Would you be willing to answer a few brief questions about PlayStation.com?
READ CAREFULLY: SONY COMPUTER ENTERTAINMENT AMERICA LLC ("COMPANY") MAKES AVAILABLE THE PRE-RELEASE SERVICE (THE "PRE-RELEASE SERVICE" AS MORE FULLY DEFINED BELOW) TO YOU ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS PRE-RELEASE SERVICE BETA TESTING AGREEMENT (THIS "AGREEMENT").
THIS AGREEMENT SHALL BE READ IN CONJUNCTION WITH, AND SHALL SUPPLEMENT, THE SONY ENTERTAINMENT NETWORK TERMS OF SERVICE AND USER AGREEMENT (AS AMENDED FROM TIME TO TIME, THE "SEN TERMS OF SERVICE"), WHICH YOU WILL BE REQUIRED TO ACCEPT (IF YOU HAVE NOT ALREADY) IN ORDER TO ACCESS THE PRE-RELEASE SERVICE. IN THE EVENT OF A CONFLICT BETWEEN THIS AGREEMENT AND THE SEN TERMS OF SERVICE, THE TERMS OF THIS AGREEMENT WILL CONTROL.
By selecting the "I accept" button or other button or mechanism designed to acknowledge agreement to the terms of an electronic copy of this Agreement, or by accessing or otherwise using the Pre-Release Service (including, if applicable, installing or downloading any software necessary to access or initiate the use of the Pre-Release Service), you accept this Agreement on behalf of yourself as an individual and acknowledge that you are legally bound by this Agreement, and you represent and warrant that you have the ability to bind yourself to this Agreement. If you are residing in a jurisdiction which restricts the use of Internet-based applications according to age, or which restricts the ability to enter into agreements such as this Agreement according to age and you are under such a jurisdiction and under such age limit, you may not enter into this Agreement and download, install, use or access the Pre-Release Service.
If you are unwilling to accept this Agreement, or you do not have the ability to bind yourself as an individual, (A) DO NOT SELECT THE "I ACCEPT" BUTTON OR OTHERWISE CLICK ON ANY BUTTON OR OTHER MECHANISM DESIGNED TO ACKNOWLEDGE THIS AGREEMENT, AND DO NOT ACCESS OR OTHERWISE USE THE PRE-RELEASE SERVICE, AND (B) IF BUTTONS FOR ACCEPTING OR REJECTING THE PRE-RELEASE SERVICE APPEAR, SELECT THE "CANCEL" BUTTON AND CANCEL THE LOADING OR OTHER INITIATION OF THE PRE-RELEASE SERVICE.
ACCESSING OR OTHER USE OF THE PRE-RELEASE SERVICE (INCLUDING, AS APPLICABLE, INSTALLING OR DOWNLOADING ANY SOFTWARE NECESSARY TO ACCESS OR INITIATE THE USES OF THE PRE-RELEASE SERVICE) EXCEPT AS PERMITTED BY THIS AGREEMENT IS UNAUTHORIZED AND CONSTITUTES A MATERIAL BREACH OF THIS AGREEMENT AND AN INFRINGEMENT OF THE COPYRIGHT AND OTHER INTELLECTUAL PROPERTY RIGHTS IN SUCH PRE-RELEASE SERVICE.
Company is willing to supply to you ("Tester" as defined below) solely for testing and evaluation purposes, within the protection of a confidential relationship, the Pre-Release Service on the terms and conditions contained in this Agreement;
Tester desires to have access to the Pre-Release Service solely for its testing and evaluation and is aware of the experimental and untested nature of the Pre-Release Service, and is willing to enter into a confidential relationship to use and test the Pre-Release Service and to provide Feedback (as defined below) to Company with respect to the Pre-Release Service;
NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of which are acknowledged, the parties hereby agree as follows:
In addition to the terms defined elsewhere in this Agreement, the following terms, when used herein, shall have the following meanings:
1.1. "Feedback" shall mean all suggestions, comments, input, ideas, reports, results, information or know-how (whether in oral, electronic or written form) provided by Tester to Company in connection with Tester’s testing, evaluation and use of the Pre-Release Service and Confidential Information provided by Company.
