Customer Terms of Service Agreement

Last updated: June 2024

This Terms of Service Agreement (the “Agreement” or the “Terms”) is entered into as of the Effective Date by and between PLAYBOOKUXUX UX LLC, a New Hampshire limited liability company having a principal place of business at #1046 254 Plainfield Rd Unit 11 West Lebanon, NH 03784 United States (“PLAYBOOKUX”) and Customer. PLAYBOOKUX and Customer are sometimes referred to herein individually as a “Party” and collectively as the “Parties.” The Parties hereby agree as follows: 

BY DOWNLOADING, INSTALLING, REGISTERING, ACCESSING, EVALUATING OR OTHERWISE USING PLAYBOOKUX PRODUCTS, CUSTOMER ACKNOWLEDGES AND AGREES THAT IT IS BOUND TO THIS AGREEMENT. PLAYBOOKUX MAY AMEND THESE TERMS AT ANY TIME BY POSTING THE AMENDED TERMS ON THIS SITE. IT IS THE CUSTOMER’S RESPONSIBILITY TO REVIEW THESE TERMS PERIODICALLY. IF CUSTOMER DOES NOT ACCEPT ALL THE FOREGOING TERMS, OR ANY AMENDED TERMS, CUSTOMER MUST IMMEDIATELY CEASE USING OR ACCESSING THE PRODUCTS.

 

TERMS OF SERVICE

1. Definitions. The following capitalized terms shall have the meanings set forth below. Other terms are defined elsewhere in this Agreement: 

“Administrator”

“Affiliates” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. 

“Customer” means, as the context requires, in addition to the entity agreeing to this Agreement, any Customer Affiliate that places an Order under this Agreement or otherwise uses or accesses any Product hereunder on behalf of Customer. 

“Customer Data” means data that may be accessed or collected by Products during the relationship governed by this Agreement, in the form of logs, session data, user data, device data, digital assets, customer feedback, recordings. 

“Effective Date” means the date that this Agreement first becomes binding on PLAYBOOKUX and Customer, which shall be the earliest of (i) the latest signature date set forth below, (ii) the date both Parties otherwise agree to these Terms of Service, (iii) the date Customer or its Affiliates places an Order under these Terms of Service, or (iv) the date on which Customer first downloads, installs, registers, accesses, evaluates or otherwise uses any Product.

“Order” means any purchase order or other ordering document (including a SOW) accepted by PLAYBOOKUX that specifies Trial Product(s) or Product(s) to be provided under this Agreement. 

 

“Platform” means 

“Product(s)” means the PLAYBOOKUX product offerings set forth in an Order that may consist of the PLAYBOOKUX Platform, Subscriptions and or Professional Services. 

“Professional Services” means any services performed by PLAYBOOKUX for Customer pursuant to a Statement of Work (“SOW”), other Order, service brief or data sheet. 

“Subscriptions” means subscription-based Software or services provided by PLAYBOOKUX to Customer for a fixed or recurring period, subject to subscription fees for each such period as set forth in the applicable Order. 

“Trial Products” means the Products that PLAYBOOKUX makes available to Customer for evaluation purposes. 

2. Access and Use Rights

2.1 License Grant; Subscriptions.  PLAYBOOKUX grants to Customer a non-exclusive right to access the Subscriptions solely for Customer’s internal use pursuant to the applicable Subscription/Order terms.  The Subscriptions will commence on the Effective Date (or other applicable start date specified in the Order) and will continue for the period set forth in the Order (the “Initial Subscription Term”).  The Subscriptions will automatically renew at the end of the Initial Subscription Tern and any subsequent term for a renewal term of one (1) year (each a “Renewal Subscription Term”) unless either party has provided written notice of non-renewal of the applicable Subscription at least sixty (10) days prior to the end of the then-current term.  All renewals are subject to payment of applicable subscriptions fees as set forth in Section 4 below.  PLAYBOOKUX expressly reserves all other rights in and to the Subscriptions. 

2.2 Evaluation.  PLAYBOOKUX may, at its sole discretion, offer a Subscription with a free trial for a limited period of time (“Free Trial“) or such longer period as may be approved in writing by PLAYBOOKUX in its sole discretion and solely for considering whether to purchase such Trial Products from PLAYBOOKUX and not for any other purpose or any productive use.  PLAYBOOKUX may, at its option, provide reasonable support for the Trial Products to facilitate Customer’s ability to evaluate such technology, but shall have no obligation to provide such support.  During the Free Trial, PLAYBOOKUX may, at its sole discretion, limit certain functionality or features of the Trial Products, Customer shall discontinue all use of and return such Trial Products at the end of the Free Trial unless Customer has properly procured the applicable Trial Products and converted them to Products hereunder.  Customer agrees that PLAYBOOKUX may invoice Customer for their cost in the event Customer fails to comply with this Section 2.2. 

