PLAYSTATION®VITA SYSTEM SOFTWARE LICENSE AGREEMENT (Version 1.2)
PLEASE READ THIS PLAYSTATION®VITA SYSTEM SOFTWARE LICENSE AGREEMENT ("AGREEMENT") CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS.
THIS AGREEMENT IS BETWEEN YOU AND SONY COMPUTER ENTERTAINMENT INC. ("SCE"). ACCESS TO OR USE OF THE SYSTEM SOFTWARE IN SCE'S PlayStation®Vita HANDHELD ENTERTAINMENT SYSTEM ("PS Vita") IS EXPRESSLY CONDITIONED UPON ACCEPTANCE OF THE TERMS OF THIS AGREEMENT. BY USING YOUR PS Vita, YOU REPRESENT THAT YOU ARE CAPABLE OF ENTERING INTO A CONTRACT UNDER THE LAWS OF YOUR JURISDICTION AND AGREE TO BE BOUND BY THIS AGREEMENT'S TERMS.
This Agreement applies to any system software, firmware and Internet browser software included in the PS Vita and any patches, updates, upgrades or new versions of that system software, firmware and Internet browser software provided to or made available for your PS Vita through any SCE or Sony service or online network, PSN(sm), SCE website or PS Vita game media. All software and firmware described in this paragraph is referred to collectively as "System Software".
NOTE: IF YOU ARE A UNITED STATES RESIDENT OR A RESIDENT OF A COUNTRY IN NORTH, CENTRAL OR SOUTH AMERICA, TO THE FULLEST EXTENT PERMITTED BY LAW, THIS AGREEMENT CONTAINS A BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER PROVISION IN SECTION 8 THAT AFFECTS YOUR RIGHTS UNDER THIS AGREEMENT AND WITH RESPECT TO ANY "DISPUTE" (AS DEFINED IN SECTION 8) BETWEEN YOU AND A "SONY ENTITY" (AS DEFINED IN SECTION 8). YOU HAVE A RIGHT TO OPT OUT OF THE BINDING ARBITRATION AND CLASS ACTION WAIVER PROVISIONS AS DESCRIBED IN SECTION 8.
1. LICENSE GRANT
Subject to this Agreement's terms, SCE grants you a non-exclusive, non-commercial right to use System Software solely on your PS Vita. Your rights to use previous versions of System Software other than the current version of System Software terminates as soon as you can receive or have the most current version of System Software installed on your PS Vita.
Certain license terms for SCE-licensed, third-party software or service licensed may require that SCE provide you with notices and license terms for that third-party software or service. These notices and license terms and are available to you at http://www.scei.co.jp/psvita-license/index.html or any other place which SCE thinks appropriate.
All rights to use System Software are granted by license only, and you are not granted any ownership rights or interests in System Software. SCE and its licensors retain all intellectual property rights in System Software. All use of or access to System Software is subject to this Agreement's terms and applicable intellectual property laws. Except as this Agreement expressly grants, SCE and its licensors reserve all rights in System Software.
You may not lease, rent, sublicense, publish, modify, patch, adapt or translate System Software. You may not reverse engineer, decompile or disassemble System Software, create System Software derivative works, or attempt to create System Software source code from its object code. You may not (i) use any unauthorized, illegal, counterfeit or modified hardware or software with System Software; (ii) use tools to bypass, disable or circumvent any PS Vita encryption, security or authentication mechanism; (iii) re-install earlier versions of the System Software ("downgrading"), (iv) violate any laws, regulations or statutes or rights of SCE or third parties in connection with your access to or use of System Software; (v) use any hardware or software to cause System Software to accept or use unauthorized, illegal or pirated software or hardware; (vi) obtain System Software in any manner other than through SCE's authorized distribution methods; or (vii) exploit System Software in any manner other than to use it with your PS Vita according to the accompanying documentation and with authorized software or hardware, including use of System Software to design, develop, update or distribute unauthorized software or hardware for use in connection with the PS Vita. These restrictions will be construed to apply to the greatest extent permitted by the law in your jurisdiction.
3. SERVICES AND UPDATES; THIRD PARTY AGREEMENTS AND CONTENT
SCE may provide to your certain System Software updates, upgrades or services. Some updates, upgrades or services may be provided automatically without notice to you when you sign onto PSN and others may be available to you through SCE's website or authorized channels. You consent to SCE providing you these automatic updates, upgrades and services. Services may include latest update or download of a new release of System Software containing security patches, new technology or revised settings and features that may prevent access to unauthorized or pirated content or prevent use of unauthorized hardware or software in connection with the PS Vita. You must install or have installed the most current version of System Software as soon as you reasonably can. Some updates, upgrades or services may change your current settings, cause a loss of data or content or cause functionality or feature loss. SCE recommends that you regularly back up all data that you can.
