BY DOWNLOADING OR USING THE PRODUCT, YOU AGREE TO THE TERMS OF THIS STRESS TEST AGREEMENT (“Agreement”). If you do not agree to the terms of this Agreement, do not download or use the product.
This Agreement is between Sony Computer Entertainment America LLC ("Licensor") and you. You must be 18 years or older.
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. Product. SCEA may provide you with software, documentation and access to the stress test program (collectively, “Product”). Product participation is subject to this Agreement. SCEA may terminate this Product at any time without cause or advance notice to you. You must keep the Product in your control and take reasonable efforts to prevent others from using it. You are responsible for any loss or damage to your Product or to SCEA’s intellectual property rights in it, including loss or damage resulting from the disclosure of the Product. You will immediately notify SCEA if you become aware that the Product provided to you is distributed or transferred to a third party, and you must use your best efforts to help recover the Product and to prevent any further loss of disclosure. The features provided in the Product may not be available in the final release.
2. License. When you install the Product, SCEA grants to you a limited, revocable, non-exclusive license to use the Product for personal use on your PlayStation® system for which the Product was designed (e.g., PlayStation®4 system, PlayStation®3 system, PlayStation®Vita system). For PlayStation4 Products only, SCEA also grants to you a limited, non-exclusive license to use the Share button to replicate or stream the Product’s audio and video output to third-party services supported by the PlayStation4 system where the Product permits use of the Share button and where SCEA has the rights to permit you to record, edit and share the Product’s content. This limited, non-exclusive license includes recording portions of the Product’s content to the PlayStation®4 system and to use that system’s tools to edit those recordings. SCEA reserves all rights in the Product not explicitly granted to you in this license, including rights to all intellectual property contained in the Product. This license does not include the right to, and you agree not to (a) rent, lease or sublicense the Product or make it available on a network to other users; (b) modify, adapt, translate, reverse engineer, decompile or disassemble the Product; (c) create derivative works from the Product; or (d) copy, publicly perform or broadcast the Product in an unauthorized manner.
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 Product. To the extent permitted by law, you license SCEA 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 SCEA for the license of the rights in your User Material. SCEA may sublicense its rights to your User Material to any third party, including its affiliates. You hereby waive, to the extent permitted by law, all claims, including any moral or patrimonial rights, against SCEA and its affiliates or any third party's use of the User Material. By creating, posting, streaming, transmitting or providing SCEA 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 SCEA the foregoing license. You must cooperate with SCEA in resolving any dispute that may arise from your User Material.
5. Updates and Online Server Support. This Agreement applies to Product updates, including all downloadable content for the Product. SCEA may, by automatic update or otherwise, modify the Product at any time for any reason. If the Product uses online servers, SCEA makes no commitment to make those servers available at any or all times.
6. Internet Connection. Some 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 Product.
7. DISCLAIMER/LIABILITY LIMITATIONS. THE PRODUCT AND ALL RELATED SERVICES ARE PROVIDED "AS IS" AND, TO THE MAXIMUM EXTENT ALLOWABLE UNDER LAW, SCEA DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING SENTENCE, SCEA DOES NOT WARRANT THAT OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE PRODUCT WILL BE COMPATIBLE WITH ANY OTHER PRODUCT OTHER THAN DESIGNATED PLAYSTATION SYSTEM, OR THAT THE PRODUCT WILL WORK PROPERLY ON ALL DESIGNATED DEVICES. SCEA MAY IN DISCRETION, DISCONTINUE SUPPORTING THE PRODUCT AT ANY TIME, AND SCEA HAS NO LIABILITY FOR DISCONTINUANCE. SCEA 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 PRODUCT, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHERWISE, WHETHER OR NOT SCEA HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. IN NO EVENT WILL SCEA’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES EXCEED $10. SOME JURISDICTIONS DO NOT ALLOW FOR CERTAIN LIMITATIONS OF LIABILITIES OR WARRANTIES, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
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 SCEA or any Sony affiliate ("Sony Entity") regarding the use of the 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 (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 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 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 8.
IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION IN THIS SECTION 8, YOU MUST NOTIFY SCEA IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THIS AGREEMENT. YOUR WRITTEN NOTIFICATION MUST BE MAILED TO 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 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 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 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. Miscellaneous. This Agreement is construed and interpreted in accordance with the laws of the State of California applying to contracts fully executed and performed within the State of California. If the binding arbitration terms of Section 8 are not enforceable on any Dispute, both parties submit to personal jurisdiction in California and further agree that a Dispute shall be brought in a court within San Mateo County, 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, 7, 8 and 9 survive the termination of this Agreement.
10. Questions or Complaints. You may submit any questions or complaints to Customer Support.