General Terms and Conditions for Customers

Preamble

These General Terms and Conditions ("Terms") apply to all business relationships between the customer ("Customers") and any of the following entities within the Testbirds group (each a "Contracting Entity" and collectively "Testbirds"):

  • Testbirds GmbH, Munich, Germany (Registration: HRB 199376, Munich)

  • Testbirds B.V., Amsterdam, The Netherlands (Registration: KvK 62539191)

  • Testbirds Ltd., London, United Kingdom (Company number: 9524653)

The Contracting Entity is specified in the respective Order. Each Contracting Entity operates under its local jurisdiction and applicable laws. These Terms provide a unified framework for services offered by all entities.

§ 1 Definitions and Scope

  1. These Terms govern the provision of testing services ("Testing" or "Tests") performed by members of the Testbirds crowd ("Testers") on applications, software, services, websites, and similar objects ("Applications"), as agreed in an individual agreement ("Order").

    • Testers gather results during Tests, which Testbirds provides to Customers through the NEST Platform or alternative reports or deliverables ("Deliverables").

    • These TERMS become binding between the Customer and the applicable Contracting Testbirds entity upon entering into an Order.

§ 2 Orders and Pricing

  1. Order formation options: Each individual agreement concluded under these Terms shall constitute an "Order." An Order may be formed through any of the following mechanisms:

    • Option A: The Customer submits a binding purchase request for Birdcoins via the NEST platform. Testbirds shall have the right, in its sole discretion, to accept or reject such request within five (5) Business Days following receipt. Failure by Testbirds to expressly accept or reject within this period shall be deemed acceptance of the Customer's request.

    • Option B: Testbirds issues a binding offer to the Customer. The Customer may accept such offer either by (i) executing the offer in writing, or (ii) issuing a binding Purchase Order referencing the offer (each constituting an "Order").

    • Option C: The Parties execute an individual written service agreement (an "Order"), which shall become effective upon signature by both Parties.

  2. Customer PO requirements: The customer shall communicate to Testbirds when placing an Order, if the issuance of a Customer specific Purchase Order ("PO") from their ERP system is required for the specific Order to ensure proper processing of the Order. The customer will ensure compliance with its own guidelines and provide such PO to Testbirds on order date.

  3. Pricing validity and adjustments: Pricing applicable to each Order shall be specified therein. Such Pricing shall remain valid for 12 months and shall automatically increase by 5% upon renewal of the Order.

§ 3 Scope of Testing Services

  1. Scope of testing: Testbirds undertakes to conduct Testing of the Application in accordance with Customer specifications set out in the Order.

  2. Target Group:

    • A Target Group defines the group of Testers that shall test the Application. The specifications include information such as number of Testers, region/country, test devices, gender and other selection criteria available in the Testbirds NEST platform.

    • Customers specify their required Target Group either in an Order or before Testing. Testbirds may validate the requirements against available Testers in the Testbirds Crowd and specify estimated recruitment efforts.

    • Any modification to the Target Group definition after commencement of a Test may necessitate restarting the Tester selection, validation, and Testing process. Depending on the nature and extent of such changes, particularly where they restrict the availability of potential Testers or require additional recruiting efforts, Testbirds reserves the right to adjust the pricing for the entire Test and/or apply additional charges to cover the incremental efforts incurred.

  3. Deliverables: Upon completion of Testing, Testbirds provides the Customer with the Deliverables.

  4. Tolerance: Testbirds charges the Customer for the agreed number of Testers and will endeavor to deliver the exact number. The Customer accepts a flexibility tolerance of ±10% or ±1 Testers (whichever is higher) for the number of Testers who complete testing and whose results are included in the deliverables.

§ 4 Access to the NEST Platform and Licensed Functionality

  1. Grant of access and license: Testbirds shall provide the Customer with access to its proprietary platform, NEST, for the purpose of managing and monitoring services under these Terms. Where specified in the applicable Order, Testbirds grants the Customer a limited, non-exclusive, non-transferable, revocable license to use certain functionalities of the NEST platform ("Licensed Features") for the term of the Order, subject to payment of the agreed license fees and compliance with these Terms.

  2. Scope of use: The Customer may use the NEST platform and any Licensed Features solely for internal business purposes related to the execution of services under these Terms and in accordance with the specifications set forth in the applicable Order. Any use beyond this scope, including sublicensing, resale, sharing access with third parties, reverse engineering, unauthorized data extraction, or interference with platform operations, is strictly prohibited.

