§ 1 Scope of Application
- TESTBIRDS GmbH (hereinafter referred to as “TESTBIRDS") with its registered place of business at Radlkoferstraße 2, 81373 Munich, has a website offering Services which are designed to help DEVELOPERS to beta test and improve their applications (“Apps”) and to provide BETA DEVELOPERS with Apps.
- Specifically, this means that TESTBIRDS offers DEVELOPERS AND BETA TESTERS the technical possibility to register as a DEVELOPER AND BETA TESTER on a platform via login (“USER ACCOUNT“), and to independently conduct beta testing of un-published apps (“BETA TESTS”). Hence, the DEVELOPERS can upload a beta version of an app and the assigned BETA TESTERS can download and test this app.
- The General Terms and Conditions of Business (hereinafter abbreviated as “GTC“) shall apply to all activities performed by the DEVELOPERS AND BETA TESTERS for TESTBIRDS. The acceptance of a BETA TEST creates a contractual relationship for the DEVELOPERS and BETA TESTERS by accepting a BETA TEST, the BETA TESTER and DEVELOPER agrees to diligently research and process the accepted BETA TESTS in accordance with the principles of TESTBIRDS.
- The General Terms and Conditions shall apply to all contractual relationships between TESTBIRDS, the DEVELOPERS AND BETA TESTERS.
- The respective contractual relationship between the BETA TESTER and the DEVELOPER and TESTBIRDS within these General Terms and Conditions are created with the acceptance by the DEVELOPER AND BETA TESTER of the sign-up or invitation for a BETA TEST.
- TESTBIRDS may modify the General Terms and Conditions at any time. The modified GTC will be announced by e-mail no later than two weeks before the effective date. The modified GTC will be deemed as accepted unless contradicted by e-mail within two weeks of receipt of the e-mail containing the modified GTC. Upon announcement of the modified GTC, DEVELOPERS AND BETA TESTERS will be notified of the two-week deadline and of the consequences of a failure to contradict.
- Oral side-agreements do not exist. Modifications to the GTC must be conducted in writing to be valid.
§ 2 Setting up a USER ACCOUNT for DEVELOPERS AND BETA TESTERS
- The processing of BETA TESTS by a DEVELOPER AND BETA TESTER requires a one-time, free-of-charge creation of a USER ACCOUNT and activation by TESTBIRDS. To be able to create a USER ACCOUNT, a DEVELOPER AND BETA TESTER must be at least 18 years old. A legal claim to the activation of the USER ACCOUNT by TESTBIRDS does not exist.
- The DEVELOPER AND BETA TESTER is obligated to enter the information required for setting up a USER ACCOUNT in an orderly and truthful manner. TESTBIRDS reserves the right to activate a USER ACCOUNT conditional to the provision of appropriate documentation for individual cases, proving that the entered data is correct. The DEVELOPER AND BETA TESTER is obligated to update the information and to immediately enter necessary adjustments via the user 'data change' function. Should TESTBIRDS be unable to contact the DEVELOPER AND BETA TESTER due to the persons’ failure to enter the required changes, TESTBIRDS shall not be responsible.
- Setting up the USER ACCOUNT requires the entry of a freely chosen user name and a password. The chosen user ID must not violate any rights, in particular third party rights to names or brands and may not violate moral standards. The DEVELOPER AND BETA TESTER shall be responsible for keeping the password secure. The DEVELOPER AND BETA TESTER’S entered place of residence will be considered as his company domicile.
- Registering a USER ACCOUNT for a third party is generally prohibited. DEVELOPERS AND BETA TESTERS are also not permitted to have several USER ACCOUNTS.
- TESTBIRDS reserves the right to delete the USER ACCOUNT of a DEVELOPER AND BETA TESTER and/or to terminate the contractual relationship with the DEVELOPER AND BETA TESTER in case of a violation of the Terms and Conditions of Business or other obligations in connection with the contractual relationship.
§ 3 Handling of BETA TESTS
- After registration as a BETA TESTER and activation of the USER ACCOUNT, the TESTER can view the BETA TESTS entered by respective DEVELOPERS which comply with his/her invitations as well as the respective terms. BETA TESTERS can accept the invitation for a BETA TEST and, by accepting, consent to the terms and conditions offered by TESTBIRDS for the BETA TEST.
- After registration as a DEVELOPER and activation of the USER ACCOUNT, the DEVELOPER can upload an app and start a BETA TEST which complies with respective terms. BETA TESTERS can accept the invitation for a BETA TEST and, by accepting, consent to the terms and conditions offered by TESTBIRDS for the BETA TEST.
- If a DEVELOPERS AND BETA TESTERS accepts a BETA TEST, the “DATA“ required for processing the BETA TEST shall be made available to the DEVELOPERS AND BETA TESTERS just before the activation of the BETA TEST for the term of the BETA TEST (e.g. access data, data for ordering goods, and software applications such as apps). The acceptance of a BETA TEST by the DEVELOPERS AND BETA TESTERS does not create a contractual performance entitlement by TESTBIRDS with regard to the DEVELOPERS AND BETA TESTERS, that the DEVELOPERS AND BETA TESTERS will process the BETA TEST in accordance with the prescribed conditions.
- The BETA TESTERS shall destroy the “DATA“ made available after completion of the BETA TEST. This shall also apply to applications which were explicitly made available such as Apps.
§ 6 Data Protection
- TESTBIRDS shall be entitled to collect, process and use the data received from the DEVELOPER AND the BETA TESTER as well as the data arising in connection with the order processing for TESTBIRDS in accordance with the statutory provisions and to the extent required for the proper handling of order processing and the execution of the contractual relationship. No data shall be transferred to third parties by TESTBIRDS without the express consent of the DEVELOPERS AND BETA TESTERS, unless TESTBIRDS is entitled or obligated to do so by law.
§ 7 Liability and Liability Limits
1. If, due to reasons for which TESTBIRDS is 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 DEVELOPER OR BETA TESTER then the DEVELOPER OR BETA TESTER is entitled to terminate the contract without notice.
2. The previous does not affect the right to termination with cause.
3. Irrespective of the legal basis, the liability is limited to the remuneration entitlement accepted in accordance with this contract. Further claims of the DEVELOPER OR BETA TESTER 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. The contractor guarantees no full identification of all faults present in the service. Liability claims for unidentified faults are therefore excluded – as far as legally permissible.
4. TESTBIRDS is specifically not liable for damages that occur due to the BETA TEST (e.g. system failures, erroneous entries, security loopholes emerging, publication of protected information etc.).
§ 8 Termination
1. This contract may be terminated only with cause (§ 314 par. 1 BGB). The termination must be declared in textual form (§ 126b BGB). Cause exists specifically when:
a) The DEVELOPER OR BETA TESTER seriously breaches duties from this contract,
b) TESTBIRDS breaches his duties in this contract, or
c) 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.
§ 7 Choice of Law & Jurisdiction
- The contractual relationship between TESTBIRDS and the DEVELOPERS AND BETA TESTERS shall be governed by the laws of the Federal Republic of Germany. Exempt from this choice of law, are the mandatory consumer protection regulations of the country in which the Customer has his usual place of residence.
- The place of jurisdiction for all disputes arising from the contractual relationship between the DEVELOPERS AND BETA TESTERS and TESTBIRDS shall be the registered place of business of TESTBIRDS.