PLEASE READ THIS ENTIRE BETA TEST PROGRAM PARTICIPATION AGREEMENT (“AGREEMENT”) AND INDICATE WHETHER YOU AGREE TO ITS TERMS BY EITHER (I) ACCESSING OR DOWNLOADING ANY OF THE BETA MATERIALS; OR (II) BY CLICKING THE “YES” OR “I ACCEPT” BUTTON.
THIS AGREEMENT IS BETWEEN YOU AND SONY COMPUTER ENTERTAINMENT AMERICA LLC (“SCEA”) AND CAN BE ACCEPTED ONLY BY AN ADULT 18 YEARS OR OLDER. IN ADDITION, YOU MAY BE SUBJECT TO ADDITIONAL TERMS AND CONDITIONS OF SCEA OR A THIRD PARTY PUBLISHER FOR CERTAIN BETA MATERIALS. PLEASE REVIEW THOSE ADDITIONAL TERMS AND CONDITIONS CAREFULLY. IF YOU DO NOT MEET THE AGE REQUIREMENT OR DO NOT AGREE TO ALL APPLICABLE TERMS AND CONDITIONS, PLEASE DO NOT ACCESS OR DOWNLOAD THE BETA MATERIALS. OTHERWISE, YOUR ACCESS OR DOWNLOAD OF ANY BETA MATERIALS MEANS THAT YOU HAVE ACCEPTED ALL TERMS AND CONDITIONS.
1. Beta Materials and Program. SCEA will provide you with software, documentation and access to the beta testing website (“Beta Materials”) that is required for participation in the beta test program (“Program”). The Program may include Beta Materials published by SCEA or its third-party publishers. Program participation is subject to this Agreement’s terms and will require you to have access to the internet and certain hardware and equipment that are not provided to you by SCEA. SCEA may terminate this Program at any time without cause or advance notice to you.
3. Ownership of the Program and Beta Materials. SCEA, its affiliates or both own the Program, the Beta Materials and the intellectual property rights associated with them. You may not copy, distribute, sell, license, loan or transfer the Beta Materials. You shall keep the Beta Materials in your possession, custody and control and take reasonable efforts to prevent others from using those materials. You will be responsible for any loss or damage to the Beta Materials or to SCEA’s intellectual property rights in those materials, including loss or damage resulting from the disclosure of Beta Materials or Program information.
4. User Generated Content. The Beta Materials may include tools that give you the ability to communicate with other players and to create, post and distribute various forms of content for and in connection with the Program, including but not limited to pictures, photographs, videos, game-related materials (including levels and characters) and other information (individually and collectively, “User Generated Content”). You acknowledge that SCEA and the other creators of User Generated Content have rights in their respective content under copyright and other applicable laws, and that except as expressly described in this Agreement, such rights are not licensed or otherwise transferred to you. You accept full responsibility and liability for your use of any User Generated Content in violation of any such rights.
You agree that you will not create, transfer, share, send, submit or upload any User Generated Content that:
(a) is protected by copyright, patent, trademark or trade secret or otherwise subject to third-party proprietary rights, including but not limited to rights of privacy and publicity (unless you are or have permission from the rightful owner);
(b) contains fraudulent statements or misrepresentations that could damage SCEA or any third party;
(c) contains any statements or materials that disparage, ridicule or scorn SCEA or any third party;
(d) is obscene, defamatory, threatening, harassing, predatory, pornographic, hateful, racially or ethnically offensive, or encourages conduct that would violate any law or is otherwise inappropriate;
(e) is an advertisement or solicitation of business;
(f) is an impersonation of another person; or
(g) violates any of the rules of Online Conduct, other terms of this Agreement, terms of the PSN Terms of Service and Usage Agreement or any other terms related to this Program.
You agree that SCEA is not responsible or liable for User Generated Content submitted or posted by you or by others. SCEA does not claim ownership of any User Generated Content that you submit or make available as part of the Program, and SCEA expressly disclaims any and all liability in connection with any User Generated Content. SCEA has no duty to pre-screen User Generated Content.
SCEA has the right to edit, remove, block or refuse to post any submitted User Generated Content from any network or Internet site, including but not limited to the PlayStation® Network, for any reason without prior notice, but assumes no obligation to do so and is not responsible for any failure or delay in doing so.