 

NOTWITHSTANDING SECTIONS 6.2 (LIMITED WARRANTY), 7 (LIMITATION OF LIABILITY), AND SECTION 8 (DISCLAIMER), DURING THE FREE TRIAL, THE TRIAL PRODUCTS ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND PLAYBOOKUX SHALL HAVE NO OBLIGATIONS WITH RESPECT TO THE PRODUCTS FOR THE FREE TRIAL.  WITHOUT LIMITING THE FOREGOING, PLAYBOOKUX AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (I) USE OF THE PRODUCTS DURING THE FREE TRIAL WILL MEET ANY REQUIREMENTS; AND (II) USE OF THE PRODUCTS DURING THE EVALUATION PERIOD WILL BE UNINTERRUPTED, NON-INFRINGING, TIMELY, SECURE OR FREE FROM ERROR.  NOTWITHSTANDING ANYTHING TO THE CONTRART IN SECTION 7 (LIMITATION OF LIABILITY), CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO PLAYBOOKUX AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF ITS USE OF THE PRODUCTS DURING THE TRIAL PERIOD, AND ANY BREACH BY CUSTOMER OF THIS AGREEMENT. 

2.3 Restrictions.  Customer shall not (and shall not permit, encourage or assist any third party to): (i) copy, modify, translate, reverse engineer, decompile, disassemble or otherwise reduce the Services or Subscriptions to human perceivable form or attempt to discover underlying source code, algorithms, or techniques, except to the extent that such activities may not be prohibited under applicable law; (ii) sell, resell, distribute, transfer, publish, disclose, rent, lend, lease or sublicense the Products to any third party; (iii) disclose any benchmarking, competitive analysis or other results obtained from any Product or use any Product or portion thereof to develop any similar item or any competitive products or services; (iv) attempt to disable or circumvent any license key, encryption or other security device or mechanism used in connection with the Products; (v) remove or otherwise interfere with any portion of the Products designed to monitor Customer’s compliance with this Agreement; ort (vi) otherwise use the Products in any manner not authorized by the published specifications for the applicable Products. Customer acknowledges that the Subscriptions may include license keys and other features that disable use at the end of the applicable license or Subscription Term. Additionally, Customer is prohibited from using the Products:

 

2.3.1 In any way that violates applicable national or international law or regulation;

2.3.2 for the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content or otherwise;

2.3.3 to transmit, or procure the sending of, any advertising or promotional material, including any “junk mail”, “chain letter,” “spam,” or any other similar solicitation;

2.3.4 to impersonate or attempt to impersonate PLAYBOOKUX, a PLAYBOOKUX employee, another user, or any other person or entity;

2.3.5 in any way that infringes upon the rights of others, or in any way is illegal, threatening, fraudulent, or harmful, or in connection with any unlawful, illegal, fraudulent, or harmful purpose or activity;

2.3.6 to engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Products or Platform, or which, as determined by PLAYBOOKUX in its sole discretion, may harm or offend PLAYBOOKUX, users of the Service or would otherwise expose PLAYBOOKUX or other users of the Service or Platform to liability;

2.3.7 to use the Service or Platform in any manner that could disable, overburden, damage, or impair the Service or interfere with any other party’s use of Service, including such party’s ability to engage in real time activities through the Service;

2.3.8 use any robot, spider, or other automatic device, process, or means to access Service for any purpose, including monitoring or copying any of the material on the Service.

2.3.9 use any manual process to monitor or copy any of the material on the Service or for any other unauthorized purpose without PLAYBOOKUX’S prior written consent;

2.3.10 use any device, software, or routine that interferes with the proper working of the Service.

2.3.11 introduce any viruses, trojan horses, worms, logic bombs, or other material which is malicious or technologically harmful;

2.3.12 attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Service, the server on which the Service is stored, or any server, computer, or database connected to the Service;

2.3.13 attack the Service or Platform via a denial-of-service attack or a distributed denial-of-service attack;

2.3.14 take any action that may damage or falsify Company rating; or

2.3.15 otherwise attempt to interfere with the proper working of the Service or Platform.

 

2.4 Proprietary Rights. The Subscriptions and the Products are licensed and not sold.  PLAYBOOKUX shall retain ownership of all Subscriptions and Products and all intellectual property rights relating thereto, including but not limited to copyrights, patents, trade secret rights, trademarks and any other intellectual property rights therein.  Customer agrees that PLAYBOOKUX may use and exploit without restriction any error reports, suggestions and other information provided by Customer with respect to the Products and shall own any fixes, modifications, improvements and new versions made by PLAYBOOKUX based on such information. The Products, documentation and other non-public information provided by PLAYBOOKUX, and the terms of this Agreement (such as open source or community source), which may be identified in a text file or about box or in a file or files referenced thereby, and Customer agrees that such software or portions will be subject to such other terms and conditions to the extent inconsistent with this Agreement, or to the extent required by such other terms and conditions.  All implied licenses are disclaimed, and all rights not expressly granted therein are reserved to PLAYBOOKUX. 

 

2.5 Customer Proprietary Rights. Subject to the limited rights granted hereunder, Customer reserves all rights, title and interest in and to all Customer Data, including all related Intellectual Property Rights. As between Customer and PLAYBOOKUX, Customer shall retain ownership of all Customer Data. No rights are granted to PLAYBOOKUX under this Agreement other than the limited licenses expressly set forth in this Agreement. Customer hereby grants to PLAYBOOKUX and its authorized third-party service providers the worldwide, nonexclusive, fully paid-up, royalty-free license to access, use, copy, distribute, perform, display and process Customer Data to provide, maintain, and improve the Products and perform its obligations under this Agreement and as otherwise directed, requested or permitted in writing by Customer. 

