Terms of Service for Game Studios
Last updated on: November 21, 2018
PlaytestCloud GmbH ("PlaytestCloud”) has developed a platform ("Site”) that enables business clients ("Client(s)”) to run software usability tests, online surveys, and studies ("Playtest(s)”) of their games and allows testers selected by PlaytestCloud in accordance with Client's directions ("Testing Contractor(s)”) to perform and record Playtests for the Clients. The ToS terminate with the cancellation of the access to the Site by either the Client or PlaytestCloud.
§ 1 — Subject of Contract
- The following Terms of Service ("ToS”) govern the use of the Site for Clients to get results of Playtests about their developed games.
- The Testing Contractors are neither employees nor agents of PlaytestCloud, but are independent service providers using the Site to provide services to Clients by participating in Playtests. PlaytestCloud disclaims liability for the acts or omissions by anyone who is not an employee of PlaytestCloud.
- Upon signing up at the Site of PlaytestCloud Client is receiving an indefinite account. The account is free of charge and subject to immediate possibility of cancellation by the Client, unless a current Order is to be fulfilled by PlaytestCloud. This account gives a limited right to access and use the Site for the purposes of initiating and reviewing Playtests and enables Client to arrange multiple amounts of Orders.
- Each individual Playtest consist of an individual order. Orders shall not include any signed statements, but are binding through digital statement. An order consists of the game to be tested, the amount of videos to be generated by PlaytestCloud and the selection of target groups as well as further specifications. Orders can also cover other user research projects, for example, projects unrelated to specific games, or projects that don’t require videos to be generated by PlaytestCloud. By completing an Order, Clients shall be able the number of Videos designated in the Order of each Playtest and/or other Playtest results that have been agreed upon ("Order(s)”). All Orders shall be deemed incorporated into the ToS and governed by the ToS herein.
- Orders shall be sent with a game build appropriate for the platform of the Playtest. For Playtests of iOS games, an IPA file without protection by Apple Fairplay DRM and capable of running on the newest version of Apple’s iOS operating system is required. For Playtests of Android games, an Android APK file without DRM protection capable of running on the newest version of Google’s Android operating system is required. For other types of Playtests, Client should follow the instructions for providing the game found on the Site. The Client shall provide the game without an automated in-app update mechanism as this could lead to malfunctions. The Playtest will use the first version of the game build submitted. PlaytestCloud does not guarantee usage of later sent versions of the game by the Testing Contractors for the Playtest.
- PlaytestCloud shall send the Playtest results within 48 hours after the Order, unless a different delivery time was agreed upon. In case of technical problems PlaytestCloud shall be entitled to give a new time to send the Playtest results within 24 hours after the Order. The Client shall not pay for any Playtest results which are not sent in time.
- PlaytestCloud shall be entitled to not accept Orders. PlaytestCloud will give a written notice to the Client about not accepting the Order.
§ 2 — Pricing & Payment Terms
- The rates and reimbursable expenses for access and use of the Site and the provision of the Services shall be as set forth in an Order. Additional charges may apply if Client and PlaytestCloud agree on deviations from the Order, in which case PlaytestCloud will inform Client before these charges are incurred. PlaytestCloud invoices Clients after completion of the Order, unless different payment terms are stated in the Order. When PlaytestCloud invoices a Client for fees pursuant to an Order, Client shall pay to PlaytestCloud the full, undisputed amount of each Order within fifteen (15) days of receipt of the invoice ("Payment Period”). In the event that Client disputes an invoice, Client must notify PlaytestCloud within the Payment Period or the invoice shall be deemed undisputed. Overdue undisputed invoices that remain unpaid fifteen (15) days after receipt shall be grounds for PlaytestCloud to terminate Client’s access to the Site without refund of any fees paid. To initiate additional Playtests, Client must complete a new Order.
