FIRMWARE UPDATER FOR DUALSENSE WIRELESS CONTROLLER END USER LICENCE AGREEMENT (Version 1.1)
PLEASE READ THIS FIRMWARE UPDATER FOR DUALSENSE WIRELESS CONTROLLER END USER LICENCE AGREEMENT ("AGREEMENT") CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS.
THIS AGREEMENT IS BETWEEN YOU AND SONY INTERACTIVE ENTERTAINMENT INC. ("SIE"). ACCESS TO OR USE OF THE APPLICATION SOFTWARE, INCLUDING ANY CONTROLLER DEVICE SOFTWARE, ("APPLICATION SOFTWARE") DISTRIBUTED BY SIE FOR USE ON THE DEVICE (DEFINED BELOW) IS EXPRESSLY CONDITIONED UPON YOUR ACCEPTANCE OF THIS AGREEMENT’S TERMS. BY USING THE APPLICATION SOFTWARE, 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.
You are accepting this Agreement on your behalf and on behalf of other people who access or use the Application Software on computer devices that you own or control (and that lawfully run the applicable versions of Microsoft Windows or macOS) or on controller devices that are sold or officially licensed by SIE ("Device"). You are responsible for other people’s use of the Application Software and for their compliance with this Agreement's terms.
SIE reserves the right, from time to time, to change the terms of this Agreement. The most current version of this Agreement will supersede all previous versions.
This Agreement applies to the Application Software and any patches, updates, upgrades or new versions of that 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 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. LICENCE GRANT
Subject to this Agreement’s terms, SIE grants you a limited, non-transferable, non-exclusive, non-commercial right to use the Application Software solely on the Device. Your rights to use previous versions of the Application Software other than the current version of the Application Software terminate as soon as you can receive or have the most current version of the Application Software installed on the Device.
Certain licence terms for SIE-licensed, third-party software or service may require that SIE provides you with notices and licence terms for that third-party software or service. These notices and licence terms are available to you at the place which SIE deems appropriate.
All rights to use the Application Software are granted by licence only, and you are not granted any ownership rights or interests in the Application Software. SIE and its licensors retain all intellectual property rights in the Application Software. All use of or access to the Application Software is subject to this Agreement’s terms and applicable intellectual property laws. Except as this Agreement expressly grants, SIE and its licensors reserve all rights in the Application Software.
You may not (i) lease, rent, sublicense, publish, modify, patch, adapt or translate the Application Software, or make it available on a network to other users; (ii) reverse engineer, decompile or disassemble Application Software, create the Application Software derivative works; (iii) attempt to create the Application Software source code from its object code; (iv) use any unauthorised, illegal, counterfeit or modified hardware or software with the Application Software; (v) use tools to bypass, disable or circumvent any encryption, security or authentication mechanism of PlayStation products; (vi) reinstall earlier versions of the Application Software; (vii) violate any laws, regulations or statutes or rights of SIE or third parties in connection with your access to or use of the Application Software; (viii) obtain the Application Software in any manner other than through SIE’s authorised distribution methods; or (ix) exploit the Application Software in any unlicensed manner.
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
SIE may provide you with certain Application Software updates, upgrades or services. Some updates, upgrades or services may change your current settings, cause a loss of data or content, or cause functionality or feature loss.
The Application Software may refer to, display or provide you with links to websites or content that third parties independently operate or maintain ("Third Party Content and Links").
SIE and its affiliates do not control or direct Third Party Content and Links, nor do SIE and its affiliates monitor, approve, endorse, warrant or sponsor any Third Party Content and Links. SIE and its affiliates have no liability to you for any Third Party Content and Links. Your reliance on any Third Party Content and Links is at your own risk, and you assume all responsibilities and consequences resulting from your reliance.
4. COLLECTION OF INFORMATION/AUTHENTICATION
5. INTERNET CONNECTION
Some features of the Application Software may require an internet connection. You are responsible for all fees incurred in connection with access to or use of the internet.
6. WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY
6.1. The Application Software is provided "AS IS" without any express or implied warranties, except as provided for under your statutory consumer rights under applicable local laws. SIE, its affiliates and licensors expressly disclaim any implied warranty of merchantability, warranty of fitness for a particular purpose and warranty of non-infringement. SIE does not warrant that operation of the Application Software will be uninterrupted or error-free, or that the Application Software will work properly on the Devices. SIE may, at SIE’s sole discretion, discontinue supporting the Application Software at any time, and SIE has no liability for such discontinuance.
