Terms of service for studios

PlaytestCloud Studio Terms of Service

Last updated on: February 15, 2023

This agreement (“ToS”) is entered into between PlaytestCloud GmbH, a company with a registered office at Otto-Suhr-Allee 145, 10585 Berlin, Germany (“PlaytestCloud”) and you, the business customer using PlaytestCloud’s services (“Client”), together referred to as the “Parties” and separately as the “Party”.

1. Subject of Contract

PlaytestCloud has developed a platform that allows Client to order user research services provided by PlaytestCloud such as playtests, usability tests, online surveys, or user research projects (each of these services, a “Playtest Service”; the platform offered by PlaytestCloud, the “Platform”).
PlaytestCloud maintains a database of test players who can be engaged for Playtest Services (each test player, a “Testing Contractor”). Testing Contractors are neither employees nor agents of PlaytestCloud but are independent service providers using the Platform to provide services for the support of the Playtest Services. PlaytestCloud disclaims liability for the acts or omissions by anyone who is not an employee of PlaytestCloud.
Some Playtest Services allow user research with test players who are children. In such Playtest Services, Testing Contractors are parents who participate in Playtest Services together with their children. Appendix B provides more information on testing with parents and their children.
PlaytestCloud may create and provide work results for Client in the course of providing Playtest Services which are defined in a respective Order (these work results, the “Deliverables”), for example, videos, reports, presentations, and surveys. Interim results created during the performance of the Playtest Services are not Deliverables. In case the Parties agreed on a specific amount of Deliverables, for example, the number of videos per player to be provided, PlaytestCloud may decide on its own discretion, which videos it provides to Client in case more videos are recorded than to be provided.
PlaytestCloud may offer Playtest Services that enable Client to test with its Client’s Players instead of the Testing Contractors provided by PlaytestCloud (this testing approach, the “BYOP Feature”). The BYOP Feature is described in Appendix A.

2. Ordering of Playtest Services

To obtain access to the Platform Client is required to obtain an account from PlaytestCloud by completing a registration form and designating a user ID and password. When registering with PlaytestCloud Client shall: (a) provide true, accurate, up-to-date and complete information, and (b) maintain and promptly update the registration data to keep it true, accurate, current, and complete. Upon signing up at the Platform, Client shall receive an account. This account gives a limited right to access and use the Platform for the purposes of ordering Playtest Services and reviewing their Deliverables.
Each individual Playtest Service is subject to an order ("Order”). Multiple Playtest Services can be ordered by initiating a single Order. Orders do not require any signed written statements but are binding through digital statement/electronic exchange of an agreed order form between the Parties. An Order shall consist of the specifications the ordered Playtest Services must adhere to, for example, the number of videos to be generated by PlaytestCloud, the specification of target audiences and a description of the Deliverables, if any, to be created and provided by PlaytestCloud. All Orders shall be deemed incorporated into the ToS and governed by the ToS herein. In the event of conflicts, the terms of the Order shall prevail with respect to the subject matter of such Order.
PlaytestCloud shall be entitled to reject Orders. PlaytestCloud will give notice to Client about not accepting the Order via e-mail.
The Parties may enter into subscription agreements, all of which shall be deemed incorporated into the ToS. Subscription agreements do not require any signed written statements but are binding through digital statement/electronic exchange of an agreed order form between the Parties. In the event of conflicts, the terms of the subscription agreement shall prevail with respect to the subject matter of such subscription agreement.

By entering into a subscription agreement Client procures a Subscription that provides for the right for Client to order Playtest Services listed in the subscription agreement during the term of the subscription agreement (that subscription, a “Subscription”). The respective Playtest Service must be ordered by Client on the Platform by placing an Order. The provisions regarding the content of and form requirements for the Order in Section 2.2 above shall apply accordingly.

