As part of the beta system software program, system information and certain identifiers may be collected from this PlayStation® system. Please see Section 3 of the System Software Beta Agreement below for more info.
System Software Beta Agreement
PLEASE READ THIS SYSTEM SOFTWARE BETA AGREEMENT (“Agreement”) CAREFULLY BEFORE USING THIS BETA PRODUCT. BY DOWNLOADING OR USING THIS BETA PRODUCT, YOU ARE AGREEING TO THE TERMS OF THIS AGREEMENT. If you do not agree to the terms of this Agreement, do not download or use this beta product.
This Agreement is between Sony Interactive Entertainment Inc. ("SIE Inc") and you. You must be 18 years or older and have a PlayStation Network (“PSN”) account.
You are accepting this Agreement on your behalf and on behalf of other people who access or use: (i) your PlayStation® system; or (ii) your PlayStation® system account or your account for PSN associated with this PlayStation® system. You are responsible for other people's use of this PlayStation® system and for their compliance with this Agreement's terms.
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 9 THAT AFFECTS YOUR RIGHTS UNDER THIS AGREEMENT AND WITH RESPECT TO ANY DISPUTE (AS DEFINED IN SECTION 9) BETWEEN YOU AND A SONY ENTITY (AS DEFINED IN SECTION 9). YOU HAVE A RIGHT TO OPT OUT OF THE BINDING ARBITRATION AND CLASS ACTION WAIVER PROVISIONS AS DESCRIBED IN SECTION 9.
1. Beta Product
SIE Inc may provide you with beta software, documentation and access to the beta test program (collectively, “Beta Product”). Beta Product participation is subject to this Agreement. SIE Inc may terminate this Beta Product at any time without cause or advance notice to you. You must keep the Beta Product in your control. You are responsible for any loss or damage to your Beta Product or to SIE Inc’s intellectual property rights in it, including loss or damage resulting from the disclosure of the Beta Product. You will immediately notify SIE Inc if you become aware that the Beta Product provided to you is distributed or transferred to a third party, and you must use your best efforts to help recover the Beta Product and to prevent any further loss or disclosure.
When you install the Beta Product, SIE Inc grants to you a limited, revocable, non-exclusive license to use the Beta Product for personal use on your PlayStation® system for testing and evaluation purposes only. SIE Inc also grants to you a limited, non-exclusive license to use the CREATE button to replicate or stream the Beta Product’s audio and video output to third-party services supported by the PlayStation® system where the Beta Product permits use of the CREATE button and where SIE Inc has the rights to permit you to record, edit and share the Beta Product’s content. This limited, non-exclusive license includes recording portions of the Beta Product’s content to the PlayStation® system and to use that system’s tools to edit those recordings. SIE Inc reserves all rights in the Beta Product not explicitly granted to you in this license, including rights to all intellectual property contained in the Beta Product. This license does not include the right to, and you agree not to (a) rent, lease or sublicense the Beta Product or make it available on a network to other users; (b) modify, adapt, translate, reverse engineer, decompile or disassemble the Beta Product; (c) create derivative works from the Beta Product; or (d) copy, publicly perform or broadcast the Beta Product in an unauthorized manner.
3. Your Information
4. User Generated Content
You may have the option to create, post, stream, transmit and provide content such as pictures, photographs, game related materials, or other information ("User Material") through the Beta Product. To the extent permitted by applicable local law, you license SIE Inc a royalty-free and perpetual right to use, distribute, copy, modify, display, and publish your User Material for any reason without any restrictions or payments to you or any third parties. You acknowledge that you have received good and valuable consideration from SIE Inc for the license of the rights in your User Material. SIE Inc may sublicense its rights to your User Material to any third party, including its affiliates. You hereby waive, to the extent permitted by applicable local law, all claims, including any moral or patrimonial rights, against SIE Inc and its affiliates or any third party's use of the User Material. By creating, posting, streaming, transmitting or providing SIE Inc any User Material, you represent and warrant that your User Material does not infringe on the intellectual property or other rights of any third party and is not obscene, defamatory, offensive or an advertisement or solicitation of business and you have the appropriate rights to use, create, post, distribute, transmit and provide User Material and to grant SIE Inc the foregoing license. You must cooperate with SIE Inc in resolving any dispute that may arise from your User Material.
5. Confidential and Pre-release Nature of the Beta Product
You acknowledge that:
(a) the Beta Product and any information regarding your use of the Beta Product is SIE Inc’s confidential information. You may use the Beta Product only in your home solely for the purpose of testing the Beta Product, and you will not transfer, distribute or disclose any materials, User Material (except for testing purposes as expressly permitted in Sections 2 and 4 of this Agreement), or any information in connection with the Beta Product to any third party, including through a public exhibition or display. You may not discuss your experience with the Beta Product with third parties or publish or disseminate information about those experiences;
(b) the Beta Product consists of pre-release software that has not been thoroughly tested and may be incomplete and contain errors. The Beta Product may cause your PlayStation system to experience system errors, feature or function loss, corruption or loss of data or content, and could similarly cause errors with peripherals or other connected devices. The Beta Product includes pre-release materials that are not intended for public release or display;
(c) the features provided in the Beta Product may not be available in the final release, and SIE Inc has not promised or guaranteed to you that the Beta Product, or any features therein, will be released or made available to anyone in the future; and
(d) disclosure of any part of the Beta Product, User Material or your experiences using the Beta Product to any third party, including any trade or consumer press, news agency or any competitor of SIE Inc, will cause significant and irreparable harm to SIE Inc, the extent of which may be difficult to ascertain. Accordingly, SIE Inc is entitled to injunctive relief as well as all other legal remedies that may be available if you breach this Agreement.