2.6 Customer Content.  The PLAYBOOKUX Services allows Customer to post, link, store, share and otherwise make available certain information, text, graphics, prototypes, websites, products, images, advertisements, designs, applications, software, tasks, questions, survey questions, links, videos, or other material (“Customer Content”). Customer is responsible for Content posted on or through Service, including its legality, reliability, and appropriateness. If it is not, PLAYBOOKUX reserves the right to terminate Customer’s account. PLAYBOOKUX is not responsible for the loss of Customer Content. It is possible to download videos from the PLAYBOOKUX website. It is Customer’s responsibility to download Customer Content for safe keeping. By posting Customer Content on or through Service, Customer represents and warrants that: (i) Customer Content is owned by Customer and/or Customer has secured the rights to use such Customer Content and (ii) that the posting of Customer Content on or through Service does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person or entity. PLAYBOOKUXUX reserves the right to terminate the account of anyone found to be infringing the intellectual property rights of any third party. Customer retains all of rights to any Customer Content submitted, posted or displayed on or through the Service and Customer is responsible for protecting those rights. PLAYBOOKUX takes no responsibility and assumes no liability for Customer Content Customer or any third-party posts on or through the Service. PLAYBOOKUX has the right but not the obligation to monitor and edit all Customer Content provided by Customer. Content found on or through this Service are the property of PLAYBOOKUX or is otherwise used with permission. Customer may not distribute, modify, transmit, reuse, download, repost, copy, or use said content, whether in whole or in part, for commercial purposes or for personal gain, without express advance written permission from PLAYBOOKUX.

2.7 Feedback. To the extent that Customer provides PLAYBOOKUX with any suggestions, ideas, enhancement requests, recommendations or other feedback or information relating to the Products (collectively, “Feedback”), Customer hereby grants to PLAYBOOKUX and its Affiliates a fully paid-up, royalty-free, worldwide, perpetual, irrevocable license to freely use, disclose and otherwise exploit such Feedback, including but not limited to incorporation of the Feedback into future versions of the Products. 

2.8 Analytics. Customer acknowledges that PLAYBOOKUX may use third-party service providers to monitor and analyze the use of the PLAYBOOKUX Services.

3. Processing as Data Processor.

3.1 Data Processing.  Subject to the terms of this Agreement, Customer acknowledges, agrees and grants to PLAYBOOKUX the right, to the extent permitted by applicable law, to process and retain data received from use of the Products, including Customer Data, for the following purposes: (i) providing service to Customer; (ii) analyzing, maintaining and improving PLAYBOOKUX’S Products and Services; (iii) complying with legal, governmental or contractual terms. To the extent that PLAYBOOKUX processes personal data on behalf of Customer as a processor in the meaning given in EU data protection law, it will do so in accordance with the Data Processing Agreement (“DPA”) located at [LINK]. In the event of a conflict between the terms of this Agreement and the DPA, the terms of the DPA shall prevail.

3.1.1 Optional User Experience Data Access.  As set forth in the applicable Order or as Customer otherwise elects during the configuration or use of the Products, PLAYBOOKUX may receive anonymized user experience data, including the last login time; the frequency of logins; and user interface clickstream data. 

3.1.2 Data Processor. To the extent PLAYBOOKUX processes personal data on behalf of Customer as a processor as defined by EU data protection law or by the CCPA or CPRA, it shall do so only in furtherance of providing the Products to Customer pursuant to this Agreement and as permitted by applicable law. 

3.1.3 Confidentiality of Personal Data.  PLAYBOOKUX will ensure that personnel it authorizes to process personal data have committed themselves to confidentiality or are under an appropriate statutory or professional obligation of confidentiality.

3.1.4 Subprocessors.  Customer authorizes PLAYBOOKUX to engage subprocessors, as described in the applicable Product documentation for the relevant Product, to process personal data. In the event PLAYBOOKUX engages any new subprocessor it will: (i) update the applicable documentation; (ii) notify Customer end users that have opted into receive compliance notification of such change to give Customer the opportunity to object to such subprocessing; (iii) impose appropriate contractual obligations upon the subpocessor’s compliance with this Agreement and for any acts or omissions of the subprocessor that cause PLAYBOOKUX to breach any of its obligations under this Agreement. If Customer objects to a new subprocessor, it must do so in writing within fifteen (15) days of such update and PLAYBOOKUX will then endeavor to offer alternative options for the delivery of Products that do not involve the new subprocessior without prejudice to any of Customer’s termination rights. 

3.1.5 Security. PLAYBOOKUX has implemented practices and policies to maintain appropriate organizational, physical and technical measures to safeguard the confidentiality and security of personal data to comply with applicable laws. 

3.1.6 Security Incident Notification. “Security Incident” means any unauthorized access to any Customer Data stored on PLAYBOOKUX equipment or in PLAYBOOKUX’S facilities, or unauthorized access to such equipment and facilities resulting in loss, disclosure, or alteration of Customer Data that compromises the privacy, security or confidentiality of such Customer Data.  In the event of a Security Incident affecting Customer personal data, PLAYBOOKUX will, without undue delay: (i) inform Customer of the Security Incident; (ii) investigate and provide Customer with detailed information about the Security Incident; and (iii) take reasonable steps to mitigate the effects and minimize any damage resulting from the Security Incident as required by applicable law.  

3.1.7 Assistance to Data Subjects. PLAYBOOKUX shall provide reasonable assistance to Customer to comply with its obligations about data subject rights under applicable data protection law and any other legal requirements, as appropriate, considering the nature of the data processing and the information available to PLAYBOOKUX. 