If the Application Software uses online servers, SIE makes no commitment to continue to make those servers available.
6.1. IN NO EVENT ARE SIE, 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 OR USING THE APPLICATION 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. SOME COUNTRIES DO NOT ALLOW FOR THE ABOVE EXCLUSIONS OR LIMITATIONS, SO THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
IF YOU RESIDE IN JAPAN OR COUNTRY/AREA LOCATED IN EAST ASIA OR SOUTHEAST ASIA AND IN CASE SIE, ITS AFFILIATES AND LICENSORS ARE LIABLE, REGARDLESS OF WHETHER THE LIABILITY IS 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 OR USING THE APPLICATION SOFTWARE, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THEIR LIABILITY WILL BE LIMITED TO DIRECT DAMAGES SUFFERED BY YOU UP TO THE AMOUNT ACTUALLY PAID BY YOU FOR DEVICE, UNLESS SIE, ITS AFFILIATES AND LICENSORS HAVE BEEN WILLFULLY OR GROSSLY NEGLIGENT. SOME COUNTRIES/AREAS DO NOT ALLOW FOR THE ABOVE EXCLUSIONS OR LIMITATIONS, SO THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
If you are in Europe, Middle East, Africa, Australia, Oceania, India, the Russian Federation or Ukraine the following applies to you:
6.2.1. You may have rights under applicable local laws that cannot be excluded, limited or changed. Those rights take priority over anything in this Agreement, including in this clause 6.
6.2.2. This Agreement does not:
18.104.22.168. affect any statutory guarantees or warranties you have as a consumer under local applicable laws (such as your rights if the Application Software is faulty);
22.214.171.124. exclude or limit our liability in any way for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors;
126.96.36.199. exclude or limit our liability in any way for our deliberate breach, fraud, fraudulent misrepresentation or gross negligence; or
188.8.131.52. exclude or limit our liability in any way unless we are allowed to do so under your applicable local laws.
6.2.3. Subject to clause 6.2.1 and 6.2.2, our liability to you is limited to the price you paid for the hardware associated with the Application Software that gave rise to the liability.
7. VIOLATION OF AGREEMENT; TERMINATION OF RIGHTS AND SIE REMEDIES
If SIE determines that you have violated this Agreement’s terms, SIE 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 Application Software, denial of any services provided in the Application Software, or reliance on any other remedial efforts as reasonably necessary to prevent the use of modified or unpermitted use of the Application Software.
SIE, its affiliates and licensors reserve the right to bring legal action in the event of a violation of this Agreement. SIE may participate in governmental or private legal action or investigation relating to your use of the Application Software.
8. EXPORT CONTROL AND COMPLIANCE WITH LAWS
The Application Software may contain technology that is subject to certain restrictions under export-control laws and regulations. As such, the Application Software 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 the Application Software.
9. BINDING INDIVIDUAL ARBITRATION FOR 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.
9.1. Purpose. The term “Dispute” means any dispute, claim r controversy between you and SIE, Sony Interactive Entertainment LLC, any of their current or former affiliates, or any predecessor or successor entity to any of the foregoing, including Sony Computer Entertainment Inc., Sony Computer Entertainment America LLC and Sony Interactive Entertainment America LLC ("Sony Entity") regarding any and all uses of the Application Software, including but not limited to, the collection, use, storage or disclosure of data resulting from any use of the Application 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 "BINDING INDIVIDUAL ARBITRATION" section (with the exception of the enforceability of the Class Action Waiver clause below). "Dispute" is to be given the broadest possible meaning that will be enforced. If you have a Dispute with any Sony Entity or any of a Sony Entity's officers, directors, employees and agents that cannot be resolved through negotiation within the time frame described in the "Notice of Dispute" clause below, you and the Sony Entity that you have a Dispute with agree to seek resolution of the Dispute only through arbitration of that Dispute in accordance with the terms of this section, and not litigate any Dispute in court, except for those matters listed in the Exclusions from Arbitration clause. Arbitration means that the Dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
9.2. Exclusions from Arbitration. YOU AND THE SONY ENTITIES AGREE THAT ANY CLAIM FILED BY YOU OR BY A SONY ENTITY IN A SMALL CLAIMS COURT IS NOT SUBJECT TO THE ARBITRATION TERMS CONTAINED IN THIS SECTION.