- Amounts payable to PlaytestCloud under this Agreement are payable in full to PlaytestCloud without deduction and include any sales, use, excise, ad valorem, property, withholding, value added tax or other tax and any income tax withheld at source, tariff, duty or assessment levied or imposed by any government authority (including without limitation any country, state, city, county, province, department, or other subdivision of government) that may be applicable to the purchase of services hereunder. If the reverse charge sales tax system in the European Union is applicable, Clients shall submit their tax id to PlaytestCloud to avoid being charged with sales tax. In case of prior submission, Clients are obliged to declare sales taxes according to the reverse charge system in the European Union.
- The Clients shall not pay or shall be refunded if the Playtest results are not useful. PlaytestCloud offers, at its own discretion and subject to termination, the possibility to generate additional videos if Client deems a certain amount of videos unusable. The additional video shall not generate extra costs for the Client.
- In case the Clients do not agree with the selection of the Testing Contractors they are entitled to exercise their rights according to Section 2.3 of the ToS.
- Clients have the option of purchasing Playtesting Credits. A Playtesting Credits purchase results in an agreed number of Playtesting Credits being added to the Client's account. Playtesting Credits can be used for any services directly provided by PlaytestCloud, excluding projects involving third-party contractors (e.g. researchers, recruiters). The Playtesting Credits do not have an expiry date.
§ 3 — Intellectual Property
- “PlaytestCloud Property” means any pre-existing intellectual property rights of PlaytestCloud or PlaytestCloud’s contractors that are utilized by PlaytestCloud in performance of its obligations under the ToS such as computer software, reports or methodologies. PlaytestCloud Property will be the sole property of PlaytestCloud or PlaytestCloud’s contractors and, even if incorporated into a video or contractual obligation of PlaytestCloud, will not be deemed to be a deliverable toward the Client. PlaytestCloud Property shall be deemed to be PlaytestCloud’s confidential information. PlaytestCloud hereby grants the Clients an irrevocable, perpetual, worldwide, non-exclusive license to use the PlaytestCloud Property solely as incorporated in the Playtest results for their business purposes.
- No Confidential Information obtained by PlaytestCloud from the Client shall become PlaytestCloud property. All Client games and other materials provided by the Client under any Orders shall be deemed “Client Property” for purposes of the Agreement and shall be retained and owned exclusively by Client. During the performance of PlaytestCloud’s obligations under the ToS, and subject to PlaytestCloud’s compliance with the terms of the ToS, Client grants to PlaytestCloud a temporary, non-exclusive license to your Client Property solely as needed to perform PlaytestCloud’s obligations in connection with the ToS. For avoidance of confusion, this license granted by the Client to PlaytestCloud for this purpose will expire upon the earlier of: (i) the time at which such license is no longer required by PlaytestCloud for the performance of its obligations to the Client, or (ii) termination of the ToS or the applicable Order.
- PlaytestCloud grants Client an irrevocable, perpetual, worldwide, non-exclusive license to use all Playtest results delivered to Client for their business purposes. However, this does not include the right to publish or otherwise show video recordings, gaming profiles, individual responses or other information related to an individual Testing Contractor to anybody but employees, contractors or agents of Client without explicit written consent from PlaytestCloud.
§ 4 — Confidentiality
- Each party ("Recipient”) agrees to retain in confidence any information provided to it by the other party ("Discloser”) that is marked, labeled or otherwise designated as confidential or proprietary or that Recipient knew, or should have known, was confidential due to the circumstances surrounding the disclosure by Discloser ("Confidential Information”). Confidential Information shall not include any information that (a) is publicly known at the time of disclosure, (b) is received by Recipient without restriction from a third party, (c) is published or otherwise made known to the public by Discloser, (d) was generated independently without reference to the other party’s Confidential Information, or (e) is required to be disclosed under a court order or pursuant to any governmental rule, regulation or statute, provided that Recipient provide Discloser with prior written notice of such disclosure, as permitted by law. Recipient shall use at least the same standard of care with the Discloser’s Confidential Information as it does with its own confidential information, but in no event with less than reasonable care. Upon termination or expiration of the ToS, and then upon Discloser’s request, Recipient shall return or destroy all Confidential Information provided under the ToS. During a Playtest generated videos are usable after termination or expiration of the ToS, to be used solely for PlaytestCloud’s internal business, but will be deleted upon Clients request. Each party acknowledges that breach of this provision would result in irreparable harm to the other party, for which money damages would be an insufficient remedy, and therefore that the other party will be entitled to seek injunctive relief to enforce the provisions of this section.