You hereby appoint SCEA as your attorney-in-fact to request from third parties removal under the Digital Millennium Copyright Act or other applicable law or basis, in SCEA’s discretion, of any of your User Generated Content posted on a third party network or Internet site. You agree to not contest SCEA’s request for removal of your User Generated Content from such network or Internet site. You also agree to execute all documents, as requested by SCEA, to effect such removal.
5. SCEA’s License of User Generated Content.
(a) By posting, transferring, sharing or sending User Generated Content in any manner, you hereby grant SCEA, its affiliates, licensors and distributors and other users of the Software a non-exclusive, worldwide, fully paid-up, transferable, irrevocable, royalty-free and perpetual license to modify, adapt, translate, create derivative works from, and perform and display your User Generated Content;
(b) By submitting or uploading User Generated Content in any manner to SCEA, you hereby grant SCEA, its affiliates, licensors and distributors a non-exclusive, worldwide, fully paid-up, transferable, irrevocable, royalty-free and perpetual license to publish and distribute your User Generated Content (for free or for profit) and to use your User Generated Content for marketing and promotional purposes in conjunction with the Program, the game, any PlayStation computer entertainment system or any other aspect of SCEA’s business; and
(c) You hereby:
(i) Acknowledge that you have received good and valuable consideration from SCEA for the license of the rights in your User Generated Content under this Agreement;
(ii) Agree that your creation or distribution of User Generated Content is not in any way based upon any expectation of compensation from SCEA, its affiliates, licensors or distributors;
(iii) Agree that SCEA, its affiliates, licensors and distributors may - but are not required to - use your name, username, or applicable trademarks in connection with the distribution of your User Generated Content; and
(iv) Warrant and represent that: (A) you created your User Generated Content; (B) you have all necessary rights to your User Generated Content to fulfill your obligations under this Agreement; and (C) your User Generated Content 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.
6. Confidential Nature of Beta Materials, Program. You acknowledge and agree that:
(a) Beta Materials, the Program and any information regarding your use of Beta Materials, whether shared with SCEA or not, are SCEA’s confidential information. You will use Beta Materials only in your home solely for the purpose of testing the Beta Materials in connection with the Program, and you will not transfer, distribute or disclose any of the Beta Materials, Feedback, or any information in connection with the Program to any third party, including through a public exhibition or display of this information. You will not discuss your experience with Beta Materials with third parties or publish or disseminate information about those experiences;
(b) Beta Materials are not thoroughly tested and are pre-release materials that are not intended for public release;
(c) the features provided in Beta Materials may not be available in the final release;
(d) Beta Materials may be serially numbered for tracking purposes and traceable to you;
(e) disclosure of any part of Beta Materials, Program, Feedback or your experiences using Beta Materials or the Program to any third party, including any trade or consumer press, news agency or any competitor of SCEA, will cause significant and irreparable harm to SCEA, the extent of which may be difficult to ascertain. Accordingly, you agree that SCEA is entitled to injunctive relief as well as all other legal remedies that may be available in the event you breach this Agreement.
7. Participant’s Warrants and Representations. You warrant and represent that you:
(a) have no physical condition, such as epilepsy or history of photosensitivity, that would be aggravated or triggered by playing video games;
(b) knowingly agree to assume the risk that any latent physical defects you may have could be aggravated by participation in this Program;
(c) will conduct yourself responsibly in regards to participation in the Program and treatment of the Beta Materials and Feedback, following a reasonable, common-sense code of conduct;
(d) will not in any way cause harm to SCEA, its parent company, affiliates, subsidiaries or publishers;
(e) agree that if you allow anyone else to use the Beta Materials, you accept responsibility for their acts, including any violations of this Agreement which could result in the termination of your PLAYSTATION®Network account (“Accounts”);
(f) will immediately notify SCEA if you become aware that the Beta Materials provided to you part of this Program are distributed or transferred to a third party, and you will use your best efforts to help recover those Beta Materials and to prevent any further loss of disclosure.