3.1.8 Data Retention. PLAYBOOKUX shall process and retain personal data no longer than necessary for the purposes for which it is processed. Upon termination of this Agreement, PLAYBOOKUX shall, upon Customer’s request, delete Customer Data that is no longer necessary to carry out any of the purposes under Section 3.1. 

3.1.9 International Transfer of Data.  Customer personal data may be sent to facilities hosted outside of the country where Customer purchased or utilizes the Products. PLAYBOOKUX will comply with the European Economic Area and Swiss data protection law regarding the collection, use, transfer, retention, and other processing of personal data from the European Economic Area and Switzerland, including the execution of EU Standard Contractual Clauses (“SCCs”) for data transfer, where applicable.

3.1.10 Administrative Data Access Consent.  PLAYBOOKUX may use Customer Administrative Data for the following purposes: (i) to inform Customer about products, events and services PLAYBOOKUX believes may be of interest to Customer; (ii) to contact Customer if PLAYBOOKUX needs to obtain or provide additional information; and (iii) to verify the accuracy of PLAYBOOKUX’S records. PLAYBOOKUX may use web analytics and cookies as set forth in the PLAYBOOKUX Privacy Policy available online at https://www.playbookux.com/privacy-policy-company/, which PLAYBOOKUX may amend from time to time in compliance with applicable laws and regulations. To the extent that PLAYBOOKUX processes personal data, it will do so in accordance with the terms of this Section 3 and the Data Processing Agreement (“DPA”). 

3.1.11 Customer Conduct; Compliance.  Customer is responsible for use of the Products by its Affiliates and other users and for their compliance with the terms of this Agreement.  Customer is solely responsible for the accuracy, quality, legality, reliability and appropriateness of all Customer Data, and for providing any notices and obtaining any consents and authorizations necessary: (i) to allow the Administrator to access, monitor, use and disclose the Customer Data and; (ii) to allow PLAYBOOKUX to access the Customer Data. Customer shall ensure that Customer is entitled to make Customer Data accessible to PLAYBOOKUX so that PLAYBOOKUX and its service providers may lawfully use, process and transfer the Customer Data in accordance with this Agreement on Customer’s behalf. Customer will promptly notify PLAYBOOKUX if it becomes aware of any unauthorized use of or access to Customer’s account or the Product. 

3.1.12 Data Protection by Customer. Customer represents and warrants that Customer’s use of the Products complies with all applicable laws, including those related to data privacy, data security, and international communications and that Customer has obtained all consents necessary for PLAYBOOKUX to engage in data processing under this Agreement. Submission or provision of Customer Data to PLAYBOOKUX shall be at Customer’s own risk and PLAYBOOKUX assumes no responsibility or liability for receipt of such Customer Data. 

4. Fees and Payments

4.1 Fees.  Customer will pay the fees for the Products to PLAYBOOKUX as set forth in the applicable Order. Subscription fees may be modified by PLAYBOOKUX for each renewal period by written notice to Customer at least thirty (30) days prior to the end of the then-current period. Except as required by applicable law, paid Subscription fees, pay as you go fees and bulk pricing fees are non-refundable.

4.2 Invoicing.  All subscription fees and maintenance fees invoiced by PLAYBOOKUX shall be payable by Customer prior to the start of the applicable Subscription and maintenance period. All other amounts will be invoiced as set forth in the Order, or if not specified, prior to commencement of the applicable licenses, services or renewals.

4.3 Payments.  Any payments to PLAYBOOKUX shall be due and payable within thirty (30) days after the date of invoice by PLAYBOOKUX. 

4.4 Taxes.  Amounts payable to PLAYBOOKUX under this Agreement are payable in full to PLAYBOOKUX without reduction for taxes (including any withholding tax).  In addition, Customer shall be responsible for all taxes (including, without limitation, consumption, sales, use, value-added and similar taxes), as well as any associated penalties, fines and attorneys’ fees but exclusive of United States federal, state and local taxes based solely on PLAYBOOKUX’S net income. 

4.5 Future Functionality. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features. 

4.6 Suspension of Account for Failure to Pay. PLAYBOOKUX reserves the right to suspend Customer’s account, in addition to all its other rights and remedies, in the event that Customer’s account becomes overdue and is not brough current within ten (10) business days following notice of past due account from PLAYBOOKUX. Such notice may be sent by email. 

4.7 Billing Generally. Some parts of Service are billed on a Subscription basis. Customer will be billed in advance on a recurring and periodic basis (“Billing Cycle”). Billing cycles are set either on a monthly or annual basis, depending on the type of Subscription plan selected by Customer when purchasing a Subscription. At the end of each Billing Cycle, Customer’s Subscription will automatically renew under the same conditions as the Initial Subscription Term unless such Subscription is terminated by Customer or by PLAYBOOKUX. Customer may cancel the Subscription prior to renewal either through the PLAYBOOKUX online platform. Customer must cancel the Subscription within three (3) business days of the scheduled billing cycle renewal. A valid payment method, including credit card, is required to process the payment for the Subscription. Customer shall provide PLAYBOOKUX with accurate and complete billing information including full name, address, state, zip code, telephone number, and valid payment method information. By submitting such payment information, Customer automatically authorizes PLAYBOOKUX to charge all Subscription fees incurred through Customer’s account to any such payment instruments. Should automatic billing fail to occur for any reason, PLAYBOOKUX will issue an electronic invoice indicating that Customer must proceed manually, within a certain deadline date, with the full payment corresponding to the billing period as indicated on the invoice. If payment is sent through a transfer where a fee is deducted from the total amount, the deducted amount will be taken from the customers PlaybookUX credits.
All payments should be sent in US dollars. If there is any FX loss due to currency movements, the underpayment will be deducted from customer’s PlaybookUX credits.