- Promptly after receipt of written request from the other party, each party shall either promptly return all Confidential Information, or confirm that such Confidential Information has been destroyed.
- Any Testing Contractor shall agree to terms that include confidentiality provisions before taking part in a Playtest. Any data given to the Client by a Testing Contractor is a Confidential Information.
§ 5 — Term and Termination
- The ToS will apply commencing on the effective date of the signup at the Site and will continue unless and until either party gives the other party written notice of termination. Upon notice of termination: (a) the parties will not enter into any additional Order under the ToS; and (b) each Order entered into prior to notice of termination will continue in full force and effect until completed, unless access to the Site or Service is terminated in accordance with Section 5.2 of the ToS.
- PlaytestCloud may terminate any Services at any time without notice for any reason.
- If either party defaults in the performance of any of its material obligations under any Order or the ToS, then the other party may terminate such Order by providing written notice of such termination (including, without limitation, a detailed description of the default and the action required to cure the default); provided, however, that such termination will not be effective if the defaulting party substantially cures the default within thirty (30) days after receipt of your notice of termination. Upon termination: (a) the Client will pay PlaytestCloud in accordance with Section 2 for access and use of the Site and Services performed in accordance with the ToS prior to the effective date of termination or thereafter as reasonably required for PlaytestCloud to wind up the services (b) PlaytestCloud will deliver to the Client all completed work in process.
- Upon the termination of the ToS, the parties' respective rights and obligations in the following provisions shall survive: 2.0 ("Pricing and Payment”); 3.0 ("Intellectual Property”); 4.0 ("Confidential Information”); 5.3 ("Survival”); 6.3 ("Warranty Disclaimer”); 7.0 ("Limitation of Liability and Waiver of Consequential Damages”) and 8.0 ("General Provisions”), together with all other provisions that may reasonably be construed to survive.
§ 6 — Warranty
- The services provided by PlaytestCloud, if any, shall be provided in a professional and workmanlike manner. In the event of a breach of this warranty, then your sole remedy and PlaytestCloud’s sole obligation shall be PlaytestCloud re-performing the Services. PlaytestCloud hereby represents and warrants that (a) PlaytestCloud has full power and authority to enter in the Agreement and the ToS will constitute a valid and binding obligation of PlaytestCloud; and (b) PlaytestCloud’s execution of the ToS does not violate any other agreement to which PlaytestCloud is subject.
- Client represents and warrants its ownership of all intellectual property rights necessary for PlaytestCloud and/or Testing Contractors to perform their obligations in connection with these ToS (particularly to test and analyze games).
- Client represents and warrants to provide no material (including computer programs, video games, film, digital, video or audio elements) to PlaytestCloud that will lead to infringing a third party’s intellectual property when processed by PlaytestCloud to perform their obligations in connection with the ToS.
- The Client hereby represents and warrants that (a) it has full power and authority to enter into the agreement and the ToS will constitute valid and binding obligations; and (b) their execution of the ToS does not violate any other agreement.
- The Client warrants that the chosen version of the game does not violate any applicable laws or regulations of their country or the countries of the Testing Contractors, including, but not limited, youth protection law and criminal law.
- Other than set forth herein, PlaytestCloud expressly disclaims any warranty regarding the Site, the Playtests or the services, express or implied, including the implied warranties of no infringement, merchantability and fitness for a particular purpose. PlaytestCloud provides the services solely for informational purposes to the Clients. The Clients are solely responsible for any decisions made based on such information.