1.2. "Pre-Release Service" shall mean the pre-release, beta version of the PlayStation™ Now cloud-based streaming service intended to allow end users to access and play entertainment software products through certain PlayStation® systems and other select authorized devices. Pre-Release Service also includes any technology, software, documentation, features, functionalities, content, updates, upgrades, bug fixes or enhancements used in connection with the use of, relating to or embodied in the Pre-Release Service, and all marketing and business plans and other information and documents related thereto, no matter how obtained by Tester. Pre-Release Service is Company Confidential Information, as defined below.
1.3. "Tester" shall mean you personally (i.e., the individual who reads and is prompted to accept this Agreement).
2. LICENSE TO TESTER
2.1. Grant of Rights to Access and Use. Subject to the terms of this Agreement, Company hereby grants Tester, under all of Company’s intellectual property and proprietary rights, a non-exclusive, personal, limited, non-assignable, non-sublicensable, royalty-free license to access and use the Pre-Release Service solely in connection with and for the purpose of personal testing, evaluating and providing Feedback to Company regarding the Pre-Release Service as an end user and not on behalf of Tester’s employer or any entity.
2.2. Restrictions. Except as expressly authorized in this Agreement or by Company, Tester will not, and will not permit any third party to: (a) copy, reproduce, publicly perform or display, translate, modify, adapt, arrange or create derivative works based on the Pre-Release Service for any purpose; (b) distribute, sell, outsource, rent, lease, loan, sublicense or otherwise transfer or provide all or portion of the Pre-Release Service or any rights granted hereunder to any other person or legal entity; (c) use or evaluate the Pre-Release Service for the purpose of any competitive or comparative product or service analysis or research, or any commercial, professional, or other for-profit purposes, (d) remove, alter, obscure, cover or change any proprietary notices, labels or markings from or on the Pre-Release Service, its platform or user interface or any components thereof; (e) reverse engineer, decompile or disassemble or derive any source code from the Pre-Release Service; or (g) utilize any equipment, device, software, or other means designed to circumvent or remove any form of technical protection used by Company in connection with the Pre-Release Service, or use or access the Pre-Release Service together with any product code, authorization code, serial number, or other copy protection device not supplied by Company.
3.1. Company Confidential Information. "Confidential Information" of Company means non-public information that Company designates as being confidential to Tester, or which, under the circumstances surrounding disclosure ought to be treated as confidential by Tester. "Confidential Information" includes, without limitation, the Pre-Release Service and any information in tangible or intangible form, whether in oral or written form, relating to and/or including released or unreleased Company software or hardware products, Feedback, product names, code names, specifications, development plans and results, research activities and results, improvements, functionality, defects, errors, techniques, inventions, whether patentable or not, code, documentation, algorithms, formulas, data structures, scripts, protocols, application programming interfaces and other technical information, the marketing or promotion of any Company product, product pricing, product costs, business opportunities and financial information, strategies, timetables, forecasts, Company’s business policies or practices, processes, ideas, know-how and expertise of employees or consultants, and information received from third parties that Company is obligated to treat as confidential.
3.2. Restrictions. By disclosing Company’s Confidential Information to Tester, Company does not grant any express or implied right to Tester under any patents, copyrights, trademarks, or trade secret rights, except as provided herein. Tester shall: (a) use Company’s Confidential Information solely for the purpose of testing and evaluating the Pre-Release Service and providing Feedback thereon; (b) refrain from disclosing any of Company’s Confidential Information to third parties for a period of five (5) years after the date that Company first discloses such Confidential Information to Tester; and (c) take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information, but no less than reasonable care, to keep confidential the Confidential Information. Tester shall notify Company immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this Agreement by Tester, its employees or consultants, and will cooperate with Company in every reasonable way to help Company regain possession of the Confidential Information and prevent its further unauthorized use or disclosure.
3.3. Unauthorized Disclosure. Tester acknowledges that unauthorized disclosure of the Company’s Confidential Information will cause significant and irreparable harm to Company, the extent of which may be difficult to ascertain. Tester agrees that Company is entitled to injunctive relief as well as all other legal remedies that may be available in the event or Tester’s breach of this Section 3.
Except as expressly licensed to Tester in Section 2.1, Company retains all right, title and interest in and to the Pre-Release Service and Company Confidential Information, including all related patents, trademarks, copyrights, know-how, trade secrets and other intellectual property rights. Tester acknowledges and agrees that the Pre-Release Service is licensed, not sold, and that rights to use the Pre-Release Service are acquired only under the license from Company. If requested by Company, Tester agrees to execute and deliver statements or any other instruments, recordings or filings deemed necessary by Company to protect and preserve its right, title and interest in and to the Pre-Release Service under applicable law.