A Subscription will stipulate the number of video tokens Client is granted to order the Playtest Services (those tokens, the “Video Tokens”). Video Tokens are units that Client can use to order and pay for certain Playtest Services during the term of the Subscription. The value of the Video Tokens in relation to the Playtest Services will be set out in the Subscription. Video Tokens are only valid during the term of the Subscription in which they are granted and unused Video Tokens expire at the end of the term of the Subscription Unused Video Tokens cannot be refunded. In case the Parties agree to renew the Subscription for another term, Video Tokens that were granted to Client during the initial term of the Subscription are not transferred to the extended term.
In case the Playtest Services ordered by the Client require the involvement of Testing Contractors by PlaytestCloud, PlaytestCloud selects Testing Contractors believed to be suitable to support the Playtest Services according to Client’s specifications. If Client does not agree with the selection of the Testing Contractors after examination of the Deliverables, Client is entitled to the remedies described in Section 8.1.

3. Performance of Playtest Services

To enable PlaytestCloud to perform the Playtest Services that require access to the game, Client shall send a build of the game to be tested as part of the Orders (a “Client Application”), which is appropriate for the Platform and performance of the Playtest Services. Client shall follow the instructions made available on the Platform for providing to PlaytestCloud the Client Application and other materials that may be requested depending on the Playtest Service. Client shall provide the Client Application without an automated in-app update mechanism as this could lead to malfunctions. If Playtest Services require a Client Application, the Playtest Services are performed on the first version of the Client Application submitted by Client to PlaytestCloud. PlaytestCloud cannot ensure that later versions of the Client Application sent to PlaytestCloud are used by the Testing Contractors for the Playtest Services.
PlaytestCloud will send the Deliverables within 48 hours after receipt of the Order or any other timeline PlaytestCloud commits to during the order process. In case of technical problems or other reasons outside PlaytestCloud’s sphere that affect the Playtest Services, PlaytestCloud shall be entitled to adjust the delivery time appropriately and inform Client about the new timeline via e-mail.
Client shall only communicate with Testing Contractors through the Platform and shall not contact Testing Contractors or request that Testing Contractors contact Client through any other means. Client shall 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 general advertisement. Any other solicitation or hiring will be considered a material breach of the ToS and may result in the termination of Client’s PlaytestCloud account. For the avoidance of doubt, any players who already have existing relationships with Client prior to sending an Order shall not be considered to be within the meaning of Testing Contractors for purpose of this paragraph.
Client must not use the Platform or Playtest Services to manipulate data on the number of downloads or reviews for the respective Client Application in the Apple App Store, Google Play Store or any other app store marketing the Client Application.

4. Pricing & Payment Terms

The rates and reimbursable expenses for access and use of the Platform and the provision of the Playtest Services shall be as set forth in an Order or an applicable Subscription. Additional charges may apply if Client and PlaytestCloud agree on changes and amendments to the originally ordered Playtest Services, in which case PlaytestCloud will inform Client before these charges are incurred. PlaytestCloud invoices Client after completion of the Playtest Services, unless otherwise agreed in the Order or Subscription. Client shall pay to PlaytestCloud the full, undisputed amount within fifteen (15) days of the date of the invoice ("Payment Period”). If Client wants to dispute an invoice, Client must notify PlaytestCloud of their dispute within the Payment Period or the invoice shall be deemed undisputed. Any disputes are valid only if sent by Client to PlaytestCloud via e-mail and proportionate to the argued reason for the dispute (e.g. incorrect invoice, malperformance of the Playtest Services). Overdue undisputed invoices that remain unpaid for more than fifteen (15) days after the expiration of the Payment Period and that PlaytestCloud provided notice of late payment to Client for entitle PlaytestCloud to terminate or suspend Client’s access to the Platform without refund of any fees paid. Further rights of PlaytestCloud remain unaffected.
All fees, charges, and other sums payable under the ToS are exclusive of VAT or any similar taxes levied. If any such tax is chargeable it will be added to the amounts payable and shall be borne by Client in addition to the charges agreed upon by the parties. If Client is VAT registered in a Member State of the European Union other than Germany, Client shall provide PlaytestCloud with its VAT registration number. If Client does not provide a correct registration number, VAT from Germany will be charged to Client. Client shall pay each amount owed to PlaytestCloud under the ToS without any deduction or withholding for any present or future taxes, assessments, duties, or charges unless such deduction or withholding is required by law (including regulations) or by the interpretation or administration thereof. Client shall bear any withholding tax relating to the ToS and Client shall pay these withholding taxes to the relevant tax administration under the applicable legislation. As a consequence, the amount to be paid to the supplier shall be equal to what the supplier would have received if no such tax had been withheld or paid for.
If charges are paid via credit card, Client allows PlaytestCloud to collect recurring payments as follows: PlaytestCloud may initiate a payment or a series of payments covering the charges for the Playtest Services on Client’s behalf. The frequency of payments and the amount of the payments taken will be determined as stipulated in the respective Order.