§ 7 — Limitation of Liability and Waiver of consequential damages
In no event will either party be liable for any damages for loss of use, lost profits, business loss or any incidental, indirect, special, economic or consequential damages whether or not a party has been advised of the possibility of such damages. PlaytestCloud’s aggregated liability for direct damages to the Client under these ToS shall be limited to the consideration paid or payable by the Client to PlaytestCloud for the use of the Site. Without limiting the generality of the foregoing, PlaytestCloud shall have no liability for any damages that may result from (a) the Client’s use or interpretation of the Site or (b) the acts or omissions of the Testing Contractors.
§ 8 — Privacy
- Client shall ensure to comply with all provisions of the General Data Protection Regulation (GDPR) and relevant national privacy law. Therefore client shall ensure to process personal data of any Testing Contractors only if and to the extent that (a) the Testing Contractor has given consent to the processing of his or her personal data for one or more specific purposes (b) processing is necessary for compliance with a legal obligation to which Client is subject to (c) processing is necessary for the purposes of the legitimate interests pursued by Client or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the Testing Contractor which require protection of personal data, in particular where the Testing Contractor is a child. Client shall also ensure to process personal data within the scope of the ToS in accordance with the principles relating to processing of personal data (Article 5, GDPR) and shall implement appropriate technical and organizational measures to ensure data processing is performed in accordance with these principles and relevant privacy law.
- It is strictly prohibited to use the Site to contact or ask Testing Contractors for special categories of personal data (Article 9, GDPR) such as racial or ethnic origin, political opinions, religious or philosophical beliefs, data concerning health or data concerning a Testing Contractor’s sex life or sexual orientation.
- In case of a “Bring Your Own Players” subscription, Client shall ensure to obtain consent from its Own Players to disclose necessary personal data, such as email addresses, to PlaytestCloud.
- PlaytestCloud and Client shall be jointly liable for compensation to anyone for damage caused by any unauthorized party or for incorrect data processing within the scope of the ToS. Client shall bear the burden for proving that any damage is not the result of circumstances that Client is responsible for insofar as the relevant data have been processed under this agreement. If this proof has not been provided, the Client shall, when initially requested to do so, release PlaytestCloud from all claims that are levied against the latter in connection with the data processing within the scope of the ToS. Client shall be liable to the PlaytestCloud for any damages culpably caused by the Client or its employees in connection with processing of personal data within the scope of the ToS.
§ 9 — General Provisions
- Neither party may assign the ToS without the other party’s prior written consent except in the event of a merger, acquisition, or sale of substantially all of the assigning party’s assets. In no event shall the required written consent be unreasonably withheld. Any attempt to assign the ToS other than as permitted above will be null and void.
- To obtain access to the Site the Client may be required to obtain an account with PlaytestCloud by completing a registration form and designating a user ID and password. When registering with PlaytestCloud the Client must: (a) provide true, accurate, current and complete information, and (b) maintain and promptly update the registration data to keep it true, accurate, current and complete.
- By registering with PlaytestCloud, the Client understands that PlaytestCloud may send them communications or data regarding the Site and services, including but not limited to (a) notices about the Client’s use of the Site or services, including any notices concerning violations of use, (b) updates, and (c) promotional information and materials regarding PlaytestCloud’s products and services, via electronic mail. PlaytestCloud may send the Client, in electronic form, information about the service, additional information, and information the law requires PlaytestCloud to provide. PlaytestCloud may provide required information to the Client by email at the address the Client specified during signing up for the Site. Notices emailed to the Client will be deemed given and received when the email is sent. If the Client doesn’t consent to receive notices electronically, the Client must stop using the Site.
- German law applies to the ToS, all legal obligations of PlaytestCloud and all contracts entered into on the basis of the ToS. Place of jurisdiction shall be Berlin, Germany.