6. Updates and Online Server Support
This Agreement applies to Beta Product updates, including all downloadable content for the Beta Product. SIE Inc may, by automatic update or otherwise, modify the Beta Product at any time for any reason and you consent to SIE Inc providing you these automatic updates. These updates may affect the functionality of your PlayStation® system. To the extent permitted by applicable local law, SIE Inc is not responsible to you for any harm or damage caused by these updates or the installation process. The terms of this Agreement will apply to any such updates unless such an update is accompanied by its own agreement or license in which case you agree that those terms will govern. If the Beta Product uses online servers, SIE Inc makes no commitment to make those servers available at any or all times.
7. Internet Connection
Some Beta Product features may require an internet connection, which you must provide at your expense. You are responsible for all costs and fees charged by your internet service provider related to the download and use of the Beta Product.
8. DISCLAIMER/LIABILITY LIMITATIONS
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE BETA PRODUCT AND ALL RELATED SERVICES ARE PROVIDED "AS IS" AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND SIE INC, ITS AFFILIATES AND LICENSORS (COLLECTIVELY REFERRED TO AS “SIE” HEREAFTER IN THIS SECTION 8) DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, COMPLETENESS, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. SIE DOES NOT WARRANT THAT OPERATION OF THE BETA PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE BETA PRODUCT WILL BE COMPATIBLE WITH ANY OTHER PRODUCT OTHER THAN THE DESIGNATED PLAYSTATION® SYSTEM, OR THAT THE BETA PRODUCT WILL WORK PROPERLY OR BE COMPATIBLE WITH ANY THIRD PARTY SOFTWARE, CONTENT OR SERVICES. SIE MAY IN ITS SOLE DISCRETION DISCONTINUE SUPPORTING THE BETA PRODUCT AT ANY TIME AND SHALL HAVE NO LIABILITY FOR ANY SUCH DISCONTINUANCE. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, SIE WILL NOT BE LIABLE TO YOU FOR ANY PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS, LOSS OF DATA OR ANY OTHER FORM OF DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES FROM ANY CAUSES OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE BETA PRODUCT, INCLUDING ANY LIABILITY ARISING FROM YOUR USE OF THE BETA PRODUCT WITH YOUR PLAYSTATION® SYSTEM, PSN ACCOUNT, PERIPHERALS OR OTHER CONNECTED DEVICES, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHERWISE, WHETHER OR NOT SIE HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. IN NO EVENT WILL SIE’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES EXCEED TEN DOLLARS ($10 USD). SOME JURISDICTIONS DO NOT ALLOW FOR CERTAIN EXCLUSIONS OR LIMITATIONS OF LIABILITIES OR WARRANTIES, INCLUDING FOR PERSONAL INJURY, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
9. BINDING INDIVIDUAL ARBITRATION FOR CERTAIN RESIDENTS OF THE UNITED STATES OR COUNTRIES IN NORTH, CENTRAL OR SOUTH AMERICA
The following terms in this Section 9, to the fullest extent permitted under law, 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 SIE Inc or any SIE Inc affiliate ("Sony Entity") regarding any and all uses of the Beta Product, including but not limited to, the collection, use, storage or disclosure of data resulting from any use of the Beta Product, 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 9 (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 (other than one described as excluded from arbitration below) 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 below, you and the Adverse Sony Entity must seek resolution of the Dispute only through arbitration of that Dispute according to Section 9’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 ENTITY ACKNOWLEDGE 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 9.
IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION IN THIS SECTION 9, YOU MUST NOTIFY SIE INC IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THIS AGREEMENT.YOUR WRITTEN NOTIFICATION MUST BE MAILED TO SONY INTERACTIVE ENTERTAINMENT 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 INTERACTIVE ENTERTAINMENT 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 must negotiate in good faith to attempt to resolve the Dispute 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 9.
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. THIS PROVISION IS NOT APPLICABLE TO THE EXTENT THIS WAIVER IS PROHIBITED BY LAW.
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 9’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 9 (other than the Class Action Waiver clause above) is illegal or unenforceable, that clause will be severed from this Section 9, and the remainder of this Section 9 will be given full effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Section 9 will be unenforceable, and the Dispute will be decided by a court.
This Section 9 survives this Agreement’s termination.
10. 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, the Middle East, India, the Russian Federation or Ukraine and are using the Beta Product as a consumer, this Agreement and any disputes in connection with this Agreement will be governed by, construed and interpreted in accordance with the laws of England and Wales, but you will have the additional protection of the mandatory laws of the country in which you live. The mandatory laws of the country in which you live take priority over the laws of England and Wales. We can enforce this Agreement in a court of the country in which you live. You can enforce this Agreement in a court in the country in which you live, or where our company is registered. To the extent you are using the Beta Product other than as a consumer, this Agreement, and any disputes in connection with this Agreement will be governed by, construed and interpreted in accordance with the laws of England and Wales, and the courts of England and Wales will have exclusive jurisdiction.
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.
If any provision of this Agreement is held invalid or unenforceable, in whole or in part, that provision will be modified to the minimum extent necessary to make it valid and enforceable, and the validity and enforceability of all other provisions of this Agreement shall not be affected thereby. This Agreement constitutes the entire agreement between the parties related to the subject matter hereof and supersedes all prior oral and written and all contemporaneous oral negotiations, commitments and understandings of the parties, all of which are merged herein. Sections 5, 8, 9, 10 and 11 survive the termination of this Agreement. SIE Inc may assign any of its rights under this Agreement, including its rights to enforce this Agreement's terms to any SIE Inc affiliate.
System Software Beta Agreement