Terms of Service last updated on: 3-March-2014
PlaytestCloud GmbH ("PlaytestCloud”) has developed a platform ("Site”) that enables business clients ("Client(s)”) to run software usability tests ("Playtest(s)”) of their games and allows testers selected in accordance with Client's directions ("Testing Contractor(s)”) to perform and record Playtests for the Users. The ToS terminate with the cancellation of the access to the Site by either the Client or PlaytestCloud.
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 ("Order(s)”). 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 limitations. By completing an Order, Clients shall be able to obtain up to the number of Videos designated in the Order of each Playtest ("Order Term”). All Orders shall be deemed incorporated into the ToS and governed by the ToS herein.
- Orders shall be sent with an IPA file without protection by Apple Fairplay DRM and run capable on the newest version of Apple’s iOS operating system, or an Android APK file without DRM protection run capable on the newest version of Google’s Android operating system. The Client shall provide the order without an automated in-app update mechanism as this could lead to malfunctions. The Playtest shall be limited to the first version of the IPA or APK file submitted. PlaytestCloud does not guarantee usage of later sent versions of the IPA or APK file by the Testing Contractors for the Playtest.
- PlaytestCloud shall send the Deliverables within 48 hours after the Order. In case of technical Problems PlaytestCloud shall be entitled to give a new time to send the Deliverables within 24 hours after the Order. The Client shall not pay for any Deliverables 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.
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 will apply in the event that Client’s usage of the Site exceeds the baseline parameters set forth in the applicable 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 in the European Union.
- The Clients shall not pay or shall be refunded if the Deliverables 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.
- “PlaytestCloud Property” means any pre-existing intellectual property rights of PlaytestCloud 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 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 deliverables for their business purposes.
- No Confidential Information obtained by PlaytestCloud from the Client shall become PlaytestCloud property. All materials provided by the Client under any Orders shall be deemed “Client Property” for purposes of the Agreement. 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.
- 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 even 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 Playstest 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.
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.
- 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 TobS does not violate any other agreement to which PlaytestCloud is subject.
- The Client hereby represents and warrant that (a) the 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 IPA or APK file 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.
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 forgoing, 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.
- 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 even 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 Potsdam, 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 PlaytestCloud.com platform, 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. Any such 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.