4.8 Purchases Made Through Services. If Customer wishes to purchase any Product or Service made available through Service (“Purchase”), Customer may be asked to supply certain information relevant to Customer’s Purchase including, without limitation, Customer’s credit card number, the expiration date of Customer’s credit card and Customer’s billing address. Customer represents and warrants that: (i) Customer has the legal right to use any credit card(s) or other payment method(s) in connection with any Purchase; and that (ii) the information supplied by Customer to PLAYBOOKUX is true, correct and complete. PLAYBOOKUX may employ the use of third party services for the purpose of facilitating payment and the completion of Purchases. By submitting Customer’s information, Customer grants to PLAYBOOKUX the right to provide the information to these third parties subject to PLAYBOOKUX’S Privacy Policy. PLAYBOOKUX reserves the right to refuse or cancel a customer order at any time for reasons including but not limited to: product or service availability, errors in the description or price of the product or service, error in Customer’s order or other reasons. PLAYBOOKUX reserves the right to refuse or cancel Customer’s order if fraud or an unauthorized or illegal transaction is suspected. 

4.9 Prepaid Balances; Panel Pricing. Customer may add a prepaid balance at any time (also known as “enterprise pricing” or “bulk pricing”). Once Customer reaches certain thresholds, Customer may receive bonus credits. Prepaid balances of any size will expire at 11:59pm EST on the contract expiration date or twelve (12) months from the date that the credits were added. It is Customer’s responsibility to use the prepaid balance prior to the expiration of such balances hereunder. Once prepaid balances have expired, the prepaid balance may not be recovered by Customer.

Any “In Progress” studies will be closed and set to “Done” and no further participants will be recruited. The credits for the remaining unfilled seats will not be refunded.
Any participants scheduled for “In progress” moderated studies will be cancelled and the unfilled seats will not be refunded.

4.10 Fee Changes. PLAYBOOKUX, in its sole discretion and at any time, may modify Subscription the price and fees for the Subscriptions. Any Subscription price or fee change will become effective at the end of the then-current Billing Cycle. For customers on the Pay-as-you-go plan, prices are effective immediately. PLAYBOOKUX will provide Customer with reasonable prior notice of any change in Subscription fees to give Customer an opportunity to terminate Customer’s Subscription before such change becomes effective. Customer’s continued use of the Service after Subscription fee change comes into effect constitutes Customer’s agreement to pay the modified Subscription fee amount.

5. Term and Termination. This Agreement shall commence as of the Effective Date and shall continue with respect to each Order until the end of the applicable Order term, unless earlier terminated. Either party may terminate this Agreement (or an applicable Order) in the event of breach by the other party that is not cured within thirty (30) days after notice (or ten (10) days for breach of payment or license restrictions). PLAYBOOKUX may terminate this Agreement immediately upon Customer becoming insolvent or generally failing to pay its debts as they become due, or commencing or becoming subject to reorganization, insolvency, or liquidation proceedings or ceasing to conduct business in the ordinary course. Upon termination, all licenses and Subscriptions shall terminate, and Customer shall return and cease all use of the Product and Subscriptions. Sections 2, 3, 4, 6, 7, 8, 9, 10, 11, 12 and 14 and all payment obligations accruing prior to termination, will survive.  

 

6. Warranty.

6.1 Mutual Warranty. Each party represents and warrants that: (i) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (ii) it shall comply with all laws, rules, and regulations applicable to the exercise of its rights and performance of its obligations hereunder. 

6.2 Limited Warranty.

6.2.1 PLAYBOOKUX warrants that the Subscriptions and the Products shall perform materially to published specifications for the Product. 

6.2.2 As Customer’s sole remedy and PLAYBOOKUX’S exclusive liability with respect to breach of warranty in this Section 6.2, PLAYBOOKUX shall, at PLAYBOOKUX’S sole option, correct the Subscription and the Product provided that the defect is not due to accident, modification, alteration or misuse; or failure to properly operate and maintain the Product in accordance with PLAYBOOKUX’S specifications. 

7. Limitation of Liability. IN NO EVENT SHALL PLAYBOOKUX BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING COSTS OF PROCUREMENT OF SUBSTITUTE GOODS) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY PRODUCTS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PLAYBOOKUX’S TOTAL LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY PRODUCTS WILL NOT EXCEED THE AMOUNT PAID FOR THE RESPECTIVE PRODUCTS TO WHICH THE CLAIM RELATES, REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE. 

8. Disclaimer. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXECPT AS EXPRESSLY PROVIDED FOR HEREIN, TO THE FULLEST EXTENT PERMITTED BY LAW, THE PRODUCTS ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND PLAYBOOKUX AND ITS AFFILIATES EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT PLAYBOOKUX DOES NOT WARRANT THAT THE PRODUCTS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. EACH PARTY DISCLAIMS ALL LIABLILTY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING SERVICE PROVIDERS. 