5. Intellectual Property

“PlaytestCloud Property” means any intellectual property rights of PlaytestCloud or PlaytestCloud’s contractors that are utilized by PlaytestCloud in performance of its obligations under the ToS such as all rights contained in or related to the Platform, computer software, reports or methodologies contained in or related to the Playtest Services or Deliverables.
“Client Property” means any materials provided by Client to PlaytestCloud in connection with any Order, including but not limited to Client Applications.
PlaytestCloud Property will be the sole property of PlaytestCloud or PlaytestCloud’s contractors and, even if incorporated into a Deliverable, will not be deemed to be a Deliverable toward Client. PlaytestCloud Property is PlaytestCloud’s Confidential Information. Upon payment of the rates and expenses for the Playtest Services, PlaytestCloud grants Client a perpetual, worldwide, non-exclusive, non-transferable, non-sublicensable license to use the PlaytestCloud Property solely as incorporated in the Deliverables for Client’s own business purposes.
Client Property is Client’s Confidential Information and shall be retained and owned exclusively by Client. During the performance of PlaytestCloud’s obligations under the ToS Client grants to PlaytestCloud and PlaytestCloud’s contractors a non-exclusive license to the Client Property for the term of the respective Order solely as needed to perform PlaytestCloud’s obligations in connection with the ToS. For the avoidance of doubt, this license granted by 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 Client, or (ii) termination of the ToS.
Upon payment of the rates and expenses for the Playtest Services, the Deliverables in their embodied form created for and delivered to Client shall become the sole property of Client, with the right to use and exploit them for Client’s own business purposes. In case the Deliverables consist of copyrights or other proprietary rights - and if for legal reasons Client cannot become the owner of such copyrights or other proprietary rights, PlaytestCloud grants Client a perpetual, worldwide, non-exclusive license to use all Deliverables for Client’s own business purposes.
Client shall not make video recordings, gaming profiles, individual responses or other information that could identify an individual Testing Contractor available to anybody except to employees, contractors or agents of Client.
Client grants PlaytestCloud the right to use any suggestion, enhancement request, recommendation, correction, or other feedback provided by Client relating to the Platform without limitation and free of charge.

6. Confidentiality

Each Party ("Recipient”) agrees to retain in confidence any information provided to it by the other Party ("Discloser”) that (i) is marked, labelled, or otherwise designated as confidential or proprietary or (ii) that Recipient knew, or should have known, was confidential due to the circumstances surrounding the disclosure by Discloser ("Confidential Information”) and not to disclose such Confidential Information to third parties. PlaytestCloud’s contractors, including Testing Contractors, Client’s affiliates and agents as well as consultants of the Parties, who are professionally obliged to maintain confidentiality, are not third parties as defined by this provision.
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 provides Discloser with prior written notice of such disclosure, as permitted by law. The Recipient shall provide proof for the existence if the Recipient argues an exemption according to this Section.
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. The aforementioned obligation to delete all Confidential Information provided by Discloser electronically does not apply to Confidential Information contained in automatically generated routine backup files, where a deletion cannot be implemented with commercially reasonable efforts, provided that Recipient shall make no further use of such backup files other than for backup purposes. Furthermore, the obligation to delete shall not apply to Confidential Information or copies thereof which must be stored by Recipient according to provisions of mandatory law, provided that such Confidential Information or copies thereof shall be subject to an indefinite confidentiality obligation according to the terms and conditions set forth herein.
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 6.
Upon completion of Playtest Services, PlaytestCloud shall deactivate all Client Property shared with Testing Contractors for the purpose of participation in such Playtest Services, where technically possible. PlaytestCloud is able to deactivate Client Property only in the case of Android or iOS games if the game was provided as an APK, AAB, or through TestFlight if the PlaytestCloud SDK is embedded in the game.
PlaytestCloud shall only permit Testing Contractors who agreed to terms that include confidentiality provisions to participate in Playtest Services. In case a Testing Contractor is in breach of its confidentiality obligations and due to such breach Client Property is affected, PlaytestCloud shall cooperate with Client and provide reasonable assistance to Client in judicial and out-of-court legal proceedings against such Testing Contractors, including disclosure of such Testing Contractor’s personal data to Client and other data pertaining to the breach, provided such disclosure is permitted by applicable law.