  3. User Credentials: Access to the NEST platform requires individual user credentials (username and password) provided by Testbirds. The Customer shall ensure that such credentials are kept strictly confidential and shall be liable for any unauthorized use resulting from disclosure or negligence.

  4. License fees and payment: License fees for access to Licensed Features shall be payable as specified in the applicable Order. Unless otherwise agreed, license fees are separate from Birdcoins and invoiced in accordance with Section 11. Non-payment of license fees entitles Testbirds to suspend access to Licensed Features without liability for resulting delays.

  5. Suspension and termination of access: Testbirds reserves the right to suspend or restrict access to the NEST platform or Licensed Features in the event of (i) payment default, (ii) material breach of these Terms, or (iii) security concerns, provided that such suspension is proportionate and notified to the Customer without undue delay. Access and license rights terminate automatically upon expiry or termination of the applicable Order.

  6. Intellectual Property: All rights, title, and interest in and to the NEST platform, including any updates or modifications, remain the exclusive property of Testbirds. No intellectual property rights are transferred to the Customer other than the limited, non-exclusive, and non-transferable right of use granted herein.

  7. Audit rights: Testbirds reserves the right to audit the Customer's use of the NEST platform and Licensed Features to verify compliance with these Terms and the applicable Order.

§ 5 Data Integrity, Privacy, GDPR

  1. Access Credentials: According to section 4.3, the Customer receives a user ID and password for security purposes and must keep these confidential. The Customer is liable for any misuse resulting from unauthorized use of the password.

  2. Customer backups: Data and/or Applications transmitted to Testbirds shall be redundantly backed up by the Customer and be re-transmitted to Testbirds upon request. Testbirds is not obliged to create backups of data and/or Applications prior to Testing.

  3. Customer rights: The Customer has the right to information and a right to amend, suspend, or delete its saved information. If deletion conflicts with a legal or contractual duty to retain information or other legal grounds, the information will be made inaccessible.

  4. Basis of data processing: Personal data of the Customer or its employees will only be collected and used to the extent required for establishing, arranging the content of, or modifying the contractual relationship. The Customer is obligated to keep such data up to date in its online administration area.

  5. Contact to Testers only via Testbirds: The Customer shall not directly contact Testers in any way except (i) within the context of a running test, (ii) only during the time of such running test, and (iii) with prior consent of Testbirds. This restriction does not apply to Testers whose contact information was known to the Customer prior to collaborating with Testbirds.

  6. GDPR compliance and DPA: Testbirds data protection practices comply with the EU General Data Protection Regulation (EU) 2016/679 (GDPR). If a data processing agreement is required, the Parties will enter into such agreement separately.

§ 6 Confidentiality

  1. Definition of Confidential Information: For the purposes of this Agreement, "Confidential Information" means any and all information disclosed by one Party ("Disclosing Party") to the other Party ("Receiving Party"), whether orally, in writing, electronically, or in any other form, that is marked or otherwise identified as confidential or that, by its nature or the circumstances of disclosure, ought reasonably to be considered confidential. Confidential Information includes, without limitation, business plans, financial data, pricing, technical information, software, source code, trade secrets, customer lists, and any other proprietary information.

  2. Obligations of receiving party: The Receiving Party shall:

    • keep all Confidential Information strictly confidential and use at least the same degree of care as it uses to protect its own confidential information, but in no event less than reasonable care;

    • use Confidential Information solely for the purpose of performing its obligations under this Agreement; and

    • not disclose Confidential Information to any third party except to its employees, agents, affiliated companies or professional advisors on a need-to-know basis and who are bound by confidentiality obligations no less restrictive than those set forth herein.

  3. Exceptions: The obligations under this Article shall not apply to information that:

    • is or becomes publicly available through no breach of this Agreement;

    • was lawfully known to the Receiving Party prior to disclosure by the Disclosing Party;

    • is lawfully obtained from a third party without restriction; or

    • is independently developed by the Receiving Party without use of or reference to the Disclosing Party's Confidential Information.

  4. Mandatory disclosure: If the Receiving Party is required by law, regulation, or court order to disclose any Confidential Information, it shall (to the extent legally permissible) promptly notify the Disclosing Party and cooperate to seek protective measures.

  5. Term: The confidentiality obligations under this Article shall remain in effect during the term of this Agreement and for a period of two (2) years thereafter, unless applicable law requires a longer period for specific information.