9.3. Opt-Out Right. YOU HAVE THE RIGHT TO OPT OUT OF BINDING ARBITRATION AND CLASS ACTION WAIVER WITHIN 30 DAYS. IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION AND CLASS ACTION WAIVER IN THIS SECTION, YOU MUST NOTIFY US IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THIS AGREEMENT, UNLESS A LONGER PERIOD IS REQUIRED BY APPLICABLE LAW. YOUR WRITTEN NOTIFICATION MUST BE SENT TO SONY INTERACTIVE ENTERTAINMENT INC. CARE OF SONY INTERACTIVE ENTERTAINMENT LLC, 2207 BRIDGEPOINTE PARKWAY, SAN MATEO, CA 94404, ATTN: LEGAL DEPARTMENT/ARBITRATION 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.
9.4. Notice of Dispute. IF YOU HAVE A DISPUTE WITH ANY SONY ENTITY, YOU MUST SEND WRITTEN NOTICE TO SONY INTERACTIVE ENTERTAINMENT INC. CARE OF 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 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 Sony Entity you have a Dispute with does not resolve your Dispute within 60 days from receipt of notice of the Dispute, you or the Sony Entity you have a Dispute with may pursue your claim in arbitration pursuant to the terms in this section.
9.5. Class Action Waiver. YOU AND THE SONY ENTITY WITH WHICH YOU HAVE A DISPUTE AGREE THAT ARBITRATION 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 SONY ENTITY WITH WHICH YOU HAVE A DISPUTE SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION. IF APPLICABLE LAW PRECLUDES ENFORCEMENT OF THE LIMITATION IN THIS PARAGRAPH AS TO A PARTICULAR REMEDY, THEN A CLAIM SEEKING THAT REMEDY (AND ONLY THAT REMEDY) MUST BE SEVERED FROM THE ARBITRATION AND BROUGHT IN COURT.
9.6. Initiation of Arbitration/Selection of Arbitrator. If you or the Sony Entity you have a Dispute with 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. The terms of this section govern in the event they conflict with the rules of the arbitration organisation selected by the parties.
9.7. Arbitration Procedures. Because the software and/or service provided to you by the Sony Entity you have a Dispute with concern(s) interstate commerce, the Federal Arbitration Act ("FAA") governs the arbitrability of all Disputes. However, applicable federal or state law may also apply to the substance of any Disputes. For claims of less than $75,000, the AAA's Supplementary Procedures for Consumer-Related Disputes ("Supplementary Procedures") shall 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 shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. Furthermore, if your claims do not exceed $75,000 and you provided notice to and negotiated in good faith with the Sony Entity you had a Dispute with as described above, if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to recover reasonable lawyers’ 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 Sony Entity you have a Dispute with or you. The arbitrator will make any award in writing but will not need to 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.
9.8. Arbitration Location. You or the applicable Sony Entity may initiate arbitration in either San Mateo County, California, or the United States county in which you reside. In the event that you select the county of your United States residence, the Sony Entity may transfer the arbitration to San Mateo County in the event that it agrees to pay any additional fees or costs you incur as a result of the change in location as determined by the arbitrator.
9.9. Severability. If any clause within this arbitration agreement (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this section and the remainder of this arbitration agreement will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable in its entirety, this entire arbitration agreement will be unenforceable and the Dispute will be decided by a court.
9.10. Continuation. This Section 9 survives any termination of this Agreement.
10. GOVERNING LAW AND VENUE
If you reside in Japan or a 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, Ukraine or the Russian Federation, this Agreement is governed by, construed and interpreted in accordance with English law but you will have the additional protection of the mandatory laws of the country you live in.
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 a 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.
11. GENERAL LEGAL
You are bound by this Agreement’s most current version. To access a printable, current version of this Agreement, please go to playstation.com/legal. Your continued access to or use of the Application 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 SIE for which monetary damages would not be an adequate remedy and that SIE 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 SIE with respect to the Application 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. SIE may assign any of its rights under this Agreement, including its rights to enforce this Agreement's terms to any SIE affiliate.
Microsoft and Windows are either registered trademarks or trademarks of Microsoft Corporation in the United States and/or other countries.
Mac and macOS are trademarks of Apple Inc., registered in the U.S. and other countries.