7. Term and Termination

The ToS shall commence on the Effective Date and will continue in force until either Party gives the other Party written notice of termination with two (2) weeks’ notice. Upon notice of termination, each Order and Subscription entered into prior to notice of termination of the ToS will continue in full force and effect until completed or terminated by a Party according to the terms of the Order and Subscription. The terms of the ToS shall apply accordingly to such Order and Subscription, which continue to be in force after termination of the ToS.
If either Party defaults in the performance of any of its material obligations under any Order or Subscription or the ToS, then the other party may terminate such Order, Subscription, and/or ToS by providing written notice of 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 cures the default within thirty (30) days after receipt of the notice of termination. Upon termination: (a) Client will pay PlaytestCloud in accordance with Section 4 (“Pricing & Payment Terms”) for access and use of the Platform and Playtest Services performed in accordance with the ToS until the termination becomes effective or thereafter as reasonably required for PlaytestCloud to end the Playtest Services (b) PlaytestCloud will deliver to Client all completed Deliverables.
Upon the termination of the ToS, the Parties' respective rights and obligations in the following provisions shall survive: 4.0 (“Pricing & Payment Terms”); 5.0 (“Intellectual Property”); 6.0 (“Confidentiality”); 7.3 (“Survival”); 8.8 (“Warranty Disclaimer”); 9.0 (“Limitation of Liability”); 10.0 (“Privacy”) and 11.0 (“General Provisions”), together with all other provisions that may reasonably be construed to survive.

8. Warranty

The Playtest Services provided by PlaytestCloud shall be provided in a professional and workmanlike manner. All services provided shall conform to the specifications that are set out in the respective Order(s). In the event of a breach of this warranty, then Client’s sole remedy and PlaytestCloud’s sole obligation shall be PlaytestCloud re-performing the Services. PlaytestCloud’s obligation to re-perform the Services is conditioned upon Client’s notice of breach of the warranty immediately after performance of the affected Playtest Services but at the latest within ten (10) calendar days upon the performance. Such notice is to be made via e-mail along with a description of the detected non-conformance.

With regard to Deliverables, PlaytestCloud shall not charge or shall refund Client for the charges incurred for a specific Playtest Service if the Deliverables do not comply with the specifications agreed in the respective Order (“Defective Deliverable”) and the Defective Deliverable cannot be used by Client due to the non-conformance. PlaytestCloud offers, at its own discretion to either terminate the respective Order and refund Client the payments received by PlaytestCloud or to provide corrected Deliverables. To submit a claim concerning a Defective Deliverable Client shall notify PlaytestCloud immediately after receipt of the Defective Deliverable but at the latest within ten (10) calendar days of the delivery of the Defective Deliverable. Such notice is to be made via e-mail and must include a description of the detected non-conformance. The correction of the Defective Deliverable and provision of new Deliverables are at PlaytestCloud’s expense.

The Parties agree that the aforementioned measures are Client’s sole and exclusive remedy in case of breach of the above warranties.

