testCloud.de GmbH General Terms and Conditions
We have posted these general terms and conditions for you as an explanation of what services you can expect from testcloud.de GmbH (hereinafter: “test IO”) under what conditions.
testcloud.de GmbH (hereinafter “test IO”) provides contractors the opportunity to work as “testers”. In concrete terms, this means that test IO gives testers the technical means to register on a website as testers by creating a login (“account”), so that they can process end customer jobs (“test runs”) independently. As such, testers can decide for themselves when, where, and how often they complete jobs for test IO. Testers are compensated for their work according to the compensation table applicable to that particular test run.
These terms and conditions regulate the framework conditions for testers’ work for test IO. Acceptance of a tester’s offer to perform a test run constitutes an individual contractual relationship governed by the conditions specified at the time of job assignment and accepted by the tester. In submitting an offer to perform a test run, the tester pledges to conduct the research and work relevant to that job carefully, conscientiously, and in accordance with the principles of test IO.
These terms and conditions are applicable to all contractual relationships between test IO and testers. It replaces all previous agreements, effective as of the moment at which these terms and conditions are accepted. The tester’s own terms and conditions do not apply regardless of whether test IO expressly objects to them or not.
test IO reserves the right to modify these terms and conditions at any time. At the time of his or her next login, the tester will be notified of the change and provided the new terms and conditions in a save- and print-ready format. The tester may then accept the new terms and conditions, and confirms having understood and accepted the terms by clicking the confirmation field.
Side agreements made orally have no legal validity. Any changes to these terms and conditions must be made in writing, including but not limited to emails, faxes, or texts posted online and made available for the recipient to save and print. This also applies to agreements setting aside the written-form requirement.
In order to be able to work as testers, users must go through a one-time process of setting up a free user account and having that account activated by test IO. Testers must be at least eighteen years old to set up a user account. test IO is not legally obligated to activate user accounts
When setting up user accounts, testers are obligated to provide the requested information completely, correctly, and in the appropriate format. In individual cases, test IO reserves the right to make account activation contingent upon the provision of suitable proof demonstrating the accuracy of the information given. Testers are obligated to keep this user information up-to-date, and to use the editing function to make any necessary changes without delay. Should test IO be unable to contact the tester as a result of the tester’s failure to update this information as necessary, test IO accepts no liability for the situation. The tester is obligated to compensate test IO for any damages it incurs as a result of the tester having provided false, inaccurate, or incomplete data.
Users are to select a user name and a password of their choice when setting up an account. Selected user names must not violate any rights, especially third party naming or trademark rights, and must not violate common decency.
Generally speaking, registering user accounts for third parties is not permitted. Testers are also forbidden from maintaining multiple user accounts.
test IO reserves the right to delete a tester’s user account and/or terminate its contractual relationship with the tester if the tester violates these terms and conditions or any other obligations arising from this contractual relationship. In such cases, the tester will receive payment for any accepted work he or she has already performed for test IO. Testers may have their accounts deleted at any time by sending an email to [email protected] Information and data subject to compulsory record retention regulations (e.g., invoices/credit vouchers) will only be deleted following expiry of the relevant retention period. All other data will be deleted at the time of the account’s deletion.
Accounts will only be activated for job processing after the tester successfully performs an unremunerated warm-up test run. The tester will receive an invitation to the warm-up test run once he or she has successfully registered as per the specifications listed above. Testers have no legal claim to invitations to warm-up test runs.
Once a tester has registered an account and test IO has activated that account, test IO may contact the tester under the email he or she has provided in order to solicit an offer for the performance of a concrete test run. This constitutes only an “invitation to bid” (invitatio ad offerendum). Testers can use the reply function to send test IO a quote for the performance of the test run under the conditions specified in the project description. test IO is under no obligation to accept these quotes; as such, test IO’s inquiry does not represent a legally binding offer.
Should test IO accept the tester’s quote for performance of a test run, the information required to perform the test run will be made available to the tester shortly before the test run is activated. The tester’s acceptance of a test run does not give test IO any legal right to have the tester work through the test run as per the conditions specified. Conversely, test IO is under no obligation to accept the tester’s work if it is not done in accordance with the conditions and requirements indicated in the project description, and if the tester’s work qualifies as misperformance. In particular, work will no longer be accepted once test IO’s previously specified deadline for service performance has passed.