Please see your PS Vita documentation for information on possible access controls to Third Party Content and Links via PS Vita's or PSN's parental controls.
4. INTERNET FEATURES
Using System Software features that require access to an Internet connection ("Internet Features") may require you to obtain wireless Internet service from a third-party wireless provider and/or mobile network operator ("Internet Service Provider"). Internet access may NOT be available at your location, be free of charge or free from interruption or disconnections. If you wish to obtain Internet Service Provider services for your PS Vita, you must enter into the necessary Internet Service Provider agreements for those services. You are responsible for all fees incurred in connection with access to or use of the Internet.
Certain Internet Features may operate depending upon Internet connection factors not under SCE's control. Browsing websites, playing programs or downloading programs or data may result in viruses, loss or corruption of data or other problems, and you assume all responsibilities and consequences resulting from engaging in these activities through your PS Vita.
5. WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY
System Software is provided "AS IS" without any express or implied warranties. SCE, its affiliated companies and licensors expressly disclaim any implied warranty of merchantability, warranty of fitness for a particular purpose and warranty of non-infringement.
IN NO EVENT ARE SCE, ITS AFFILIATES AND LICENSORS LIABLE FOR ANY LOSS OF DATA, LOSS OF PROFIT, OR ANY LOSS OR DAMAGE, WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL, HOWEVER ARISING, AS A RESULT OF ACCESSING TO OR USING SYSTEM SOFTWARE. SO LONG AS THIS PROVISION IS ENFORCEABLE IN YOUR JURISDICTION, THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS APPLY TO THE FULLEST EXTENT PERMITTED BY LAW EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
6. VIOLATION OF AGREEMENT; TERMINATION OF RIGHTS AND SCE REMEDIES
If SCE determines that you have violated this Agreement's terms, SCE may itself or may procure the taking of any action to protect its interests such as disabling access to or use of some or all System Software, termination of your access to PSN, denial of any warranty, repair or other services provided for your PS Vita, implementation of upgrades or devices intended to discontinue unauthorized use, or reliance on any other remedial efforts as reasonably necessary to prevent the use of modified or unpermitted use of System Software. SCE, its affiliates and licensors reserve the right to bring legal action in the event of a violation of this Agreement. SCE may participate in governmental or private legal action or investigation relating to your use of System Software.
7. EXPORT CONTROL AND COMPLIANCE WITH LAWS
System Software may contain technology that is subject to certain restrictions under export-control laws and regulations. As such, the PS Vita may not be exported or re-exported to persons and entities in violation of these laws and regulations. You must comply with these laws when using System Software.
8. BINDING INDIVIDUAL ARBITRATION FOR CERTAIN RESIDENTS
The following terms in this Section 8, to the fullest extent permitted under law, only apply to you if you are a resident of the United States or a country in North, Central or South America.
The term "Dispute" means any dispute, claim, or controversy between you and SCE, Sony Computer Entertainment America LLC or any other SCE affiliate ("Sony Entity") regarding use of System Software, whether based in contract, statute, regulation, ordinance, tort (including fraud, misrepresentation, fraudulent inducement or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Section 8 (with the exception of the enforceability of the Class Action Waiver clause below). "Dispute" has the broadest possible meaning that will be enforced. If you have a Dispute with any Sony Entity or a Sony Entity's officers, directors, employees and agents ("Adverse Sony Entity") that cannot be resolved through negotiation as required as further described below. Other than those matters listed in the Exclusions from Arbitration clause, you and the Adverse Sony Entity must seek resolution of the Dispute only through arbitration of that Dispute according to Section 8's terms and not litigate that Dispute in court. Arbitration means that the Dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
YOU AND THE SONY ENTITIES AGREE THAT ANY CLAIM FILED BY YOU OR BY A SONY ENTITY IN SMALL CLAIMS COURT IS NOT SUBJECT TO THE ARBITRATION TERMS CONTAINED IN THIS Section 8.
IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION AND CLASS ACTION WAIVER IN THIS SECTION 8, YOU MUST NOTIFY SCE IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THIS AGREEMENT. YOUR WRITTEN NOTIFICATION MUST BE MAILED TO SONY COMPUTER ENTERTAINMENT INC. CARE OF SONY COMPUTER ENTERTAINMENT AMERICA LLC, 2207 BRIDGEPOINTE PARKWAY, SAN MATEO, CA 94404, ATTN: LEGAL DEPARTMENT – WAIVER AND MUST INCLUDE: (1) YOUR NAME, (2) YOUR ADDRESS, (3) YOUR SIGN-IN ID, IF YOU HAVE ONE, AND (4) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH ANY SONY ENTITY THROUGH ARBITRATION.