- The parties are independent contractors and will have no power or authority to assume or create any obligation or responsibility on behalf of each other. The ToS will not be construed to create or imply any partnership, agency, or joint venture. The Clients hereby acknowledge and agree that the Testing Contractors are independent contractors of PlaytestCloud and, as such, PlaytestCloud does not control Testing Contractors.
- No failure or delay by any party in exercising any right, power, or remedy under the ToS, except as specifically provided herein, shall operate as any waiver of any such right, power, or remedy.
- If any provision of the ToS is held by a court of competent jurisdiction to be invalid or unenforceable for any reason, the remaining provisions will continue in full force and effect without being impaired or invalidated in any way.
- PlaytestCloud will not be responsible for any failure to perform due to causes beyond its reasonable control, including, but not limited to, acts of God, war, acts of terrorism, riot, failure of electrical, Internet, co-location or telecommunications service, acts of civil or military authorities, fire, floods, earthquakes, accidents, strikes, or fuel crises.
- The Clients may only communicate with Testing Contractors through the Site, and may not contact Testing Contractors or request that Testing Contractors contact the Clients through any other means. The Clients may not solicit or hire any Testing Contractor to perform usability testing directly for them for a period of one year from the completion of any Study conducted on PlaytestCloud’s platform with that Testing Contractor; provided, however, that the foregoing will not prevent Client from conducting solicitation via a general advertisement for user testing that is not specifically directed to any such Testing Contractor or from contracting with any such person who responds to such solicitation. Any other solicitation or hiring will be considered a material breach of the ToS and may result in the termination of their PlaytestCloud account.
- The ToS together with any Orders constitute the complete and exclusive agreement between the Client and PlaytestCloud with respect to the subject matter hereof and supersedes any prior agreements and communications (both written and oral) regarding such subject matter. The ToS may only be modified or amended by a written document executed by both parties.
This appendix covers the usage of the “Bring Your Own Players” subscriptions (“BYOP Subscription”) offered by PlaytestCloud, in which Client can conduct playtests and surveys with players which are provided to PlaytestCloud by Client (“Own Player(s)”).
1.1 The BYOP Subscription grants Client the ability to conduct Playtests with their Own Players.
1.2 The usage of the BYOP Subscription is subject to the existence of active, valid and signed Terms of Service covering the Client’s use of PlaytestCloud.
1.3 Unless explicitly specified otherwise, the Terms of Service agreement between Client and PlaytestCloud applies to the terms of the BYOP Subscription.
2.1 Client can use the Site to order a Playtest in which their Own Players should participate. Upon placing an order, PlaytestCloud will automatically prepare the build for distribution to the players and will then email instructions for participation in the Playtest to each player. PlaytestCloud cannot guarantee that a specific number of players will participate in your Playtests.
2.2 The types of Playtests that can be run using Client’s Own Players depend on thefeatures included in the plan that Client chooses. Client should refer to their offer for detailed information on the included features.
2.3 Client’s Own Players must fulfill these minimum device requirements to participate in Playtests conducted via the Site:
The following iOS devices running iOS 10 or iOS 11 are supported:
- iPhone 5s or newer
- iPad Air or newer
- iPad mini 2 or newer
- Devices must run Android 5 Lollipop or newer
For Browser Games:
- Google Chrome (recent version) on a PC/Mac
- Your Own Players must use wired headphones or headsets (using the standard headphone jack or Apple’s Lightning port) while participating in a Playtest.
2.4 Due to the extraordinary number and variety of Android devices, some device types may not be compatible with PlaytestCloud’s software despite running Android 5 Lollipop. If this occurs and PlaytestCloud is notified of the issue, PlaytestCloud will make reasonable efforts to include support for such devices but can’t guarantee that it will be possible to add support in all cases.
2.5 The supported devices and other technical requirements will change over time as (a) the product is developed further by PlaytestCloud or (b) technical limitations prevent PlaytestCloud from functioning on previously supported devices, assuming reasonable effort to maintain compatibility. PlaytestCloud will notify Client when any of these requirement change.
