  1. We undertake to conduct TESTING of the APPLICATION in accordance with the specifications of the customer as agreed.

  2. The TESTERS check the APPLICATION of the customer on the basis of the specifications of the customer. The specifications particularly include:

    • The number of TESTERS.

    • The TESTING procedure.

    • The designation and version(s) of the hardware, operating system and software that an individual TESTER must have.

    • The form and content of the REPORTS to be delivered by each TESTER.

  3. The REPORTS of the TESTERS are received by the customer after completion of the TESTING.

  4. After TESTING has been conducted by the TESTERS, we consolidate the REPORTS and provide the consolidated results to the customer.

§ 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 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 or of customer's employees respectively 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), the Federal Data Protection Act (BDSG) as well as the German Telemedia 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.

§ 5 Co-operation Duties of the Customer

  1. The customer has a duty to co-operate appropriately for the entire period when TESTING according to an ORDER is being conducted by us. Appropriate co-operation particularly includes:

    • Availability of the APPLICATION to be tested for distribution to the TESTERS.

    • Data (particularly special access data) and information for access to the APPLICATION.

    • Communication concerning changes to the APPLICATION.

    • Implementation and holding of adequate data backup for the APPLICATION.

    • Ensuring that operations are not disrupted throughout TESTING (provision of a suitable test environment with productive effects).

  2. After the TESTING has been conducted (§ 3 par. 4), the customer has a duty to approve the REPORTS when they are free of defects.

§ 6 Usage Rights

  1. The customer may reproduce and refine the REPORTS that constitute the object of an ORDER, in any form. To this end, we assign to the customer the exclusive, irrevocable, geographical and temporal unlimited usage right to the REPORTS.

  2. The transfer of the usage rights takes effect only when the customer has paid us in full the fee due, in accordance with § 9 of these TERMS.

  3. The customer is permitted to undertake resale or publication only when we have agreed in advance in written form.

§ 7 Deficiencies

  1. The customer must examine the REPORTS immediately on delivery by us and no later than within 2 weeks. Furthermore, the customer must notify us immediately if a deficiency is found.

  2. If the customer fails to issue notification, then the REPORTS shall be considered approved/accepted other than in the case of deficiencies that were not identifiable in the examination.

§ 8 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 § 8 par 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. In the case of simple negligence (except in cases pursuant to § 8 par 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 § 8 par 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.

§ 9 Terms of Payment

  1. Unless a different method of payment is agreed, all payment is to be made in "BIRDCOINS" which are a virtual credit issued by us. Upon accepting these TERMS, the customer decides which annual BIRDCOINS amount will be meeting the customer's requirements. At the contract start date and subsequently at the beginning of each new contractual year, such BIRDCOINS amount will be credited to the customer's account and can solely be used to pay for services within the scope of § 3. Any BIRDCOINS amount is non-refundable.

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

  3. BIRDCOINS are to be purchased in Euros. All prices for BIRDCOINS are net plus statutory value added tax.

  4. Invoices will be issued following purchase of any BIRDCOINS and are payable within 14 days. In case a different method of payment is agreed, invoices will be issued following an ORDER and are also payable within 14 days, unless otherwise agreed.

  5. 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.

  6. 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.

§ 10 Contract Duration and Termination

  1. Unless otherwise agreed, the minimum term of these TERMS is at least one (1) year ("MINIMUM TERM"). The TERMS shall be automatically extended by one (1) additional year period (each a "RENEWAL PERIOD") upon expiry of the MINIMUM TERM unless either Party terminates the TERM no later than 90 days prior to the end of the MINIMUM TERM or the then current RENEWAL PERIOD. To the extent that – at the end of these TERMS – not all ORDERS have been fully fulfilled or expired, the applicable provisions of these TERMS shall remain effective for such ORDER.

  2. The ORDER'S term is set forth in the respective ORDER.

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

  4. These TERMS and any ORDER may be terminated with good cause. The termination must be declared in written form. A termination of these TERMS with good cause will automatically cause any ORDER to terminate as well. Cause exists specifically when:

    • We seriously breach duties from these TERMS or any ORDER,

    • The customer breaches his duties in these TERMS or any ORDER and particularly the duties of co-operation defined in § 5 of the TERMS or,

    • Insolvency proceedings are opened over the assets of either party or if the opening of such has been rejected due to lack of an in­solvency estate corresponding to the costs of the proceedings.

  5. Any unused BIRDCOINS credited to the customer's account will expire if the TERMS end for whichever reason.

§ 11 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.

§ 12 Severability Clause

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

Date: 01.03.2019