9. Indemnity. 

9.1 PLAYBOOKUX’S Obligation. Customer agrees that PLAYBOOKUX has the right to defend, or at its option to settle, at its own expense, to defend or at its option settle, any third-party claim, suit, or proceeding (collectively “Action”) brought against Customer alleging the Products infringe any United States patent in existence as of the Effective Date, subject to the limitations set forth herein. PLAYBOOKUX will have sole control of any such Action or settlement negotiations, and PLAYBOOKUX agrees to pay, subject to the limitations set forth herein, any final judgment entered against Customer on such issue in any such Action defended by PLAYBOOKUX. Customer agrees that PLAYBOOKUX will be relieved of the foregoing obligations unless Customer notifies PLAYBOOKUX promptly in writing of such Action, gives PLAYBOOKUX authority to proceed as contemplated herein, and gives PLAYBOOKUX proper and full information and assistance to settle and/or defend any such Action. 

9.2 Customer Indemnity. Customer will defend any action brought against PLAYBOOKUX, its Affiliates, and its and their respective employees, contractors, agents, officers and directors to the extent based upon a third-party claim arising from or otherwise related to: (i) the Customer Data; or (ii) any use of the Product by Customer not authorized under this Agreement or in violation of law and will pay any costs, damages and reasonable attorneys’ fees attributable to such Action that are finally awarded against PLAYBOOKUX or agreed upon by Customer in settlement. 

9.3 Remedies.  If it is adjudicatively determined, or if PLAYBOOKUX believes, that the Products or any part thereof, infringe any patent, copyright, or trademark, or if the sale or use of the Products, or any part thereof, is as a result, enjoined, then PLAYBOOKUX may, at its election, option and expense: (i) procure for Customer the right under such patent, copyright or trademark to sell or use, as appropriate, the Products or such part thereof; (ii) replace the Products, or part thereof, with other noninfringing suitable Products or portion; (iii) suitably modify the Products or part thereof; or (iv) remove the Product or portion thereof, terminate distribution or sale thereof and refund the payments paid by Customer for such Product. PLAYBOOKUX will not be liable for any costs or expenses incurred without its prior written authorization, or for any deployment costs of any such replaced Products. 

9.4 Exclusions. PLAYBOOKUX shall have no obligation under this Section 9 if the Action is based upon or arises out of: (i) any modification to the Product not made by PLAYBOOKUX; (ii) any combination or use of the Product with or in any third-party software, hardware, process, firmware or data, to the extent that such claim is based on such combination or use; (iii) Customer’s continued use of the allegedly infringing Product after being notified of the infringement claim or after being provided a modified version of the Product by PLAYBOOKUX at no additional cost that is intended to address such alleged infringement; (iv) Customer’s failure to use the Product in accordance with the applicable Product specifications; and/or (v) Customer’s use of the Product outside of the scope of the rights granted under this Agreement. 

9.5 Exclusive Remedy.  THE REMEDIES SPECIFIED IN THIS SECTION CONSTITUTE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, AND PLAYBOOKUX’S ENTIRE LIABILITY, WITH RESPECT TO ANY INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.  

10. Confidentiality. 

10.1 Confidential Information. The term “Confidential Information” includes all information, software and data furnished by either party and with respect to either party includes information furnished by the disclosing party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether in oral, written, graphic, or machine-readable form, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including without limitation: materials, documentation, designs, improvements, formulae, discoveries, inventions, networks, concepts, ideas, technical information and procedures, legal, financial or business affairs, markets, products, key personnel, suppliers. Policies or operational methods, plans for future developments for the business of the Disclosing Party, and all other information disclosed to the Receiving Party by the Disclosing Party that is not readily available to the public, and all copies of the foregoing. In addition to the foregoing, Confidential Information of PLAYBOOKUX will also include (i) all information relating to the Products (including availability, uptime, and performance benchmarks), operation of the Products, knowhow, techniques, processes, ideas, algorithms, and Product design and architectures, and all documentation related to the Products. 

10.2 Non-Confidential Information. Notwithstanding the foregoing, Confidential Information will not include information that: (i) has entered the public domain through no action or failure to act of the Receiving Party; (ii) prior to disclosure hereunder was already lawfully in the Receiving Party without any obligation of confidentiality; (iii) subsequent to disclosure hereunder is obtained by the Receiving Party on a non-confidential basis from a third party having the right to disclose such information to the Receiving Party; (iv) is approved in writing by the Disclosing Party for disclosure by the Receiving Party; (v) is provided by the Disclosing Party to a third party without a confidentiality restriction; or (vi) is independently developed by the Receiving Party without reference to or use of the Disclosing Party’s Confidential Information. 

10.3 Obligations of Non-Disclosure. The Receiving Party will safeguard the Confidential Information of the Disclosing Party with at least the same degree of care that it utilizes to safeguard its own Confidential Information of like kind, but in any event, not less than a reasonable degree of care. The Receiving Party agrees: (i) not to disclose the Confidential Information of the Disclosing Party to third Parties (except for its employees, Affiliates, subcontractors, or professional advisors who are bound by an obligation of confidentiality no less restrictive than this provision) in the breach of the foregoing sentence, and (b) to use the Confidential Information solely for the purpose of performing its obligations and exercising its rights under this Agreement. The Receiving Party will not remove or alter any copyright, trademark, service mark or other proprietary rights notice attached to or included in any Confidential Information furnished by the Disclosing Party. 