The aforementioned remedies for Defective Deliverables shall apply accordingly for Deliverables that are not deemed to be useful by Client.
PlaytestCloud hereby represents that (a) PlaytestCloud has full power and authority to enter in the ToS 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.
PlaytestCloud represents and warrants that the use of the Platform, PlaytestCloud Property, and the Playtest Services do not infringe any third-party intellectual property rights. In case Client’s use of the Platform and/or the Playtest Services infringes third-party intellectual property rights section 8.1 on Defective Deliverables shall apply accordingly. PlaytestCloud shall not be liable where such infringement is the result of the Client using the Platform, the Playtest Services, and any PlaytestCloud Property in a way for which these were not intended to be used, or where such infringement is the result of a combination of the Platform, the Playtest Services and any PlaytestCloud Property with any Client Property.
Client represents and warrants that it has ownership of all intellectual property rights or license 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 rights when processed by PlaytestCloud to perform their obligations in connection with the ToS.
Client hereby represents and warrants that (a) it has full power and authority to enter into the agreement and the ToS, any Order and Subscription concluded hereunder, and will constitute valid and binding obligations; and (b) their execution of the ToS, any Order and Subscription concluded hereunder, do not violate any other agreement.
Client warrants that the chosen version of the Client Application and other materials provided to PlaytestCloud for use in an Order do not violate any applicable laws or regulations of the counties in which Client and PlaytestCloud have their registered seats, as well as the countries of residence 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 Platform, the Playtest Services, express or implied, including the implied warranties of no infringement, merchantability, and fitness for a particular purpose. Any and all warranties stipulated in the ToS, Orders, and Subscriptions are merely defining the applicable conformity standards of the Playtest Services (“Beschaffenheitsvereinbarung”) und do not constitute guarantees regarding properties and/or duration of the Playtest Services (“keine Beschaffenheits- und Haltbarkeitsgarantien”).
PlaytestCloud provides the Playtest Services solely for informational purposes to Client. Client is solely responsible for any decisions made based on such information.

9. Limitation of Liability

In no event and irrespective of the legal basis shall either Party be liable for any loss of use, loss of profit or revenue, loss of data, cost of capital or any incidental, indirect, special, economic or consequential damages and expenditures, whether or not a Party has been advised of the possibility of such damages. Furthermore, PlaytestCloud’s aggregated liability – irrespective of the legal basis – for direct damages to Client under these ToS, an Order or a Subscription shall be limited to the charges paid (excluding expenses and taxes) by Client to PlaytestCloud for the use of the Platform and the performance of the Playtest Services during the 12 month period prior the damaging event occurred. Notwithstanding the limitations above, no limitations on either Party’s liability will apply to losses resulting from either Party’s gross negligence or wilful misconduct or personal injury or property damage (excluding software or data) or payment obligations of Client. This provision on limitation of liability shall apply accordingly for damages, costs, and claims caused by any act or omission of PlaytestCloud’s subcontractors under the ToS.

Without limiting the generality of the foregoing, PlaytestCloud shall have no liability for any damages that may result from (a) Client’s use or interpretation of the Platform or (b) the acts or omissions of the Testing Contractors. In case Client suffers damages due an act or omission of a Testing Contractor in breach of this agreement, upon Client’s written request PlaytestCloud undertakes to assign to Client – if legally permitted – any claims for damages PlaytestCloud may have against the Testing Contractor.

10. Privacy

PlaytestCloud and Client shall ensure that they comply with all provisions of the General Data Protection Regulation (GDPR) and relevant national privacy law, as applicable.
Client shall not use the Platform 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.
The Data Processing Agreement (if Client uses the BYOP Feature as described in Appendix A) and the further provisions made herein in this Section 10 (if Client uses the Platform or any other Playtest Services) describe the responsibilities of Client and PlaytestCloud in the context of data protection in detail. The Data Processing Agreement is incorporated into this agreement by reference.
The Standard Contractual Clauses approved by the European Commission in decision 2021/914 (“Standard Contractual Clauses”) will apply to personal data that is transferred from the European Economic Area, either directly or via onward transfer, to any country or recipient outside the European Economic Area that is not recognized by the European Commission as providing an adequate level of protection for personal data.

For data transfers that are subject to the Standard Contractual Clauses, they shall be deemed entered into and completed as follows:
- Module One (Transfer controller to controller) of the Standard Contractual Clauses will apply where PlaytestCloud is processing personal data of Client’s users (who are typically employees or contractors of Client) to provide access to PlaytestCloud’s platform to Client’s users and where Client is processing Testing Contractors’s personal data.
- Module Four (Transfer processor to controller) of the Standard Contractual Clauses will apply where PlaytestCloud processes personal data of Client’s Players in connection with the BYOP Feature described in Appendix A of the ToS.
For each module, where applicable:
1. In Clause 7 of the Standard Contractual Clauses, the optional docking clause will apply;
2. In Clause 11 of the Standard Contractual Clauses, the optional complaint with an independent dispute resolution body will not apply;
3. In Clause 17 (Option 1) of the Standard Contractual Clauses, the Standard Contractual Clauses will be governed by the law of Germany;
4. In Clause 18 of the Standard Contractual Clauses, disputes arising from the Standard Contractual Clauses shall be resolved by the courts of Germany;
5. In Annex I, Part A of the the Standard Contractual Clauses:
  