2.6 Games may not be runnable on beta versions of iOS, Android and Google Chrome.
3. Charges and Payment Terms (for BYOP Subscription)
3.1 The BYOP Subscription is made available to Client at different feature levels with, respectively, different charges. Fees payable for the BYOP Subscription are non-cancellable and non-refundable during the subscription term.
3.2 Payment for the subscription is required to be paid in full at the beginning of each billing period by credit card or debit card. Custom payment agreements may be made.
3.3 If the BYOP Subscription includes a specific allowance of videos Client may record each month (“Quota”), this Quota applies to each billing period individually. Any unused parts of the quota expire at the end of the billing period.
3.4 In case Client records more videos than included in their Quota, the overage will be charged to Client at the end of each month. Payment of charges for overages is required at the end of each month by credit card or debit card. See
4. Term and Termination (for BYOP Subscription)
4.1 The subscription term shall begin on the effective date of your subscription and expire at the end of the period selected during the subscription process (“Subscription term”).
4.2 The Subscription and Agreement will automatically renew at the published rates on a monthly, annual or otherwise mutually agreed upon period of time, unless one party notifies the other party in writing or through the Site of its intent not to renew at least one (1) day in advance of the expiration of the Subscription Term.
4.3 Customer may terminate the Service at any time, however, fees paid are non-refundable.
5. Warranties & Limitation of Liability (for BYOP Subscription)
5.1 Client warrants that they will only provide PlaytestCloud with personal information (e.g. email addresses) of their Own Players if Client has the appropriate legal basis for providing this information to PlaytestCloud, e.g. because their Own Players consented to their information being shared with and processed by PlaytestCloud. Client will comply with all applicable data protection laws and regulations governing the processing of Own Players personal data in connection with their usage of the Site.
5.2 PlaytestCloud will comply with all applicable data protection laws and regulations governing the processing of personal data of your Own Players in connection with their participation in Playtests.
5.3 PlaytestCloud will not invite the Client’s Own Players to Playtests that are not conducted by client; provided, however, that the foregoing will not prevent PlaytestCloud from conducting solicitation via a general advertisement for finding players interested in testing games that is not specifically directed to any such Own Players or from contracting with any such person who responds to such solicitation, or if a Own Players voluntarily apply to become Testing Contractors at PlaytestCloud.
5.4 With the exception of Client’s indemnification obligations arising out of a breach of Client’s warranty of section 5.1 or indemnification requirements of section 6.1 (for which liability shall be unlimited),in no event will either Client or PlaytestCloud be liable for any damages for loss of use, lost profits, business loss or any incidental, indirect, special, economic or consequential damages caused by the BYOP Subscription whether or not a Party has been advised of the possibility of such damages. PlaytestCloud’s aggregated liability for direct damages to the Client for usage of the BYOP Subscription shall be limited to the consideration paid or payable by the Client to PlaytestCloud for the BYOP Subscription. Without limiting the generality of the foregoing, PlaytestCloud shall have no liability for any damages that may result from (a) the Client’s use of the BYOP Subscription (e.g. for distribution of malware) or (b) interpretation of the results deriving from the use of the BYOP Subscription or (c) the acts or omissions of the people chosen by Client who are engaged in game testing through the BYOP Subscription feature. In particular, PlaytestCloud is not responsible and does not assume any liability as to which games/applications are distributed by Client via the BYOP Subscription and to whom.
6. Indemnification (for BYOP Subscription)
6.1 Client shall be liable for and shall indemnify PlaytestCloud against any and all claims, actions, liabilities, losses, damages and expenses (including legal expenses) incurred by PlaytestCloud which arise directly or indirectly out of or in connection with Client’s usage of the BYOP Subscription under this agreement, including, without limitation, those arising out of any third party demand, claim or action, including by a data protection authority, or any breach of contract, negligence, fraud, willful misconduct, breach of statutory duty or non-compliance with any applicable Data Protection Laws by Client.