10.4 Return of Confidential Information. Each Receiving Party shall destroy or return to the Disclosing Party all Confidential Information of the Disclosing Party that is in the Receiving Party’s possession upon the expiration or termination of this Agreement; provided, however, that to the extent that copies of Confidential Information are contained in the Receiving Party’s offsite backup data storage archives and are not readily accessible for deletion, the Receiving Party will not be obligated to delete such copies so long as it does not willfully attempt to access such Confidential Information and continues to comply with the confidentiality restrictions set forth herein. 

10.5 Compelled Disclosure. If the Receiving Party is compelled by law, regulation or a court of competent jurisdiction to disclose any of the Disclosing Party’s Confidential Information then, to the extent permitted by law, the Receiving Party will promptly notify the Disclosing Party so that it may seek a protective order or other remedy. If disclosure is ultimately required, the Receiving Party will furnish only that portion of the Confidential Information that is legally required, exercise reasonable efforts to obtain assurances that it will receive confidential treatment and will continue to treat such Confidential Information in accordance with its obligations under this provision. 

10.6 Injunctive Relief. Each party acknowledges that the Disclosing Party may be irreparably harmed if the Receiving Party’s obligations hereunder are not specifically enforced and that the Disclosing Party may not have an adequate remedy at law in the event of an actual or threatened violation hereof. The Receiving Party agrees that the Disclosing Party, in addition to any of its available rights and remedies, will be entitled to seek equitable relief, including injunction (with no requirement to post a bond or other security or to prove actual damages) to prevent breaches or threatened breaches of this Section 10.6 by the Receiving Party or any of its representatives and to seek specific performance of the terms of this provision. 

11. Governing Law; Disputes. This Agreement is governed by New Hampshire law, excluding its choice of laws rules. The United Nations Convention on Contracts for the International Sale of Goods (1980) is specifically excluded and shall not apply. Any dispute or claim arising out of or related to this Agreement, or breach or termination thereof, shall be subject to exclusive jurisdiction, forum and venue of the state and federal courts in the United States, New Hampshire, and the parties agree and submit to the personal and exclusive jurisdiction of these courts. This Agreement and all proceedings shall be in the English language only. 

12. FCPA. Customer warrants that it shall comply with the Foreign Corrupt Practices Act (“FCPA”) in all dealings with, by or on behalf of PLAYBOOKUX, and shall not offer, promise, give, demand, seek or accept, directly or indirectly, any gift or payment, consideration or benefit in kind that would or could be construed as an illegal or corrupt practice. 

13. Force Majeure.  PLAYBOOKUX shall not be responsible for any cessation, interruption or delay in the performance of its obligations hereunder due to earthquake, flood, fire, storm, natural disaster, act of God, war, terrorism, armed conflict, labor strike, lockout, boycott or other similar events beyond PLAYBOOKUX’S reasonable control. 

14. Miscellaneous

14.1 Entire Agreement.  This Agreement represents the entire agreement between the parties relating to the subject matter hereof and shall supersede all prior communications and agreements between the parties with respect to such subject matter. This Agreement supersedes all pre-printed terms and conditions in any purchase order or other business forms submitted by Customer, and any terms which are inconsistent with the terms of this Agreement are expressly rejected.

14.2 Assignment.  This Agreement and the rights hereunder may not be assigned or otherwise transferred either directly or indirectly, by Customer without the prior written consent of PLAYBOOKUX.

14.3 Amendments. This Agreement may not be modified, amended, released or discharged except by a subsequent written amendment that expressly references this Agreement and is entered into by duly authorized representatives of Customer and PLAYBOOKUX. No oral statement will in any manner or degree modify or otherwise affect the terms and conditions of this Agreement.

14.4 Waiver.  The waiver of a breach of any term herein shall in no way be construed as a waiver of any other subsequent term or beach by a party hereto. 

14.5 Severability.  If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall remain in full force and effect.

14.6 Counterparts. This Agreement may be executed in counterparts, each of which shall be considered an original, including by facsimile or other electronic form. 

14.7 Order of Precedence.  In the event of a conflict or inconsistency among the documents governing the Products, the order of precedence shall be as follows: (i) any SOW; (ii) any Order Form; (iii) any exhibit, schedule, or addendum to this Agreement; and (iv) the body of this Agreement. 

14.8 Accounts.  When Customer creates a PLAYBOOKUX account, Customer represents and warrants that Customer is above the age of and that the information provided by Customer to PLAYBOOKUX is accurate, complete, and current at all times. Inaccurate, incomplete, or obsolete information may result in the immediate termination of Customer’s account on the Service. Customer is responsible for maintaining the confidentiality of Customer’s account and password, including but not limited to the restriction of access to Customer’s devices and/or account. Customer agrees to accept responsibility for any and all activities or actions occurring within Customer’s account and/or password, whether Customer’s password is with PLAYBOOKUX’S Service or with a third-party service. Customer must notify PLAYBOOKUX immediately upon becoming aware of any breach of security or unauthorized use of Customer’s account. Customer may not use as a username the name of another person or entity or that is not lawfully available for use, a name or trademark that is subject to any rights of another person or entity other than Customer, without appropriate authorization. Customer may not use as a username any name that is offensive, vulgar or obscene. PLAYBOOKUX reserves the right to refuse service, terminate accounts, remove or edit content, or cancel orders in PLAYBOOKUX’S sole discretion.

14.9 Contests, Sweepstakes and Promotions. Any contests, sweepstakes or other promotions (collectively, “Promotions”) made available through the Service may be governed by rules that are separate from these Terms. If Customer participates in any Promotions, Customer must review the applicable rules, as well as PLAYBOOKUX’S Privacy Policy. If the rules for a Promotion conflict with the terns of this Agreement, Promotion rules will apply. Promotions are limited to one per customer, with a minimum order of five (5) participants with pay-as-you-go plans.