The tester shall be paid for each error he or she discovers while performing the test run. Testers report each discovered error using the form provided by test IO. The tester lists a description of the error on the form and assigns the error to one of three categories: Low, High, or Critical. This assessment is only for purposes of initial orientation; it is not binding for the tester’s claim to compensation. test IO will then check the error. The tester shall not receive compensation for the error if:
- sequential error log numbering makes it evident to test IO that the report is a duplicate, and that the error has previously been discovered by another tester, or
- the error cannot be reproduced by test IO, and is thus not demonstrably present.
- test IO will also check the tester’s labeling of the error as Category Low, High or Critical, and change this assignation if necessary. As per § 317 of the German Commercial Code, test IO’s end customer is responsible for making final determinations regarding error categories.
- For certain test runs, the tester shall receive lump sum compensation for completing one or more jobs defined by test IO, either in addition to or instead of compensation per error discovered. Such compensation may be provided for jobs such as (for example) research tasks, answering questionnaires, or working through so-called test cases.
Testers shall be specially informed as to the exact rate of compensation per error discovered (as per Section 1) or per job (as per Section 4.4) for each job. When test IO sends the tester an email requesting that the tester submit a quote for test run performance, the email will specify a concrete amount of compensation per error discovered during the test run/per job; the tester shall then apply this compensation rate when submitting his or her offer.
- Job orders for performance of test runs are assigned exclusively to the tester who submitted the corresponding offer. Job orders may only be forwarded to third parties with test IO’s express written permission.
- The tester is responsible for all taxes on revenues he or she earns through test IO.
Copyright-protected deliverables resulting from the tester’s work remain the exclusive property of test IO. In particular, test IO retains the rights to reproduce, distribute, lease, edit or restructure the deliverables; the rights to show the deliverables in public or make them publicly available; and all other legally protected forms of usage. It also reserves the right to grant additional usage rights, transfer usage rights to others, or modify work titles or copyright designations, without obtaining the tester’s permission. The tester is obligated to release the deliverables resulting from his or her work activities and make them available to test IO at any time upon test IO’s request.
- test IO also retains rights to all currently unknown forms of usage (see § 31a of the German Copyright Act).
- Under no circumstances shall the tester commercialize, nor allow others to commercialize, deliverables created in the course of their work as per Section 5.1.
- Insofar as the tester creates a program as defined under § 69a Section 1 of the German Copyright Act in fulfillment of his or her contractual relationship with test IO, or in accordance with the written job specifications provided by test IO, the rights are transferred as described under § 69b of the German Copyright Act. The rights are transferred at the time the deliverables are created.
- Exclusive usage rights are transferred to test IO upon completion or termination of the work. Payment of the agreed compensation amount also satisfies any other claims of ownership.
- The tester attests that none of the work he or she creates for test IO contains illegal content, especially content that violates the ownership, personality, or other intellectual property rights of any third party, or content that is criminally relevant in any way. The tester is obligated to reimburse any expenses justifiably incurred by tester through third parties as a result of objections to content created by the tester. This does not apply if the tester is not liable for the legal violation. It is hereby expressly noted that test IO checks testers’ work as a quality assurance measure, in particular for copyright-related violations.
As soon as the compensation due the tester as per Sections 4.3 and 4.4 has been established, but no later than two weeks after job order processing has finished, the corresponding credit voucher shall be issued to the tester’s account as per the payment conditions specified in the job description. No interest is paid on the credit vouchers.
- Testers may check the status of their credit vouchers at any time. After a tester’s account has been activated by test IO, and no later than from the 1st up to and including the 20th day of any given month, the tester may press the payment button to have his or her credit vouchers be paid out, provided that they total at least €25.00. Remittance shall take place immediately after the 20th day of the month has passed. Should the 20th of any given month fall on a Saturday, Sunday, or holiday, remittance shall take place on the following work day. At the same time, an automatically generated PDF document shall be made available to the tester for download and print as an invoice for his or her records; this document shall contain the information provided by the tester upon account creation, as well as the amount of money to be paid. Credit which is not paid out shall remain in the user’s account until remitted.