(g) will not misappropriate any of the intellectual property of SCEA or any other party;
(h) will not reverse engineer, decompile or disassemble the Beta Materials or engage in the unauthorized transfer, exhibition, export, import or transmission of programs and will not use any devices to circumvent any authentication schemes; and
(i) will read and become familiar with the use of the appropriate PlayStation® system, and the warnings and instructions for any Beta Materials before any installation or setup of the Beta Materials.
8. Limitations and Service. Some ISPs limit the number of devices that may be connected to the service. If you are unsure about your service terms, please contact your ISP. For all other questions concerning product installation and home network setup, contact SCEA Consumer Services at 1-800-345-7669.
10. No Guarantee of Server Uptime/Disclaimer. SCEA, SCEI, and each of their subsidiaries and affiliates do not guarantee the continuous operation of the servers used in connection with this Program. SCEA is not liable for your inability to use the Beta Materials or delay or failure of the servers to perform. If you receive a message during login identifying an error, please contact SCEA Consumer Services at 1-866-466-5333.
11. NO WARRANTIES AND REPRESENTATIONS. THE BETA MATERIALS, THE PROGRAM, AND ANY SOFTWARE OR HARDWARE PROVIDED BY SCEA UNDER THE TERMS OF THIS AGREEMENT ARE PROVIDED “AS IS” AND, TO THE MAXIMUM EXTENT PROVIDED UNDER LAW, SCEA DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, SCEA DOES NOT GUARANTEE THAT YOU WILL BE ABLE TO USE THE BETA MATERIALS ON OR OFFLINE OR PARTICIPATE IN THE PROGRAM AT ANY TIME. FROM TIME TO TIME, PROBLEMS BEYOND SCEA’S REASONABLE CONTROL MAY PREVENT OR DELAY YOUR ACCESS TO THE PROGRAM OR CAUSE THE PROGRAM OR THE BETA MATERIALS TO FAIL TO PERFORM. IN THE EVENT OF A DISPUTE REGARDING YOUR USE OF ANY OF THE BETA MATERIALS, HARDWARE, OR SOFTWARE, YOU AGREE THAT THE SOLE LIABILITY OF SCEA AND ITS AFFILIATED COMPANIES WILL BE LIMITED TO REPAIR OR REPLACEMENT OF THE BETA MATERIALS AT SCEA’S OPTION. SCEA OR A PARTICIPATING PUBLISHER RESERVES THE RIGHT TO INCLUDE A SELF EXPIRING (“TIME BOMB”) VERSION OF THE SOFTWARE OR CEASE HOSTING THE SOFTWARE AT ANY TIME. YOU AGREE THAT SCEA HAS NO LIABILITY FOR PROGRAM DISCONTINUANCE FOR ANY REASON. ALL OTHER SOFTWARE NOT PUBLISHED BY SCEA IS THE SOLE RESPONSIBILITY OF THE NAMED PUBLISHER. PLEASE CHECK THE PUBLISHER’S TERMS AND CONDITIONS ASSOCIATED WITH SOFTWARE BEFORE PLAYING.
12. LIMITATION OF LIABILITY AND REMEDIES. You agree that notwithstanding any damages that you might incur for any reason whatsoever (including direct or general damages), the entire liability of SCEA and any of its affiliates under any provision of this Agreement and your exclusive remedy for all of the foregoing is limited to ten dollars ($10 U.S.). The foregoing limitations, exclusions and disclaimers apply to the maximum extent permitted by applicable law, even if any remedy fails of its essential purpose. In no event will SCEA or its affiliates be liable for any special, incidental, indirect, or consequential damages.
13. Term/Termination. You may terminate this Agreement at any time by deleting all electronic Beta Materials and returning hard copy Beta Materials sent to you and providing written notification of your termination by sending an email to email@example.com. Your Accounts participation privileges may be terminated immediately if you fail to comply with this Agreement’s terms and conditions or if you fail to provide reasonable feedback in a timely manner. SCEA also reserves the right to terminate your participation in the Program at any time without cause.
15. Governing Law and Venue. You agree that the laws of the State of California shall govern the terms of this Agreement and your participation in the Program.
16. Questions. Should you have any questions concerning this Agreement, please contact Sony Computer Entertainment America LLC, Legal Department, 2207 Bridgepointe Pkwy, San Mateo CA 94404. For a printed copy of this Beta Agreement, go to http://www.us.playstation.com/support/UserAgreements.