General terms & conditions for crowd services

General terms & conditions for crowd services

§ 1 General – Scope

  1. The following terms and conditions 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 contract was put into effect.

  2. The object of this contract is the conducting of software testing (hereafter referred to as “TESTING”) by various people (hereafter referred to as TESTERS”).

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

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

§ 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 Service

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

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

    1. The number of TESTERS.
    2. The TESTING procedure.
    3. The designation and version(s) of the hardware, operating system and software that an individual TESTER must have.
    4. 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 consolidates the REPORTS and provides 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 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 Co-operation Duties of the Customer

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

    1. Availability of the APPLICATION to be tested for distribution to the TESTERS.
    2. Data (particularly special access data) and information for access to the APPLICATION.
    3. Communication concerning changes to the APPLICATION.
    4. Implementation and holding of adequate data backup for the APPLICATION.
    5. 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 the contract, 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 this contract.

  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 and 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 Liability and Liability Limits

  1. If the service is not provided in accordance with the contract or if it is provided with deficiency then we must cover this and therefore has an obligation to provide the service in accordance with the contract at no additional cost to the customer and within a reasonable period.

  2. This is conditional upon notification of the deficiency in accordance with § 7 of this contract.

  3. If, due to reasons for which we are responsible, the provision of the service in accordance with the contract is substantially unsuccessful even within a reasonable period of grace to be explicitly set by the customer then the customer is entitled to terminate the contract without notice. In this case, we have a right to payment for the services provided on the basis of the contract prior to the termination taking effect. The payment is omitted only for such services where the customer demonstrates within 4 weeks, after declaration of the termination, to be unusable or of no interest.

  4. The previous does not affect the right to termination with cause.

  5. Irrespective of the legal basis, the liability is limited to the remuneration entitlement accepted in accordance with this contract. Further claims of the customer due to qualitative disruptions to services are excluded. This exclusion does not apply in the case of intent or gross negligence or in the case of harm to life, body or health.

  6. We guarantee no full identification of all faults present in the APPLICATION. Liability claims for unidentified faults are therefore excluded – as far as legally permissible.

  7. We are specifically not liable for damages that occur due to the TESTING (e.g. system failures, erroneous entries, security loopholes emerging, publication of protected information etc.).

§ 9 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.

§ 10 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. This contract may be terminated with good cause. The termination must be declared in written form. Cause exists specifically when:

    1. We seriously breach duties from this contract,
    2. The customer breaches his duties in this contract and particularly the duties of co- defined in § 5 or,
    3. Insolvency proceedings are opened over the assets of one party to the contract or if the opening of such has been rejected due to lack of an insolvency estate corresponding to the costs of the proceedings.

§ 11 Compensation for Damages in the case of Delays

  1. The project start of the respective TESTING is agreed bindingly with the customer. Unless otherwise explicitly agreed, TESTING shall begin no earlier than 24h after approval by the customer. If the project start of TESTING is subsequently deferred at the request of the customer or if the project start has to be deferred due to breach of the customers' duties of co-operation, then the following applies:

    1. The first deferral is possible free of charge.
    2. The second and each subsequent deferral shall result in the customer being liable for compensation for damages respectively amounting to 15 % of the agreed project sum.
  2. The customer is at liberty to prove that no damage has been incurred by us or that the damage was substantially less than determined in figure 1 b). We may prove and claim greater damages than in figure 1 b).

§ 12 Contractual Penalty in the Event of Termination of the Contract

If the project start of TESTING is deferred more than twice at the request of the customer or if the project start has to be deferred more than twice due to breach of the customers' duties of co-operation then we are entitled to withdraw from the contract. A contractual penalty of 50 % of the agreed project sum is due in the case of withdrawal by us.

§ 13 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.

§ 14 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