§ 7 Customer Cooperation Responsibilities

  1. The Customer shall cooperate appropriately for the entire period when Testing according to an Order is conducted by Testbirds. Appropriate cooperation includes in particular:

    • making the Application available for distribution to Testers;

    • providing data (particularly special access data) and information for accessing the Application;

    • communication of planned changes to the Application (as long as testing might be impacted by such changes) before Testing;

    • implementing and maintaining adequate data backups for the Application;

    • ensure operations are not disrupted throughout Testing (i.e., provision of a suitable test environment).

§ 8 Usage Rights

  1. Grant of usage rights: The Customer may reproduce and refine the Deliverables for its own use in any form. To this end, Testbirds assigns to the Customer an exclusive, irrevocable, worldwide, and unlimited usage right to the Deliverables.

  2. Condition precedent: The transfer of usage rights takes effect only upon full payment of the fees due in accordance with Section 11.

  3. Resale and publication: Resale or publication of Deliverables is permitted only with prior written consent of Testbirds.

§ 9 Deficiencies and Acceptance

  1. Inspection: The Customer must examine Deliverables immediately upon delivery by Testbirds and no later than within two (2) weeks.

  2. Notice: The Customer must notify Testbirds without undue delay if a deficiency is found.

  3. Deemed acceptance: If the Customer fails to issue notification within the above period, the Deliverables are deemed accepted, except for deficiencies not identifiable during the examination (hidden defects).

§ 10 Limitation of Liability

  1. Unlimited liability carve-outs: Testbirds shall be liable without limitation (i) for damages resulting from injury to life, body, or health; (ii) for damages caused by intent or gross negligence; and (iii) in cases where liability cannot be excluded or limited under mandatory statutory provisions applicable to the Contracting Entity, including, for example, the German Product Liability Act (Produkthaftungsgesetz).

  2. Liability for simple negligence: In cases of simple negligence, Testbirds shall only be liable for damages arising from the breach of essential contractual obligations (cardinal duties). Essential contractual obligations are those whose fulfillment is indispensable for the proper execution of the contract and on which the Customer regularly relies. In such cases, liability shall be limited to the typical and foreseeable damage at the time of contract conclusion and subject to the caps set forth in Section 10.3.

  3. Indirect damages: Testbirds shall not be liable for special, indirect, or consequential damages, including but not limited to loss of profits, loss of business opportunities, or reputational harm.

  4. Liability caps: Where liability is limited under sections 10.2 or 10.3, Testbirds aggregate liability shall not exceed EUR 1.000.000 for material damage and EUR 1.000.000 for pure financial losses.

  5. Contributory negligence: Any contributory negligence on the part of the Customer shall be considered in determining liability.

§ 11 Payment and Payment Terms

  1. VAT: All prices are quoted exclusive of statutory value-added tax (VAT).

  2. Invoice issuance: Invoices shall be issued based on the applicable Order, including VAT where legally required, and are payable within fourteen (14) calendar days of the invoice date.

  3. Invoice delivery: Invoices will be delivered as e-mail attachments to the address specified in the Customer's NEST account. Delivery by ordinary post or other Customer-specific methods may incur a reasonable service fee.

  4. Changes to invoices: Retrospective changes to invoices arising through no fault of Testbirds (e.g. different invoicing delivery address, required information on invoices, etc.) shall not affect the original due date and may incur a reasonable service fee.

  5. Wire transfer: Payments shall be made exclusively by wire transfer, free of charges to Testbirds.

  6. Default: In the event of payment default, Testbirds may charge annual default interest at nine percent (9%) of the outstanding invoice amount. Testbirds reserves the right to suspend the Customer's account and restrict access to the NEST platform until full payment is received.

§ 12 Birdcoin Credit and Consumption

  1. Birdcoins: The utilization of any Test or other service requires the consumption of Birdcoins, a virtual token issued and sold by Testbirds. Birdcoins are credited to, held in and consumed from the Customer's account on the NEST Platform. Birdcoins may be used ("consumed") exclusively to pay for services provided under Section 3 or 4. Birdcoin balance and transactions can be monitored by the Customer on the NEST platform. Birdcoins expire upon termination or after 12 months from purchase, whichever occurs first. Unused Birdcoins are non-refundable.

  2. Birdcoins & NEST License: Purchasing Birdcoins automatically grants Customer Access to and License for the NEST Platform as described in Section 4 with basic functionality for the duration of an Order. Basic functionality includes management of own user master record information, monitoring Birdcoin balances and Tests. Further advanced functionality might be subject to separate License Fees, to be defined in an Order.