Tester hereby grants Company, under all of Tester’s intellectual property and proprietary rights, the following worldwide, exclusive, transferable, perpetual, irrevocable, royalty-free, fully paid-up rights: (a) to make, have made, use, copy, modify, and create derivative works of the Feedback as part of or in connection with any Company product, technology, service, content, material, specification or documentation (including, without limitation, in connection with the marketing or sale thereof); (b) to publicly perform or display, import, broadcast, transmit, distribute, license, offer to sell and sell, rent, lease or lend copies of the Feedback (and derivative works thereof and improvements thereon); and (c) to sublicense to third parties the foregoing rights, including the right to sublicense to further third parties. Feedback shall not create any confidentiality obligation for or upon Company.
6. SERVICE MARKING
6.1. Service Marking. Company reserves the right to individually sign (or electronically watermark) any download of software related to or necessary for accessing the Pre-Release Service, and the files created from such Pre-Release Service, allowing Company to track the use of the Pre-Release Service and the files created with it, to the person originally downloading such software.
Tester represents and warrants as follows: (a) the Feedback does not infringe any copyright or trade secret of any third party, and that Tester has no knowledge of, and has not been put on notice of, any patent of any third party that may be infringed by the Feedback (including any implementation thereof recommended by Tester); (b) Tester’s Feedback is not subject to any license terms that would purport to require Company to comply with any additional obligations with respect to any Company Pre-Release Service that incorporate any Feedback; (c) if Tester allows anyone else to use the Pre-Release Service, Tester will accept responsibility for that person’s acts, including any violations of this Agreement; (d) Tester is not, nor is Tester an employee of, a competitor of Company or its affiliates in the Sony Computer Entertainment family; (e) Tester has no physical condition, such as epilepsy or a history of photosensitivity, that would be aggravated or triggered by video games; and (f) Tester will read and become familiar with the use of the appropriate PlayStation® system and the warnings and instructions of any Pre-Release Service before using such Pre-Release Service.
THE PRE-RELEASE SERVICE, CONFIDENTIAL INFORMATION AND ANY SOFTWARE OR OTHER MATERIALS FURNISHED AS PART OF THE PRE-RELEASE SERVICE ARE FURNISHED ON AN "AS IS" BASIS, AND COMPANY AND ITS AFFILIATES, LICENSORS AND SUPPLIERS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, OR OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW, OR FROM A COURSE OF DEALING OR USAGE OF TRADE. COMPANY SPECIFICALLY DOES NOT WARRANT THAT THE PRE-RELEASE SERVICE OR OTHER MATERIALS PROVIDED BY COMPANY WILL MEET TESTER'S REQUIREMENTS; WILL OPERATE IN ALL THE COMBINATIONS WHICH MAY BE SELECTED FOR USE BY TESTER; THAT THE OPERATION OR OUTPUT OF THE PRE-RELEASE SERVICE WILL BE ERROR-FREE, ACCURATE, RELIABLE, COMPLETE OR UNINTERRUPTED; OR THAT ALL ERRORS OR DEFECTS IN THE PRE-RELEASE SERVICE WILL BE CORRECTED. NEITHER COMPANY NOR ITS AFFILIATES, LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR ANY DAMAGES WHATSOEVER ARISING FROM OR RELATING TO TESTER’S USE OR INABILITY TO USE PRE-RELEASE SERVICE, HARDWARE OR OTHER MATERIALS.
TESTER EXPRESSLY ACKNOWLEDGES THAT THE PRE-RELEASE SERVICE HAS NOT BEEN FULLY TESTED AND MAY CONTAIN DEFECTS OR DEFICIENCIES WHICH MAY NOT OR WILL NOT BE CORRECTED BY COMPANY, THAT THE PRE-RELEASE SERVICE MAY UNDERGO SIGNIFICANT CHANGES PRIOR TO RELEASE OF THE CORRESPONDING GENERALLY AVAILABLE FINAL VERSION AND THAT THE GENERALLY AVAILABLE FINAL VERSION MAY NOT CONTAIN CERTAIN FEATURES OR FUNCTIONALITY THAT ARE CONTAINED IN THE VERSION OF THE PRE-RELEASE SERVICE. NOTWITHSTANDING THE FOREGOING, COMPANY SHALL HAVE NO OBLIGATION TO RELEASE ANY SERVICE OR MAKE AVAILABLE ANY SERVICE BASED ON THE PRE-RELEASE SERVICE OR CONFIDENTIAL INFORMATION PROVIDED HEREUNDER.