- Payment is contingent upon the tester having provided all legally required invoicing information. Proof of business registration and/or demonstrated evidence of recognized freelancer status may be deemed a precondition for payments to be made.
- The tester shall be responsible for all costs incurred by test IO as a result of the tester having provided bank account information which is incorrect or out-of-date. described under § 69b of the German Copyright Act. The rights are transferred at the time the deliverables are created.
test IO is authorized to retain, process and use data it receives from the tester, and data gathered in context of completing test IO job orders, to the extent that such data usage is necessary to ensure that job orders can be completed and contractual obligations fulfilled without difficulty. test IO will never forward data to third parties without the tester’s express permission, insofar as test IO is not legally authorized or obligated to do so.
- The tester undertakes to maintain confidentiality as regards discoveries and information shared with him or her in work-related contexts—especially discoveries and information connected to test IO, the tester’s work for test IO, customers, software, documentation or conversations (confidential information)—and not to store, record, edit or delete such information. He or she shall take all necessary action to prevent third parties from acquiring or commercializing such information. The tester undertakes not to pass such information on to third parties.
- test IO is authorized to demand a contractual penalty of up to €1,000.00 for each individual violation of the confidentiality obligation arising from this contract. The principles of continuation of offense do not apply. Payment of the contractual penalty does not exclude test IO from exercising its right to demand the tester cease and desist such violation, nor from demanding compensation for demonstrable damages above and beyond this penalty amount. The contractual penalty payment shall be applied toward any potential claims for damage compensation.
- Testers undertake to maintain the confidentiality of the data and job descriptions submitted to them when performing test runs, and to use this information only for purposes of providing services to test IO. In particular, these services are to be provided in such a way that no third parties are able to view the data or job descriptions submitted. These obligations remain in effect even after a project has finished. Should a tester willfully violate this obligation, test IO reserves the right to claim damage compensation and to demand the tester cease and desist such violation.
- In particular, testers pledge not to pass data and information to others. This includes, especially, personal data protected by German data protection laws and German Telecommunications Act-protected telecommunicated content and telecommunication-related circumstances arising from a customer relationship with test IO. Internal documents belonging to test IO or one of its customers may only be forwarded to others with advance written permission.
- Testers are obligated to maintain the confidentiality of their login data (user name, password, etc.) for the test IO online platform and other computer applications; they must not provide that information to third parties, and undertake to avoid allowing third parties to gain access to it.
- Testers may only participate in online briefings and conferences (e.g., over Skype or Webex) alone and/or must ensure that no other unauthorized individuals are able to hear the conversation. Testers are not permitted to record such conversations.
- Testers are to maintain confidentiality as regards the conditions of their work for test IO.
- Testers shall maintain the strictest confidentiality as regards any confidential information made known to them in context of their contractual relationship with test cloud; under no circumstances shall they share such information with others or make it accessible to others in any other way, and they shall take appropriate measures to protect that information.
- Information that has already been published (press releases, website, etc.) is exempt from the confidentiality requirements. Testers are free to use that information as desired.
- Testers are not subject to the confidentiality requirements listed under 8.6.1 and 8.6.2 if legally obligated to disclose confidential information, or if ordered to do so by a court of law, a government office, or another similar authority.
- Should the tester detect an actual or potential violation of Section 8.4 for which he or she is responsible (e.g., misplaced login information, information having been used by others), the incident is to be reported to test IO immediately via email under [email protected]
- In principle, testers are authorized to recruit additional potential contractors. To this end, testers may share general information regarding test IO’s day-to-day activities, provided they do not share customer data or any other information subject to the confidentiality requirements indicated in these terms and conditions.
- Information in physical form remains the property of test IO. Such information, including any duplicates made by the recipient, is to be returned or destroyed immediately at test IO’s request. In particular, information on data media is to be deleted if the nature of the format makes it impossible to return that information. The tester waives any rights of retention as regards such information.
The contractual relationship between test IO and the tester is governed exclusively by the laws of the Federal Republic of Germany. The contractual language is German.
- Please contact [email protected] for any contract-related explanations.
- To the extent that this is legally permissible, for all disputes arising from the business relationship between test IO and the tester, the place of jurisdiction is Berlin.
- Should any individual provisions of these terms and conditions be invalid, it has no effect on the validity of the remaining provisions.