IF YOU HAVE A DISPUTE WITH ANY SONY ENTITY, YOU MUST SEND WRITTEN NOTICE TO SONY COMPUTER ENTERTAINMENT INC. CARE OF SONY COMPUTER ENTERTAINMENT AMERICA LLC, 2207 BRIDGEPOINTE PARKWAY, SAN MATEO, CA 94404 ATTN: LEGAL DEPARTMENT - DISPUTE RESOLUTION TO GIVE THE ADVERSE SONY ENTITY AN OPPORTUNITY TO RESOLVE THE DISPUTE INFORMALLY THROUGH NEGOTIATION. You agree to negotiate resolution of the Dispute in good faith for no fewer than 60 days after you provide notice of the Dispute. If the Adverse Sony Entity does not resolve your Dispute within 60 days from its receipt of notice of the Dispute, you or the Adverse Sony Entity may pursue your claim in arbitration pursuant to the terms in this Section 8.
ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS BOTH YOU AND THE ADVERSE SONY ENTITY SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION.
If you or the Adverse Sony Entity elect to resolve your Dispute through arbitration, the party initiating the arbitration proceeding may initiate it with the American Arbitration Association ("AAA"), www.adr.org, or JAMS www.jamsadr.com. This Section 8's terms govern if they conflict with the rules of the arbitration organization that the parties select.
The Federal Arbitration Act ("FAA") governs the arbitrability of all Disputes involving interstate commerce. However, applicable federal or state law may also apply to the substance of a Dispute. For claims of less than $75,000, the AAA's Supplementary Procedures for Consumer-Related Disputes ("Supplementary Procedures") apply, including the schedule of arbitration fees set forth in section C-8 of the Supplementary Procedures, for claims over $75,000, the AAA's Commercial Arbitration Rules and relevant fee schedules for non-class action proceedings apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. Further, if your claims do not exceed $75,000 and you provided notice to and negotiated in good faith with the Adverse Sony Entity as described above, if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorneys' fees and costs as determined by the arbitrator, in addition to any rights to recover the same under controlling state or federal law afforded to the Adverse Sony Entity or you. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. The arbitrator's award will be binding and final, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
You or the Adverse Sony Entity may initiate arbitration in either San Mateo County, California or the county in which you reside. If you select the county of your residence, the Adverse Sony Entity may transfer the arbitration to San Mateo, County if it agrees to pay any additional fees or costs you incur as a result of the change in location as determined by the arbitrator.
If any clause within this Section 8 (other than the Class Action Waiver clause above) is illegal or unenforceable, that clause will be severed from this Section 8, and the remainder of this Section 8 will be given full effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Section 8 will be unenforceable, and the Dispute will be decided by a court.
This Section 8 survives this Agreement's termination.
9. GOVERNING LAW AND VENUE
If you reside in Japan or country/area located in East Asia or Southeast Asia, this Agreement is governed by, construed and interpreted in accordance with the laws of Japan except for its conflict of law rules. Any dispute arising under or in relation to this Agreement, shall be exclusively submitted to the Tokyo District Court in Tokyo, Japan.
If you reside in Europe, Africa, Australia and Oceania, Middle East, India or Russian Federation, this Agreement is governed by, construed and interpreted in accordance with English Law except for its conflict of law rules.
If you reside elsewhere, this Agreement is governed by, construed and interpreted in accordance with the laws of the State of California except for its conflict of law rules. If you are a resident of the United States, any Dispute not subject to arbitration and not initiated in small claims court must be litigated in a court of competent jurisdiction in either the Superior Court for the State of California in the County of San Mateo or in the United States District Court for the Northern District of California.
10. GENERAL LEGAL
You are bound by this Agreement's most current version. SCE may modify this Agreement's terms at any time. To access a printable, current version of this Agreement, go to http://www.scei.co.jp/psvita-eula. Please check this URL from time to time for changes to this Agreement. Your continued access to or use of System Software will signify your acceptance of the latest version of this Agreement.If any provision of this Agreement is held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement are not affected or impaired in any way. You acknowledge that your breach of this Agreement would cause irreparable injury to SCE for which monetary damages would not be an adequate remedy and that SCE is entitled to equitable relief in addition to any other remedies it may have under law. This Agreement constitutes the entire agreement between you and SCE with respect to System Software and supersedes all prior or contemporaneous understandings regarding its subject matter. No failure to exercise and no delay in exercising any right under this Agreement operates as a waiver of that right. SCE may assign any of its rights under this Agreement, including its rights to enforce this Agreement's terms to any SCE affiliate.