8. INDEMNITY; LIMITATION OF LIABILITY
Tester agrees to indemnify and hold Company and its affiliates, licensors and suppliers harmless against any and all losses, liabilities, proceedings, claims, or damages, arising out of or in connection with this Agreement or Tester's use, performance, possession, and misuse, or removal, return or repossession by Company of the Pre-Release Service, Confidential Information or other materials furnished hereunder. Such indemnity shall survive termination of this Agreement and shall apply regardless of the form of legal action, whether in contract or in tort, including negligence.
IN NO EVENT SHALL COMPANY, ITS AFFILIATES, OR ITS LICENSORS OR SUPPLIERS BE LIABLE HEREUNDER FOR ANY INCIDENTAL, SPECIAL, DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE OR ANY OTHER DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, NOR SHALL COMPANY BE LIABLE FOR ANY DAMAGES WHATSOEVER RESULTING FROM A FORCE MAJEURE OR AN ACT OF A THIRD-PARTY OR OF NO FAULT ON ITS BEHALF. TESTER'S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM UNDER THIS AGREEMENT, WHETHER IN CONTRACT OR IN TORT, OR OTHERWISE, IS TO CEASE USE OF THE PRE-RELEASE SERVICE.
9. TERM & TERMINATION
9.1. Term. This Agreement shall be effective from the earlier of (a) the date it is accepted by Tester and (b) the date on which Tester first accessed or used the Pre-Release Service and shall continue until terminated pursuant to Section 9.2.
9.2. Termination. This Agreement may be terminated at any time by either party, with or without cause, by (a) providing notice of termination, or (b) in the case of Company, by preventing Tester’s access to the Pre-Release Service. This Agreement will terminate automatically upon the end of the beta test period of the Pre-Release Service (as notified by Company by electronic or other means).
9.3. Cease Use. Upon termination of this Agreement for any reason, Tester shall immediately (a) cease all use of the Pre-Release Service; and (b) if applicable, remove or destroy all software installed on Tester’s computer or other hardware devices used in connection with the Pre-Release Service and other tangible materials or, upon request by Company, return to Company all tangible materials and devices provided to Tester under this Agreement and any other Confidential Information provided to Tester hereunder, that are in Tester’s possession or under its control.
9.4. Survival. Sections 1 (DEFINITIONS), 3 (CONFIDENTIALITY), 4 (OWNERSHIP), 5 (FEEDBACK), 7(WARRANTIES), 8 (INDEMNITY; LIMITATION OF LIABILITY), 9.3 (CEASE USE; RETURN) and 10 (GENERAL) shall survive termination of this Agreement for any reason.
10.1. No Reliance. Company Pre-Release Service and Confidential Information may concern planned or future development efforts for existing or new Company products, technology and/or services. Pre-Release Service and Confidential Information are not intended to be a promise or guarantee of future delivery of products, technology, services or features but merely reflect our current plans, which may change. Accordingly, Pre-Release Service and Confidential Information may not be relied on for purchasing decisions or for any other purpose.
10.2. Severability. If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision or any other provision of this Agreement in any other jurisdiction.
10.3. Export Restrictions. Tester acknowledges that the Company Pre-Release Service and Confidential Information are subject to the export control laws and regulations of the United States. Tester agrees to comply with all applicable international and national laws that apply to Pre-Release Service. Under U.S. export control laws and regulations, the Pre-Release Service may not be downloaded or otherwise exported, re-exported, or transferred to restricted countries, to restricted end users or for restricted end uses. Tester represents, warrants and covenants that Tester (a) is not located in, or a resident or a national of, a restricted country; (b) is not on any of the U.S. government lists of restricted end users; and (c) will not, unless otherwise authorized under U.S. export control regulations, use the Pre-Release Service in any restricted end use.
10.4. Waiver. No term or provision of this Agreement will be considered waived, and no breach excused, unless such waiver is in writing signed on behalf of the party against which the waiver is asserted. No waiver (whether express or implied) will constitute consent to, waiver of, or excuse of any other, different, or subsequent breach.
10.5. Assignment. Neither this Agreement nor any of the rights, interest or obligations of Tester hereunder shall be assigned or delegated. Any unauthorized assignment shall be null and void.
10.6. Governing Law. Tester agrees that the laws of the State of California will govern the terms of this Agreement.