  3. Birdcoin Credits:

    • Birdcoins are credited to the Customers NEST account in the respective invoice amount on the day of invoicing according to the respective Order.

    • Birdcoins are purchased, credited and held in the currency stated in the Order. Birdcoins are credited to the NEST platform exclusive of VAT.

  4. Birdcoin Consumption:

    • Consumption: Execution of a test or other agreed utilization of Testbirds' services results in consumption of Birdcoins, i.e., reduction of the balance by the Birdcoins required for the respective service. Consumption and remaining balance are tracked in the Customer's user account on the NEST platform.

    • Reserved Consumption Volumes (RCV): The following applies only for contracts with Reserved Consumption Volumes defined in the Order:

      • If the Customer's Birdcoin balance is less than the calculated value for RCV, the lower value is applied.

      • If the Customer's Birdcoin balance is zero, RCV is not applicable.

      • If the contract starts after the start of a fiscal quarter or ends before the end of a fiscal quarter, the RCV calculation applies pro rata temporis. (Example: Contract starts 1 November → 2/3 of the RCV for Quarter 4 applies.)

      • If a test is already running when an RCV is booked, Testbirds will decide case-by-case how to treat such test for RCV.

      • Quarter definitions: Q1: 1 January – 31 March; Q2: 1 April – 30 June; Q3: 1 July – 30 September; Q4: 1 October – 31 December.

§ 13 Contract Duration and Termination

  1. Minimum term and renewal: Unless expressly agreed otherwise in the applicable Order, the initial term of each Order shall be one (1) year (the "Minimum Term"). Upon expiry of the Minimum Term, the Order shall automatically renew for successive periods of one (1) year (each a "Renewal Period"), unless either Party provides written notice of termination no later than ninety (90) days prior to the end of the Minimum Term or the then-current Renewal Period.

  2. Termination: Termination notices shall be made in writing and may be delivered by letter or by e-mail to info@testbirds.com. Notices are deemed received upon actual delivery to the specified address.

  3. Termination for cause: These Terms and any Order may be terminated by either Party for good cause, which must be declared in writing. Good cause shall include, without limitation:

    • a material breach by Testbirds of its obligations under these Terms or any Order;

    • a material breach by the Customer of its obligations under these Terms or any Order, including but not limited to the cooperation duties set forth in § 5; or

    • the commencement of insolvency proceedings against the assets of either Party, or the rejection of such proceedings due to insufficient assets to cover costs.

  4. Unused Birdcoins: Any unused Birdcoins credited to the Customer's account expire when the Term of an Order ends for any reason. Unused Birdcoins are non-refundable.

§ 14 Governing Law and Jurisdiction

  1. The applicable law and place of jurisdiction correspond to the Contracting Entity indicated in the Order:

    • Testbirds GmbH: German law applies; place of jurisdiction: Munich.

    • Testbirds B.V.: Dutch law applies; place of jurisdiction: Amsterdam.

    • Testbirds Ltd.: Laws of the United Kingdom of Great Britain and Northern Ireland apply; place of jurisdiction: London.

  2. All disputes shall be resolved exclusively before the competent courts specified in section 14.1. Arbitration is expressly excluded.

  3. The United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.

§ 15 Final Provisions

  1. In the event of any conflict or inconsistency between these Terms and the provisions of an applicable Order, the provisions of the Order shall prevail to the extent of such conflict or inconsistency.

  2. Neither Party shall be liable for any failure or delay in performing its obligations under these Terms or any Order to the extent such failure or delay is caused by circumstances beyond its reasonable control, including but not limited to acts of God, natural disasters, epidemics, pandemics, war, terrorism, civil unrest, governmental actions or restrictions, labor disputes, power outages, or failures of telecommunications or internet services (each a "Force Majeure Event"). The affected Party shall promptly notify the other Party in writing of the occurrence of a Force Majeure Event and shall use reasonable efforts to mitigate its effects. If the duration of a Force Majeure Event exceeds thirty (30) days, either Party may terminate the affected Order upon written notice without liability, except for payment obligations accrued prior to the Force Majeure Event.

  3. Should individual provisions of these Terms be invalid, the validity of the remaining provisions is not affected. The Parties shall cooperate to replace invalid provisions with valid ones that, to the extent legally possible, reflect the original intent.

  4. These Terms and the applicable Order constitute the entire agreement. Amendments must be made in writing and signed by both Parties.

Status: 01.01.2026