14.10 Session Time Limit.  The session time limit is defined as the length of a session (“Session Time Limit”). Unmoderated sessions shall not exceed fifteen (15) minutes. Moderated interviews shall not exceed the time selected while setting up a project (30 minutes, 60 minutes, 90 minutes or 120 minutes). If Customer allows the session to last longer than the session time limit, PLAYBOOKUX will administer a warning. If Customer continues to conduct sessions beyond the applicable Session Time Limit, Customer access to the Platform will be terminated and no refunds will be processed.

14.11 Refunds. Except when required by law, paid Subscription fees, pay as you go fees and enterprise/bulk pricing fees are non-refundable.

14.12 No Use by Minors.  The Service is intended only for access and use by individuals of at least eighteen (18) years of age. By accessing or using any PLAYBOOKUX Products or Services, Customer represents and warrants that Customer is at least eighteen (18) years of age and has full authority, right, and capacity to enter into this agreement and abide by all of the terms and conditions of these Terms. Users that are not at least eighteen (18) years of age, are prohibited from both the access and usage of the Service.

14.13 Publicity.  Customer agrees that when Customer subscribes to use any PLAYBOOKUX Products, PLAYBOOKUX may use Customer’s name and logo on customer lists on: (i) the PLAYBOOKUX website; (ii) in PLAYBOOKUX marketing materials; (iii) and to promote the PLAYBOOKUX Services. 

14.14 Testers or Participants.  Customer has the option to either use PLAYBOOKUX testers, or use Customer’s own participants. PLAYBOOKUX is not responsible for content distributed to Customer participants. If Customer intends to use PLAYBOOKUX testers, Customer may not request that testers provide any personal information, including but not limited to: credit card, email address, mailing address, social security number, passwords and phone number. Customer shall not ask testers to download illegal or unlawful materials. Customer is prohibited from directing testers to websites with viruses, malware and websites with substandard security practices. Customer is prohibited from contacting or hiring testers without PLAYBOOKUX’S prior written consent. 

14.15 Tester or Participant Replacements. Customer may request PLAYBOOKUX tester replacement within seven (7) days of a participant’s completion of a study. PLAYBOOKUX reserves the right to refuse any replacement. Customer is responsible for ensuring that all digital assets function properly and that participants are able to complete the study as expected. PLAYBOOKUX is not responsible for digital assets that do not function properly during the session. Any participants that encounter issues are the sole responsibility of Customer and Customer will be required to compensate participants for any time spent managing technical issues.

14.16 Tester or Participant Reschedules and Cancellations (moderated interviews). With our moderated interview service, defined as having a scheduled conversation with our Testers. If you cancel or reschedule within 24 hours of the session, we will not be able to refund or transfer the cost of that session. You may reschedule more than 24 hours until the scheduled session. You may not cancel a session once it’s booked.

14.17 Bring your own participants session limits. If a customer subscribes to a workspace subscription plan, they will have the ability to bring their own participants to participate in research studies. If a customer subscribes to the Scale or Pro plan, they can bring an unlimited number of participants for any card sort, tree test or survey study in that workspace.

If a customer subscribes to the Scale plan, they will have 150 “included sessions” per year. An “included session” equals a completed session with one participant. If a customer subscribes to the PRO plan, they will have 250 “included sessions” per year. “Included sessions” only pertain to conducting unmoderated and moderated studies with your own participants. Included sessions do not rollover into future contract years.

Once the customer has reached the included session limit, each additional unmoderated session will cost $5 per participant. Each additional moderated 30-minute session will cost $10 per participant. Each additional moderated 60-minute session will cost $15 per participant. Each additional moderated 90-minute session will cost $20 per participant.
Each additional moderated 120-minute session will cost $25 per participant.
Additional sessions are purchased in 100 session increments.
Prepaid balances can be used to purchase additional ‘bring your own participants’ sessions.
If a customer has multiple workspaces, sessions cannot be transferred between workspaces.
For moderated sessions, if your participant does not show for the session, it will not count as a completed session.

14.18 Links To Other Web Sites.  The Service may contain links to third party web sites or services that are not owned or controlled by PLAYBOOKUX. PLAYBOOKUX has no control over, and assumes no responsibility for the content, privacy policies, or practices of any third party web sites or services. PLAYBOOKUX does not make any warranties with respect to any third-party websites or offerings. CUSTOMER ACKNOWLEDGES AND AGREES THAT PLAYBOOKUX SHALL NOT BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH USE OF OR RELIANCE ON ANY SUCH CONTENT, GOODS OR SERVICES AVAILABLE ON OR THROUGH ANY SUCH THIRD PARTY WEB SITES OR SERVICES. PLAYBOOKUX STRONGLY ADVISES CUSTOMER TO READ THE TERMS OF SERVICE AND PRIVACY POLICIES OF ANY THIRD PARTY WEB SITES OR SERVICES THAT CUSTOMER VISITS PRIOR TO ANY USE OF ANY SUCH THIRD PARTY SITES OR SERVICES.

Contact Us. Please send your feedback, comments, requests for technical support: By email: hello@PLAYBOOKUX.com or by visiting this page on our website: https://www.PLAYBOOKUX.com/