  Data exporter
  
  Name: PlaytestCloud GmbH
  Address: Otto-Suhr-Allee 145, 10585 Berlin, Germany
  Contact details: PlaytestCloud privacy team, privacy@playtestcloud.com
  Activities relevant to the data transferred under these Clauses: As described in Annex I, Part B of the Standard Contractual Clauses.
  Signature and date: The Parties agree that execution of this agreement by the data importer and the data exporter shall constitute execution of these Clauses by both parties on the effective date of this agreement.
  Role: Processor (Module Four, processing connected to the BYOP Feature), Controller (Module One)
  
  Data importer
  
  Name: Client, as defined in this agreement
  Contact details: The contact details (address, email) specified by Client in their PlaytestCloud account
  Activities relevant to the data transferred under these Clauses: As described in Annex I, Part B of the Standard Contractual Clauses.
  Signature and date: The Parties agree that execution of this agreement by the data importer and the data exporter shall constitute execution of these Clauses by both parties on the effective date of this agreement.
  Role: Controller (Module Four, processing connected to the BYOP Feature), Controller (Module One)
6. In Annex I, Part B of the the Standard Contractual Clauses:
  
  Categories of data subjects whose personal data is transferred:
  
  For Module One: a) Client’s users (who are typically employees or contractors of Client) who received access to PlaytestCloud’s services from Client; b) Testing Contractors whose data is being transferred to Client.
  
  For Module Four: Client’s Players, who are individuals with a relationship to the Client.
  
  Categories of personal data transferred:
  
  For Module One: a) Email addresses and names of Client’s users; b) Audio/video recordings of Testing Contractors, screen recordings of their gameplay, basic profile information (gaming and gaming-related interests, country of residence, nationality, age, type of device used for test) and survey responses provided by Testing Contractors.
  
  For Module Four: Email addresses of Client’s Players, IP addresses of Client’s Players, Audio and screen recordings of Client’s Players, Technical log data generated during the use of the PlaytestCloud platform by Client’s Players, Survey answers provided by Client’s Players.
  
  Sensitive data transferred (if applicable)
  
  No sensitive data transferred or collected.
  
  The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis)
  
  The frequency of transferring the personal data is continuous, until the agreement comes to an end.
  
  Nature of the processing
  
  Data is transferred to the data importer for the purposes pursuant to the Studio Terms of Service agreement between data exporter and data importer. Generally, the nature of processing relates to evaluating and improving games and game concepts using feedback provided by the data subjects.
  
  Purpose(s) of the data transfer and further processing
  
  For Module One: a) The purpose of transferring the personal data is to provide access to the PlaytestCloud platform to Client’s users (who are typically employees or contractors of Client) and b) the purpose of transferring the personal data is to allow Client to evaluate feedback provided by Testing Contractors.
  
  For Module Four: The purpose of transferring the personal data is to allow PlaytestCloud and Client to evaluate the feedback provided by the data subjects.
  
  The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
  
  For Module One: Personal data is retained as long as the contractual relationship remains active and no deletion is requested.
  
  For Module Four: We process personal data on behalf of the Client for as long as the contractual relationship remains active.
  
  For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
  
  For Module One: The processors are described in the PlaytestCloud Privacy Policy.
  
  For Module Four: The sub-processors are described in Appendix 1 of the Data Processing Agreement.
7. In Annex I, Part C of the Standard Contractual Clauses:
  
