PlayerZero Terms of Service

Effective Date: August 28, 2022

These Customer Terms and Conditions and all Orders (as defined below) issued hereunder (collectively, this “Agreement”), effective as of the date on which you click a button or check a box (or something similar) acknowledging your acceptance of this Agreement or you execute with PlayerZero an Order that incorporates this Agreement by reference (the “Effective Date”), is by and between Testgram Inc. (d.b.a. PlayerZero), a Delaware corporation with offices located at 75 5th St NW Suite 2220, Atlanta, GA 30332 (“PlayerZero”) and the entity on whose behalf the individual accepting this Agreement accepts this Agreement (“Customer”). This Agreement incorporates the terms and conditions of PlayerZero’s Privacy Policy. The individual accepting this Agreement hereby represents and warrants that it is duly authorized by the entity on whose behalf it accepts this Agreement to so accept this Agreement. PlayerZero and Customer may be referred to herein collectively as the “Parties'' or individually as a “Party.” The Parties agree as follows:

1. Definitions.

2. Access and Use.

3. Customer Responsibilities.

4. Support.

During the Subscription Term, PlayerZero will use commercially reasonable efforts to provide Customer with basic customer support via PlayerZero’s standard support channels during PlayerZero’s normal business hours.

5. Professional Services.

PlayerZero may perform Professional Services to the extent described in an Order or Statement of Work. Customer will provide PlayerZero all reasonable cooperation required for PlayerZero to perform the Professional Services, including without limitation timely access to any reasonably required Customer materials, information, or personnel. Subject to any limitations identified in an Order or Statement of Work, Customer will reimburse PlayerZero’s reasonable travel and lodging expenses incurred in providing Professional Services. To the extent the Professional Services result in any software code or other tangible work product (“Work Product”), all such Work Product will remain owned solely and exclusively by PlayerZero and may be used by Customer solely in connection with Customer’s authorized use of the Services under this Agreement.

6. Fees and Taxes.

7. Confidential Information.

8. Data Security and Processing of Personal Data.

9. Intellectual Property Ownership; Feedback.

10. Warranty Disclaimer.

THE SERVICES, PlayerZero IP, THIRD PARTY PRODUCTS, THIRD PARTY PRODUCT DATA AND THIRD PARTY PRODUCT IDENTIFIERS ARE PROVIDED “AS IS” AND PlayerZero HEREBY DISCLAIMS ALL WARRANTIES,WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PlayerZero SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PlayerZero MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, PlayerZero IP, THIRD PARTY PRODUCT DATA, THIRD PARTY PRODUCT IDENTIFIERS, THIRD PARTY PRODUCTS OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER PLATFORM, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW, PlayerZero HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ANY WARRANTY THAT THIRD PARTY PRODUCT DATA, THIRD PARTY PRODUCT IDENTIFIERS OR ANY OTHER INFORMATION CONTAINED IN OR MADE AVAILABLE IN CONNECTION WITH ANY THIRD PARTY PRODUCTS HAS BEEN COLLECTED IN COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS OR THAT ANY THIRD PARTY PRODUCT DATA, THIRD PARTY PRODUCT IDENTIFIERS OR ANY OTHER INFORMATION CONTAINED IN OR MADE AVAILABLE IN CONNECTION WITH THE THIRD PARTY PRODUCTS IS CURRENT OR ERROR-FREE. CUSTOMER IS SOLELY RESPONSIBLE FOR ANY DECISIONS OR ACTIONS IT TAKES BASED ON THE THIRD PARTY PRODUCTS, AND PlayerZero HEREBY DISCLAIMS THE RESULTS OF ANY SUCH DECISIONS OR ACTIONS.

11. Indemnification.

11.2 Customer Indemnification. Customer shall indemnify, hold harmless, and, at PlayerZero’s option, defend PlayerZero and PlayerZero’s affiliates, officers, directors, agents, representatives, personnel and licensors from and against any Losses resulting from any Third Party Claim: (a) arising out of or in connection with Customer’s or any Authorized User’s breach of Sections 2.4 or 3; (b) alleging that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property or other rights; (c) Customer-Controlled Matters; and (d) any Third Party Claims based on Customer’s or any Authorized User’s (i) negligence or willful misconduct, (ii) use of the Services in a manner not authorized by this Agreement, (iii) modifications to the Services not made by PlayerZero, or (iv) use of the Services in combination with data, software, hardware, equipment or technology not provided by PlayerZero or authorized by PlayerZero in writing; in each case provided that Customer may not settle any Third Party Claim against PlayerZero unless PlayerZero consents to such settlement, and further provided that PlayerZero will have the right, at its option, to defend itself against any such Third Party Claim or to participate in the defense thereof by counsel of its own choice.

11.3 Sole Remedy. THIS SECTION 11 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PlayerZero’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL PlayerZero’S AGGREGATE LIABILITY UNDER THIS SECTION 11 EXCEED ONE TIMES (1X) THE TOTAL AMOUNTS PAID TO PlayerZero IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.

12. Limitations of Liability.

IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (i) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (ii) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (iii) LOSS OF GOODWILL OR REPUTATION; (iv) USE, INABILITY TOUSE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (v) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PlayerZero UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM. IN NO EVENT WILL PlayerZero BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT(INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY LIABILITY ARISING OUT OF THE THIRD PARTY PRODUCTS, THIRD PARTY PRODUCT DATA OR THIRD PARTY PRODUCT IDENTIFIERS, OR CUSTOMER’S OR ANY AUTHORIZED USER’S USE THEREOF.

13. Subscription Term and Termination.

14. Miscellaneous.

  Testgram, Inc.
  Attn: Legal Department
  75 5th Street NW Suite 2220
  Atlanta, GA 30332
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