  Identify the competent supervisory authority/ies in accordance with Clause 13
  
  Berliner Beauftragte für Datenschutz und Informationsfreiheit
  Friedrichstraße 219, 10969 Berlin, Germany
  +49 30 13889-0
  https://www.datenschutz-berlin.de/
8. Appendix 2 (Technical and organizational measures) of the Data Processing Agreement serves as Annex II of the Standard Contractual Clauses.
Generally each party shall be solely responsible for their data processing and be seen as an independent controller in accordance with Article 4 No. 7 of the GDPR.
1. The parties pursue their own purposes and determine them and the means of their data processing themselves. There is no common determination of the purposes and means of data processing.
2. PlaytestCloud shall ensure that the personal data of Testing Contractors they transfer may be transferred for the purpose specified in this agreement.
3. The own responsibility as a data controller for the Client starts when they gain access to the Deliverables on the Platform and start processing the Deliverables.
4. Both parties shall comply with applicable data protection laws and may only use the personal data of Testing Contractors within their competences and only for the specified purposes. Each party is solely responsible for the lawfulness of their own data processing.
5. The information obligations pursuant to Articles 13 and 14 of the GDPR shall be fulfilled separately by both PlaytestCloud and the Client for their own processing activities.
6. Each contracting party shall be liable for its own data processing towards the data subjects and the supervisory authority.
7. The parties are not liable to each other for their own data processing.

11. 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.
By entering into the ToS with PlaytestCloud, Client understands that PlaytestCloud may send them communications or data regarding the Platform and Playtest Services, including but not limited to (a) notices about Client’s use of the Platform or Playtest Services, including any notices concerning violations of use and (b) updates via electronic mail. PlaytestCloud may send Client, in electronic form, information about the service, additional information, and information the law requires PlaytestCloud to provide. PlaytestCloud may provide required information to Client by email at the address Client specified during signing up for the Platform. Notices emailed to Client will be deemed given and received when the email is sent. If Client does not consent to receive notices electronically, Client must stop using the Platform.
The only language available for the conclusion of the contract is English.
With the exception of the UN Convention Contracts for the International Sale of Goods and without reference to the conflict of law provisions German civil 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. Client hereby acknowledges and agrees 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, compliance with any law or governmental order, rule, regulation or direction, fire, floods, earthquakes, accidents, epidemics, pandemics, strikes, or fuel crises (together, a “Force Majeure Event”). In case of a Force Majeure Event PlaytestCloud shall be relieved from its duty to perform its obligations under the contract and any liability in damages or any other contractual remedy for breach of contract.
The ToS together with any Orders, Subscriptions, the Data Processing Agreement (if Client uses the BYOP Feature described in Appendix A), and the Standard Contractual Clauses (if personal data is transferred from the European Economic Area, either directly or via onward transfer, to any country or recipient outside the European Economic Area that is not recognized by the European Commission as providing an adequate level of protection for personal data), constitute the complete and exclusive agreement between 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. To the extent there is any conflict between the Standard Contractual Clauses and PlaytestCloud’s privacy policy or any other terms between the parties, the provisions of the Standard Contractual Clauses shall prevail. Any additional, deviating or conflicting terms of Client shall not apply except as expressly agreed by PlaytestCloud in writing. PlaytestCloud expressly objects to any additional or conflicting terms proposed by Client in a Client purchase order or other form. The Parties agree that no Client form shall modify the terms of this agreement.
PlaytestCloud may change these ToS at any time with six (6) weeks notice by notifying Client in text form (e.g., by e-mail). Client may object to such amendment in text form within four (4) weeks of receipt of the amendment notice to PlaytestCloud, otherwise the amendment will be deemed approved by Client. PlaytestCloud will make separate reference to the approval effect in the context of the amendment notices.

Appendix A – BYOP Feature

This appendix covers the usage of the Bring Your Own Players feature (“BYOP Feature”) offered by PlaytestCloud, in which Client can conduct Playtest Services such as playtests and surveys with players who are engaged by Client (“Client’s Players”).

1. General

The BYOP Feature grants Client the ability to conduct certain Playtest Services with Client’s Players.
The usage of the BYOP Feature is subject to the existence of active and valid ToS covering Client’s use of PlaytestCloud and provision of an Order for a Playtest Service utilizing the BYOP Feature by the Client.
Unless explicitly specified otherwise, the ToS between Client and PlaytestCloud apply to the terms of the BYOP Feature.

2. Functionality

Client can use the Platform to order Playtest Services in which Client’s Players should participate. Upon placing an Order, PlaytestCloud will automatically prepare the build for distribution to the Client’s Players and then will send instructions for participation in the Playtest Service to each of Client’s Players via e-mail. Client is responsible for engaging a sufficient number of Client’s Players to conduct the Playtest Service.
Client understands and acknowledges that the devices of Client’s Players used to conduct the Playtest Services must fulfill the following minimum device requirements to enable them to participate in Playtest Services via the Platform:

On Android, devices running Android 5 Lollipop or newer are supported by the Platform. On iOS, devices running the last two major iOS and iPadOS versions are supported by the Platform. Client Applications may not run on beta versions of Android, iOS, or iPad OS.

Due to the extraordinary number and variety of Android devices, some device types may not be compatible with the Platform despite running Android 5 Lollipop or newer. If this occurs and PlaytestCloud is notified of the issue, PlaytestCloud will make reasonable commercial and technical efforts to include support for such devices.
The supported devices and other technical requirements will change over time as (a) the Platform and Playtest Services are developed further by PlaytestCloud or (b) new technical limitations of the devices prevent the Platform and Playtest Services from functioning on previously supported devices. PlaytestCloud will inform Client through the Platform when any of these requirements change.

3. Warranties & Limitation of Liability

Client shall only provide PlaytestCloud with Client’s Players email addresses (“Client Player Data”) if Client has the appropriate legal basis for providing this information to PlaytestCloud, e.g. because Client’s Players consented to their information being shared with and processed by PlaytestCloud.
Client shall not use the Platform to run Playtest Services with children in the USA who are under 13 years old (“Children”), unless Client is fully compliant with the Children Online Privacy Protection Act (COPPA) and any other applicable law governing the usage of personal data of minors, and Client has verifiable parental consent from the parents of said Children. Upon request by PlaytestCloud, Client shall provide proof of the verifiable parental consent prior to launching Playtest Services with Children.
If PlaytestCloud discovers that Client has conducted Playtest Services with Children without having verifiable parental consent or without complying with the applicable laws governing the usage of personal data of minors, PlaytestCloud will destroy all Deliverables and other results resulting from the Playtest Services in connection to these Playtest Services and terminate access to the BYOP Feature immediately for breach of contract.
The Parties shall comply with all applicable data protection laws and regulations governing the processing of personal data of Client’s Players in connection with their participation in Playtest Services.
PlaytestCloud will not invite Client’s 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 of Client’s Players or from contracting with any such person who responds to such solicitation, or if Client’s Players voluntarily apply to become Testing Contractors of PlaytestCloud.
Without limiting the generality of the limitation of liability stipulated elsewhere in the ToS, PlaytestCloud shall have no liability for any damages that may result from (a) Client’s use of the BYOP Feature (e.g. for distribution of malware) or (b) interpretation of the results deriving from the use of the BYOP Feature or (c) the acts or omissions of Client’s Players, who are engaged in game testing through the BYOP 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 Feature and to whom.

4. Indemnification

Client shall be liable for and shall indemnify PlaytestCloud, its directors, officers, and employees against any and all claims, actions, liabilities, losses, damages, and expenses (including legal expenses) incurred by PlaytestCloud, its directors, officers, and employees which arise directly or indirectly out of a breach of representations and warranties set out in this Appendix A.

Appendix B – Playtesting with Children and COPPA Compliance

The processing of personal data of children or minors within the scope of COPPA is governed by the following principles:

PlaytestCloud is certified compliant with the Children’s Online Privacy Protection Act (COPPA) and gains full verifiable parental consent for all child-testers below the age of 13 in the USA.

For more information on how PlaytestCloud processes data of children who participate in Playtests, please refer to our privacy policy at https://www.playtestcloud.com/privacy.

PlaytestCloud’s compliance is certified by PRIVO and can be verified here: https://cert.privo.com/#/companies/playtestcloud

In the event that PlaytestCloud conducts Playtest Services with children or minors as a Data Controller within the meaning of Art. 4 No. 7 GDPR PlaytestCloud assures that this is done exclusively in accordance with the applicable data protection regulations and is subject to the following principles:

PlaytestCloud complies with all provisions of the General Data Protection Regulation (GDPR) and relevant national privacy law regarding the processing of personal data of children. In this context, PlaytestCloud refers to the following measures implemented by PlaytestCloud: https://www.playtestcloud.com/go/toms

Studio Terms of Service

Data Processing Agreement